Kevin Miller v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00071-CR
KEVIN MILLER,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 77th District Court
Freestone County, Texas
Trial Court No. 07-158-CR
OPINION
Kevin Miller was convicted of the offense of criminal mischief, a state jail felony.
TEX. PENAL CODE ANN. § 28.03 (a)(1), (b)(4) (West Pamp. 2010). Miller was sentenced to
two years in a state jail facility. The sentence was suspended, and Miller was placed on
community supervision for two years. Although the evidence is legally sufficient to
support the element of “cost of repair,” the trial court abused its discretion is setting the
amount of restitution. The appeal is remanded to the trial court for a new restitution
hearing.
BACKGROUND
Although the stories of the players in this offense vary, the general account is
that Miller found his estranged wife, Tonya, with another man, Jason Strawn, at
Tonya’s house. As Strawn attempted to leave, Miller rammed Strawn’s 1989 convertible
Mustang with his own vehicle, slashed the tires, and slashed the convertible top. The
cost to repair the damage to the Mustang was $6,299.84. At the time of the trial, the
Mustang had not been repaired. The trial court ordered restitution for the damage done
to the Mustang in the amount of $6,299.84.1
COST OF REPAIR
In his first issue, Miller contends that the evidence is legally insufficient to
support the “cost of repair” element to the offense of criminal mischief. He contends
the evidence submitted was legally of no effect.
A person commits the offense of criminal mischief when he intentionally or
knowingly damages or destroys tangible property without the effective consent of the
owner. TEX. PENAL CODE ANN. § 28.03(a)(1) (West Pamp. 2010). The amount of
pecuniary loss suffered by the owner determines the degree of the offense. Id. at (b). If
the property is damaged, the amount of pecuniary loss is determined by "the cost of
repairing or restoring the damaged property within a reasonable time after the damage
occurred." Id. § 28.06(b) (West 2003).
Jackson v. Virginia is the constitutional standard of review for assessing the legal
1The written judgment recites a much greater amount of restitution. We believe this amount includes the
amount of restitution ordered in the companion case tried at the same time, wherein Tonya is the victim.
Miller v. State Page 2
sufficiency of evidence in a criminal case. Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L.
Ed. 2d 560, 99 S. Ct. 2781 (1979). Under the Jackson standard, "the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt." Id.; Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App. 2004). In
applying the Jackson sufficiency review, we "must consider all evidence which the jury
was permitted, whether rightly or wrongly, to consider." Moff, 131 S.W.3d at 488
(quoting Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988). We consider all
evidence actually admitted at trial and give it whatever weight and probative value it
could rationally convey to a jury. Moff, 131 S.W.3d at 489.
At the guilt/innocence phase of the trial, the State introduced an estimate of the
cost of repairing the Mustang through Bobby Ingram, the service manager at Tyler
Ford. No objection was made to that document. Ingram stated that the estimate was
prepared by an employee at the dealership and entered it in the dealership’s computer
system at the time the estimate was completed. Ingram then testified that the total cost
to repair the vehicle was $6,299.84. Ingram also gave a breakdown of what the total cost
included. The repair of the convertible top, a new right door, right quarter panel, and
front bumper cover totaled $3,427.57. The cost for labor totaled $2,058, and paint and
supplies totaled $350. New tires and their alignment totaled $146.95, and tax amounted
to $311.
Relying on an opinion by the 14th Court of Appeals, Miller argues that the
testimony from Ingram and the estimate introduced into evidence is insufficient to
Miller v. State Page 3
establish that damages were equal to or greater than $1,500 because expert testimony
was required and the State did not prove that Ingram was an expert.2 See English v.
State, 171 S.W.3d 625 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The opinion in
English relied on an opinion by the First Court of Appeals and an opinion by the Court
of Criminal Appeals for that proposition. See Sebree v. State, 695 S.W.2d 303 (Tex.
