in the Matter of I. R. H. ( 2002 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-01-00328-CV
In the Matter of I. R. H.
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. J-20,821, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING
After waiving his right to a jury trial, I.R.H. was adjudicated delinquent for criminal mischief
in an amount more than $1500 but less than $20,000. See Tex. Fam. Code Ann. ' 54.03 (West Supp.
2002); Tex. Pen. Code Ann. '' 28.03 (West Supp. 2002), .06 (West 1996). The juvenile court placed
I.R.H. on probation for eighteen months in his parents= custody and ordered him to pay restitution in the
amount of $2106. I.R.H. raises five issues on appeal. We conclude that the juvenile court erred in
overruling I.R.H.=s objection to the qualifications of an expert witness and that the evidence was legally
insufficient to support the judgment; we therefore reverse and render judgment of acquittal.
BACKGROUND
Michael Stafford, the complaining witness, lived on an eight-acre tract of land. Located on
the back of his property were five abandoned vehicles that came with the purchase of the land; Stafford
intended to sell the parts of these junk cars. On February 3, 2001, Stafford was changing the tire on a
truck near his home when he heard smashing noises coming from the back of his property. When he went
to investigate, he saw I.R.H. and two others smashing the windows of one of the abandoned vehicles with a
large steel bar. The three left when they saw Stafford. Later, after assessing the damage to the vehicles,
Stafford discovered that several windows and windshields on the vehicles had been smashed, and all had
distinct round marks on them. After calling a windshield repair shop, Stafford assessed the cost of replacing
the damaged windows and windshields at $2106.
I.R.H. was subsequently charged with criminal mischief in an amount exceeding $1500 but
less than $20,000. I.R.H. waived his right to a jury and to a hearing before a juvenile court judge; following
a hearing before a juvenile court referee, the court adjudicated I.R.H. delinquent, placed him on probation
for eighteen months, and ordered restitution in the amount of $2106, the cost of repairing the vehicles.1
I.R.H. now appeals.
DISCUSSION
Fatal Variance
By his first two issues, I.R.H. contends that a material variance exists between the
allegations in the State=s petition and the proof adduced at trial and, therefore, the evidence is legally and
factually insufficient to sustain his adjudication of delinquency.
1
Both the adjudication hearing and the dispositional hearing were held before a juvenile court
referee, whose findings and recommendations were adopted by the juvenile court judge. See Tex. Fam.
Code Ann. ' 54.10(a), (b) (West Supp. 2002).
2
In criminal cases, a variance between a charging instrument and evidence adduced at trial
has been held to constitute a legal sufficiency issue. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim.
App. 2001). A sufficiency-variance issue arises when the State proves the defendant guilty of a crime, but
proves the commission of the crime in a manner that varies from the allegations in the indictment. Such a
variance, if material, may render the evidence insufficient to sustain the conviction. Id. at 247.
In a juvenile proceeding, because the rules of civil procedure govern, a fatal variance
between the pleadings2 and proof is determined by considering whether the variance is substantial,
misleading, and prejudicial. In re O.C., 945 S.W.2d 241, 243 (Tex. App.CSan Antonio 1997, no writ)
(citing Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 937 (Tex. 1980)); In re A.B., 868
S.W.2d 938, 942 (Tex. App.CFort Worth 1994, no writ) (citing Winfield v. Renfro, 821 S.W.2d 640
(Tex. App.CHouston [1st Dist.] 1991, writ denied)). Criminal mischief is defined by the penal code as
follows: AA person commits an offense if, without the effective consent of the owner: (1) he intentionally or
knowingly damages or destroys the tangible property of the owner . . . .@ Tex. Pen. Code Ann. '
28.03(a)(1). The State=s petition alleges that I.R.H. Aintentionally and knowingly damage[d] or destroy[ed]
tangible property, to wit: five (5) motor vehicles, without the effective consent of Michael Stafford, the
owner, and thereby caused pecuniary loss to said owner in the amount of $1,500.00 but less than
$20,000.00.@ I.R.H. argues that because the State specified in its petition that I.R.H. damaged or
2
Section 53.04 of the family code sets forth the requirements for the State=s petition in a juvenile
proceeding: AThe petition must state: (1) with reasonable particularity the time, place, and manner of the
acts alleged and the penal law or standard of conduct allegedly violated by the acts.@ Tex. Fam. Code Ann.
