          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                          NO. 03-01-00328-CV




                                        In the Matter of I. R. H.




         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
             NO. J-20,821, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING




                After waiving his right to a jury trial, I.R.H. was adjudicated delinquent for criminal mischief

in an amount more than $1500 but less than $20,000. See Tex. Fam. Code Ann. ' 54.03 (West Supp.

2002); Tex. Pen. Code Ann. '' 28.03 (West Supp. 2002), .06 (West 1996). The juvenile court placed

I.R.H. on probation for eighteen months in his parents= custody and ordered him to pay restitution in the

amount of $2106. I.R.H. raises five issues on appeal. We conclude that the juvenile court erred in

overruling I.R.H.=s objection to the qualifications of an expert witness and that the evidence was legally

insufficient to support the judgment; we therefore reverse and render judgment of acquittal.


                                            BACKGROUND

                Michael Stafford, the complaining witness, lived on an eight-acre tract of land. Located on

the back of his property were five abandoned vehicles that came with the purchase of the land; Stafford

intended to sell the parts of these junk cars. On February 3, 2001, Stafford was changing the tire on a
truck near his home when he heard smashing noises coming from the back of his property. When he went

to investigate, he saw I.R.H. and two others smashing the windows of one of the abandoned vehicles with a

large steel bar. The three left when they saw Stafford. Later, after assessing the damage to the vehicles,

Stafford discovered that several windows and windshields on the vehicles had been smashed, and all had

distinct round marks on them. After calling a windshield repair shop, Stafford assessed the cost of replacing

the damaged windows and windshields at $2106.

                 I.R.H. was subsequently charged with criminal mischief in an amount exceeding $1500 but

less than $20,000. I.R.H. waived his right to a jury and to a hearing before a juvenile court judge; following

a hearing before a juvenile court referee, the court adjudicated I.R.H. delinquent, placed him on probation

for eighteen months, and ordered restitution in the amount of $2106, the cost of repairing the vehicles.1

I.R.H. now appeals.


                                               DISCUSSION

Fatal Variance

                 By his first two issues, I.R.H. contends that a material variance exists between the

allegations in the State=s petition and the proof adduced at trial and, therefore, the evidence is legally and

factually insufficient to sustain his adjudication of delinquency.


        1
          Both the adjudication hearing and the dispositional hearing were held before a juvenile court
referee, whose findings and recommendations were adopted by the juvenile court judge. See Tex. Fam.
Code Ann. ' 54.10(a), (b) (West Supp. 2002).




                                                       2
                In criminal cases, a variance between a charging instrument and evidence adduced at trial

has been held to constitute a legal sufficiency issue. Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim.

App. 2001). A sufficiency-variance issue arises when the State proves the defendant guilty of a crime, but

proves the commission of the crime in a manner that varies from the allegations in the indictment. Such a

variance, if material, may render the evidence insufficient to sustain the conviction. Id. at 247.

                In a juvenile proceeding, because the rules of civil procedure govern, a fatal variance

between the pleadings2 and proof is determined by considering whether the variance is substantial,

misleading, and prejudicial. In re O.C., 945 S.W.2d 241, 243 (Tex. App.CSan Antonio 1997, no writ)

(citing Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 937 (Tex. 1980)); In re A.B., 868

S.W.2d 938, 942 (Tex. App.CFort Worth 1994, no writ) (citing Winfield v. Renfro, 821 S.W.2d 640

(Tex. App.CHouston [1st Dist.] 1991, writ denied)). Criminal mischief is defined by the penal code as

follows: AA person commits an offense if, without the effective consent of the owner: (1) he intentionally or

knowingly damages or destroys the tangible property of the owner . . . .@ Tex. Pen. Code Ann. '

28.03(a)(1). The State=s petition alleges that I.R.H. Aintentionally and knowingly damage[d] or destroy[ed]

tangible property, to wit: five (5) motor vehicles, without the effective consent of Michael Stafford, the

owner, and thereby caused pecuniary loss to said owner in the amount of $1,500.00 but less than

$20,000.00.@ I.R.H. argues that because the State specified in its petition that I.R.H. damaged or



        2
           Section 53.04 of the family code sets forth the requirements for the State=s petition in a juvenile
proceeding: AThe petition must state: (1) with reasonable particularity the time, place, and manner of the
acts alleged and the penal law or standard of conduct allegedly violated by the acts.@ Tex. Fam. Code Ann.
' 53.04(d)(1) (West 1996).


