TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-99-00866-CV
In the Matter of Y. S.
NO. J-19,144, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
Officer Randy Hunt, a City of Austin Parks and Recreation Department police officer, testified that on January 15, 1999, he observed several people, some of whom he recognized as members of the Crip gang, congregating around a picnic table in Gillis Park. As Officer Hunt approached the group, he observed Y.S. sitting at one end of the table. Y.S. had his hands on the table and appeared to be writing. When Hunt reached the table, he found freshly applied gang graffiti written with blue markers. Hunt retrieved a blue marker of the same color as the markings on the table from Y.S.'s shirt pocket.
Section 28.08 provides that a person commits an offense if, without the effective consent of the owner, the person intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner with an indelible marker. Tex. Penal Code Ann. § 28.08(a)(2). An offense is a Class B misdemeanor if the amount of the pecuniary loss is less than $500. Id. § 28.08(b)(1). The amount of pecuniary loss is determined by the cost of repairing or restoring the damaged property. Tex. Penal Code Ann. § 28.06(b) (West 1994). Y.S. does not challenge the finding that he committed the offense. He only challenges the State's proof of the amount of pecuniary loss.
In his first issue, Y.S. contends that the trial court erred in admitting testimony of a non-expert to establish the amount of the pecuniary loss. Y.S. argues that Officer Hunt lacked the expertise to estimate the damage. Whether a witness possesses the required qualifications is a question which rests largely in the trial court's discretion, and we will not disturb the decision to admit or exclude the testimony absent a clear abuse of discretion. Alvarado v. State, 912 S.W.2d 199, 215-16 (Tex. Crim. App. 1995). The test for the admissibility of expert testimony includes three factors: (1) the expert must be qualified by knowledge, skill, expertise, training or education; (2) the subject matter of the testimony must be an appropriate one for expert testimony; and (3) the expert's testimony must assist the trier of fact to understand the evidence or decide a fact. Id.
An expert's knowledge or experience pertaining to a relevant issue must exceed that of an average juror. Zinger v. State, 899 S.W.2d 423, 431 (Tex. App.--Austin 1995), rev'd on other grounds, 932 S.W.2d 511 (Tex. Crim. App. 1996). No rigid formula determines whether a particular witness qualifies to testify as an expert. Matson v. State, 819 S.W.2d 839, 851 n.10 (Tex. Crim. App. 1991).
Unlike the cases cited by Y.S., this is not a case of a lay person merely giving his personal opinion of what the amount of damage might be. See Elomary v. State, 796 S.W.2d 191,193-94 (Tex. Crim. App. 1990). Hunt testified that he had been patrolling Gillis Park for more than three years, was familiar with gang graffiti, and had found graffiti in Gillis Park before this incident. Officer Hunt testified that the City of Austin contracts with an individual for graffiti removal on city property. According to Hunt, the individual charges on a per square foot basis for removal. He testified that the damage can be calculated by measuring the square footage of the damaged surface multiplied by the per square foot figure charged by the contractor. He testified that he knew the calculation used to determine damage to City property, and once he measured the square footage of property damaged, he could calculate the damage estimate. Over Y.S.'s objection, Officer Hunt then testified that the damage estimate for graffiti removal from the picnic table in Gillis Park was less than $100.
Officer Hunt had experience with gang graffiti and had knowledge of the calculation of costs required for its removal. Expert testimony is required to establish cost of repair to damaged property. See Nixon v. State, 937 S.W.2d 610, 612 (Tex. App.--Houston [1st Dist.] 1996, no pet.). Hunt's testimony would assist the trier of fact in understanding the amount of damage to the picnic table. Accordingly, we conclude that the trial court did not err in admitting Officer's Hunt's testimony on the damage estimate. We overrule Y.S.'s first issue.
Y.S. argues in his second issue that the evidence presented on the amount of the pecuniary loss is insufficient to prove the cost of repairs. Because Y.S. does not indicate whether he makes a legal or factual sufficiency challenge, we will review the evidence under both standards. We review the legal sufficiency of the evidence in the light most favorable to the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). 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. Jackson v. Virginia, 443 U.S. 307, 324 (1979); Anderson v. State, 701 S.W.2d 868, 872 (Tex. Crim. App. 1985). A factual sufficiency review asks whether a neutral review of all the evidence, both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the jury's determination. See Johnson v. State, No. 1915-98, slip op. at 18 (Tex. Crim. App. Feb. 9, 2000). A verdict may be set aside only if a finding of guilt beyond a reasonable doubt is clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
Y.S. contends that the State only offered evidence of the "damage estimate" and failed to offer evidence of "cost of repair" as required by section 28.06(b). While we agree that section 28.06(b) requires the State to prove cost of repair, it is possible to show that the damage estimate and the cost of repair are synonymous. See Sebree v. State, 695 S.W.2d 303, 305 (Tex. App.--Houston [1st Dist.] 1985, no pet.). We think in this case the State properly connected the damag estimate to the cost of repair. Hunt explained that:
The City of Austin Parks and Recreation Department currently has a contract with an individual who makes estimates for the City on graffiti damage, calculates and submits his inventory to and all estimates of damage to the City and then when he cleans up the mess, they pay him. He has a set amount for -- I believe it is so much for the first square feet (sic) and so much thereafter for each other square foot.