' 53.04(d)(1) (West 1996).
3
destroyed five Amotor vehicles,@ the State was required to offer proof that the tangible property damaged or
destroyed were motor vehicles, as opposed to general Avehicles.@ Citing the transportation code, I.R.H.
argues that a vehicle must be self-propelled to fall within the definition of a motor vehicle. See Tex. Transp.
Code Ann. ' 541.201(11) (West Supp. 2002). He claims that because the five vehicles on Stafford=s
property were inoperable and were essentially junk cars,3 the State failed to satisfy its burden, and its failure
to present evidence corresponding to the language used in the petition constitutes a fatal variance.
Assuming without deciding that there is a variance between the State=s petition and the
evidence adduced at trial, I.R.H. does not describe how this variance is substantial, misleading, and
prejudicial. There is no indication in the record that I.R.H. did not know what property he was accused of
destroying or damaging, or that he was surprised by the proof at trial. Furthermore, I.R.H. does not allege
that he was unable to prepare a defense because of this variance. We thus hold that any variance that may
have existed between the State=s petition and the evidence presented was not fatal and overrule I.R.H.=s
first two issues.4
3
The juvenile court acknowledged that the vehicles were inoperable. Stafford only intended to use
the vehicles for parts; he did not hold titles to the vehicles.
4
We note that the court of criminal appeals has constructed a test for identifying material variances
in criminal cases:
A variance between the wording of an indictment and the evidence presented at trial is
fatal only if Ait is material and prejudices [the defendant=s] substantial rights.@ When
reviewing such a variance, we must determine whether the indictment, as written,
informed the defendant of the charge against him sufficiently to allow him to prepare an
adequate defense at trial, and whether prosecution under the deficiently drafted
indictment would subject the defendant to the risk of being prosecuted later for the
same crime.
4
Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001) (quoting United States v. Sprick, 233
F.3d 845, 853 (5th Cir. 2000)). Even under the Gollihar standard, I.R.H. has not shown the existence of
a material variance. There is no evidence that he was unable to prepare an adequate defense at trial or that
he would be subject to the risk of being prosecuted later for the same crime. See Santana v. State, 59
S.W.3d 187, 195 (Tex. Crim. App. 2001) (if prosecuted again, defendant may avail himself of entire
record and not merely charging instrument).
5
Expert Witness Qualifications
By his fifth issue, I.R.H. argues the juvenile court erred in overruling his objection that
Stafford was not qualified as an expert to testify regarding the cost of repairing the vehicles.5 During the
State=s direct examination of Stafford, the State asked Stafford if he knew the amount of loss that he
suffered as a result of the destruction of his property. I.R.H. objected based on hearsay and speculation;
the juvenile court overruled both objections. I.R.H. then requested to take the witness on voir dire, and the
juvenile court acquiesced. On voir dire, I.R.H. challenged Stafford=s qualifications to testify regarding the
cost of repairs to the vehicles:
Q: Now, Mr. Stafford, you had to prepare for this trial today, didn=t you?
A: Yes.
Q: And as a profession, your profession --
THE COURT: The voir dire is about the value of the windows.
[DEFENSE COUNSEL]: Yes, Your Honor.
THE COURT: So ask him questions about that.
[DEFENSE COUNSEL]: So you had to find out how much those windows cost?
A: Yes.
5
I.R.H. also argues that the admission of Stafford=s testimony constituted hearsay and violated his
constitutional right to confrontation under both the federal and state constitutions. I.R.H. did not object
during the trial based on his constitutional right of confrontation, and has therefore waived any error based
on this assertion. See Tex. R. App. P. 33.1(a). Because we are reversing based on Stafford=s lack of
qualifications to testify as an expert, we need not reach I.R.H.=s hearsay complaint. See Tex. R. App. P.