                                                      3
destroyed five Amotor vehicles,@ the State was required to offer proof that the tangible property damaged or

destroyed were motor vehicles, as opposed to general Avehicles.@ Citing the transportation code, I.R.H.

argues that a vehicle must be self-propelled to fall within the definition of a motor vehicle. See Tex. Transp.

Code Ann. ' 541.201(11) (West Supp. 2002). He claims that because the five vehicles on Stafford=s

property were inoperable and were essentially junk cars,3 the State failed to satisfy its burden, and its failure

to present evidence corresponding to the language used in the petition constitutes a fatal variance.

                  Assuming without deciding that there is a variance between the State=s petition and the

evidence adduced at trial, I.R.H. does not describe how this variance is substantial, misleading, and

prejudicial. There is no indication in the record that I.R.H. did not know what property he was accused of

destroying or damaging, or that he was surprised by the proof at trial. Furthermore, I.R.H. does not allege

that he was unable to prepare a defense because of this variance. We thus hold that any variance that may

have existed between the State=s petition and the evidence presented was not fatal and overrule I.R.H.=s

first two issues.4



        3
          The juvenile court acknowledged that the vehicles were inoperable. Stafford only intended to use
the vehicles for parts; he did not hold titles to the vehicles.
        4
          We note that the court of criminal appeals has constructed a test for identifying material variances
in criminal cases:

            A variance between the wording of an indictment and the evidence presented at trial is
            fatal only if Ait is material and prejudices [the defendant=s] substantial rights.@ When
            reviewing such a variance, we must determine whether the indictment, as written,
            informed the defendant of the charge against him sufficiently to allow him to prepare an
            adequate defense at trial, and whether prosecution under the deficiently drafted
            indictment would subject the defendant to the risk of being prosecuted later for the
            same crime.

                                                       4
Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001) (quoting United States v. Sprick, 233
F.3d 845, 853 (5th Cir. 2000)). Even under the Gollihar standard, I.R.H. has not shown the existence of
a material variance. There is no evidence that he was unable to prepare an adequate defense at trial or that
he would be subject to the risk of being prosecuted later for the same crime. See Santana v. State, 59
S.W.3d 187, 195 (Tex. Crim. App. 2001) (if prosecuted again, defendant may avail himself of entire
record and not merely charging instrument).


                                                     5
Expert Witness Qualifications

                 By his fifth issue, I.R.H. argues the juvenile court erred in overruling his objection that

Stafford was not qualified as an expert to testify regarding the cost of repairing the vehicles.5 During the

State=s direct examination of Stafford, the State asked Stafford if he knew the amount of loss that he

suffered as a result of the destruction of his property. I.R.H. objected based on hearsay and speculation;

the juvenile court overruled both objections. I.R.H. then requested to take the witness on voir dire, and the

juvenile court acquiesced. On voir dire, I.R.H. challenged Stafford=s qualifications to testify regarding the

cost of repairs to the vehicles:


        Q: Now, Mr. Stafford, you had to prepare for this trial today, didn=t you?

        A: Yes.

        Q: And as a profession, your profession --

        THE COURT: The voir dire is about the value of the windows.

        [DEFENSE COUNSEL]: Yes, Your Honor.

        THE COURT: So ask him questions about that.

        [DEFENSE COUNSEL]: So you had to find out how much those windows cost?

        A: Yes.


        5
           I.R.H. also argues that the admission of Stafford=s testimony constituted hearsay and violated his
constitutional right to confrontation under both the federal and state constitutions. I.R.H. did not object
during the trial based on his constitutional right of confrontation, and has therefore waived any error based
on this assertion. See Tex. R. App. P. 33.1(a). Because we are reversing based on Stafford=s lack of
qualifications to testify as an expert, we need not reach I.R.H.=s hearsay complaint. See Tex. R. App. P.
47.1.


