in the Matter of Y. S.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-99-00866-CV

In the Matter of Y. S.

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT

NO. J-19,144, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

After concluding that Y.S. marked a park picnic table with a blue indelible marker,

causing pecuniary loss of $500 or less, the trial court adjudicated him delinquent and ordered him

to serve nine months' probation in the custody of his mother and pay restitution. See Tex. Fam.

Code Ann. § 51.03 (West Supp. 2000); Tex. Penal Code Ann. § 28.08 (West Supp. 2000). Y.S.

raises three issues on appeal. We will affirm.

Officer Randy Hunt, a City of Austin Parks and Recreation Department police

officer, testified that on January 15, 1999, he observed several people, some of whom he

recognized as members of the Crip gang, congregating around a picnic table in Gillis Park. As

Officer Hunt approached the group, he observed Y.S. sitting at one end of the table. Y.S. had

his hands on the table and appeared to be writing. When Hunt reached the table, he found freshly

applied gang graffiti written with blue markers. Hunt retrieved a blue marker of the same color

as the markings on the table from Y.S.'s shirt pocket.

Section 28.08 provides that a person commits an offense if, without the effective

consent of the owner, the person intentionally or knowingly makes markings, including

inscriptions, slogans, drawings, or paintings, on the tangible property of the owner with an

indelible marker. Tex. Penal Code Ann. § 28.08 (a)(2). An offense is a Class B misdemeanor

if the amount of the pecuniary loss is less than $500. Id. § 28.08(b)(1). The amount of pecuniary

loss is determined by the cost of repairing or restoring the damaged property. Tex. Penal Code

Ann. § 28.06 (b) (West 1994). Y.S. does not challenge the finding that he committed the offense.

He only challenges the State's proof of the amount of pecuniary loss.

In his first issue, Y.S. contends that the trial court erred in admitting testimony of

a non-expert to establish the amount of the pecuniary loss. Y.S. argues that Officer Hunt lacked

the expertise to estimate the damage. Whether a witness possesses the required qualifications is

a question which rests largely in the trial court's discretion, and we will not disturb the decision

to admit or exclude the testimony absent a clear abuse of discretion. Alvarado v. State , 912

S.W.2d 199, 215-16 (Tex. Crim. App. 1995). The test for the admissibility of expert testimony

includes three factors: (1) the expert must be qualified by knowledge, skill, expertise, training

or education; (2) the subject matter of the testimony must be an appropriate one for expert

testimony; and (3) the expert's testimony must assist the trier of fact to understand the evidence

or decide a fact. Id.

An expert's knowledge or experience pertaining to a relevant issue must exceed that

of an average juror. Zinger v. State , 899 S.W.2d 423, 431 (Tex. App.--Austin 1995), rev'd on

other grounds , 932 S.W.2d 511 (Tex. Crim. App. 1996). No rigid formula determines whether

a particular witness qualifies to testify as an expert. Matson v. State , 819 S.W.2d 839 , 851 n.10

(Tex. Crim. App. 1991).

Unlike the cases cited by Y.S., this is not a case of a lay person merely giving his

personal opinion of what the amount of damage might be. See Elomary v. State , 796 S.W.2d

191,193-94 (Tex. Crim. App. 1990). Hunt testified that he had been patrolling Gillis Park for

more than three years, was familiar with gang graffiti, and had found graffiti in Gillis Park before

this incident. Officer Hunt testified that the City of Austin contracts with an individual for graffiti

removal on city property. According to Hunt, the individual charges on a per square foot basis

for removal. He testified that the damage can be calculated by measuring the square footage of

the damaged surface multiplied by the per square foot figure charged by the contractor. He

testified that he knew the calculation used to determine damage to City property, and once he

measured the square footage of property damaged, he could calculate the damage estimate. Over

Y.S.'s objection, Officer Hunt then testified that the damage estimate for graffiti removal from

the picnic table in Gillis Park was less than $100.

Officer Hunt had experience with gang graffiti and had knowledge of the

calculation of costs required for its removal. Expert testimony is required to establish cost of

repair to damaged property. See Nixon v. State , 937 S.W.2d 610, 612 (Tex. App.--Houston [1st

Dist.] 1996, no pet.). Hunt's testimony would assist the trier of fact in understanding the amount

of damage to the picnic table. Accordingly, we conclude that the trial court did not err in

admitting Officer's Hunt's testimony on the damage estimate. We overrule Y.S.'s first issue.

Y.S. argues in his second issue that the evidence presented on the amount of the

pecuniary loss is insufficient to prove the cost of repairs. Because Y.S. does not indicate whether

he makes a legal or factual sufficiency challenge, we will review the evidence under both

standards. We review the legal sufficiency of the evidence in the light most favorable to the

verdict. Flournoy v. State , 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). The relevant question

is whether after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia , 443 U.S. 307, 324 (1979); Anderson v. State , 701 S.W.2d 868, 872 (Tex.

Crim. App. 1985). A factual sufficiency review asks whether a neutral review of all the evidence,

both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak

or so greatly outweighed by contrary proof as to undermine confidence in the jury's

determination. See Johnson v. State , No. 1915-98, slip op. at 18 (Tex. Crim. App. Feb. 9,

2000). A verdict may be set aside only if a finding of guilt beyond a reasonable doubt is clearly

wrong and unjust. Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

Y.S. contends that the State only offered evidence of the "damage estimate" and

failed to offer evidence of "cost of repair" as required by section 28.06(b). While we agree that

section 28.06(b) requires the State to prove cost of repair, it is possible to show that the damage

estimate and the cost of repair are synonymous. See Sebree v. State , 695 S.W.2d 303, 305 (Tex.

