Holz, Barbara

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

PD-1786-09

BARBARA HOLZ, Appellant

v.

THE STATE OF TEXAS

On Discretionary Review

from the Sixth Court of Appeals,

Marion County

Womack, J., delivered the opinion of the Court, in which Keller, P.J., and

Price, Johnson, Keasler, Hervey, Holcomb, and Cochran, JJ., joined.

Meyers, J., did not participate.

We granted discretionary review in this case to determine whether a non-expert

property owner's testimony about the cost of repairing or restoring his damaged property

can ever be sufficient without further evidence to prove the pecuniary-loss element of a

criminal mischief offense. We hold that such evidence can be sufficient. We therefore

reverse the judgment of the Sixth Court of Appeals and remand the case to that Court to

consider the sufficiency of the owner's testimony in this case.

I. Background

A person commits the offense of criminal mischief when she intentionally or

knowingly damages or destroys tangible property without the effective consent of the

owner. (1) The amount of pecuniary loss suffered by the owner determines the degree of the

offense. If the property is damaged (as opposed to destroyed) the amount of pecuniary

loss is determined by "the cost of repairing or restoring the damaged property within a

reasonable time after the damage occurred." (2)

In the present case, the indictment alleged that the appellant "did . . . intentionally

and knowingly damage or destroy tangible property, to-wit: a mobile home, by allowing

dogs to remain in said mobile home, without the effective consent of John Lawrence, the

owner of said property, causing pecuniary loss of $1500 or more but less than $20,000 to

said owner." (3) At trial, the State elected to proceed on the theory that appellant had

damaged, rather than destroyed, the mobile home.

Shawn Cox, an investigator for the Marion County Sheriff's Office, and

Christopher West, an investigator for the Society for the Prevention of Cruelty to

Animals, provided evidence of the damage to the mobile home. Cox testified that "when

you go into the house there's feces on the carpet, you can smell the feces and the urine. It

wasn't pleasant, but it wasn't a health hazard either …." (4) West testified that there was one

dog in the mobile home along with five to ten piles of feces and an odor of urine and

feces. In the house across the street where the appellant lived with her 86 other dogs,

West's ammonia meter "maxed out" at 99 parts per million. (5) West gave the opinion that

his ammonia meter probably would have registered only one part per million if he had

taken a measurement in the mobile home.

West was unable, however, to provide an opinion on the cost of repairs or

restoration:

[Defense Counsel]: And from looking at the mobile home … what would

you have had to do to clean it up in your opinion if you were going to clean

it up after you took that dog out?

[West]: … I couldn't tell you other than obviously picking up the obvious

feces inside the home, cleaning it. If the urine had soaked through the carpet

into the floor, then all the floor would either have to be sealed or ripped up I

would assume.

[Defense Counsel]: How much feces was on the floor as you recall?

[West]: I remember five to ten piles approximately.

[Defense Counsel]: Do you recall how big the carpeted area was roughly?

[West]: I'm going to estimate a hundred square feet, ten foot by ten foot,

possibly a little larger. I don't remember.

[Defense Counsel]: Other than the smell of urine and the feces in the

carpeted area did you see any damage to that structure?

[West]: No sir, I don't remember any damage.

John Lawrence, the owner of the mobile home, testified about the damage to the

mobile home and the cost of repair. Inside the mobile home there was "a strong ammonia

smell and also feces in the living room." At the request of the State prosecutor, Lawrence

obtained an estimate to replace all of the carpet in the mobile home:

[State]: And did I ask you to see about how much it would cost or what kind

of estimate you would get to replace that carpet and not even getting into

extracting perhaps flooring, particle board flooring, or the boards around or

the walls for damage, did you look into that?

[Lawrence]: Yes, I had called Holloway Carpet in Marshall and just told

them it was a 12-by-65 mobile home to keep them from driving up there

because most of them are about the same size as far as rooms. I told them it

was two bedroom and living room that need to be replaced.

[State]: And what kind of estimate did you get?

[Lawrence]: $2,100.

[State]: And is all that carpet essentially ruined?

[Lawrence]: Yes.

Lawrence conceded, however, that he did not attempt to ascertain the cost or feasibility of

cleaning the carpet rather than replacing it:

[Defense Counsel]: Did you ever try to clean the carpet or look at it with

reference to cleaning it to see what it would take to clean it?

[Lawrence]: Since this happened [or before]?

[Defense Counsel]: Since this happened.