                                                     6
        Q: And in the process of finding out how much those windows cost, you called a
           windshield repair place to price those windows?
        A: Correct.

        Q: And when you went to the windshield repair place -- by profession you install septic
           tanks -- you did not know what the value of those windows were, did you?

        A: I called down to get the prices of them, yes.

        Q: And you did not know what the value was?

        A: No.

        Q: Okay. And they told you the replacement value of those windshields was $2,100?

        A: Of all the windows.

        Q: And you believe that you=re entitled to that replacement value?

        A: Yes.


Based on this exchange, defense counsel lodged a third objection to Stafford=s testimony: AYour Honor, the

witness is not qualified as an expert with regard to the windshields and therefore cannot testify as to their

value.@ The juvenile court overruled the objection, implying that Stafford was qualified as an expert

regarding the value of windshield repair. Stafford subsequently provided the following testimony during

direct examination by the State:


        Q: So based on the research you=ve done to assess the amount of losses you suffered as
           a result of this destruction, your damage was $2,106?

        A: Yes, I believe -- yes.

        Q: And that is the cost of repairing the windshields that were damaged, correct?


                                                     7
        A: All the windows, yes.


                 In response to I.R.H.=s issue on appeal, the State urges that I.R.H. has waived his complaint

because he initially elicited the complained-of testimony during his voir dire of the witness and therefore

cannot object to Stafford=s subsequent testimony during direct examination by the State. We disagree.

                 The purpose of voir dire examination is to afford a defendant the opportunity to determine

the foundation of an expert=s opinion without fear of eliciting damaging hearsay or other inadmissible

evidence in the jury=s presence. Tex. R. Evid. 705(b); Alba v. State, 905 S.W.2d 581, 587-88 (Tex.

Crim. App. 1995) (citing Goss v. State, 826 S.W.2d 162, 168 (Tex. Crim. App. 1992)). A Rule 705(b)

hearing may also supply defense counsel with sufficient ammunition to make a timely objection to the

expert=s testimony on the ground that it lacks a sufficient basis for admissibility. Alba, 905 S.W.2d at 588.

The rule does not limit the use of this procedural device to jury trials, and we have found no authority

suggesting that voir dire during a trial to the court should be treated differently. Accordingly, we hold that

I.R.H. did not waive error by eliciting testimony from Stafford during the voir dire examination.

                 The significance of Stafford=s testimony is apparent when considered in the context of the

offense charged. The offense of criminal mischief includes the element of the value of the injury inflicted.6

Gallardo v. State, 321 S.W.2d 581, 582 (Tex. Crim. App. 1959). Generally, the extent or amount of

injury is the difference in the market value of the property before and after its injuryCthe diminution in value



        6
        The amount of pecuniary loss determines the punishment range for the offense. See Tex. Pen.
Code Ann. ' 28.03 (West Supp. 2002).


                                                               8
of the property. See Wise v. State, 494 S.W.2d 921, 924 (Tex. Civ. App.CFort Worth 1973, no pet.)

(quoting Milby Auto Co. v. Kendrick, 8 S.W.2d 743, 744 (Tex. Civ. App.CGalveston 1928, writ dism=d

w.o.j.)). Section 28.06 of the penal code provides two methods for determining the diminution in property

value caused by the criminal mischief; the method used depends on whether the property was damaged or

destroyed. Tex. Pen. Code Ann. ' 28.06. If the property was damaged, the method of determining the

pecuniary loss is to establish the cost of repairing the property to restore it to the condition that it was in

immediately before the damage occurred. Wise, 494 S.W.2d at 924; Tex. Pen. Code Ann. ' 28.06(b).7

AIf the injured property is restored to its condition prior to its injury, its market value would ordinarily be

restored, and the cost of such restoration would be identical with the difference between its market value

before and after its injury.@ Wise, 494 S.W.2d at 924 (quoting Milby Auto Co., 8 S.W.2d at 744).




        7
          The statute provides: AThe amount of pecuniary loss under this chapter, if the property is
damaged, is the cost of repairing or restoring the damaged property within a reasonable time after the
damage occurred.@ Tex. Pen. Code Ann. ' 28.06(b).




