IN THE COURT OF APPEALS FIFTH APPELLATE DISTRICT OF TEXAS CAUSE NUMBER 05-10-00508-CR ROBERT AMARO, JR., Appellant vs. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law Number 1 Grayson County, Texas Trial Court Cause Number 2009-1-541 BRIEF OF APPELLANT BUTSCHER & DUNN Rick Dunn 500 South Crockett Sherman, Texas 75090 Tel: 903-892-8414 Fax: 903-892-8411 S/75154/119/07655/TBINGHAM
CAUSE NUMBER 05-10-00508-CR ROBERT AMARO, JR. VS. THE STATE OF TEXAS IN THE APPELLATE COURT DALLAS COUNTY, TEXAS 5 TH APPELLATE DISTRICT STATEMENT OF ALL PARTIES TO TRIAL COURT S JUDGMENT Find below the complete list of all parties to the trial court s judgment or order appealed from, and the names and addresses of all trial and appellate counsel: 1. Parties (1) Robert Amaro, Jr. (2) State of Texas 2. Counsel (1) Trial Counsel : Rick Dunn (2) For Appellant : BUTSCHER & DUNN Rick Dunn 500 South Crockett Sherman, Texas 75090 Tel: 903-892-8414 Fax: 903-892-8411 (3) For Appellee : Grayson County. District Attorney Karla Baugh Hackett Grayson County Justice Center 200 South Crockett, Suite 100 Sherman, Texas 75090 Tel: 903-813-4361 Fax: 903-892-9933 AMARO - BRIEF OF APPELLANT - PAGE 2
TABLE OF CONTENTS STATEMENT OF ALL PARTIES TO TRIAL COURT S JUDGMENT...2 TABLE OF CONTENTS...3 INDEX OF AUTHORITIES...4 STATEMENT OF THE CASE...5 STATEMENT OF JURISDICTION...6 STATEMENT OF FACTS...7 APPELLANT S POINTS OF ERROR POINT OF ERROR 1: POINT OF ERROR 2: THE EVIDENCE PRESENTED IS LEGALLY INSUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR CRIMINAL MISCHIEF >$50.00<$500.00. THE EVIDENCE PRESENTED IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR CRIMINAL MISCHIEF >$50.00<$500.00. SUMMARY OF ARGUMENT...9 ARGUMENT AND AUTHORITIES...9 CONCLUSION AND PRAYER...12 CERTIFICATE OF SERVICE...13 AMARO - BRIEF OF APPELLANT - PAGE 3
INDEX OF AUTHORITIES CASES: Adelman v. State, 828 S.W.2d 418 (Tex.Crim.App. 1992)...10 Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996)...12 Elomary v. State, 796 S.W.2d 191 (Tex.Crim.App. 1990)...10 Goodman v. State, 66 S.W.3d 283 (Tex.Crim.App. 2001)...12 Humason v. State, 728 S.W.2d 363 (Tex.Crim.App. 1987)...10 Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000)...12 Nixon v. State, 937 S.W.2d 610 (Tex.App.-Houston [1 st Dist.] 1996, no writ)...11 Sebree v. State, 695 S.W.2d 303 (Tex.App.-Houston[1st Dist.] 1985, no writ)...10. Watson v. State, 204 S.W.3d 404 (Tex.Crim.App. 2006)...9 STATUTES: Section 28.03(a)(1) Texas Penal Code...9 Section 28.06(a), Texas Penal Code...9 Section 28.06(b), Texas Penal Code...9 Article 4.03, Texas Code of Criminal Procedure...6 Rule 38, Texas Rules of Appellate Procedure...5 BRIEF OF APPELLANT - PAGE 4
CAUSE NUMBER 05-10-00508-CR ROBERT AMARO, JR. VS. THE STATE OF TEXAS IN THE APPELLATE COURT DALLAS COUNTY, TEXAS 5 TH APPELLATE DISTRICT BRIEF OF APPELLANT TO THE HONORABLE JUDGES OF THE COURT OF APPEALS: COMES NOW, ROBERT AMARO, JR., hereinafter referred to as Appellant, and submits this brief pursuant to the provisions of Rule 38 of the Texas Rules of Appellate Procedure, respectfully requesting that this Honorable Court reverse the lower court s sentence and render judgment acquitting Appellant and dismissing said cause. In support thereof, Appellant would respectfully show the Court as follows: STATEMENT OF THE CASE Appellant was charged by information with the offense of Criminal Mischief > $50.00 <$500.00. Appellant pled not guilty. (See Court Reporter s Record, Vol. 3, Pg. 15, hereinafter TR ). The jury found Appellant guilty. TR Vol. 3, Pg. 82. Following the punishment phase, the jury assessed punishment at 90 days confinement, probated, and no fine. TR Vol. 3, Pg. 104. The trial court ordered the 90 days confinement suspended, and ordered Appellant to 18 months probation. TR Vol. 3, Pg. 106. BRIEF OF APPELLANT - PAGE 5
