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presuming that trees which encroached on defendant's property were owned by the neighbor
Summary of this case from Pfeiffer v. StateOpinion
No. 04-01-00661-CR.
Delivered and Filed January 22, 2003. DO NOT PUBLISH.
From the County Court at Law No. 2, Bexar County, Texas, Trial Court No. 734,523. AFFIRMED.
ON APPELLANT'S MOTION FOR REHEARING
On October 4, 2002, appellant, Rosaura Sandoval, filed a motion for rehearing of this court's opinion which issued on September 4, 2002. See Sandoval v. State, 2002 WL 2008095 (Tex.App.-San Antonio 2002, September 4, 2002). The State filed a response on December 20, 2002. After consideration, we deny appellant's motion for rehearing and affirm the judgment of the trial court. However, we withdraw our prior opinion in this matter and substitute this opinion in its place.
BACKGROUND
In 1999, it is undisputed that Gregory H. Guerra ("Gregory Guerra") owned a rental property located at 2403 Perez ("the Perez property"). Gregory Guerra's son, John Guerra, alternated residences between the Perez property and another property at 319 Division during the time of the incident made the basis of this appeal. Both Gregory and John Guerra performed routine maintenance work at the Perez property during this period as well. Sandoval's home was located directly adjacent to the Perez property. Two crepe myrtle trees ("the trees") were located towards the rear of Gregory Guerra's property, near the property line between the Perez property and Sandoval's home. The trees were large enough to hang over Sandoval's property line and drop flowers, leaves, and debris. Sometime during the months preceding March 1999, Sandoval approached both Gregory and John Guerra at different times and asked to have the trees cut down. Both Gregory and John Guerra replied that they would not permit the trees to be cut down, but Gregory Guerra did offer to trim them. On March 29, 1999, Gregory Guerra discovered that the trees had been cut down, apparently by either chainsaw, axe, or both. He immediately found a police officer and filed an offense report. Sandoval was charged by information with criminal mischief. The information named John Guerra as the complainant. Sandoval was found guilty by a jury on October 2, 2001. She was sentenced to 6 months confinement in the Bexar County Jail, probated over a period of one year, and was assessed a $250 fine. Sandoval presents three issues on appeal: (1) that the evidence was legally or factually insufficient to establish "pecuniary loss," (2) that the evidence was legally or factually insufficient to establish the named complainant, John Guerra ("John Guerra"), as the "owner" of the property, and (3) that the trial court erred in defining the meaning of the term "pecuniary loss" in its charge to the jury. We reject appellant's three points of error and affirm the trial court's judgment accordingly.STANDARD OF REVIEW
Evidence is legally sufficient if in viewing all of the evidence in the light most favorable to the verdict, any rational trier of fact could have found that the elements of the offense were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sonnier v. State, 913 S.W.2d 511, 514 (Tex.Crim.App. 1995). Legally sufficient evidence is determined from the combined and cumulative effect of all of the evidence in the record, not from each fact reviewed in isolation. Russell v. State, 665 S.W.2d 771, 776 (Tex.Crim.App. 1983). The review of the factual sufficiency of the evidence is similar to a legal sufficiency review except that the filter of "in the light most favorable to the prosecution" is removed. Clewis v. State, 922 S.W.2d 126, 134 (Tex.Crim.App. 1996). Instead, we must find that the appealed verdict is so contrary to the "great weight of the evidence" that it is "clearly wrong and unjust." Fuentes v. State, 991 S.W.2d 267, 272 (Tex.Crim. App. 1999).ANALYSIS
Sandoval argues in her first issue that the evidence was legally and factually insufficient to prove any pecuniary loss due to the destruction of the trees. She also contends in her third issue on appeal that the court incorrectly instructed the jury on the meaning of pecuniary loss. Sandoval points out that Gregory Guerra did not know the value of the trees. However, John Guerra testified that he had an appraisal done on the trees after they were cut down and that the appraiser valued the trees at $1,400 each and as much as $1,625 for one of the trees. Sandoval timely objected to this testimony as hearsay and the objection was overruled. To the extent Sandoval contends the trial court abused its discretion in overruling her objection, we review this as a distinct issue. See Weatherred v. State, 15 S.W.3d 540, 542 (Tex.Crim.App. 2000). Section 28.06(a)(1) of the Texas Penal Code provides that the pecuniary loss of property destroyed under chapter 28 is the fair market value of the property at the time and place of the destruction. Tex. Pen. Code Ann. § 28.06(a)(1) (Vernon 1994) (emphasis added). We find the facts in this case similar to those in Star Houston, Inc. v. Kundak, in which the court allowed the defendant to testify about the value of the damages suffered to the defendant's automobile based on an outside source's appraisal of the cost of leasing a replacement automobile. 843 S.W.2d 294, 298 (Tex.App.-Houston [14th Dist.] 1992, no pet.). Persuasive to the court in Star Houston was the following analysis:If the witness states that of his own knowledge he heard X make a certain assertion and this is offered to prove the truth of the assertion, the testimony is hearsay. If, on the other hand, the witness states that a certain fact is true but in some manner discloses that his statement is founded on information received from X, the proper objection in strictness is not hearsay but a want of testimonial qualification of personal knowledge on the part of the witness.
