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ANA RETANA, Appellant, v. THE STATE OF TEXAS, Appellee. |
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No. 08-05-00173-CR Appeal from 243rd District Court of El Paso County, Texas (TC # 20040D01365) |
Ana Retana appeals her conviction of criminal mischief. A jury found Appellant guilty and the court assessed punishment at confinement in the state jail for two years, probated for four years. We affirm.
FACTUAL SUMMARYOn January 30, 2004, Patricia Duran Sr. (Duran) went to Andale Restaurant for a celebratory dinner with her sister, Dr. Estela Robinson, and Dr. Robinson's office staff. Duran's daughter, Patricia Duran Jr. (Patricia), also attended the dinner. Appellant had previously worked for Dr. Robinson but was not invited to the party. At some point during the evening, Duran saw Appellant in the restaurant. Appellant appeared to be intoxicated. She walked up to the table and began drinking Dr. Robinson's beer. She then kneeled down at the table and began arguing with her. Dr. Robinson and other guests at the table told Appellant to leave. Dr. Robinson left the table and went into the bar with Appellant to speak with her. Duran knew Appellant and was familiar with her past behavior. Believing something bad was about to happen, she left the table to talk to the manager and ask for his assistance in getting Appellant to leave. As she and the manager walked into the bar, she saw Appellant pushing Robinson. (1) The manager then asked Appellant to leave. Expecting more trouble, Duran called 911. Appellant eventually left the restaurant.
Patricia decided to leave at about the same time. In the parking lot, she saw Appellant standing over the hood of Duran's car with an object in her hand. Although Patricia said she saw Appellant "keying" her mother's Pontiac Aztec, she did not know what object Appellant had in her hand. She demonstrated for the jury what Appellant was doing, saying, "She had something in her hand and she was going like this, forward." Patricia went back into the restaurant, found her uncle, Johnny Robinson, and told him that Appellant was doing something to their car. Robinson and Duran went outside and found large scratches on the Aztec and on a Dodge Durango driven by Patricia. In the meantime, Appellant had gone back inside of the restaurant and was seated in the bar. Appellant's sister and brother-in-law arrived and Duran told them that Appellant had scratched her vehicle. They went inside and found Appellant in the bar. As they escorted her from the building, Appellant broke away and struck Duran in the face with a closed fist. The trial court admitted a photograph showing the injuries to Duran's face.
Appellant invited her sister, Laura Jauragui, to go hear some live music at Andale Restaurant on the evening of January 30, 2004. Jauragui at first declined but she and her daughter went to the restaurant after learning from another sister, Sylvia Espalin, that the Robinsons were at the restaurant and Appellant was there by herself. Jauragui knew "there was going to be trouble if [Appellant] was by herself." Jauragui went with the intention of leaving her daughter to stay with Appellant. While looking for a parking space, Jauragui saw the Robinsons' housekeeper, Pilar, walking by some vehicles parked in front. Pilar had what appeared to be a key in her hands and she squatted down by the vehicles. Sylvia Espalin also called yet another sister, Blanca Retana. As a result of their conversation, Blanca and her brother-in-law, Gabriel Espalin, went to the restaurant to pick up Appellant because they did not want her there by herself with the Robinsons. They saw a police officer in the parking lot when they arrived. They entered the restaurant and found Appellant in the bar. As they walked her out of the restaurant, they came upon Johnny Robinson and Duran waiting for them by the entrance. Johnny, who was closer to them, started yelling, "We finally got you." Johnny grabbed Appellant by her right hand and she "got him by the mouth." As Blanca attempted to separate them, Duran charged over with a cell phone in her hand. Appellant broke free and tried to strike the cell phone but struck Duran's face instead. The police officer arrested Appellant for assaulting Duran. A grand jury subsequently indicted Appellant for two counts of criminal mischief over $1,500 but less than $20,000 in connection with the damage to the Aztec and Durango.