47.1.
6
Q: And in the process of finding out how much those windows cost, you called a
windshield repair place to price those windows?
A: Correct.
Q: And when you went to the windshield repair place -- by profession you install septic
tanks -- you did not know what the value of those windows were, did you?
A: I called down to get the prices of them, yes.
Q: And you did not know what the value was?
A: No.
Q: Okay. And they told you the replacement value of those windshields was $2,100?
A: Of all the windows.
Q: And you believe that you=re entitled to that replacement value?
A: Yes.
Based on this exchange, defense counsel lodged a third objection to Stafford=s testimony: AYour Honor, the
witness is not qualified as an expert with regard to the windshields and therefore cannot testify as to their
value.@ The juvenile court overruled the objection, implying that Stafford was qualified as an expert
regarding the value of windshield repair. Stafford subsequently provided the following testimony during
direct examination by the State:
Q: So based on the research you=ve done to assess the amount of losses you suffered as
a result of this destruction, your damage was $2,106?
A: Yes, I believe -- yes.
Q: And that is the cost of repairing the windshields that were damaged, correct?
7
A: All the windows, yes.
In response to I.R.H.=s issue on appeal, the State urges that I.R.H. has waived his complaint
because he initially elicited the complained-of testimony during his voir dire of the witness and therefore
cannot object to Stafford=s subsequent testimony during direct examination by the State. We disagree.
The purpose of voir dire examination is to afford a defendant the opportunity to determine
the foundation of an expert=s opinion without fear of eliciting damaging hearsay or other inadmissible
evidence in the jury=s presence. Tex. R. Evid. 705(b); Alba v. State, 905 S.W.2d 581, 587-88 (Tex.
Crim. App. 1995) (citing Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992)). A Rule 705(b)
hearing may also supply defense counsel with sufficient ammunition to make a timely objection to the
expert=s testimony on the ground that it lacks a sufficient basis for admissibility. Alba, 905 S.W.2d at 588.
The rule does not limit the use of this procedural device to jury trials, and we have found no authority
suggesting that voir dire during a trial to the court should be treated differently. Accordingly, we hold that
I.R.H. did not waive error by eliciting testimony from Stafford during the voir dire examination.
The significance of Stafford=s testimony is apparent when considered in the context of the
offense charged. The offense of criminal mischief includes the element of the value of the injury inflicted.6
Gallardo v. State, 321 S.W.2d 581, 582 (Tex. Crim. App. 1959). Generally, the extent or amount of
injury is the difference in the market value of the property before and after its injuryCthe diminution in value
6
The amount of pecuniary loss determines the punishment range for the offense. See Tex. Pen.
Code Ann. ' 28.03 (West Supp. 2002).
8
of the property. See Wise v. State, 494 S.W.2d 921, 924 (Tex. Civ. App.CFort Worth 1973, no pet.)
(quoting Milby Auto Co. v. Kendrick, 8 S.W.2d 743, 744 (Tex. Civ. App.CGalveston 1928, writ dism=d
w.o.j.)). Section 28.06 of the penal code provides two methods for determining the diminution in property
value caused by the criminal mischief; the method used depends on whether the property was damaged or
destroyed. Tex. Pen. Code Ann. ' 28.06. If the property was damaged, the method of determining the
pecuniary loss is to establish the cost of repairing the property to restore it to the condition that it was in
immediately before the damage occurred. Wise, 494 S.W.2d at 924; Tex. Pen. Code Ann. ' 28.06(b).7
AIf the injured property is restored to its condition prior to its injury, its market value would ordinarily be
restored, and the cost of such restoration would be identical with the difference between its market value
before and after its injury.@ Wise, 494 S.W.2d at 924 (quoting Milby Auto Co., 8 S.W.2d at 744).
7
The statute provides: AThe amount of pecuniary loss under this chapter, if the property is
damaged, is the cost of repairing or restoring the damaged property within a reasonable time after the
damage occurred.@ Tex. Pen. Code Ann. ' 28.06(b).