[Lawrence]: … No.

Furthermore, Lawrence testified that certain portions of the carpet in the hallway of the

mobile home had been previously damaged by a water leak.

The appellant's testimony suggested that the cost of replacing the soiled carpet in

the mobile home would be less than $180. The appellant testified that the installed cost of

carpet for a mobile home would be between $10 and $15 per square yard. (6) The only area

in the mobile home that was soiled was the living room, and that area would require only

twelve square yards of carpet.

The jury charge instructed the jury that if it found the appellant guilty of criminal

mischief, but found that the pecuniary loss was less than $1,500 and greater than $500, it

should find the appellant guilty only of the lesser-included offense of Class A

misdemeanor criminal mischief. (7) The jury found the appellant guilty of that lesser-included offense.

II. Appeal

Among other points of error on appeal, the appellant challenged the sufficiency of

the evidence to prove pecuniary loss of at least $500. (8) The Court of Appeals found that

Lawrence was the State's sole source of evidence regarding the amount of pecuniary loss,

and Lawrence's only evidence of the amount of pecuniary loss was the $2,100 estimate he

received from Holloway Carpet. (9) The Court cited English v. State (10) for the proposition

that "Texas law is clear that unless a complainant is an expert, 'an estimate of damage or

an opinion on the amount of damage without further evidence is insufficient to prove the

cost of repair.'" (11) The Court also cited Elomary v. State (12) and Sebree v. State (13) for the

following proposition: "'Off-the-wall,' opinion testimony, or a mere estimate of cost of

repair, ' without further evidence ,' is not sufficient to prove the cost of repairs for a

criminal mischief conviction." (14) Because no further evidence on cost of repair was

presented beyond Lawrence's testimony, the Court held this evidence to be insufficient to

establish pecuniary loss exceeding $500, and rendered a judgment of acquittal. (15)

III. Petition for Discretionary Review

We granted discretionary review of the following grounds presented in the State's

petition:

(1) Is an owner's opinion of the cost of repair sufficient to prove the amount

of pecuniary loss in a prosecution for criminal mischief by damage to

property?

(2) Is the legitimacy of a property owner's opinion of the cost of repair to

his property, in order to prove pecuniary loss, an issue of admissibility of

evidence or one of sufficiency of evidence, and regardless, should the

defendant's failure to object to the evidence be considered a procedural

default?

The State argues that an owner's opinion of the cost to repair his property should

be sufficient to prove pecuniary loss in a criminal mischief case in the same manner as an

owner's opinion of the value of his stolen property can be sufficient to prove value in a

theft case. The State acknowledges that cases from several courts of appeals and other

jurisdictions have held that the testimony of a non-expert owner is not sufficient to prove

the cost of repair. Nevertheless, the State contends that these decisions are rooted in a

concern that this testimony will consist largely of hearsay, and such hearsay concerns

should be considered issues of admissibility of evidence rather than sufficiency of

evidence.

The appellant counters that Texas law under Sebree, Elomary , and their progeny

requires expert testimony to prove the cost of repair in a criminal mischief case. She

further argues that Lawrence's testimony was not legally sufficient because the State

failed to tie the $2,100 estimate obtained by Lawrence to the repairs actually necessary in

the mobile home.

IV. Understanding Sebree and Elomary

The disagreement between the parties as to the sufficiency of non-expert owner

testimony may stem from confusing language in our opinion in Elomary. In Elomary , the

appellant intentionally drove his vehicle into that of the complainant. (16) A claims adjuster

from the complainant's insurance company testified that he appraised the complainant's

vehicle and concluded "that the fair market value of the repairs that would have to be

done … would be $518.40." (17) The complainant had her vehicle repaired, but testified that

"she did not know the exact amount of money that the total repair cost was, … [and] that

the actual cost of repair work done to her [vehicle] could have been less than $200." (18) The

jury convicted the Elomary, but the Sixth Court of Appeals held the evidence to be

insufficient to prove pecuniary loss between $200 and $750 because "[n]o witness

testified about the cost of the repair or restoration, and no receipt or other documentation

showing the cost of repairing the car was submitted in evidence." (19)

In reversing the Court of Appeals, we made four important statements. First, we

held that the cost of repairs should be "conditioned on what the fair market value of such

might be." (20) Second, we agreed with Sebree 's holding that "the criminal mischief statute

does not require that damaged property that can be repaired be actually repaired in order

to establish the cost of the repair work." (21) Third, upon one condition, we agreed with

Sebree 's holding distinguishing between evidence of "damage" and evidence of "repair

cost":

[I]f . . . an individual . . . is not competent to give an expert opinion as to

repair costs, but is merely giving his "off-the-wall" lay opinion, . . . "an

estimate of damage or an opinion on the amount of damage without further

evidence is insufficient to prove the cost of repairs as required by sec.

