CHARLES JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion filed April 7, 1992
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-91-01388-CR
............................
CHARLES JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the 291st District Court
Dallas County, Texas
Trial Court Cause No. F88-93125-PU
..............................................................
O P I N I O N
Before Justices Baker, Kinkeade, and Stephens FN:1
Opinion By Justice Baker
        The trial court convicted Charles Johnson of theft of property. The court sentenced appellant to ten years' confinement, probated for ten years. In two points of error, appellant contends (1) the evidence is insufficient to show the elements of theft by deception and (2) the trial court erred in ordering restitution of $3846.44. We affirm.
 
SUFFICIENCY OF THE EVIDENCE
1. Appellant's Contention
        In his first point of error, appellant contends that the evidence is insufficient to show he induced the complainant by deception to buy the car. Appellant argues that he never: (1) falsely represented that he owned the car, (2) failed to disclose a lien on the car, or (3) falsely stated that he would aid in financing of the car.
2. Facts
        The complainant testified that in September 1987 appellant represented to her he was a car broker. She believed him to be a car broker. Appellant agreed to sell her a 1982 Mercedes for $17,900. The complainant testified appellant led her to believe he owned the vehicle. The complainant paid appellant a $2000 cash down payment. She said appellant told her his bank would finance the car for her. He told her the loan was set up at that bank. Appellant gave her a bill of sale. He led the complainant to believe the bank would transfer everything over to her name. He said she would get title and a coupon book. Appellant took complainant to his bank to set up the financing.
        The complainant made repairs on the car costing more than $800. She also made four or five payments on the car. Appellant would give her one coupon at a time. She would pay the payment to the bank. The bill of sale said that within sixty days appellant would help the complainant refinance the car. She gave appellant $1000 for two car payments because appellant told her the financing had already been set up. Appellant told her he had a previous buyer for the car and he had set up financing for that buyer.
        The complainant stopped making payments because appellant did not transfer title or a full coupon book to her. Appellant asked her for more time. He told her the coupon book and title should be there soon. She became suspicious. She visited appellant's bank to determine why she had not received the coupon book and title. The bank, soon after that, repossessed the car from the complainant. The complainant told appellant she would sue him to get her money back. Appellant laughed and said, "[T]he law ain't about shit" and that he "knew the law inside out."
        The complainant said if she had known appellant was not a car broker, she would not have given him her money. She testified that she did not know there was a lien against the car when she bought it. She said that she thought she was making payments to the bank because appellant did business with that bank. She thought the payments she made were her own car payments and not appellant's car payments. She testified that appellant did not offer to co-sign a car loan for her.
        A bank employee testified that she supervised collection efforts on delinquent accounts for Texas American Bank. She testified appellant financed a 1982 Mercedes through the bank. This account became delinquent in January 1988. The bank made standard collection calls to appellant's residence. Appellant was evasive and did not return the calls. When appellant finally came into the bank, she told him that she wanted the loan moved from the bank.
        The bank employee met with complainant. The employee told the complainant the bank had no knowledge of the complainant's arrangements with appellant to buy the car. When told that she did not own the car, complainant became very upset. The complainant agreed to let the bank take possession of the car. Later, appellant came into the bank with a person from a car dealership and paid off the car. The bank denied the complainant's loan application. Nothing in the bank's records showed that appellant offered to co-sign on the loan.
 
3. Standard of review
        In considering the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict. We determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Marroquin v. State, 746 S.W.2d 747, 750 (Tex. Crim. App. 1988). The trial court, as trier of fact, is the sole judge of the witnesses' credibility and the weight given their testimony. Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984), cert. denied, 474 U.S. 865 (1985). The fact finder is free to accept or reject all or any part of any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986), cert. denied, 488 U.S. 872 (1988).
4. Elements of the Offense
        A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. Appropriation of property is unlawful if it is without the owner's effective consent. Tex. Penal Code Ann. § 31.03 (Vernon 1989). A deceptive act vitiates a victim's consent. Tex. Penal Code Ann. § 31.01 (4) (Vernon 1989). Section 31.01(2) of the penal code defines "deception" as:
(A) Creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction and that the actor does not believe to be true;
 