Appellant testified that she was trying to find a band to play at her parent's fiftieth wedding anniversary so she went to Andale's that night to listen to the band. When Appellant saw the Robinsons and other people from the office, she walked over to say hello. She felt embarrassed because she was there by herself. She told Dr. Robinson that she knew there would be trouble when Duran showed up. Dr. Robinson was angry with Appellant and jealous because she was there by herself. While they were talking in the bar, Duran walked over and asked Appellant what she was doing there and demanded that Dr. Robinson leave Appellant alone. Duran was furious because Dr. Robinson was talking to her. Duran did not like Appellant because she and Dr. Robinson had maintained a lesbian relationship for several years. Dr. Robinson asked Appellant to go home but she refused. Both Duran and Dr. Robinson walked away and left Appellant in the bar. She sat down and began drinking with a man who offered to buy her a beer after overhearing the argument. She called her sister, Sylvia, and told her that she was there by herself and there was going to be trouble. She also wanted someone to drive her home because she had been drinking. She did not leave the bar until Gabriel and Blanca arrived. As they exited the restaurant, Appellant saw Johnny standing in front of her and he began yelling at her. Johnny grabbed her hand and "somehow [her] fingers went in his mouth and he was biting." When Appellant saw Duran approaching her, she thought Duran was going to hit her with the cell phone in her hand, so Appellant tried to knock the phone out of her hand. Appellant denied scratching the cars.
Duran was the registered owner of both vehicles damaged that evening. Adan Lopez, who is employed at the Midway Chevrolet Collision Center, had twenty-three years' experience in estimating the cost to repair damage to vehicles. He estimated that the cost to repair the damage to the Pontiac Aztec was $3,200 to $3,400, and the cost to repair the Durango was between $2,750 and $3,000. The jury rejected Appellant's defense and found her guilty of both counts of criminal mischief.
LEGAL AND FACTUAL SUFFICIENCY
In Point of Error One, Appellant challenges the legal and factual sufficiency of the evidence supporting her conviction. More specifically, she argues that the evidence is insufficient to prove that the amount of pecuniary loss was more than $1,500 but less than $20,000. She also alleges that the State failed to prove that the object used to commit the offense was unknown to the grand jury.
Standards of Review
In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991). We consider all of the evidence, whether admissible or inadmissible. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998). We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct evidence and circumstantial evidence cases. Geesa, 820 S.W.2d at 158.
In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In performing our review, we are to give due deference to the fact finder's determinations. See id. at 8-9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may "believe all, some, or none of the testimony." Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. Under the first prong of Johnson, we cannot conclude that a conviction is "clearly wrong" or "manifestly unjust" simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury. Watson v. State, 204 S.W.3d 404, 417 (Tex.Crim.App. 2006). Under the second prong of Johnson, we cannot declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury's resolution of that conflict. Id. Before finding that evidence is factually insufficient to support a verdict under the second prong of Johnson, we must be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury's verdict. Id.
Elements of Criminal Mischief
A person commits an offense if, without the effective consent of the owner: he intentionally or knowingly damages or destroys the tangible property of the owner. Tex.Penal Code Ann. § 28.03(a)(1)(Vernon Supp. 2006). The amount of the pecuniary loss determines the punishment for the offense. Pertinent to this case, an offense under this section is a state jail felony if the amount of pecuniary loss is $1,500 or more but less than $20,000. Tex.Penal Code Ann. § 28.03(b)(4). The two-count indictment alleged that Appellant intentionally and knowingly damaged a Pontiac motor vehicle (Count 1) and a Dodge motor vehicle (Count 2) by scratching the vehicles with an unknown object, without the consent of the owner. Each count of the indictment alleged that Appellant caused a pecuniary loss in the amount of $1,500 or more but less than $20,000.
Amount of Pecuniary Loss
If the property is damaged, the amount of pecuniary loss is the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred. Tex.Penal Code Ann. § 28.06(b)(Vernon 2003). There is no requirement that the property actually be repaired. Elomary v. State, 796 S.W.2d 191, 193 (Tex.Crim.App. 1990). An opinion from an individual who is not competent to give an expert opinion on repair costs and who merely states his "off-the-wall" lay opinion or conclusion of what the amount of damages might be or states from hearsay what someone else said the damages might be is insufficient to prove pecuniary loss. Id. But an opinion 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 is sufficient to prove pecuniary loss. Id.
