        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-01-00010-CR


                                 Wesley Dean DeShon, Appellant

                                                   v.
                                    The State of Texas, Appellee



        FROM THE DISTRICT COURT OF BURNET COUNTY, 33RDJUDICIAL DISTRICT
           NO. 9031, HONORABLE FRANK J. MALONEY, JR., JUDGE PRESIDING



                Appellant Wesley Dean DeShon was convicted in a jury trial of the felony offense of

criminal mischief having caused a pecuniary loss of property of the value of fifteen hundred dollars

or more but less than twenty thousand dollars. See Tex. Pen. Code Ann. § 28.03(a)(1), (b)(4)(A)
(West Supp. 2002). The trial court assessed appellant’s punishment at imprisonment in a state jail

facility for one year. Imposition of the sentence was suspended and appellant was granted community

supervision for a period of five years; the conditions of probation include confinement in the county
jail for thirty days and a requirement that appellant make restitution to the owners of the property

destroyed in the amount of twenty thousand dollars to be paid over the period of probation in equal

monthly installments.

                Appellant challenges the legal and factual sufficiency of the evidence; also, he claims

that the evidence is insufficient because the testimony of the accomplice witness was not sufficiently
corroborated. In addition, appellant complains of: (1) the trial court’s refusal to quash the indictment,

(2) the admission of evidence relating to the measure of pecuniary loss, (3) the requirement that he

make restitution, and (4) the jury charge. We will affirm the judgment.

                The application paragraph of the jury charge, tracking the indictment, charged the jury

that:
               Now bearing in mind the foregoing instructions, if you believe from the
       evidence beyond a reasonable doubt, that the defendant, Wesley Dean Deshon, on or
       about the 7th day of September, 1999, in the County of Burnet, and State of Texas,
       as alleged in the indictment, either acting alone or with another, did then and there
       intentionally or knowingly destroy tangible property, to wit: TREES

               by cutting and bulldozing down trees owned by Richard Scharinger, without
       the effective consent of Richard Scharinger, and did thereby cause a pecuniary loss
       in the amount of $20,000 or more but less than $100,000; or,
              by directing that trees owned by Richard Scharinger be cut and bulldozed
       down, without the effective consent of Richard Scharinger, and did thereby cause a
       pecuniary loss in the amount of $20,000 or more but less than $100,000; or,

               by instructing Johnny Brown to cut and bulldoze down trees without the
       effective consent of Richard Scharinger, and did thereby cause a pecuniary loss in the
       amount of $20,000 or more but less than $100,000; or,

                by paying for trees owned by Richard Scharinger to be cut and bulldozed
       down, without the effective consent of Richard Scharinger, and did thereby cause a
       pecuniary loss in the amount of $20,000 or more but less than $100,000; as alleged
       in the indictment, you will find the defendant guilty of the offense of criminal mischief
       as alleged in the indictment, and so say by your verdict, but if you do not so believe,
       or if you have a reasonable doubt thereof, you will consider the following:

               If you find beyond a reasonable doubt that the defendant committed criminal
       mischief as alleged in the indictment but you fail to find beyond a reasonable doubt
       that the pecuniary loss, if any, caused was in the amount of $20,000 or more but less
       than $100,000, but you find beyond a reasonable doubt that the pecuniary loss was
       in the amount of $1500 or more but less than $20,000, then you will find the
       defendant guilty of the offense of criminal mischief in said amount and so say by your
       verdict.


               The jury found appellant guilty of the lesser included offense of causing a pecuniary

loss of fifteen hundred dollars or more but less than twenty thousand dollars.


                                    Sufficiency of the Evidence

                                                  A.

               In his first point of error, appellant insists that the evidence is legally insufficient to

support the jury’s verdict for four reasons. First, there is no evidence that anything, other than two

dead trees, were destroyed outside of appellant’s land and easement. Second, there is no evidence
that appellant instructed the destruction of anything other than two dead trees, outside of appellant’s

                                                   2
land and easement. Third, there is no evidence that the pecuniary loss, if any, suffered by the
Scharingers was fifteen hundred dollars or more but less than twenty thousand dollars. Finally, the

State failed to prove pecuniary loss based on fair market value or that fair market value could not be

established.
               In reviewing the legal sufficiency of the evidence, 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, 319 (1979); Patrick v. State, 906 S.W.2d 481, 486 (Tex. Crim. App. 1995); Aiken v.