                                                      9
                 In this case, although the State=s petition alleged that I.R.H. damaged or destroyed the

property, the State only produced evidence of the cost of repairing the vehicles;8 thus, the State proceeded

under section 28.06(b), which addresses repair of damaged property. In order to determine the cost of

repairing damaged property, the property need not actually be repaired, see Elomary, 796 S.W.2d at 193,

but if it is not, expert testimony is required to establish the cost of repair. Id., (lay opinion of amount of

damage, without further evidence, is insufficient to satisfy section 28.06(b)); Nixon v. State, 937 S.W.2d

610, 613 (Tex. App.CHouston [1st Dist.] 1996, no pet.) (same); Sebree v. State, 695 S.W.2d 303, 305

(Tex. App.CHouston [1st Dist.] 1985, no pet.) (same).

                 With these principles in mind, we now turn to the juvenile court=s overruling of I.R.H.=s

objection to Stafford=s qualifications as an expert and the admission of his testimony regarding the cost of

repairing the vehicles. If scientific, technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill,

experience, training, or education may testify in that regard in the form of an opinion or otherwise. Tex. R.

Evid. 702. The person proffering the purported expert=s testimony must demonstrate that the witness

possesses the requisite qualifications of an expert. See Penry v. State, 903 S.W.2d 715, 762 (Tex. Crim.

App. 1995); Holloway v. State, 613 S.W.2d 497, 501 (Tex. Crim. App. 1981). The special knowledge

that may qualify a witness as an expert may be derived from a study of technical works, specialized



        8
             We note that Stafford testified that the windows and windshields on the vehicles were
Adestroyed@ and testified as to the cost of replacing the windows and windshields; however, the State=s
petition alleges that the vehicles were damaged or destroyed. The State did not attempt to prove that the
vehicles were destroyed, only damaged.


                                                       10
education, practical experience, or varying combinations of these things. Wyatt v. State, 23 S.W.3d 18,

27 (Tex. Crim. App. 2000); Holloway, 613 S.W.2d at 501. The trial court exercises considerable

discretion in determining whether to admit expert testimony on the bases provided in the rule, and that

decision will not be disturbed absent a showing of an abuse of that discretion. Alvarado v. State, 912

S.W.2d 199, 216 (Tex. Crim. App. 1995); Kerr v. State, 921 S.W.2d 498, 502 (Tex. App.CFort Worth

1996, no pet.).

                  The State did not attempt to produce any evidence to qualify Stafford as an expert. There

is no evidence that Stafford had any experience in windshield repair, and there is no evidence that he

acquired specialized knowledge of the cost of windshield repair. Indeed, though the State asked Stafford if

he reached the $2106 figure based on his Aresearch,@ it is apparent that this figure was based on a single

estimate provided by a third party. During cross-examination, Stafford admitted that he had called two

windshield repair shops to obtain estimates for the repair of the windows on the vehicles. One of those

shops provided an undisclosed estimate that did not include installation of the windows. The second repair

shop provided the $2106 figure. Stafford did not provide a name of the person to whom he spoke or of the

shop he called. He did not provide a written statement from the shop. He did not provide the location of

the shop. And there is no indication that the shop even observed the state of the junk vehicles before

providing an estimate; the estimate was provided over the phone, according to Stafford. We conclude that

Stafford did not possess the requisite special knowledge to testify as an expert and the juvenile court erred

in allowing Stafford to provide expert testimony regarding the cost of repairing the vehicles.




                                                    11
                 Because the error is not constitutional, we will only reverse if it affected I.R.H.=s substantial

rights; otherwise, the error must be disregarded. See Tex. R. App. P. 44.2(b); see also In re C.R., 995

S.W.2d 778, 785 (Tex. App.CAustin 1999, pet. denied). To make this determination, we must decide

whether the error had a substantial or injurious effect on the juvenile court=s finding. Morales v. State, 32

S.W.3d 862, 867 (Tex. Crim. App. 2000). We must consider the entire record, including any testimony or

physical evidence admitted for the fact finder=s consideration, the nature of the evidence supporting the

finding, the character of the alleged error, and how the alleged error might be considered in connection with

other evidence in the case. Id.