In making her sufficiency arguments, Appellant complains that the trial court erroneously admitted the expert testimony of Adan Lopez because (1) the State did not provide her with Lopez's expert report 168 hours prior to trial in violation of the trial court's discovery order; (2) the State failed to qualify Lopez as an expert witness; and (3) he based his expert testimony on hearsay, namely, the estimates previously obtained by Duran. These arguments are without merit because we consider all evidence admitted at trial--including improperly admitted evidence--in conducting both the legal and factual sufficiency reviews. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Ruth v. State, 167 S.W.3d 560, 571 (Tex.App.--Houston [14th Dist.] 2005, pet. ref'd); Arzaga v. State, 86 S.W.3d 767, 778 (Tex.App.--El Paso 2002, no pet.). Even if Appellant's arguments could be considered in the context of a sufficiency review, they are without merit. The trial court, after determining that it would admit Lopez's expert testimony, gave Appellant the opportunity to request a continuance and promised that such a request would be granted. Appellant did not request a continuance. Consequently, any complaint that the State violated the discovery order is waived. See Young v. State, 183 S.W.3d 699, 706-06 (Tex.App.--Tyler 2005, pet. ref'd). Because Appellant did not object to the State's failure to qualify Lopez as an expert witness, her argument regarding his qualifications is waived. See Tex.R.App.P. 33.1(a). The Rules of Evidence also permit an expert witness to base his or her opinion on inadmissible evidence which includes hearsay. See Tex.R.Evid. 703. Therefore, Lopez's testimony was not inadmissible because he might have based his opinion on the estimates previously provided to Duran.
We turn now to consideration of Lopez's testimony. Lopez was formerly employed at Crawford Auto Plaza Body as the body shop manager. He spent approximately 80 percent of his time writing estimates and has twenty-three years of experience in estimating the cost to repair damage to vehicles. Lopez was currently employed at Midway Chevrolet Collision Center. The State showed Lopez an estimate from Crawford Auto Plaza Body which purportedly had been written by him, but he testified that he had left Crawford approximately three weeks before the estimate was written. He explained that his name appeared on the estimate because his login was not immediately deleted from his computer work station at Crawford. Lopez would not provide an estimate based only on the photographs, but during a recess, he examined the vehicles in the parking garage of the courthouse. He estimated that the cost to repair the Pontiac was $3,200 to $3,400 and the cost to repair the Dodge was between $2,750 and $3,000. This evidence is legally sufficient to prove beyond a reasonable doubt that Duran's pecuniary loss was more than $1,500 with respect to each vehicle. See Elomary, 796 S.W.2d at 194 (holding evidence sufficient to support finding that fair market value of repair work exceeded $200 where insurance adjuster, who was qualified as an expert, estimated the damages to complainant's vehicle at $518.40).
In her factual sufficiency review, Appellant focuses on Lopez's testimony that he was "just guessing" how much it would cost to repair the Pontiac. When this testimony is considered in isolation, it seemingly cuts against the accuracy of Lopez's estimate. However, we must consider all of his testimony, not just isolated portions. The trial court did not permit Lopez to return to his office and utilize his estimating software to make the estimates as to each vehicle even though that is what he always uses when making estimates. Thus, he did not have the actual prices of certain parts, such as the side moldings that would have to be removed and replaced. Although Lopez used the phrase "just guessing", it is apparent from the context of his testimony that he meant he was estimating the prices for certain items. Lopez reiterated that the costs to repair all of the damage to the Pontiac was "very close" to $3,200 to $3,400 and it was definitely over $1,500. Likewise, it was his opinion that the damage to the Durango would cost more than $1,500 to repair.
Having considered all of the evidence in a neutral light, we conclude that it is factually sufficient to support the jury's determination that the pecuniary loss related to each vehicle was more than $1,500. See Espinoza v. State, 955 S.W.2d 108, 112 (Tex.App.--Waco 1997, pet. ref'd) (evidence was factually sufficient to show that value of property damaged in victim's residence was at least $1,500 where state's expert testified that cost of repairing or replacing damaged items was at least $1,529 and that to prepare his estimate he examined home, called for material prices, and estimated labor charges).
Unknown Object
Appellant also contends that the evidence is legally and factually insufficient to support the allegation in the indictment that Appellant used an unknown object to damage the vehicles because some of the State's witnesses testified that the object used was a key and the State did not introduce testimony from any member of the grand jury that the grand jury attempted but was unable to identify the object used to commit the offenses. Appellant's argument is based on a line of cases including Hicks v. State, 860 S.W.2d 419, 424 (Tex.Crim.App. 1993), McFarland v. State, 845 S.W.2d 824, 830-31 (Tex.Crim.App. 1992); and Matson v. State, 819 S.W.2d 839, 847 (Tex.Crim.App. 1991). These cases applied the rule that where the indictment alleges that the object used was unknown to the grand jury, but the evidence at trial identifies the object, the State must prove that the grand jury used due diligence in ascertaining the object used. Rose v. State, 76 S.W.3d 573, 574 (Tex.App.--Corpus Christi 2002, no pet.) citing Hicks, 860 S.W.2d at 424; McFarland, 845 S.W.2d at 830; and Matson, 819 S.W.2d at 847. We agree with the State that Appellant's sufficiency complaints should be rejected because an allegation that an object was in fact unknown to the grand jury is a non-essential allegation and is disregarded in the hypothetically correct jury charge. See Rosales v. State, 4 S.W.3d 228, 231 (Tex.Crim.App. 1999)(expressly holding that the rule from Hicks is no longer viable after Malik (2)). See also Fagan v. State, 89 S.W.3d 245, 248-49 (Tex.App.--Texarkana 2002, pet. ref'd); Rose, 76 S.W.3d at 574; Richards v. State, 54 S.W.3d 348, 350 (Tex.App.--Houston [1st Dist.] 2001, pet. ref'd). For the these reasons, we overrule Points of Error One and Two.
