NOS. 07-09-0026-CR, 07-09-0027-CR, 07-09-0028-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 30, 2009
______________________________
RODOLFO SOSA, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 427TH DISTRICT COURT OF TRAVIS COUNTY;
NO. D-1-DC-06-100022, D-1-DC-06-300403, D-1-DC-06-300443;
HONORABLE JON WISSER, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
ORDER ON MOTION TO WITHDRAW
Pending before the Court is a motion filed by attorney Alexander Reyer seeking to withdraw as appellate counsel.
A review of the clerk’s record reveals that, after appellant was convicted and sentence was imposed, the trial court determined that appellant was indigent and in need of legal services. The clerk’s record shows that the trial court appointed Reyer to represent appellant on appeal on January 14, 2009.
On June 10, 2009, this Court received a motion from Reyer titled Motion for Withdrawal of Counsel requesting this Court to allow Reyer’s withdrawal from this appeal. However, the motion now pending before this Court does not identify any current deadlines; does not include the party’s name, last known address, or telephone number; does not state that a copy of the motion was delivered to the party; and does not state that the party was notified of the right to object to the motion. See Tex. R. App. P. 6.5(a). Because the motion fails to comply with the requisites of the rule, we deny the motion.
We do, however, note that the trial court retains authority over the appointment of counsel for appellant. See Enriquez v. State, 999 S.W.2d 906, 908 (Tex.App.–Waco 2000, pet. ref’d). Any request for clarification of appointed counsel’s continuing role in this appeal is properly directed initially to the trial court. Appellant is directed to supplement the appellate record with the appropriate documentation of any further action taken by the trial court with respect to appointed counsel.
The Motion for Withdrawal of Counsel is denied.
Per Curiam
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legal sufficiency review, an appellate court may not sit as a thirteenth juror, but rather must uphold the jury’s verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988).
If the evidence is legally sufficient, we then review the factual sufficiency challenge. Clewis, 922 S.W.2d at 133. When an appellant challenges the factual sufficiency of the evidence supporting his conviction, the reviewing court must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in finding the appellant guilty beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing a factual sufficiency review, we must give deference to the fact finder’s determinations if supported by evidence and may not order a new trial simply because we may disagree with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a new trial unless there is some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury’s verdict. See id. Additionally, an appellate opinion addressing factual sufficiency must include a discussion of the most important evidence that appellant claims undermines the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).
Analysis
Appellant was convicted of burglary of a habitation by committing the felony offense of criminal mischief causing pecuniary damage to real or personal property in the amount of $1,500 or more but less than $20,000. See Tex. Penal Code Ann. §30.02(a)(3) (Vernon 1999). The elements of criminal mischief are that a person, without the effective consent of the owner, damages or destroys the tangible property of the owner. See § 28.03. Criminal mischief is classified as a state jail felony if the amount of damage caused is $1,500 or more but less than $20,000. The amount of pecuniary loss is calculated pursuant to section 28.06. See § 28.06.
The record reflects that the owner, Seigman, testified about the damage inflicted on his home and that it was done without his effective consent. Further, the record reflects that damage was both to the structure, in the form of broken windows, window screens, walls and doors, other damage to interior, in the form of numerous blood stains, mud stains and debris throughout the home. In addition, there was testimony about articles of personal property and clothing that had been destroyed. As to each of these items, there was testimony about the repair, cleaning, or replacement costs. As to the structural damage, the testimony was that Seigman had received an estimate of $2,160 to complete the repairs. For the cleaning of the various stains and debris left in the home, Seigman testified that the charge was $1,612 to complete the cleanup. The evidence shows that the articles of personal property and clothing that were destroyed was valued at “a little over $2,500." Seigman subsequently testified that the total was $6,700 and, after he paid his $1,000 deductible under his homeowner’s policy, the insurance company paid “about” $5,700. All of this testimony was received by the trial court without objection. If the values testified to by Seigman are added, the total is $6,272. After Seigman’s payment of the $1,000 deductible, the record reflects that the insurance company paid $5,272.
In evaluating the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict. Ross, 133 S.W.3d at 620. Further, we give deference to the fact finder’s reasonable inferences from the basic facts to the ultimate fact. See Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). When the evidence, as reflected above, is compared to the elements of the offense, in the light most favorable to the verdict, it is apparent that the State proved beyond a reasonable doubt that the pecuniary loss suffered by Seigman was $1,500 or more but less than $20,000. Accordingly, we cannot say the trial court acted irrationally, as the trier of fact, in finding appellant guilty beyond a reasonable doubt. Ross, 133 S.W.3d at 620.
Having found the evidence legally sufficient, we must now address the issue of the factual sufficiency of the evidence. Clewis, 922 S.W.2d at 133. While we view the evidence without the prism of in the light most favorable to the verdict, we must still give deference to the fact finder’s determinations if supported by evidence. Watson, 204 S.W.3d at 417. Our review of the evidence in a neutral light compels the conclusion that the trier of fact’s decision that appellant was guilty beyond a reasonable doubt was not an irrational one. Id. Therefore, the evidence was factually sufficient.
Finally, we must address the evidence that appellant contends should undermine our confidence in the fact finder’s decision. Sims, 99 S.W.3d at 603. Appellant points to the testimony of Seigman about the repairs to the structure. When asked about the cost of the repairs, he stated that the estimate was $2,160. It is this bit of testimony that appellant contends makes the evidence insufficient. In support of this contention, appellant directs the court to Sebree v. State, 695 S.W.2d 303, 304 (Tex.App.–Houston [1st Dist.] 1985, no pet.). The court in Sebree determined that the testimony of the complainant that the estimate to repair the damaged property was not sufficient evidence to prove the cost of repair, which is required by the applicable provisions of the Penal Code. Id. (referencing the requirements of § 28.06(b)). Section 28.06(b) still controls the proof of pecuniary loss for purposes of the criminal mischief statute. See § 28.06(b). If Seigman’s testimony regarding the estimated damages was the only evidence of pecuniary loss, appellant’s reliance on Sebree would be better understood. In Sebree, the estimate was the sum total of the evidence regarding the pecuniary loss suffered by the victim. What the court said was, “We further hold that an estimate of damage or an opinion on the amount of damage without further evidence is insufficient to prove cost of repair . . . .” Sebree, 695 S.W.2d at 305. In Sebree, the victim testified about an estimate and that she had the repairs done, but never offered any testimony that the repairs had been paid for. This is distinguishable from the case before us. Here, Seigman testified about an estimate for the structural repairs, the actual cost of the clean up, and the replacement cost of the property destroyed. He then testified that he paid his deductible and the insurance company paid “about $5,700.” The mathematical addition of the figures testified to by Seigman would require his insurance company to pay $5,272 after the deductible had been paid. Even if we take appellant’s construction of Sebree as correct and apply it literally to the facts of the case before us, we still have sufficient evidence before the fact finder that the damage to Seigman was greater than the $1,500 threshold for criminal mischief as indicted. Giving due deference to the fact finder’s ability to draw reasonable inferences from the evidence, the fact finder was rational in deciding that Seigman had suffered pecuniary loss of at least $1,500 or more but less than $20,000.
Conclusion
Having overruled appellant’s issues regarding the sufficiency of the evidence, we affirm the trial court’s judgment.
Mackey K. Hancock
Justice
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