App.--Houston [1st Dist.] 1985, no pet.). We think in this case the State properly connected the

damag estimate to the cost of repair. Hunt explained that:

The City of Austin Parks and Recreation Department currently has a contract with

an individual who makes estimates for the City on graffiti damage, calculates and

submits his inventory to and all estimates of damage to the City and then when he

cleans up the mess, they pay him. He has a set amount for -- I believe it is so much

for the first square feet (sic) and so much thereafter for each other square foot.

There was no evidence that the price varied based on anything other than the size of the surface

damaged with graffiti. For example, there was no evidence that the type of substance used to

mark city property or the location of the graffiti affected the removal price. According to Hunt,

the contractor charged a fixed amount to calculate the damage estimate. With knowledge of the

size of the graffiti, the damage estimate could be calculated. The City pays the contractor based

on his estimate and without further negotiation of the rate. Thus, in this case, the "damage

estimate" equates to the actual cost of repair.

Turning to the sufficiency of the evidence, we note that the State only had to prove

that the cost of repairs would be greater than one cent and less than $500. See Tex. Penal Code

Ann. § 28.08 (b)(1) (West Supp. 2000). Officer Hunt testified that the damage estimate was less

than $100. In addition, the State presented photographs of the picnic table depicting the gang

graffiti. We conclude that any rational juror would be convinced beyond a reasonable doubt that

such extensive damage would cost more than one cent and less than $500 to repair. See Nixon ,

937 S.W.2d at 613 (without expert testimony of fair market value of cost of repairs, photographs

and other evidence of damage supports cost of repairs). Because any rational trier of fact viewing

this evidence in the light most favorable to the prosecution could have found the elements of the

crime beyond a reasonable doubt, we conclude that the evidence is legally sufficient to support

the judgment. In addition, because the evidence of guilt is not so greatly outweighed by contrary

proof as to undermine the confidence in the fact finder's determination, we conclude that the

evidence is factually sufficient to support the judgment. We overrule Y.S.'s second issue.

In his third issue, Y.S. argues that the trial court erred in allowing a witness

without personal knowledge to give inadmissible hearsay testimony regarding the amount of

pecuniary loss. Hunt testified that he had personal knowledge of calculating the damage estimate.

He further testified that once he measured the square footage of damaged property, he could

determine the estimate of damage. We conclude such testimony is not based on hearsay but based

on personal knowledge. The trial court did not err in admitting the testimony of Officer Hunt.

We overrule Y.S.'s third issue.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Kidd and B. A. Smith

Affirmed

Filed: August 31, 2000

Do Not Publish

the

verdict. Flournoy v. State , 668 S.W.2d 380, 383 (Tex. Crim. App. 1984). The relevant question

is whether after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Jackson v. Virginia , 443 U.S. 307, 324 (1979); Anderson v. State , 701 S.W.2d 868, 872 (Tex.

Crim. App. 1985). A factual sufficiency review asks whether a neutral review of all the evidence,

both for and against the finding of guilt, demonstrates that the proof of guilt is so obviously weak

or so greatly outweighed by contrary proof as to undermine confidence in the jury's

determination. See Johnson v. State , No. 1915-98, slip op. at 18 (Tex. Crim. App. Feb. 9,

2000). A verdict may be set aside only if a finding of guilt beyond a reasonable doubt is clearly

wrong and unjust. Clewis v. State , 922 S.W.2d 126, 129 (Tex. Crim. App. 1996).

Y.S. contends that the State only offered evidence of the "damage estimate" and

failed to offer evidence of "cost of repair" as required by section 28.06(b). While we agree that

section 28.06(b) requires the State to prove cost of repair, it is possible to show that the damage

estimate and the cost of repair are synonymous. See Sebree v. State , 695 S.W.2d 303, 305 (Tex.

App.--Houston [1st Dist.] 1985, no pet.). We think in this case the State properly connected the

damag estimate to the cost of repair. Hunt explained that:

The City of Austin Parks and Recreation Department currently has a contract with

an individual who makes estimates for the City on graffiti damage, calculates and

submits his inventory to and all estimates of damage to the City and then when he

cleans up the mess, they pay him. He has a set amount for -- I believe it is so much

for the first square feet (sic) and so much thereafter for each other square foot.

There was no evidence that the price varied based on anything other than the size of the surface

damaged with graffiti. For example, there was no evidence that the type of substance used to

mark city property or the location of the graffiti affected the removal price. According to Hunt,

the contractor charged a fixed amount to calculate the damage estimate. With knowledge of the

size of the graffiti, the damage estimate could be calculated. The City pays the contractor based

on his estimate and without further negotiation of the rate. Thus, in this case, the "damage

estimate" equates to the actual cost of repair.

Turning to the sufficiency of the evidence, we note that the State only had to prove

that the cost of repairs would be greater than one cent and less than $500. See Tex. Penal Code

Ann. § 28.08 (b)(1) (West Supp. 2000). Officer Hunt testified that the damage estimate was less

than $100. In addition, the State presented photographs of the picnic table depicting the gang

graffiti. We conclude that any rational juror would be convinced beyond a reasonable doubt that

such extensive damage would cost more than one cent and less than $500 to repair. See Nixon ,

937 S.W.2d at 613 (without expert testimony of fair market value of cost of repairs, photographs

and other evidence of damage supports cost of repairs). Because any rational trier of fact viewing

this evidence in the light most favorable to the prosecution co