Selvin Nelson Lopez v. State
05-16-00041-CR
| Tex. App. | Oct 6, 2016Background
- Lopez worked as Re/Max DFW bookkeeper (May 2004–Feb 2005) with access to company accounts and wrote checks.
- Wolfe (owner/broker) discovered altered payee names and missing funds; Re/Max’s accounting summary attributed $71,767.96 in thefts to Lopez between July 2004 and February 2005.
- Wolfe placed a bank "search and watch," Lopez left employment and later admitted taking funds and fleeing; Re/Max obtained a civil judgment that remained unpaid.
- Lopez pleaded guilty to theft (aggregate value $20,000–$100,000); trial court sentenced him to 10 years and ordered restitution of $71,767.96.
- On appeal Lopez challenged (1) restitution as impermissible double recovery, (2) insufficiency of evidence for the restitution amount, and (3) that the judgment incorrectly reflected a plea bargain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether restitution order constituted impermissible double recovery | State: No double recovery because Re/Max received no payment on civil judgment | Lopez: Restitution duplicates civil recovery | Not preserved for review (no timely objection); court did not reach merits |
| Whether evidence supported $71,767.96 restitution amount | State: Wolfe’s testimony and admitted accounting summary show amount | Lopez: Exhibit 2 is only Re/Max’s opinion and unsubstantiated; Wolfe’s testimony was general | Evidence sufficient: Wolfe’s personal-knowledge testimony, exhibit admitted without objection, and Lopez’s admission supported amount |
| Whether objection to restitution amount can be raised on appeal | State: Sufficiency claims can be raised first on appeal | Lopez: N/A | Court addressed sufficiency because preservation not required for that claim |
| Whether judgment incorrectly states a plea bargain | State: Agrees record shows no plea bargain | Lopez: Judgment should reflect no plea bargain | Court modified judgment to delete "Terms of Plea Bargain" language; affirmed as modified |
Key Cases Cited
- Idowu v. State, 73 S.W.3d 918 (Tex. Crim. App. 2002) (preservation requirement for restitution complaints)
- Hanna v. State, 426 S.W.3d 87 (Tex. Crim. App. 2014) (restitution is a crime victim’s statutory right)
- Mayer v. State, 309 S.W.3d 552 (Tex. Crim. App. 2010) (sufficiency challenges to restitution may be raised on appeal)
- Cartwright v. State, 605 S.W.2d 287 (Tex. Crim. App. 1980) (standard of review for restitution; factual basis required)
- Campbell v. State, 5 S.W.3d 693 (Tex. Crim. App. 1999) (restitution amount must have factual basis in victim’s loss)
- Davis v. State, 757 S.W.2d 386 (Tex. App.—Dallas 1988) (any evidence showing amount that would "make good" injured party supports restitution)
- Todd v. State, 911 S.W.2d 807 (Tex. App.—El Paso 1995) (witness testimony with personal knowledge can support restitution)
- Green v. State, 880 S.W.2d 797 (Tex. App.—Houston [1st Dist.] 1994) (defendant’s opportunity to cross-examine witness on restitution affects weight of testimony)