Nixon v. StateNixon v. State
- Reporters:
- , ,
- Before:
- Hutson-Dunn
Lead Opinion
EN BANC OPINION
HUTSON-DUNN, Justice.A jury found appellant Kenneth Nixon guilty of the third degree felony of criminal mischief for driving his pickup truck through the back of his estranged wife’s house.1
Appellant cites to the cases of Elomary v. State and Sebree v. State to establish Walker’s testimony should not have been admitted. Elomary v. State, 796 S.W.2d 191 (Tex.Crim.App.1990); Sebree v. State, 695 S.W.2d 303 (Tex.App.—Houston [1st Dist.] 1985, no pet.). We agree. Elomary and Sebree conclude that expert testimony is required in a criminal mischief case to establish the fair market value of the cost of repairs to the damaged property if there is no other evidence other than a lay witness.3 Elomary, 796 S.W.2d at 193; Sebree, 695 S.W.2d at 305; see
Appellant’s second point of error attacks the trial court’s admission of the testimony of Wyleta Tarwater-Nixon, appellant’s former wife, concerning the amount of the estimate she received to repair the damage to the house:
[State:] Did you have an opportunity to get an estimate as to how much it was going to be to repair the house? [Tarwater-Nixon:] I received it.
[State:] And do you remember the value off hand or would you like me to show you [the] document?
[Defense counsel:] I object as to some sort of estimate. That would be hearsay.
THE COURT: Overrule.
[State:] Do you remember the amount that [it] was going to cost to fix the house offhand?
[Tarwater-Nixon:] I had one for twelve, I think 12,000 and I had another for 20,000.
We agree with appellant that the statement of appellant’s former wife was hearsay because it is a verbal statement made by someone other than the person who provided the estimate and was offered in evidence to prove the truth of the matter asserted, i.e., that the cost of repairs to the house was between $750 to $20,000. Tex.R.Crim.Evid. 801(d). Appellant’s former wife was not testifying as to her knowledge of the cost of repairs, but as to the estimate. Thus, this testimony was inadmissible hearsay. Tex.R.Crim.Evid. 802; see Elomary, 796 S.W.2d at 193-94. We hold that the trial court abused its discretion in admitting the hearsay statement.
We must now determine beyond a reasonable doubt if the errors made a contribution to appellant’s conviction.
Exhibits, by way of photographs, show appellant’s truck totally crashed through the rear of the brick home and stopped inside the house. The photographs show the truck inside the den, with large pieces of the sheet rock ripped from the walls. Photographs show furniture, lamps, tables, bookcases, and other items in the den destroyed. The exhibits show items, e.g., a cutting bar, et eet-
We apply the familiar test from Jackson v. Virginia and conduct a legal sufficiency review:
In determining whether a conviction was supported by sufficient evidence, we view the evidence presented in the light most favorable to the verdict. The critical inquiry is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This standard places full responsibility on the trier of fact to weigh the evidence, to resolve conflicts in the testimony, and to draw reasonable inferences from basic to ultimate facts. If there is evidence to establish the defendant’s guilt beyond a reasonable doubt, and the jury believes the evidence, the appellate court cannot reverse the judgment on an evidence point.
Mayfield v. State, 906 S.W.2d 46, 48 (Tex.App.—Tyler 1995, pet. ref‘d) (citations omitted); see Jackson, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). After reviewing all the evidence, including the photographs, we conclude that any rational juror would be convinced beyond a reasonable doubt that such extensive damage would cost in excess of $750 to repair. The errors were therefore harmless. We overrule points of error one and two.
We affirm the judgment of conviction.
En banc review requested by COHEN, J.O’CONNOR and ANDELL, JJ., voted against en banc review.
O’CONNOR and ANDELL, JJ., dissent.
Notes
. The indictment charged appellant with inflicting a pecuniary loss on his wife of between $750 to $20,000, the range for a third degree felony. Act of May 29, 1989, 71st Leg., R.S., ch. 1253, sec. 1,
. Appellant was also indicted for attempted murder and aggravated assault of his estranged wife, but the jury found him not guilty on those charges.
. In Elomary, the Court of Criminal Appeals stated the following when discussing a situation in which the only evidence presented was from a lay witness: “[W]e also do not disagree with [the Sebree court’s] holding that ‘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.’ ” Elomary, 796 S.W.2d at 193.
Dissenting Opinion
dissenting.
I respectfully dissent.
The majority agrees Elomary v. State and Sebree v. State conclude that expert testimony is required in a criminal mischief case to establish the fair market value of the cost of repairs to the damaged property. Elomary v. State, 796 S.W.2d 191, 193 (Tex.Crim.App.1990); Sebree v. State, 695 S.W.2d 303, 305 (Tex.App.—Houston [1st Dist.] 1985, no pet.); see
I do not agree that Elomary and Sebree can be distinguished as the majority attempts to do. Both the Court of Criminal Appeals and this Court have interpreted Penal Code
I would conclude that the trial court’s errors were harmful because the erroneously admitted testimony was the only evidence of a necessary element of the offense. See TexR.AppP. 81(b)(2). There is some evidence of the cost of repairs to the house, however, albeit inadmissible hearsay, so appellant would not be entitled to an acquittal.
Accordingly, I dissent.
O’CONNOR, J., joins this dissenting opinion.