28.06(b) of the Texas Penal Code." (22)

Finally, we cited Article VII of the Texas Rules of Criminal Evidence to support the

following cautionary statement:

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. (23)

Our first and second statements warrant no further discussion under the facts of

this case. We can clarify the meaning of the third statement by reviewing Sebree itself.

The appellant in Sebree seriously damaged the complainant's vehicle. (24) The complainant

took the vehicle to an automobile dealer where she received "an estimate of the

damages." (25) Based on this estimate, she testified that there was "six hundred and seventy

dollars worth of damage." (26) She had the car repaired, but did not say how much she paid

for the repairs. (27) The First Court of Appeals found the evidence of pecuniary loss to be

insufficient, and explained the difference between evidence of damage and evidence of

cost of repairs:

The evidence adduced by the state [ sic ] to support the conviction for

criminal mischief speaks in terms of "damage" and "estimate of damage"

rather than the statutory requirement of "cost of repairs." Although it is

possible that evidence could show that damages and costs of repair are

synonymous in certain circumstances, we are of the opinion that in the

instant case the State has failed to prove that the two terms are synonymous.

The evidence adduced by the state [ sic ] failed to connect the estimate of

damages in any manner with the cost of repair. We do not agree with the

appellant's contention that it was necessary for the state [ sic ] to establish

what amount of money was paid or to identify who did the repairs and what

repairs were done. To require this proof would enlarge upon the proof

required by the statute and would place a burden upon the complaining

witness or owner of the damaged property to have the property repaired

before a conviction could be obtained. We hold that the statute does not

require that property be repaired to establish the cost of repair as set forth in

sec. 28.06(b). We further hold 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 sec. 28.06(b) of the Texas Penal Code. (28)

Texas courts relying on Sebree and Elomary have occasionally missed the key

distinction between evidence of damage and evidence of cost of repair. These courts have

misread the holdings, or simply substituted the term "cost of repair" for "damage," to

create a distinction between the sufficiency of lay versus expert testimony per se . (29)

Understood properly, the third statement in Elomary simply affirms the unremarkable

proposition that an unsupported lay opinion as to damage , without more, will be

insufficient to prove cost of repair . (30) Elomary does not hold that the State must present

expert testimony to prove cost of repair.

This conclusion is supported by the five cases we cited in Elomary at the

conclusion of our opinion: Deas v. State , (31) Hernandez v. State , (32) Sullivan v. State , (33) Scott

v. State , (34) and Porras v. Craig . (35) None of these cases require expert testimony to prove

cost of repair. Deas held evidence to be insufficient where the State failed to prove that a

garage door had been destroyed, rather than damaged, and therefore that replacement

value could be used to determine pecuniary loss instead of repair cost. (36) Hernandez held

expert testimony of cost of repair to be sufficient, but did not require expert testimony,

and held that an expert need not personally observe the property in order to give an

opinion on cost of repair. (37) Sullivan affirmed that fair market value should be used to

establish the value of property stolen in theft cases, and held that an owner's testimony

was sufficient to prove fair market value. (38) Scott distinguished Sullivan on its facts in

holding that an owner's testimony of trade-in value was not sufficient to prove fair market

value. (39) Porras held, in the context of a civil suit for permanent damage to land, that a

landowner could testify as to the fair market value of his land even if he could not qualify

to testify about the value of like property belonging to someone else. (40)

A holding in Elomary that expert testimony was required to prove cost of repair

would plainly be in tension with Sullivan and Porras , among other cases. In Sullivan we

held:

When the proof of value is given by a non-owner, the non-owner must be

qualified as to his knowledge of the value of the property and must give

testimony explicitly as to the fair market value or replacement value of the

property. However, when the owner of the property is testifying as to the

value of the property, he or she may testify as to his or her opinion or

estimate of the value of the property in general and commonly understood

terms. Testimony of this nature is an offer of the witness' best knowledge of

the value of his property. Such testimony will constitute sufficient evidence

for the trier of fact to make a determination as to value based on the

witness's credibility. (41)

The fact that our opinion in Elomary does not attempt to distinguish the line of authority

represented by Sullivan and Porras further discredits the theory that Elomary crafted a

new rule requiring expert testimony to prove cost of repairs.