State, 36 S.W.3d 131, 132 (Tex. App.—Austin 2000, pet. ref’d). The standard of review is the same

whether the evidence is direct or circumstantial, or both. See Kutzner v. State, 994 S.W.2d 180, 184

(Tex. Crim. App. 1999); Banda v. State, 890 S.W.2d 42, 50 (Tex. Crim. App. 1994). All of the

evidence that the jury was permitted, properly or improperly, to consider must be taken into account
in determining the legal sufficiency of the evidence. Garcia v. State, 919 S.W.2d 370, 378 (Tex.

Crim. App. 1994); see also, Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993);

Rodriguez v. State, 939 S.W.2d 211, 218 (Tex. App.—Austin 1997, no pet.).
               Richard and Patricia Scharinger owned a 9.62-acre tract of land in the Lake Marble

Falls Subdivision in Burnet County. Appellant owned a 4.96-acre tract of land that adjoined the

Scharingers’ property. Between the two tracts of land was a fifty-foot road easement. An unsurfaced

dirt road less than twelve feet wide was located within the half of the easement adjacent to appellant’s

property. Except for the narrow road, both pieces of property and the easement were covered with

native trees and brush. The Scharingers’ property was between appellant’s property and Lake Marble

Falls. On Labor Day 1999, when they came to inspect their property, the Scharingers observed piles

of trees and brush and discovered that an area of approximately 30,000 square feet of their land had

been cleared without their permission.

                Appellant employed Johnny Brown to clear his tract of land and allowed Brown to
employ his thirteen-year-old son Timmy, R.V. Turney, and John Wilcox to assist him. Appellant

                                                   3
rented heavy equipment—a track loader—for Brown to use in bulldozing and piling the trees and
brush to be burned. There were inconsistencies in Johnny Brown’s testimony. He testified that

appellant told him to take down two trees that were on the Scharingers’ property so that appellant

and his wife could “see the lake real good.” Brown vacillated in his testimony whether the trees were
dead or alive. Brown also testified that, “Before you couldn’t see the water, just the very tip of it.

When I got done, you could see the lake real good. . . . He [appellant] didn’t really say to do this and

do that. He said he wanted to see the water.”

                 Timmy Brown testified that appellant showed Johnny Brown where he was going to

build his house. Further, Timmy testified that appellant told Johnny Brown that “me [sic] and my

wife can’t see the lake and so could you go over there and clear some property so I can have a view.”

                 Appellant’s wife, Melanie DeShon testified1 that she was a “Texas Certified
Nurseryman Professional,” and that she was familiar with the property she and appellant owned and
the property the Scharingers’ owned. She testified that “originally, before it was cleared, there was

a very small portion of the lake” that could be seen from the property she and her husband owned.

“We had to climb up into the truck and on top of a tool box to get a very good view of the lake.”
However, “[a]fter it was cleared, it was just dramatic. You could see a wide expansion, a very large

area . . . of the lake.” She also testified that the clearing extended at least 250 feet into Scharingers’

property—approximately seven times the width of the easement.
                 Don Gardner, a consulting arborist and a member of the International Society of

Arboriculture and the American Society of Consulting Arborists, was qualified and testified as an

expert witness. Gardner testified that when he inspected the Scharingers’ property, he saw three

“sizeable piles” of native trees and observed a “cleared swath . . . right through very nicely wooded

areas.” By using a “sample plot” method of comparing the cleared area to the undisturbed strips of

property on either side of the cleared area, Gardner determined the number, sizes, and kinds of trees



        1
            Appellant and his wife Melanie were in the process of getting a divorce at the time of trial.

                                                    4
that had been cleared. Gardner testified that the trees destroyed did not have a fair market value, but
the replacement value of the trees destroyed was between thirty-five and forty thousand dollars.

                Richard Scharinger testified that over one hundred trees on his property had been

destroyed. The direct and circumstantial evidence when viewed in the light most favorable to the
prosecution supports a rational finding that the essential elements of the charged offense were proved

beyond a reasonable doubt. The verdict of the jury, the finder of fact, is supported by legally

sufficient evidence. Appellant’s first point of error is overruled.