9
In this case, although the State=s petition alleged that I.R.H. damaged or destroyed the
property, the State only produced evidence of the cost of repairing the vehicles;8 thus, the State proceeded
under section 28.06(b), which addresses repair of damaged property. In order to determine the cost of
repairing damaged property, the property need not actually be repaired, see Elomary, 796 S.W.2d at 193,
but if it is not, expert testimony is required to establish the cost of repair. Id., (lay opinion of amount of
damage, without further evidence, is insufficient to satisfy section 28.06(b)); Nixon v. State, 937 S.W.2d
610, 613 (Tex. App.CHouston [1st Dist.] 1996, no pet.) (same); Sebree v. State, 695 S.W.2d 303, 305
(Tex. App.CHouston [1st Dist.] 1985, no pet.) (same).
With these principles in mind, we now turn to the juvenile court=s overruling of I.R.H.=s
objection to Stafford=s qualifications as an expert and the admission of his testimony regarding the cost of
repairing the vehicles. If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,
experience, training, or education may testify in that regard in the form of an opinion or otherwise. Tex. R.
Evid. 702. The person proffering the purported expert=s testimony must demonstrate that the witness
possesses the requisite qualifications of an expert. See Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim.
App. 1995); Holloway v. State, 613 S.W.2d 497, 501 (Tex. Crim. App. 1981). The special knowledge
that may qualify a witness as an expert may be derived from a study of technical works, specialized
8
We note that Stafford testified that the windows and windshields on the vehicles were
Adestroyed@ and testified as to the cost of replacing the windows and windshields; however, the State=s
petition alleges that the vehicles were damaged or destroyed. The State did not attempt to prove that the
vehicles were destroyed, only damaged.
10
education, practical experience, or varying combinations of these things. Wyatt v. State, 23 S.W.3d 18,
27 (Tex. Crim. App. 2000); Holloway, 613 S.W.2d at 501. The trial court exercises considerable
discretion in determining whether to admit expert testimony on the bases provided in the rule, and that
decision will not be disturbed absent a showing of an abuse of that discretion. Alvarado v. State, 912
S.W.2d 199, 216 (Tex. Crim. App. 1995); Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.CFort Worth
1996, no pet.).
The State did not attempt to produce any evidence to qualify Stafford as an expert. There
is no evidence that Stafford had any experience in windshield repair, and there is no evidence that he
acquired specialized knowledge of the cost of windshield repair. Indeed, though the State asked Stafford if
he reached the $2106 figure based on his Aresearch,@ it is apparent that this figure was based on a single
estimate provided by a third party. During cross-examination, Stafford admitted that he had called two
windshield repair shops to obtain estimates for the repair of the windows on the vehicles. One of those
shops provided an undisclosed estimate that did not include installation of the windows. The second repair
shop provided the $2106 figure. Stafford did not provide a name of the person to whom he spoke or of the
shop he called. He did not provide a written statement from the shop. He did not provide the location of
the shop. And there is no indication that the shop even observed the state of the junk vehicles before
providing an estimate; the estimate was provided over the phone, according to Stafford. We conclude that
Stafford did not possess the requisite special knowledge to testify as an expert and the juvenile court erred
in allowing Stafford to provide expert testimony regarding the cost of repairing the vehicles.
11
Because the error is not constitutional, we will only reverse if it affected I.R.H.=s substantial
rights; otherwise, the error must be disregarded. See Tex. R. App. P. 44.2(b); see also In re C.R., 995
S.W.2d 778, 785 (Tex. App.CAustin 1999, pet. denied). To make this determination, we must decide
whether the error had a substantial or injurious effect on the juvenile court=s finding. Morales v. State, 32
S.W.3d 862, 867 (Tex. Crim. App. 2000). We must consider the entire record, including any testimony or
physical evidence admitted for the fact finder=s consideration, the nature of the evidence supporting the
finding, the character of the alleged error, and how the alleged error might be considered in connection with
other evidence in the case. Id.