                 Stafford=s testimony was the only evidence presented by the State regarding the cost of

repairing the damaged vehicles. Even apart from Stafford=s lack of standing as an expert, the cost of

repairing broken windows on junk vehicles that Stafford intended to sell for used parts is not an accurate

measure of the diminution in the cars= value. When asked if the parts on the vehicles were worth more than

the vehicles as a whole, Stafford explained, AIf you would sell them as a whole, you=d probably get junk. In

other words, you=d take them and you would get a scrap price for them.@ He agreed that Ascrap price is

basically the metal value.@ Stafford also agreed that the windows and windshields could not be fixed.

Moreover, Stafford did not have titles to the vehicles and did not intend to operate the vehicles or sell them

as operating vehicles. He had Ano idea whether or not [the vehicles] were running. In other words, there=s

motors in a few of them, yes, but I did not personally use them, no.@ Officer Sean Freddie of the Travis

County Sheriff=s Office also testified that he did not believe any of the vehicles were operable and that a few

of the cars had missing doors.



                                                       12
                Although the statute does not require that the damaged property actually be repaired, see

Elomary, 796 S.W.2d at 193, the statute presumes that the property is capable of being repaired and that

the value of the property can thereby be restored; the cost of the repair should indicate the difference

between the market value of the property before and after the damage, or the diminution in value. Before

the junk vehicles in this case were damaged, according to Stafford their only value was as scrap metal

unless he sold them for their parts. If the value of the junk vehicles before the damage was for parts or

scrap metal, the cost of new windows and windshields does not represent the diminution in value of the junk

vehicles caused by the damage; it is not indicative of the difference in market value of the junk vehicles

before and after the vandalism.

                Furthermore, no reasonable person would attempt to restore these vehicles by replacing the

windows and windshields with brand new ones. Stafford testified that the windows and windshields could

not be repaired and the vehicles were not operable. While operable vehicles may require replacement of

smashed windows, the cost of replacing the windows on these junk vehicles does not accurately measure

the diminution in value of the vehicles. There is no evidence that the damage to the windows and

windshields of these junk vehicles diminished the scrap metal value of the vehicles or their parts; replacing

the windows and windshields would not restore the scrap metal value or the value of the used parts. The

juvenile court relied on Stafford=s testimony by ordering restitution in the amount of $2106, the cost of

repair according to Stafford. We cannot say that the juvenile court=s overruling of I.R.H.=s objection to

Stafford=s qualifications as an expert did not have a substantial or injurious effect on the juvenile court=s

judgment. We therefore sustain I.R.H.=s fifth issue.



                                                     13
Legal Sufficiency of Evidence

                By his third issue, I.R.H. claims the evidence is legally insufficient to show that the amount of

pecuniary loss attributable to his actions was more than $1500 but less than $20,000. Adjudications of

delinquency in juvenile cases are based on the criminal standard of proof. See Tex. Fam. Code Ann. '

54.03(f). Therefore, we review adjudications of delinquency in juvenile cases by applying the standards

applicable to challenges to the sufficiency of the evidence in criminal cases. See In re E.P., 963 S.W.2d

191, 193 (Tex. App.CAustin 1998, no pet.).

                In reviewing a legal sufficiency challenge, we view all the evidence in the light most favorable

to the verdict and determine whether any rational trier of fact could have found the elements of the offense

beyond a reasonable doubt. See id. (citing Jackson v. Virginia, 443 U.S. 307 (1979)). Our review

includes consideration of all evidence, both admissible and inadmissible. Dewberry v. State, 4 S.W.3d

735, 753 (Tex. Crim. App. 1999). We measure the sufficiency of the evidence by the elements of the

offense as defined by a hypothetically correct jury charge. Gollihar, 46 S.W.3d at 253; Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). If our review of the record indicates that the evidence is

legally insufficient to support the juvenile court=s judgment, we must reverse and render a judgment of

acquittal.