(B) Failing to correct a false impression of law or fact that is likely to affect the judgment of another in the transaction, that the actor previously created or confirmed by words or conduct, and that the actor does not now believe to be true;
 
(C) Preventing another from acquiring information likely to affect his judgment in the transaction;
 
(D) Selling or otherwise transferring or incumbering property without disclosing a lien, security interest, . . ., whether the liens, security interest, claim, or impediment is or is not valid, or is or is not a matter of official record, or
 
(E) Promising performance that is likely to affect the judgment of another in the transaction in that the actor does not intend to perform or knows will not be performed, except that the failure to perform the promise in issue without other evidence of intent or knowledge is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed.
Tex. Penal Code Ann. § 31.01(2) (Vernon 1989).
5. Application of the Law to the Facts
        The record reflects that appellant created several false impressions of fact in his dealings with the complainant. The complainant testified appellant lead her to believe that he owned the car outright. He represented himself as a car broker. FN:2 Appellant did not tell her there was a lien against the car. Appellant told her that he would help her obtain financing. He represented he would transfer everything over to her name. He said he would deliver a coupon book to her. Instead, the bank repossessed the car. The complainant lost her investment.
        The trial court was free to believe the complainant's testimony and to disbelieve appellant's testimony to the contrary. We hold there is sufficient evidence to show theft by deception.
        Appellant cites Whetstone v. State, 739 S.W.2d 650 (Tex. App.--Dallas 1987) for the proposition that his activity was consistent with reasonable business conduct. The Court of Criminal appeals reversed Whetstone. See Whetstone v. State, 786 S.W.2d 361 (Tex. Crim. App. 1990). We overrule appellant's first point of error.
RESTITUTION
        In his second point of error, appellant contends that the trial court erred in ordering appellant to pay $3846.44 in restitution as a condition of probation.
1. Restitution Evidence
The complainant testified that she put $2000 down on the car and gave appellant an additional $1000 for two car payments. She spent $845.34 repairing the car. She testified she made two car payments of $486 to the bank.
2. Applicable Law
        The trial court, as a condition of probation, may order the defendant to "make restitution or reparation in any sum the court shall determine." Tex. Code Crim. Proc. Ann. art. 42.12(11)(a)(8) (Vernon Supp. 1992).
3. Standard of Review
        The decision of whether to order restitution as a condition of probation is a matter for the trial court's discretion. Hefner v. State, 735 S.W.2d 608, 613 (Tex. App.--Dallas 1987, pet. ref'd). Unless the trial court abuses its discretion, we do not overturn a trial court's restitution order. See Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. [Panel Op.] 1980)
        The Court of Criminal Appeals has held that due process considerations require there must be evidence in the record to show that the amount set by the court has a factual basis. Cartwright v. State, 605 S.W.2d at 289. We determine whether the evidence shows the amount of restitution ordered was "just." Knight v. State, 635 S.W.2d 650, 652 (Tex. App.--Fort Worth 1982, no pet.). As the trier of fact, a trial court is free to disregard any conflicting evidence about the amount of the complainant's loss. See Penagraph v. State, 623 S.W.2d 341, 343 (Tex. Crim. App. 1981).
4. Application of the Law to the Facts
        Based on the record, the complainant made at least two car payments to the bank in addition to the two payments she made to appellant. She suffered a loss of at least $4817.34. The trial court ordered only $3846.44 in restitution.
        Appellant argues that the complainant gained the use of the car and that this amount should be "offset" against the amount of restitution. Even if an offset is proper, there is no evidence in the record about the value of the use of the car. We hold the evidence provides a factual basis for the trial court's restitution order. Cartwright, 605 S.W.2d at 289. Appellant has not shown an abuse of discretion. Hefner, 735 S.W.2d at 613. We overrule appellant's second point of error.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          JAMES A. BAKER
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 90
911388F.U05
 
FN:1 The Honorable Bill J. Stephens, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
FN:2 Appellant admitted at trial that he is not a car broker.
File Date[04-06-92]
File Name[911388F]