Stafford=s testimony was the only evidence presented by the State regarding the cost of
repairing the damaged vehicles. Even apart from Stafford=s lack of standing as an expert, the cost of
repairing broken windows on junk vehicles that Stafford intended to sell for used parts is not an accurate
measure of the diminution in the cars= value. When asked if the parts on the vehicles were worth more than
the vehicles as a whole, Stafford explained, AIf you would sell them as a whole, you=d probably get junk. In
other words, you=d take them and you would get a scrap price for them.@ He agreed that Ascrap price is
basically the metal value.@ Stafford also agreed that the windows and windshields could not be fixed.
Moreover, Stafford did not have titles to the vehicles and did not intend to operate the vehicles or sell them
as operating vehicles. He had Ano idea whether or not [the vehicles] were running. In other words, there=s
motors in a few of them, yes, but I did not personally use them, no.@ Officer Sean Freddie of the Travis
County Sheriff=s Office also testified that he did not believe any of the vehicles were operable and that a few
of the cars had missing doors.
12
Although the statute does not require that the damaged property actually be repaired, see
Elomary, 796 S.W.2d at 193, the statute presumes that the property is capable of being repaired and that
the value of the property can thereby be restored; the cost of the repair should indicate the difference
between the market value of the property before and after the damage, or the diminution in value. Before
the junk vehicles in this case were damaged, according to Stafford their only value was as scrap metal
unless he sold them for their parts. If the value of the junk vehicles before the damage was for parts or
scrap metal, the cost of new windows and windshields does not represent the diminution in value of the junk
vehicles caused by the damage; it is not indicative of the difference in market value of the junk vehicles
before and after the vandalism.
Furthermore, no reasonable person would attempt to restore these vehicles by replacing the
windows and windshields with brand new ones. Stafford testified that the windows and windshields could
not be repaired and the vehicles were not operable. While operable vehicles may require replacement of
smashed windows, the cost of replacing the windows on these junk vehicles does not accurately measure
the diminution in value of the vehicles. There is no evidence that the damage to the windows and
windshields of these junk vehicles diminished the scrap metal value of the vehicles or their parts; replacing
the windows and windshields would not restore the scrap metal value or the value of the used parts. The
juvenile court relied on Stafford=s testimony by ordering restitution in the amount of $2106, the cost of
repair according to Stafford. We cannot say that the juvenile court=s overruling of I.R.H.=s objection to
Stafford=s qualifications as an expert did not have a substantial or injurious effect on the juvenile court=s
judgment. We therefore sustain I.R.H.=s fifth issue.
13
Legal Sufficiency of Evidence
By his third issue, I.R.H. claims the evidence is legally insufficient to show that the amount of
pecuniary loss attributable to his actions was more than $1500 but less than $20,000. Adjudications of
delinquency in juvenile cases are based on the criminal standard of proof. See Tex. Fam. Code Ann. '
54.03(f). Therefore, we review adjudications of delinquency in juvenile cases by applying the standards
applicable to challenges to the sufficiency of the evidence in criminal cases. See In re E.P., 963 S.W.2d
191, 193 (Tex. App.CAustin 1998, no pet.).
In reviewing a legal sufficiency challenge, we view all the evidence in the light most favorable
to the verdict and determine whether any rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. See id. (citing Jackson v. Virginia, 443 U.S. 307 (1979)). Our review
includes consideration of all evidence, both admissible and inadmissible. Dewberry v. State, 4 S.W.3d
735, 753 (Tex. Crim. App. 1999). We measure the sufficiency of the evidence by the elements of the
offense as defined by a hypothetically correct jury charge. Gollihar, 46 S.W.3d at 253; Malik v. State,
953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If our review of the record indicates that the evidence is
legally insufficient to support the juvenile court=s judgment, we must reverse and render a judgment of
acquittal.