STATEMENT OF JURISDICTION This Honorable Court has jurisdiction to hear this appeal pursuant to Article 4.03 of the Texas Code of Criminal Procedure. From this sentence, Appellant timely filed his Notice of Appeal presently before this Honorable Court. BRIEF OF APPELLANT - PAGE 6
CAUSE NUMBER 05-10-00508-CR ROBERT AMARO, JR. VS. THE STATE OF TEXAS IN THE APPELLATE COURT DALLAS COUNTY, TEXAS 5 TH APPELLATE DISTRICT STATEMENT OF FACTS Appellant was charged by information with the offense of Criminal Mischief > $50.00 <$500.00. Appellant pled not guilty. TR Vol. 3, Pg. 15. Appellant pled not guilty. TR Vol. 3, Pg. 15. On November 10, 2008, Dana Buckelew was at McDonald s in Van Alstyne, Texas, where the incident occurred. TR Vol. 3, Pg. 23. She observed Appellant and a lady screaming and cursing, with the lady standing outside the vehicle and Appellant throwing stuff out of a car where he was seated. TR Vol. 3, Pg. 24. Ms. Buckelew subsequently called the Van Alstyne Police Department. TR Vol. 3, Pg. 24. Both were upset. TR Vol. 3, Pg. 27. She never spoke with the lady or Appellant. Tr Vol. 3, Pg. 24. Diedre Ford, the complainant, is the girlfriend of Appellant. TR Vol. 3, Pg. 30. In an effort to reconcile, Ms. Ford drove to Segoville, Texas, to pick up Appellant. TR Vol. 3, Pg. 31. Appellant became upset when an unknown male contacted Ms. Ford via her cellular telephone, and the two began to argue. TR Vol. 3, Pg. 31. Mr. Ford indicated Appellant was mad because a male was calling her phone, and we were trying to get back together. TR Vol. 3, Pg. 33. During the argument, Appellant punched her Clarion car stereo, cracking the screen. TR Vol. 3, Pg. 32. Ms. Ford also contacted 911. TR Vol. 3, Pg. 33. BRIEF OF APPELLANT - PAGE 7
Ms. Ford testified that due to Appellant refusing to pay for the damage to her car stereo, she agreed to press charges upon the officer s arrival at the scene. TR Vol. 3, Pg. 34. She was unsure how long she had the car stereo before the incident in question. TR Vol. 3, Pg. 39. Over counsel s objection, Ms. Ford stated the value of the damage to her car stereo was [f]our hundred and something dollars. TR Vol. 3, Pg. 34. While the screen was broken, the car stereo still works. TR Vol. 3, Pg. 47. Ms. Ford stated her stereo was not destroyed, but damaged. TR Vol. 3, Pg. 48. Chad Vessels is an officer with the Van Alstyne Police Department. TR Vol. 3, Pg. 49. He responded to a disturbance call at McDonald s, where he made brief contact with a visibly shaken and upset Ms. Ford. TR Vol. 3, Pg. 51. Upon making contact with Appellant, Appellant admitted to punching Ms. Ford s car stereo. TR Vol. 3, Pg. 53. After asking Ms. Ford if she wished to pursue charges, Officer Vessels placed Appellant under arrest for criminal mischief. TR Vol. 3, Pg. 55. BRIEF OF APPELLANT - PAGE 8
APPELLANT S POINTS OF ERROR POINT OF ERROR 1: POINT OF ERROR 2: THE EVIDENCE PRESENTED IS LEGALLY INSUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR CRIMINAL MISCHIEF >$50.00 <$500.00. THE EVIDENCE PRESENTED IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR CRIMINAL MISCHIEF >$50.00 <$500.00. SUMMARY OF ARGUMENT Appellant asserts that the evidence adduced at trial is factually and legally insufficient to support his conviction for Criminal Mischief >$50.00<$500.00. It is Appellant s contention that the testimony of the victim, Diedre Ford, regarding the value of damage to her Clarion car stereo, despite counsel s objection, is insufficient to support the jury s decision and guilty verdict. ARGUMENT AND AUTHORITIES POINT OF ERROR 1: THE EVIDENCE PRESENTED IS LEGALLY INSUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR CRIMINAL MISCHIEF >$50.00 <$500.00. The offense of Criminal Mischief >$50.00<$500.00 occurs when a person without the effective consent of the owner, he intentionally or knowingly damages or destroys the tangible property of the owner... 