Opinion

Collins v. State

  • 754 S.W.2d 818
  • 1988 Tex. App. LEXIS 1758
  • 1988 WL 74528
Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jul 21, 1988
Status
Published
Author
Evans
On the bench
Evans, Bass, Dunn
Cited by
9 cases
Authority
More cited than 8.3%

stating that in sufficiency of evidence review, State need only negate one essential element of self-defense beyond reasonable doubt

How later courts described this case

  • stating that in sufficiency of evidence review, State need only negate one essential element of self-defense beyond reasonable doubt

Written by the judges who cited it.

The opinion

EVANS, Chief Justice,

concurring and dissenting.

I concur in the holding of the majority that affirms the appellant’s conviction. I dissent from the majority holding that abates the appeal, sets aside the order of restitution, and remands the cause to the trial court for a determination of the amount of restitution.

First, I disagree with the majority’s conclusion that the State produced “no evidence” to support the trial court’s finding on restitution. The prosecutor represented to the court that, as he recalled, the amount of funeral transportation expenses was in the sum of $3,475. The prosecutor’s statement, made in open court, constituted some evidence, which in the absence of an objection supports the trial court’s factual determination of the amount of restitution.

In Brown v. State, 640 S.W.2d 275, 279 (Tex.Crim.App.1982), a witness in a theft case said “she thought” the replacement value of a sewing machine “was about $100.” The court held that the State’s proof was sufficient, in the absence of an objection, to show the value of the stolen item. The court noted that if the “manner of proving value” did not meet the defendant’s approval, it was his obligation to voice an objection when the testimony was introduced. Id. at 279 .

Here, the appellant made no objection when the prosecutor stated the amount of the funeral transportation expenses. He also stood by in silence when the court, at State’s request, stated that it would include the stated figure in its judgment as the amount of the required restitution.

In my opinion, the appellant waived any objection concerning the manner in which the evidence was presented to the court on the matter of restitution. See Brown, 640 S.W.2d at 275 . He also waived any objec *824 tion to the court’s receipt of the prosecutor’s unsworn testimony as evidence in the case. See Spriggs v. State, 163 Tex.Cr.R. 167 , 289 S.W.2d 272, 274 (1956); Goldsmith v. State, 32 Tex.Crim. 112 , 22 S.W. 405, 406 (1893).

I would affirm the trial court’s judgment, in all respects.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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