Opinion
No. 05-05-01482-CR
Supplemental opinion issued October 5, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-87983-04. Motion Denied.
SUPPLEMENTAL OPINION ON MOTION FOR REHEARING
The Court has before it the State's Motion for Rehearing. In its motion, the State asks us to reevaluate our holding, find the evidence legally sufficient on the "alternative ground of substantial inconvenience," and affirm the trial court's judgment. For reasons that follow, we deny the State's Motion for Rehearing. Citing Santana v. State, 59 S.W.3d 187, 190 (Tex.Crim.App. 2001), the State contends that, where the statute permits proof of either pecuniary loss or substantial inconvenience, proof of substantial inconvenience renders the evidence sufficient even without proof of pecuniary loss. The State then argues that State's Exhibit 1 provides such proof by establishing extensive damage was done and "[t]he staff was required to close the room `until further notice' for its investigation." The State argues the trial court could infer "that entirely breaking off a sink faucet and a piece of molding, as well as damaging numerous other parts of the room, was an interference with the officer's proprietary rights and diminished the property's value, even if no evidence of pecuniary loss was offered." In support of this argument, the State cites Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003), which holds the fact finder is entitled to make reasonable inferences from the evidence. The State also argues that closing the damaged room pending further investigation is further evidence of substantial inconvenience. See Santana v. State, No. 08-99-00154-CR, 2000 WL 1207195, at *4 (Tex.App.-El Paso Aug. 25, 2000) (not designated for publication) (holding "subsequent investigations by . . . employees and the sheriff's department" evidence of substantial inconvenience), aff'd, 59 S.W.3d at 187. The State concludes that, notwithstanding the lack of any evidence of value, the evidence is sufficient to prove the damage or destruction of property caused "substantial inconvenience to others." See Tex. Pen. Code Ann. § 28.03(1)(B) (Vernon Supp. 2006); Santana, 59 S.W.3d at 191-92. The State relies on rule of appellate procedure 47.1 and Kombudo v. State, 171 S.W.3d 888, 889 (Tex.Crim.App. 2005), in arguing this Court erred by not addressing the alternative ground of substantial inconvenience as a basis for our decision. The State, citing Pena v. State, 191 S.W.3d 133, 137-38 (Tex.Crim.App. 2006), states "the Court of Criminal Appeals has acknowledged that parties should generally be given the opportunity to brief an issue before an appellate court decides an issue on its own motion." The State then offers to "submit a supplemental brief if the Court desires additional argument on this issue." We conclude Pena is distinguishable from the circumstances before this Court. In Pena, the court of appeals, on its own, addressed whether the Texas Constitution's Due Course of Law provision grants defendants greater protection than the United States Constitution. The court of criminal appeals stated,
We have previously held, and reaffirm today, that appellate courts are free to review "unassigned error"-a claim that was preserved in the trial below but was not raised on appeal. In conducting such a review, however, the question becomes whether certain circumstances obligate a court to assign such error by ordering briefing from the parties. We recognize that many, if not most, of the types of error that would prompt sua sponte appellate attention need not be assigned because the error involved constitutes an obvious violation of established rules.In the case before us, appellant raised the issue of the legal sufficiency of the evidence to prove each element of the offense for which he was convicted. Legal sufficiency is neither a legal theory nor a trial court error required to be preserved in the court below. It is a matter of constitutional due process. See In re Winship, 397 U.S. 358, 364-65 (1970). The issue of legal sufficiency was specifically raised by appellant in his original brief and responded to by the State; it was not addressed by this court "on its own motion." In its original brief, the State addressed neither the alleged element of pecuniary loss nor the un-alleged element of "substantial inconvenience to others," which it now claims we should have addressed as an alternative ground on which to affirm appellant's class C misdemeanor conviction. The indictment in this case alleged only pecuniary loss. Cf. Santana, 59 S.W.3d at 193 (information alleged pecuniary loss and substantial inconvenience conjunctively and issue was whether variance between pleading and proof was material, and thus fatal); Howlett v. State, 994 S.W.2d 663, 667 (Tex.Crim.App. 1999) (holding that allegation of pecuniary loss and substantial inconvenience conjunctively in indictment imposed on prosecution burden of proving either). Because the indictment here did not allege "substantial inconvenience," the State is not permitted to rely on substantial inconvenience as an alternate ground to support appellant's conviction. Thus, we did not err either by addressing the presented issue of legal sufficiency of the evidence or by failing to address the un-alleged element of "substantial inconvenience" as an alternate ground for affirming appellant's conviction. We deny the State's Motion for Rehearing.
Appellant did not file a response to the State's Motion for Rehearing.