App.—Houston [1st Dist.] 1985, no pet.). See also Elomary v. State, 796 S.W.2d 191 (Tex.
Crim. App. 1990).
However, the Court of Criminal Appeals has recently clarified its position on
Sebree and clarified what Elomary actually meant. Holz v. State, 320 S.W.3d 344 (Tex.
Crim. App. 2010). In Holz, the Court of Criminal Appeals stated, “upon one condition,
we agreed with Sebree's holding distinguishing between evidence of ‘damage’ and
evidence of ‘repair cost’: [I]f . . . an individual . . . is not competent to give an expert
opinion as to repair costs, but is merely giving his ‘off-the-wall’ lay opinion, . . . ‘an
estimate of damage or an opinion on the amount of damage without further evidence is
insufficient to prove the cost of repairs as required by sec. 28.06(b) of the Texas Penal
Code.’” Holz, 320 S.W.3d at 348-349 (quoting Elomary, 796 S.W.2d at 193) (emphasis
added). The Court went on to say that, “[u]nderstood properly, [that] statement in
Elomary simply affirms the unremarkable proposition that an unsupported lay opinion
as to damage, without more, will be insufficient to prove cost of repair.” Id. at 350
(emphasis in original). The Court affirmed that Elomary does not hold that the State
2Miller did not object at trial that Ingram was not qualified as an expert. Any complaint about Ingram’s
qualifications now is waived. TEX. R. APP. P. 33.1.
Miller v. State Page 4
must present expert testimony to prove cost of repair.
Accordingly, the State, in this case, was not required to present expert testimony.
Considering all the evidence, whether or not properly admitted, the evidence was
sufficient to prove cost of repair of an amount of $1,500 or more but less than $20,000.
Miller’s first issue is overruled.
RESTITUTION
In his second issue, Miller complains about the amount of restitution the trial
court awarded. The Texas Code of Criminal Procedure authorizes the sentencing court
to order payment of restitution to the victim for losses sustained as a result of the
convicted offense. TEX. CODE CRIM. PROC. ANN. art. 42.037(a) (West Supp. 2010). When
calculating restitution in an offense that results in the damage or destruction of
property, the court may order the defendant:
(A) to return the property to the owner of the property or someone
designated by the owner; or
(B) if return of the property is impossible or impractical or is an
inadequate remedy, to pay an amount equal to the greater of:
(i) the value of the property on the date of the damage, loss, or
destruction; or
(ii) the value of the property on the date of sentencing, less the
value of any part of the property that is returned on the date the property
is returned.
TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1) (West Supp. 2010).
While the sentencing court is authorized to order restitution, due process
requires three restrictions on the restitution a trial court may order: (1) the amount must
be just and supported by a factual basis within the record, (2) the restitution ordered
must be only for the offense for which the defendant is criminally responsible, and (3)
Miller v. State Page 5
the restitution ordered must be proper only for the victim or victims of the offense with
which the offender is charged. Cantrell v. State, 75 S.W.3d 503, 512 (Tex. App.—
Texarkana 2002, pet. ref'd); see Cabla v. State, 6 S.W.3d 543, 546 (Tex. Crim. App. 1999).
Restitution ordered by the court will not be overturned on appeal absent an
abuse of discretion. Cartwright v. State, 605 S.W.2d 287, 288-89 (Tex. Crim. App. 1980);
Maloy v. State, 990 S.W.2d 442, 444 (Tex. App.—Waco 1999, no pet.). An abuse of
discretion occurs when a trial court's decision is so clearly wrong that it lies outside the
"zone of reasonable disagreement." Gonzalez v. State, 117 S.W.3d 831, 839 (Tex. Crim.
App. 2003).