. . .1A Roy R. Ray, Law of Evidence § 793 (Texas Practice 1980). Here, when John Guerra testified about the value of the trees based on the appraisal, he did not "offer a declarant's out-of-court statement for the truth of the matter asserted." Id.; see also Tex. R. Evid. 801(d). Instead, John Guerra's testimony amounted to an opinion of the market value of the trees and included a basis for his personal knowledge, i.e. the appraisal. Id. (emphasis added). Accordingly, we find that the trial court did not abuse its discretion by allowing John Guerra's testimony. The appraisal that was the basis for John Guerra's opinion could have been challenged by cross-examination of his sources and evaluative skills. It was not. Therefore, we consider John Guerra's testimony about the fair market value of the trees, and find it conclusive as to the issue of pecuniary loss. We hold that any rational trier of fact could have found that the pecuniary loss was proven beyond a reasonable doubt and that the appealed verdict was not so contrary to the great weight of the evidence as to be clearly wrong and unjust. We overrule Sandoval's first issue. In Sandoval's third point of error, she contends that the jury was improperly instructed as to the meaning of pecuniary loss under the Texas Penal Code. The State alleged by information that Sandoval both damaged and destroyed the trees. The only evidence regarding pecuniary loss presented at trial related to the fair market value of the trees as if they had been destroyed. See Tex. Pen. Code Ann. § 28.06(a) (Vernon 1994) (contemplating fair market value when property is destroyed). Id. However, the charge to the jury tracked the statutory language in section 28.06(b) that deals strictly with damaged property. Tex. Pen. Code Ann. § 28.06(b) (Vernon 1994). We agree with Sandoval that the jury was improperly charged. We must, however, undertake a harm analysis to determine if the error resulting from this charge was harmful to Sandoval and whether such error warrants reversal. Sanders v. State, 814 S.W.2d 784, 787 (Tex.App.-Houston [1st Dist.] 1991, no pet.). Errors in the jury charge are subject to a harmless error analysis. Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991). Reversal is required if the defendant makes a timely objection and suffered some harm as a result of the erroneous charge. Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000). The actual degree of harm is determined by reviewing the charge as a whole, the state of the evidence, argument of counsel, and any other evidence revealed by thorough examination of the entire record. Id. Here, Sandoval simply asserts that she was harmed by the trial court providing the wrong definition of pecuniary loss in light of the evidence. We are not persuaded. The jury heard evidence of the fair market value of the crepe myrtle trees as being between $1,400 and $1,625 each. Sandoval was ultimately found guilty by the jury of a class B misdemeanor of $50-$500. The jury clearly rejected the value placed on the trees. Accordingly, there was no harm such that the amount of pecuniary loss may have affected the severity and range of punishment received by Sandoval. Cf. Moreno v. State, 961 S.W.2d 512, 513 (Tex.App.-San Antonio 1997, pet. ref'd) (reversing criminal mischief conviction where evidence of replacement cost was insufficient and there was no evidence of fair market value). The record simply does not support that Sandoval was harmed. We overrule Sandoval's third issue. Sandoval argues in her second issue on appeal that the evidence was legally and factually insufficient to prove that John Guerra was the owner of the Perez property beyond a reasonable doubt. We disagree. Sandoval offers the uncontroverted evidence that John Guerra neither owned the Perez property nor had possession of it at the time of the destruction of the trees. An owner is defined in section 1.07(a)(35) of the Penal Code as a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Tex. Pen. Code Ann. § 1.07(a)(35) (Vernon 1994). The record reflects that Gregory Guerra was the lawful owner of the property at the time of the destruction of the trees. The evidence also showed that John Guerra is Gregory Guerra's son. Barring any further analysis, the familial relationship between Gregory and John Guerra gives John Guerra a greater right to possession of the Perez property than Sandoval. Rodriguez v. State, 730 S.W.2d 108, 111 (Tex.App.-San Antonio 1987, no pet.) Accordingly, we hold that any rational trier of fact could have found that John Guerra's ownership claim was proven beyond a reasonable doubt, and that the verdict was not so against the great weight of the evidence as to be clearly wrong or unjust.