A jury сonvicted appellant, Angela Kin-kade, of criminal mischief. The trial court sentenced her to 10 days confinement and ordered her to make restitution of $177.65. We affirm.
Appellant was charged with damaging an automobile by hitting thе window with an unknown object. The complainant, Mabel Roberts, owned the car that was damaged.
Appellant damaged Mrs. Roberts’s automobile by pulling the sideview mirror and beating on it. Appellant shattered the back window of the car by hitting it. At trial, Mrs. Roberts testified she paid $177.55 to replace the broken windshield. Appellant objected to Mrs. Roberts’s testimony about the cost of repairs, and argued that expert testimony was necessary.
I. Cost of repairs.
In her first point of error, appellant contends the trial court erred in admitting Mrs. Robert’s testimony about the cost of repairs. Appellant argues that the amount of damage to the vehicle cannot be proved with evidence of thе cost of repairs without proof that the cost was reasonable.
The Texas Penal Code sets forth the procedure for proving the damage in a criminal mischief case.
(a) The amount of pecuniary loss undеr this chapter, if the property is destroyed, is:
(1) the fair market value of the property at the time and place of the destruction; or
(2) if the fair market value of the property cannot be ascertained, the cost of rеplacing the property within a reasonable time after the destruction.
(b) The amount of pecuniary loss under this chapter, if the property is damaged, is the cost of repairing or restoring the damaged property within a reаsonable time after the damage occurred.
Tex. Penal Code Ann. § 28.06 (Vernon 1989) (emphasis added).
Appellant contends that
Wise v. State,
Currеntly, section 28.06(a) of the Texas Penal Code provides that market value is used only when property is
destroyed.
Tex. Penal Code Ann. § 28.06(a) (Vernon 1989);
Deas v. State,
The only case that followed
Wise
after § 28.06 became effective is distinguishable. In
Athey v. State,
In
Sepulveda,
the Corpus Christi Court held that the cases concerning “reasonableness of amount” were inapplicable.
Appellant argues an exрert witness is necessary because “value” and “reasonableness of amount” are part of the State’s burden of proof. We have already decided that “cost of repair” is the proper method of prоving pecuniary loss, and proof as to the “reasonableness” of the amount of repairs is not required. The owner of the car, who has direct knowledge of the actual cost of repairs, is certainly competent to testify as to how much she spent to repair the damage.
See generally Sepulveda,
In the same point of error, appellant challenges the sufficiency of the evidence to prove pecuniary loss. When we review the sufficiency of the evidеnce, we view it in the light most favorable to the verdict.
Flournoy v. State,
In
Sepulveda,
the Corpus Christi Court of Appeals upheld a conviction for criminal mischief based upon almost identical testimony as that in this case. The owner testified shе “paid $34.00 to fix the window.”
In
Sebree,
this Court held that “an
estimate
of damage or an
opinion
on the amount of damage without further evidence is insufficient to prove the
cost
of repair.”
*510 Nothing in the record suggests that the cost of repairs included damage other than that caused by appellant, or that the cost of repair did not equal the actual amount of pecuniary loss. The evidence showed that the window was not damaged before appellant struck it. The State alsо proved that the owner paid $177.55 to repair the window.
We find the evidence sufficient to support the conviction and overrule the first point of error.
II. Variance between information and evidence.
In her second point of error, appellant contends therе is a fatal variance between the evidence at trial and the charging instrument. Appellant argues that the trial court should have granted her motion for directed verdict.
The information alleged that appellant damaged and destroyed an “automobile by hitting the window with an unknown object.” Appellant argues that the evidence showed she hit the window with her hand, a fatal variance with the allegation of an “unknown object.”
Only if the manner or means of doing some act makes otherwise innocent conduct a criminal act, must facts showing manner and means be alleged in an indictment or information.
Posey v. State,
Article 21.23 of the Texas Code of Criminal Procedure, provides:
The rules with respect to allegations in an indictment and the certainty required apply also to an information.
Tex.Code Crim.PROC.Ann. art. 21.23 (Vernon 1989).
When an indictment or infоrmation alleges an unknown fact, and the proof at trial
does show
that the fact is known, then the State has the burden to prove: (1) that the affiant/attorney who signed the information or grand jury which handed down the indictment did
not know
the fact; and (2) that they used reasonable diligence in their attempt to ascertain the fact.
Edlund,
If the evidence in this case did indeed show that appellant hit the window with her hаnd, a variance exists and the above analysis must be used to determine if the variance is fatal to the State’s case.
The first question is whether the evidence at trial actually shows that appellant used her hand. At trial, several witnesses testified about appellant’s actions. Lorraine Roberts, who was driving Mrs. Roberts’ car, testified that appellant broke the rear window as they were trying to drive away. She did not see appellant break the window; she heard a thump and turned to see the shattered glass. She stated she did not think appellant had anything in her hand, but could not be sure. On cross-examination, she testified that she told the police that appellant hit the window with her hаnd, and that appellant carried a baby in the other hand.
Terry Davis was at the convenience store with Lorraine and Raymond Roberts, and was sitting in the back seat of the car at the time of the altercation. On cross-examination, Davis said she did not see anything in appellant’s hands, nor did she see appellant pick anything up when she followed Lorraine out of the store. On redirect, Davis said she did not know whether or not appellant had anything in her fist. Davis testified appellant could have had something, but she just did not know.
Rudy Cantu was at the store when the fight broke out. He first stated that he saw appellant break the window, and that *511 she did not have anything in her hand. He also testified that she was holding a newspaper. But, Mr. Cantu stated on recross-examination that he was on the phone, and did not turn around until he heard the glass shatter.
Although the first two witnesses did testify that appellant hit the window with her hand, they also said it was possible she had something in her hand. The third witness, Rudy Cаntu, first said that appellant did not have anything in her hand, but then he testified that he didn’t turn around until he heard the glass shatter.
Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found, beyond a reasonable doubt, that appellant struck the window with an unknown object.
In
Edlund,
It should be noted that the Dallas Court of Appeals reviewed the evidence in
Washington v. State,
Because the only witness who stated with any certainly that appellant did not have anything in her hand was the same witness who stated on recross he did not turn around until the glass shattered, it must be assumed that the jury weighed thе evidence properly, and that they could have found appellant hit the window with an unknown object. The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony.
Daniels v. State,
We overrule the second point of error and affirm the judgment of the trial court.
Notes
. Repealed by, amended by, and recodified by, ch. 399, secs. 1 & 3, 1973 Tex.Gen. Laws 883, 924 & 994, as ch. 28, §§ 28.03-28.07.