Although we have concluded that Stafford was not qualified to testify as an expert regarding
the cost of repairing the junk vehicles and that the testimony should have been excluded, we must include
inadmissible testimony in our legal sufficiency review of the evidence. Stafford=s testimony was the only
evidence presented of the amount of pecuniary loss caused by the damage to the junk vehicles. The court
14
of criminal appeals has held that an opinion or estimate of damage by an individual who is not competent to
give an expert opinion as to repair costs, such as Stafford, without further evidence is insufficient to prove
the cost of repairs as required by section 28.06(b) of the penal code. Elomary, 796 S.W.2d at 193
(agreeing with appellate court=s holding in Sebree). The court distinguished between an individual merely
Astating from hearsay what someone else said what the damages might be, from an individual who is shown
to be qualified to give his or her expert opinion of what the fair market value of the cost of repairs to the
damaged property might be.@ Id. at 194. In this case, Stafford=s testimony is equivalent to an individual
merely stating from hearsay what someone else said the damages might be, and without further evidence his
lay testimony is legally insufficient to prove the cost of repairs.
Although no other evidence was presented as to the cost of repair, the State presented
some evidence that the vehicles were damaged. Stafford testified that a Buick Regal Limited had a smashed
front windshield. Two rear windows and a passenger window were smashed on a Ford Bronco. A
Mercury Marquis had a damaged windshield, two smashed door windows, and a shattered rear glass. The
windshield, driver=s door window, and rear sliding glass window had been damaged on a Ford pickup.
And finally, an Oldsmobile Delta 88 sustained damage to its windshield and a vent window. Stafford further
testified that although the vehicles were not new and had been sitting on his property to be sold for parts, all
the windows had been intact before I.R.H. and his companions smashed them. Officer Freddie testified that
he observed the broken windows and dents in the vehicles, but he did not attempt to estimate the cost of
repairing the damage. In addition, the State presented photos of the vehicles; at the time the photos were
15
taken, however, further damage had been done to the vehicles, and one of the photos depicted the
additional damage.
This evidence is no evidence of the cost of repairing or restoring the value of the parts or the
scrap metal value of the junk vehicles; it does not reflect the difference in the market value of the junk
vehicles before and after the damage. Furthermore, the evidence does not support Stafford=s testimony that
the diminution in value to these junk vehicles is equivalent to the cost of replacing the windows and
windshields, or $2106. See Sebree, 695 S.W.2d at 305 (lay witness=s description of damage to her vehicle
and estimate of cost of repair held legally insufficient). But see Nixon, 937 S.W.2d at 613 (holding that
after reviewing all evidence, including photos of Aappellant=s truck totally crashed through the rear of the
brick home@ and of furniture and other items destroyed, any rational trier of fact would be convinced that
such extensive damage would cost in excess of $750 to repair). Viewing the evidence in the light most
favorable to the verdict, we conclude that no rational trier of fact could have found beyond a reasonable
doubt that the amount of pecuniary loss to the damaged vehicles exceeded $1500. We sustain I.R.H.=s
third issue.9
9
There is no evidence that the cost of repair is not ascertainable, so section 28.06(d) does not
apply. See Tex. Pen. Code Ann. ' 28.06(d) (if amount of loss cannot be ascertained, amount is deemed to
be greater than $500 but less than $1500); see also Phillips v. State, 672 S.W.2d 885, 887 (Tex.
App.CDallas 1984, no pet.) (requiring evidence that amount of loss cannot be ascertained); In re M.T.B.,
567 S.W.2d 46, 47 (Tex. Civ. App.CEl Paso 1978, no writ) (same).
16
CONCLUSION
We overrule I.R.H.=s first and second issues. Because we conclude that the juvenile court
erred in overruling I.R.H.=s objection to Stafford=s qualifications to testify as an expert, we sustain I.R.H.=s
fifth issue. We further hold that Stafford=s lay-witness testimony, without further evidence of cost of repair,
is legally insufficient to support the juvenile court=s finding of a pecuniary loss in an amount greater than
$1500 but less than $20,000. We therefore reverse the juvenile court=s judgment and render a judgment of
acquittal.10
Bea Ann Smith, Justice
Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel
Reversed and Rendered
Filed: August 8, 2002
Do Not Publish
10
Because we are reversing and rendering judgment, we need not reach I.R.H.=s remaining issue.
See Tex. R. App. P. 47.1.
17