EXTRANEOUS OFFENSES
In Points of Error Three and Four, Appellant challenges the admission of three extraneous assault offenses at trial, i.e., an assault of Dr. Robinson in the bar before the criminal mischiefs took place, and assaults of both Duran and Johnny Robinson outside the bar after the cars had been damaged. A trial court's admission of extraneous offenses is reviewed under an abuse of discretion standard. Prible v. State, 175 S.W .3d 724, 731 (Tex.Crim.App.), cert. denied, ---- U.S. ----, 126 S. Ct. 481, 163 L. Ed. 2d 367 (2005). If the trial judge's ruling is within the zone of reasonable disagreement, there is no abuse of discretion. Id.
Assaults of Duran and Johnny Robinson
In Point of Error Three, Appellant contends that the extraneous offense evidence pertaining to Duran and Johnny Robinson was inadmissible under Texas Rule of Evidence 403 because its probative value was substantially outweighed by the danger of unfair prejudice. The trial court admitted evidence that Appellant assaulted Duran and Johnny Robinson as she left the restaurant. Some of the evidence was elicited by Appellant herself. For example, during cross-examination, Appellant elicited testimony from Duran that Appellant had been charged with assaulting both Duran and Johnny, but that the charges had since been dismissed. On re-direct, the State offered photographs depicting the injuries suffered by Duran when Appellant struck her. Appellant objected on relevancy grounds since the charges had been dismissed. The trial court overruled the objection because Appellant had raised the matter in cross-examination. Duran went on to testify, without objection, that Appellant had hit her with a closed fist. Another witness testified without objection that Appellant struck Duran. Appellant also elicited testimony from Blanca Retana and Gabriel Espalin that Appellant had been arrested for assaulting Duran.
The State initially responds that Appellant's Rule 403 complaint is not preserved because she made only a general relevancy objection made at trial. We agree. To preserve error for appellate review, the complaining party must make a timely, specific objection and obtain a ruling. Tex.R.App.P. 33.1; Wilson v. State, 71 S.W.3d 346, 349 (Tex.Crim.App. 2002). Further, a party must continue to object every time inadmissible evidence is offered. Gillum v. State, 888 S.W.2d 281, 285 (Tex.App.--El Paso 1994, pet. ref'd), citing Ethington v. State, 819 S.W.2d 854, 858 (Tex.Crim.App. 1991). Error in the admission of evidence is cured when the same evidence is admitted elsewhere without objection. Ethington, 819 S.W.2d at 858; Gillum, 888 S.W.2d at 285. With respect to extraneous offense evidence, a relevancy objection does not preserve a complaint that the evidence is inadmissible under Tex.R.Evid. 403. Montgomery v. State, 810 S.W.2d 372, 389 (Tex.Crim.App. 1990)(op. on reh'g). Therefore, Appellant waived her Rule 403 complaint by failing to object on that ground at trial. See Bell v. State, 938 S.W.2d 35, 49 (Tex.Crim.App. 1996). Additionally, her complaint is waived because she did not continue to object each time the evidence was offered. See Gillum, 888 S.W.2d at 285. Point of Error Three is overruled.
Assault of Dr. Robinson
In Point of Error Four, Appellant complains that the trial court erred in admitting evidence of the assault of Dr. Robinson because the State did not give her notice pursuant to Texas Rule of Evidence 404(b). She additionally argues that the evidence was prejudicial and her right to a fair trial was denied.