28.03(a)(1), Texas Penal Code. If destroyed, the amount of pecuniary loss is the fair market value of the property at the time and place of destruction, or, if this cannot be determined, the cost of replacing the property within a reasonable time after the destruction (i.e., replacement cost). 28.06 (a), Texas Penal Code. If damaged, pecuniary loss is determined by the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred (i.e., repair cost). 28.06(b), Texas Penal Code. When legal and factual insufficiency claims are asserted, the court must initially determine whether the evidence is legally sufficient to support the conviction. Watson v. State, 204 S.W.3d 404 BRIEF OF APPELLANT - PAGE 9
(Tex.Crim.App. 2006). In a legal sufficiency challenge, the standard is whether, after reviewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Adelman v. State, 828 S.W.2d 418 (Tex.Crim.App. 1992). Proof that amounts only to a strong suspicion or mere probability of guilt is insufficient to support a conviction. Humason v. State, 728 S.W.2d 363 (Tex.Crim.App. 1987). In Elomary v. State, 796 S.W.2d 191 (Tex.Crim.App. 1990), the Court stated that if an individual who is not competent to give an expert opinion as to repair costs, but merely provides an off-the-wall lay opinion, such an estimate or opinion of damage without further evidence is insufficient to prove repair costs as required by 28.06(b) of the Texas Penal Code. Elomary, at 193. The Court further noted: The distinction between an individual merely stating his opinion or conclusion what the amount of the damages might be, or stating from hearsay what someone else said what the damages might be, 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 might be should always be kept in mind. Elomary, at 193. In Elomary, appellant s conviction was affirmed because the complainant s insurance adjuster, who was shown to be qualified, gave his expert opinion of the fair market value of the cost to repair the damages to the complainant s vehicle inflicted by appellant. Elomary, at 194. In Sebree v. State, 695 S.W.2d 303 (Tex.App.-Houston[1st Dist.] 1985, no writ), the Court reversed appellant s conviction for criminal mischief because the evidence established only an estimate of damages to the complainant s vehicle rather than the cost of repair as required by the Texas Penal Code, when the property was damaged and could have been repaired. In Sebree, the complainant testified that the property damage done to her vehicle was [s]ix hundred and seventy dollars worth of damage. On rebuttal, the complainant testified that she took BRIEF OF APPELLANT - PAGE 10
her vehicle to an automobile dealer to obtain this estimate, and over objection, stated that the estimate totaled $670.00. Rather than adducing evidence of cost of repairs, the State produced evidence of damage and estimate of damage. The Court ruled that an estimate of damage or an opinion on the amount of damage without further evidence is insufficient to prove the cost of repair as required by 28.06 of the Texas Penal Code. Sebree, at 304-305. In Nixon v. State, 937 S.W.2d 610 (Tex.App.