In our fourth statement in Elomary , we cited Article VII of the Texas Rules of

Criminal Evidence (now the Texas Rules of Evidence) to support the following

cautionary statement:

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. (42)

We then appeared to contrast the questionable admissibility of lay opinion in Sebree with

the admissible expert opinion in Elomary to support our decision to uphold the sufficiency

of the evidence. (43) But, as we said in Moff v. State in the context of a theft case, "[b]oth

litigants and reviewing courts should be careful to distinguish claims of improperly

admitted evidence . . . from legal insufficiency of all admitted evidence - even improperly

admitted evidence." (44) Our fourth statement in Elomary illustrates our confession in Moff

that we ourselves "ha[ve] not always been sufficiently careful in that regard." (45) Rather

than influencing sufficiency analyses, the cautionary statement in Elomary should be read

simply as a warning to practitioners that separate admissibility issues related to hearsay (46)

and lay and expert opinions (47) may arise in the context of the pecuniary-loss element of a

criminal mischief case. (48)

V. Preservation of Error

The State's second ground for review asks whether the legitimacy of an owner's

opinion on repair cost is an issue of admissibility or sufficiency, and whether a

defendant's failure to object to evidence of repair cost should be considered a procedural

default regardless of whether it is an issue of admissibility or sufficiency. Moff supplies

the answer. An owner's opinion on repair cost could raise issues of admissibility or

sufficiency, just like other types of testimony. (49) In this case the issue is the sufficiency of

the evidence, because that is the issue raised by the appellant. Moff is clear that, unlike an

admissibility claim, a sufficiency claim need not be preserved by objection at trial:

If a defendant challenges the legal sufficiency of the evidence to support his

conviction on direct appeal, the appellate court always has a duty to address

that issue, regardless of whether it was raised in the trial court. . . . On the

other hand, when a defendant claims on appeal that the trial court erred in

admitting or e x cluding evidence, he must have made a proper and specific

objection at the time the evidence was offered or excluded to preserve his

right of review of that evidentiary claim. (50)

VI. Disposition

In this case, the Court of Appeals held the evidence was insufficient because that

Court interpreted Elomary and its progeny to require that the State present expert

testimony to prove the cost of repair. (51) We have clarified that Elomary does not require

the presentation of expert testimony. We therefore remand this case to the Court of

Appeals so that it can proceed to consider the sufficiency of the admitted evidence. (52)

Delivered: September 22, 2010.

Publish.

1. Penal Code § 28.03(a)(1).

2. Id. , at § 28.06(b).

3. The case was tried together with another criminal mischief case in which the State proved that the

appellant destroyed a house owned by the federal government by living in the house without the consent of the

government and allowing approximately 86 dogs to live, urinate, and defecate in the house over a period of months.

The Sixth Court of Appeals affirmed the appellant's conviction in that case. Holz v. State , 2009 WL 3097240 (Tex.

App.-Texarkana September 30, 2009).

4. Cox's photographs of the mobile home, presented to the jury as State's Exhibit 1, do not appear to show

the areas of soiled carpet.

5. West carried the meter to warn him if there were hazardous levels of ammonia coming from the urine of

the dogs. He testified that "anything above 12 parts per million starts becoming hazardous to human health. … At 35

parts per million you cannot work in an atmosphere for more than fifteen minutes. Once it reaches 50 parts per

million you should not spend more than five minutes in the atmosphere."

6. The appellant testified that she was familiar with the cost of carpet through her career in commercial and

residential real estate.

7. Criminal mischief causing pecuniary loss between $1,500 and $20,000, as alleged in the indictment, is a

state jail felony . Penal Code § 28.03(a)(4)(A).

8.

Holz , 2009 WL 3097253 , at *1.

9.

Id ., at *2.

10.

171 S.W.3d 625 (Tex. App. - Houston [14 th Dist.] 2005).

11.

Holz , 2009 WL 3097253 , at *2.

12.

796 S.W.2d 191 (Tex. Cr. App. 1990).

13.

695 S.W.2d 303 (Tex. App.-Houston [1 st Dist.] 1985).

14.

Holz , 2009 WL 3097253 , at *2 (emphasis in original).

15.

Id ., at *3.