At the punishment hearing, the State asked the trial court to take judicial notice
of the evidence and testimony submitted regarding damage submitted during the
guilt/innocence phase of the trial. This testimony and evidence included the testimony
of Ingram and the estimate of the cost of repair to the Mustang in the amount of
$6,299.84. Strawn then testified at punishment that at the time of trial, and if the
Mustang was in the condition it was prior to the damage, it would be worth $3,270. As
noted above, restitution does not include cost of repair; it includes the value of the
property on the date of the damage, or the value of the property on the date of
sentencing less the value of any part of the property that is returned on the date the
property is returned. TEX. CODE CRIM. PROC. ANN. art. 42.037(b)(1) (West Supp. 2010).
Accordingly, the trial court abused its discretion in ordering restitution in the amount of
$6,299.84.
Miller’s second issue is sustained.
Miller v. State Page 6
To remedy the trial court’s abuse of discretion, Miller argues the amount of
restitution should be deleted. He relies on a case from Texarkana which, in turn, relies
on a case from Corpus Christi for this proposition. Wallace v. State, 75 S.W.3d 576, 583
(Tex. App.—Texarkana 2002), aff’d, 106 S.W.3d 103 (Tex. Crim. App. 2003) (affirmed on
a different issue); Botello v. State, 693 S.W.2d 528 (Tex. App.—Corpus Christi 1985, pet.
ref'd). We decline to follow Wallace and Botello and choose to follow the Court of
Criminal Appeals in this situation.
In Cartwright v. State, the Court of Criminal Appeals held that when the record
evidence is insufficient to support the amount of restitution ordered as a condition of
probation, the proper remedy is to remand the case to the trial court for a new
restitution hearing. Cartwright v. State, 605 S.W.2d 287, 289 (Tex. Crim. App. 1980).
Later, in Barton v. State, the Court reaffirmed the holding in Cartwright. Barton v. State,
21 S.W.3d 287, 290 (Tex. Crim. App. 2000). Later still, in Beedy v. State, the Court
explained that it had reached the conclusion that it had in Barton because "[t]he trial
judge in Barton was authorized to order restitution" and "the only defect present was
that the amount of restitution was unsupported by the record." Beedy v. State, 250
S.W.3d 107, 113 (Tex. Crim. App. 2008). Had the trial judge in Barton not been
authorized to order restitution, the Court explained further, the proper remedy would
have been deletion of the restitution condition from the trial court's judgment. Id. In
other words, the proper remedy "depends on whether the trial judge acted lawfully."
Id; Barrera v. State, No. PD-1642-07, 2008 Tex. Crim. App. LEXIS 857, 6-7 (Tex. Crim.
App. Sept. 10, 2008), opinion withdrawn, 2008 Tex. Crim. App. Unpub. LEXIS 897 (Tex.
Miller v. State Page 7
Crim. App. Nov. 26, 2008) (restitution issue did not involve restitution as a condition of
community supervision; opinion withdrawn because appellant died prior to issuance of
September 10, 2008 opinion).
In this case, the trial court had the authority to order restitution, or at least we
presume so because no complaint has been raised about the authority of the trial court
to order restitution. Thus, the proper remedy in this case, as in Cartwright and Barton, is
to remand the appeal to the trial court for a new restitution hearing.
CONCLUSION
Because we have sustained Miller’s second issue regarding the amount of the
restitution ordered, we remand this proceeding to the trial court for a new restitution
hearing.
Our decision is a final decision because it disposes of all of Miller’s issues. See
Price v. State, 826 S.W.2d 947, 948) (Tex. Crim. App. 1992) (procedure when remanding
for hearing on motion for new trial); Mendoza v. State, 935 S.W.2d 501, 503-04 (Tex.
App.—Waco 1996, pet. ref’d). The appellate process will start anew as to the amount of
restitution, if any, after the trial court’s hearing on restitution. See Bailey v. State, 160
S.W.3d 11, 15 (Tex. Crim. App. 2004) (sentence is not complete until restitution is
imposed).
TOM GRAY
Chief Justice
Miller v. State Page 8
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis concurs without a separate opinion)
Remanded for restitution hearing
Opinion delivered and filed February 23, 2011
Publish
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