                Although we have concluded that Stafford was not qualified to testify as an expert regarding

the cost of repairing the junk vehicles and that the testimony should have been excluded, we must include

inadmissible testimony in our legal sufficiency review of the evidence. Stafford=s testimony was the only

evidence presented of the amount of pecuniary loss caused by the damage to the junk vehicles. The court


                                                      14
of criminal appeals has held that an opinion or estimate of damage by an individual who is not competent to

give an expert opinion as to repair costs, such as Stafford, without further evidence is insufficient to prove

the cost of repairs as required by section 28.06(b) of the penal code. Elomary, 796 S.W.2d at 193

(agreeing with appellate court=s holding in Sebree). The court distinguished between an individual merely

Astating 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.@ Id. at 194. In this case, Stafford=s testimony is equivalent to an individual

merely stating from hearsay what someone else said the damages might be, and without further evidence his

lay testimony is legally insufficient to prove the cost of repairs.

                 Although no other evidence was presented as to the cost of repair, the State presented

some evidence that the vehicles were damaged. Stafford testified that a Buick Regal Limited had a smashed

front windshield. Two rear windows and a passenger window were smashed on a Ford Bronco. A

Mercury Marquis had a damaged windshield, two smashed door windows, and a shattered rear glass. The

windshield, driver=s door window, and rear sliding glass window had been damaged on a Ford pickup.

And finally, an Oldsmobile Delta 88 sustained damage to its windshield and a vent window. Stafford further

testified that although the vehicles were not new and had been sitting on his property to be sold for parts, all

the windows had been intact before I.R.H. and his companions smashed them. Officer Freddie testified that

he observed the broken windows and dents in the vehicles, but he did not attempt to estimate the cost of

repairing the damage. In addition, the State presented photos of the vehicles; at the time the photos were




                                                       15
taken, however, further damage had been done to the vehicles, and one of the photos depicted the

additional damage.

                This evidence is no evidence of the cost of repairing or restoring the value of the parts or the

scrap metal value of the junk vehicles; it does not reflect the difference in the market value of the junk

vehicles before and after the damage. Furthermore, the evidence does not support Stafford=s testimony that

the diminution in value to these junk vehicles is equivalent to the cost of replacing the windows and

windshields, or $2106. See Sebree, 695 S.W.2d at 305 (lay witness=s description of damage to her vehicle

and estimate of cost of repair held legally insufficient). But see Nixon, 937 S.W.2d at 613 (holding that

after reviewing all evidence, including photos of Aappellant=s truck totally crashed through the rear of the

brick home@ and of furniture and other items destroyed, any rational trier of fact would be convinced that

such extensive damage would cost in excess of $750 to repair). Viewing the evidence in the light most

favorable to the verdict, we conclude that no rational trier of fact could have found beyond a reasonable

doubt that the amount of pecuniary loss to the damaged vehicles exceeded $1500. We sustain I.R.H.=s

third issue.9


         9
          There is no evidence that the cost of repair is not ascertainable, so section 28.06(d) does not
apply. See Tex. Pen. Code Ann. ' 28.06(d) (if amount of loss cannot be ascertained, amount is deemed to
be greater than $500 but less than $1500); see also Phillips v. State, 672 S.W.2d 885, 887 (Tex.
App.CDallas 1984, no pet.) (requiring evidence that amount of loss cannot be ascertained); In re M.T.B.,
567 S.W.2d 46, 47 (Tex. Civ. App.CEl Paso 1978, no writ) (same).




                                                     16
                                              CONCLUSION

                 We overrule I.R.H.=s first and second issues. Because we conclude that the juvenile court

erred in overruling I.R.H.=s objection to Stafford=s qualifications to testify as an expert, we sustain I.R.H.=s

fifth issue. We further hold that Stafford=s lay-witness testimony, without further evidence of cost of repair,

is legally insufficient to support the juvenile court=s finding of a pecuniary loss in an amount greater than

$1500 but less than $20,000. We therefore reverse the juvenile court=s judgment and render a judgment of

acquittal.10




                                                   Bea Ann Smith, Justice

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

Reversed and Rendered

Filed: August 8, 2002

Do Not Publish




         10
          Because we are reversing and rendering judgment, we need not reach I.R.H.=s remaining issue.
See Tex. R. App. P. 47.1.


                                                      17