16.

796 S.W.2d, at 192 .

17.

Ibid .

18.

Ibid.

19.

Elomary v. State , 778 S.W.2d 909, 910 (Tex. App.-Texarkana 1989).

20.

Elomary , 796 S.W.2d, at 193 .

21.

Ibid.

22.

Ibid. (quoting Sebree , 695 S.W.2d, at 305 ).

23.

Id ., at 193-94.

24.

695 S.W.2d, at 304 .

25.

Id. , at 305.

26.

Id. , at 304-05.

27.

Id. , at 305.

28.

Id. , at 305.

29.

See, e.g,, Nixon v. State , 937 S.W.2d 610, 612 (Tex. App.-Houston [1 st Dist.] 1996) (" Elomary and

Sebree conclude that expert testimony is required in a criminal mischief case to establish the fair market value of the

cost of repairs to damaged property if there is no other evidence than a lay witness."); Reasor v. State , 281 S.W.3d

129, 133 (Tex. App.-San Antonio 2008) (citing Elomary for the proposition that "without further evidence, 'off-the-wall' lay opinion testimony or a mere estimate of cost of repair is insufficient to prove the cost of repairs for a

criminal mischief conviction"); Barnes v. State , 248 S.W.3d 217, 220 (Tex. App.-Houston [1 st Dist.] 2007) (citing

Elomary for the proposition that "'off the wall,' opinion testimony, or a mere estimate of cost of repair, ' without

further evidence ,' is not sufficient to prove the cost of repairs for a criminal-mischief conviction," but correctly

noting that "the court fell short of requiring the State to present expert testimony to establish the repair cost element

required by Section 28.06(b) of the Penal Code.") (emphasis in original); Holz , 2009 WL 3097253 , at *2.

30.

In Elomary , we conditioned the Sebree holding on the understanding that the holding " relates to an

individual who is not competent to give an expert opinion as to repair costs, but is merely giving his 'off-the-wall'

lay opinion." 796 S.W.2d, at 193 . Implicit in this condition is an assumption that an expert's opinion on damage is

likely to be closely linked to his experience with costs of repair, while the lay owner's unsupported opinion on

damage is more likely to be influenced by factors other than cost of repair, perhaps such as loss of use, diminution of

resale value in the damaged state, or loss of sentimental or aesthetic value.

31.

752 S.W.2d 573 (Tex. Cr. App. 1988) .

32.

468 S.W.2d 387 (Tex. Cr. App. 1971) .

33.

701 S.W.2d 905 (Tex. Cr. App. 1986).

34.

741 S.W.2d 435 (Tex. Cr. App. 1987) .

35.

675 S.W.2d 503 (Tex. 1984).

36.

752 S.W.2d, at 575 .

37.

468 S.W.2d, at 391 .

38.

701 S.W.2d, at 909 .

39.

741 S.W.2d, at 439 .

40.

675 S.W.2d, at 504 .

41. Id ., at 909.

42. 796 S.W.2d, at 193-94 . Article VII governs the admissibility of opinions and expert testimony.

43. Id. , at 194.

44. 131 S.W.3d 485, 490 (Tex. Cr. App. 2004).

45. Id .

46. Tex. R. Evid. art. VIII.

47. Tex. R. Evid. art. VII.

48. 131 S.W.3d, at 488-89 .

49.

Id. , at 489 (describing how a witness's hearsay testimony could trigger both admissibility and sufficiency

claims).

50. Id. , at 488-89.

51. Holz , 2009 WL 3097253 , at *2.

52. The appellant argues that the evidence is insufficient because the $2,100 carpet-replacement estimate was

not tied to the damage caused by the appellant. See, e.g., Crawley v. State , 513 S.W.2d 62, 65 (Tex. Cr. App. 1974)

(finding evidence sufficient to prove extent of injury to complainant's vehicle where a shop foreman testified to the

cost of repairs and the State proved that the repairs were required as a result of the defendant's actions); Wise v.

State , 494 S.W.2d 921, 925 (Tex. Civ. App.-Fort Worth 1973) (finding that the cost of repainting an entire vehicle

was not sufficient to prove the cost of repairs where a minor damaged the vehicle by writing only on its hood); Athey

v. State , 697 S.W.2d 818, 821 (Tex. App.-Dallas 1985) (holding that the State has a burden "to show that the repairs

in question were reasonable and were a necessary result of defendant's acts, rather than a result of previous

damage").