There was no evidence that the price varied based on anything other than the size of the surface damaged with graffiti. For example, there was no evidence that the type of substance used to mark city property or the location of the graffiti affected the removal price. According to Hunt, the contractor charged a fixed amount to calculate the damage estimate. With knowledge of the size of the graffiti, the damage estimate could be calculated. The City pays the contractor based on his estimate and without further negotiation of the rate. Thus, in this case, the "damage estimate" equates to the actual cost of repair.
Turning to the sufficiency of the evidence, we note that the State only had to prove that the cost of repairs would be greater than one cent and less than $500. See Tex. Penal Code Ann. § 28.08(b)(1) (West Supp. 2000). Officer Hunt testified that the damage estimate was less than $100. In addition, the State presented photographs of the picnic table depicting the gang graffiti. We conclude that any rational juror would be convinced beyond a reasonable doubt that such extensive damage would cost more than one cent and less than $500 to repair. See Nixon, 937 S.W.2d at 613 (without expert testimony of fair market value of cost of repairs, photographs and other evidence of damage supports cost of repairs). Because any rational trier of fact viewing this evidence in the light most favorable to the prosecution could have found the elements of the crime beyond a reasonable doubt, we conclude that the evidence is legally sufficient to support the judgment. In addition, because the evidence of guilt is not so greatly outweighed by contrary proof as to undermine the confidence in the fact finder's determination, we conclude that the evidence is factually sufficient to support the judgment. We overrule Y.S.'s second issue.
In his third issue, Y.S. argues that the trial court erred in allowing a witness without personal knowledge to give inadmissible hearsay testimony regarding the amount of pecuniary loss. Hunt testified that he had personal knowledge of calculating the damage estimate. He further testified that once he measured the square footage of damaged property, he could determine the estimate of damage. We conclude such testimony is not based on hearsay but based on personal knowledge. The trial court did not err in admitting the testimony of Officer Hunt. We overrule Y.S.'s third issue.
Marilyn Aboussie, Chief Justice
Before Chief Justice Aboussie, Justices Kidd and B. A. Smith
Affirmed
Filed: August 31, 2000
Do Not Publish
the verdict. Flournoy v. State, 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). 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. Jackson v. Virginia, 443 U.S. 307, 324 (1979); Anderson v. State, 701 S.W.2d 868, 872 (Tex. Crim. App. 1985). A factual sufficiency review asks whether a neutral review of all the evidence, both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak or so greatly outweighed by contrary proof as to undermine confidence in the jury's determination. See Johnson v. State, No. 1915-98, slip op. at 18 (Tex. Crim. App. Feb. 9, 2000). A verdict may be set aside only if a finding of guilt beyond a reasonable doubt is clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).
Y.S. contends that the State only offered evidence of the "damage estimate" and failed to offer evidence of "cost of repair" as required by section 28.06(b). While we agree that section 28.06(b) requires the State to prove cost of repair, it is possible to show that the damage estimate and the cost of repair are synonymous. See Sebree v. State, 695 S.W.2d 303, 305 (Tex. App.--Houston [1st Dist.] 1985, no pet.). We think in this case the State properly connected the damag estimate to the cost of repair. Hunt explained that:
The City of Austin Parks and Recreation Department currently has a contract with an individual who makes estimates for the City on graffiti damage, calculates and submits his inventory to and all estimates of damage to the City and then when he cleans up the mess, they pay him. He has a set amount for -- I believe it is so much for the first square feet (sic) and so much thereafter for each other square foot.
There was no evidence that the price varied based on anything other than the size of the surface damaged with graffiti. For example, there was no evidence that the type of substance used to mark city property or the location of the graffiti affected the removal price. According to Hunt, the contractor charged a fixed amount to calculate the damage estimate. With knowledge of the size of the graffiti, the damage estimate could be calculated. The City pays the contractor based on his estimate and without further negotiation of the rate. Thus, in this case, the "damage estimate" equates to the actual cost of repair.
Turning to the sufficiency of the evidence, we note that the State only had to prove that the cost of repairs would be greater than one cent and less than $500. See Tex. Penal Code Ann. § 28.08(b)(1) (West Supp. 2000). Officer Hunt testified that the damage estimate was less than $100. In addition, the State presented photographs of the picnic table depicting the gang graffiti. We conclude that any rational juror would be convinced beyond a reasonable doubt that such extensive damage would cost more than one cent and less than $500 to repair. See Nixon, 937 S.W.2d at 613 (without expert testimony of fair market value of cost of repairs, photographs and other evidence of damage supports cost of repairs). Because any rational trier of fact viewing this evidence in the light most favorable to the prosecution co