-Houston [1 st Dist.] 1996, no writ), the Court ruled that expert testimony is required in a criminal mischief case to establish the fair market value of cost of repairs to damaged property, if there is no other evidence other that a lay witness. Nixon, at 612. In Nixon, the State called a property investor, and presented hearsay evidence from appellant s former wife, regarding the cost of repairs to a house damaged by appellant s vehicle. The Court ruled the trial court abused its discretion in admitting this evidence to prove pecuniary loss. Nixon, at 612. During trial, Ms. Ford was asked by the State what was the cost of her car stereo. Appellant s counsel objected, asserting Ms. Ford was not an expert and competent to testify to the value of the radio. TR Vol. 3, Pg. 34. The trial court overruled the objection, at which time Ms. Ford responded [f]our hundred and something dollars. TR Vol. 3, Pg. 34. When questioned whether her car stereo had been replaced, Ms. Ford stated [t]hey said it would be about as much as buying the radio new. TR Vol. 3, Pg. 47. When asked what was the repair cost to her car stereo, Ms. Ford responded...he said it s about the same as the radio cost because the value when I got it it was a new type radio so it was like five hundred, and now it s only three hundred and something dollars. TR Vol. 3, Pgs. 48-49. In the instant case, the complainant was never qualified as an expert witness in car stereos generally or Clarion car stereos specifically. She simply provided a lay opinion based on hearsay. Furthermore, there is no evidence that the amount of damage testified to related to replacement cost or repair cost. The record is clear that the damaged property, the Clarion car stereo, was simply BRIEF OF APPELLANT - PAGE 11
damaged, not destroyed. The complainant s estimate or opinion of damage without further evidence is insufficient to prove repair costs as required by 28.06(b) of the Texas Penal Code. POINT OF ERROR 2: THE EVIDENCE PRESENTED IS FACTUALLY INSUFFICIENT TO SUPPORT APPELLANT S CONVICTION FOR CRIMINAL MISCHIEF >$50.00 <$500.00. In a factual sufficiency claim, the Court is to review all the evidence without the prism of in the light most favorable to the prosecution, and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996). The Appellate Court may review the fact-finder s weighing of the evidence and is authorized to disagree with the fact-finder s determination. Id. A factual insufficiency claim may be proven in two (2) ways: (1) if the only evidence presented is simply too weak to support a rational finding of guilt, or (2) if the jury s finding is against the great weight of the evidence. Goodman v. State, 66 S.W.3d 283 (Tex.Crim.App. 2001). In another words, the proof presented at trial is too weak as to undermine confidence in the jury s decision. Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000). As stated above, considering the entirety of the record, the evidence presented by the State is too weak to support Appellant s convictions, and said finding is against the great weight of the evidence. There was no factual evidence presented as to the cost of repair to the complainant s car stereo. Her opinion, based on hearsay, falls short of proving, beyond a reasonable, the cost of repairs to the car stereo. The only evidence presented regarding the value of the damaged property is simply a guess or estimate, and is too weak to support a rational finding of guilt. CONCLUSION AND PRAYER WHEREFORE, PREMISES CONSIDERED, Appellant prays this Honorable Court reverse the judgment and sentence of the Trial Court below and order this cause dismissed, or in the alternative, reverse the Trial Court and remand for new trial. BRIEF OF APPELLANT - PAGE 12
Respectfully submitted, BUTSCHER & DUNN 500 South Crockett Sherman, Texas 75090 Tel: 903-892-8414 Fax: 903-892-8411 By: Rick Dunn State Bar No. 00783995 ATTORNEY FOR APPELLANT CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Brief of Appellant was served this day of July, 2010, on Ms. Karla Baugh Hackett, Assistant Grayson County District Attorney, Grayson County Justice Center, 200 South Crockett, Sherman, Texas 75090, by personal service. By: Rick Dunn BRIEF OF APPELLANT - PAGE 13