Prior to trial, the State gave notice of its intent to introduce two assault offenses committed by Appellant on January 30, 2004. The notice pertained to the assaults of Duran and Johnny Robinson which took place outside the bar. The State attempted to introduce evidence through Duran that Appellant pushed Dr. Robinson while they were talking in the bar. Appellant objected outside the presence of the jury that she had not been given notice and the trial court sustained her objection. The trial court also sustained her extraneous offense objection when Erika Ontiveros testified that she saw Appellant grab Dr. Robinson's arm and pull Dr. Robinson while in the bar. During the State's rebuttal, Edwin Vasquez, the former manager of Andale, testified that he saw two women in the bar area exchanging words and one woman pushed the other. The trial court sustained Appellant's objection that the witness was discussing an "extraneous." At another point in his testimony, Vasquez said that one woman pushed the other woman into the wall and he had to separate them. (3) Appellant objected and referred to the court's action in sustaining her previous objection. The court did not expressly sustain the objection but told the prosecutor that the witness could not discuss the incident in the bar. Appellant then moved for a mistrial, arguing that the evidence was prejudicial and its harm could not be cured by an instruction to disregard. She alternatively requested that all of Vasquez's testimony be stricken. The trial court denied the motion for a mistrial and did not rule on the request to strike Vasquez's testimony.
The State responds that the evidence showing Appellant argued with and assaulted Dr. Robinson inside of the bar is admissible as same transaction contextual evidence, and therefore, it was not required to give notice under Rule 404(b). Under Rule 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person to show action in conformity therewith. Tex.R.Evid. 404(b); Wyatt v. State, 23 S.W.3d 18, 25 (Tex.Crim.App. 2000). It may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.R.Evid. 404(b); Montgomery, 810 S.W.2d at 388-89. "Same transaction contextual evidence" is evidence reflecting the context in which a criminal act occurred, recognizing that events do not occur in a vacuum, and a jury has a right to hear what occurred immediately before and after the offense in order to realistically evaluate the evidence. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000). Extraneous offenses may be admissible as same transaction contextual evidence when "several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction." Prible, 175 S.W.3d at 731-32, quoting Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App. 1993). This type of evidence results when an extraneous matter is so intertwined with the State's proof of the charged crime that avoiding reference to it would make the State's case difficult to understand or incomplete. Id. at 732. The State is not required to give notice of its intent to introduce same transaction contextual evidence. See Tex.R. Evid. 404(b)(upon timely request, State is required to give notice of its intent to introduce during its case-in-chief, extraneous offense evidence other than that arising in the same transaction).
The evidence at trial showed that Appellant approached the dinner party and began to argue with Dr. Robinson. The two of them went into the bar to talk privately, but the argument became physical when Appellant grabbed Dr. Robinson by the arm and pushed or pulled her. Duran and the restaurant manager saw Appellant push Dr. Robinson and intervened in the altercation. The assault resulted in Appellant being asked to leave the restaurant by management. The State prosecuted this case on the theory that the confrontation and the ejection from the restaurant enraged Appellant and she damaged both of Duran's vehicles which were parked in the front of the restaurant. The evidence showing that Appellant grabbed, pushed, or pulled Dr. Robinson during an argument in the bar was necessary for the jury to understand why Appellant was asked to leave the restaurant and her state of mind. Without this evidence, the jury would have had an incomplete picture of why Appellant was angry enough to damage the vehicles. We conclude that the evidence was admissible as same transaction contextual evidence because the offenses are interwoven and avoiding reference to the confrontation and assault inside of the restaurant would make the State's case difficult to understand and incomplete. See Harvey v. State, 2002 WL 31525279 (Tex.App.--Austin 2002, pet. ref'd)(not designated for publication)(evidence of damage to victim's property was relevant and admissible in prosecution for violating a family protective order, as it was same transaction contextual evidence; defendant's assault of the victim and subsequent damage to her property could all be attributed to defendant's continuing anger caused by complainant's revelation that she was dating someone else). Consequently, the State was not required to give notice under Rule 404(b). Because the evidence showing Appellant's assault of Dr. Robinson was admissible, the trial court did not abuse its discretion by denying Appellant's motion for mistrial. Point of Error Four is overruled. The judgment of the trial court is affirmed.
April 12, 2007
ANN CRAWFORD McCLURE, Justice
Before Chew, C.J., McClure, and Carr, JJ.
(Do Not Publish)
1. The trial court sustained Appellant's objection that she had not been given notice of the State's intent to
introduce this extraneous offense, but Appellant did not ask that the jury be instructed to disregard the testimony.
2. Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997);
3. Vasquez could not identify Appellant as one of the women involved in the argument, but he identified Duran
as the sister of one of the women who intervened and helped calm the situation.