                                                   B.

                In his second point of error, appellant asserts that the evidence is factually insufficient

to support the jury’s verdict. In a factual sufficiency review, we are required to give deference to the
jury’s verdict and examine all of the evidence impartially, setting aside the jury verdict “only if it is

so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Cain v.

State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.
Crim. App. 1996). The complete and correct standard a reviewing court must follow to conduct a

Clewis factual sufficiency review is to determine whether a neutral review of all of the evidence, both

for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine
confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is
greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

                The only evidence offered by the defense was documentary evidence and photographic

exhibits of appellant’s and the Scharingers’ property. Here, as he did in arguing the legal insufficiency

of the evidence, appellant argues the State failed to show that trees were destroyed on the

Scharingers’ property. Appellant relies in part on the testimony of Johnny Brown and R.V. Turney

and contends that, other than two dead trees, no trees were destroyed on the Scharingers’ property.

In our discussion of legal sufficiency, we have already considered the accomplice witness Johnny




                                                    5
Brown’s testimony, which may be construed to show he bulldozed down more than two dead trees.
We will now consider Turney’s testimony.

                R.V. Turney testified he only saw Johnny Brown knock down two dead trees on the

Scharingers’ property. However, Turney also testified that on one occasion he saw Johnny Brown
“go 200 feet or more” across the right-of-way from appellant’s property. Also, “[a]fter [Johnny

Brown] went back and got on the track loader, he went well inside of the, what I would call the right-

of-way, well into the adjoining property.”

                The testimony of Jimmy Brown, Melanie DeShon, Don Gardner, and Richard

Scharinger was summarized in our discussion of the legal sufficiency; their testimony is sufficient to

show that numerous trees outside of the easement were destroyed on the Scharingers’ property.

                Also, appellant attacks the State’s proof of pecuniary loss and insists that the State’s

proof is woefully deficient. Appellant contends that the State failed to show the fair market value of
the trees destroyed or that they had no market value before proving replacement value. Appellant

argues that the pecuniary loss should be determined by the difference in the fair market value of the

land before and after the trees were destroyed. At trial, the judge disagreed with this argument; we
also disagree. It was alleged that the growing trees were destroyed. Don Gardner, the consulting

arborist, testified that the trees destroyed had no market value and testified about their replacement

value.

                After examining all of the evidence impartially and giving deference to the jury’s

verdict, we conclude that the jury’s verdict is not so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. Moreover, from our neutral review of all of the evidence

both for and against the jury’s verdict, we find it fails to show that the proof of appellant’s guilt is so

obviously weak as to undermine confidence in the jury’s determination, or that the proof of guilt,

although adequate if taken alone, is greatly outweighed by contrary proof. The evidence is factually

sufficient to support the jury’s verdict. Appellant’s second point of error is overruled.



                                                    6
                                                   C.
                In his fourth point of error, appellant urges that the evidence is not “legally sufficient

to sustain the conviction when applying the accomplice witness rule.” A conviction cannot be had

upon the testimony of an accomplice witness unless corroborated by other evidence tending to
connect the defendant with the offense committed; and the corroboration is not sufficient if it merely

shows the commission of the offense. See Tex. Code Crim. Proc. Ann. art. 38.14 (West 1979). The

trial court charged the jury that Johnny Brown was an accomplice witness as a matter of law.

                The test for sufficient corroboration is to eliminate from consideration the testimony

of the accomplice witness and then to examine the other inculpatory evidence to ascertain whether

the remaining evidence tends to connect the defendant with the offense. Burks v. State, 876 S.W.2d

877, 887 (Tex. Crim. App. 1994). The non-accomplice evidence does not have to directly link

appellant to the crime nor does it alone have to establish appellant’s guilt beyond a reasonable doubt;
rather, the non-accomplice evidence merely has to connect appellant to the offense. Id.; Reed v.

State, 744 S.W.2d 112, 126 (Tex. Crim. App. 1988). Eliminating Johnny Brown’s testimony, we may

consider the testimony of Melanie DeShon and Timmy Brown.
                On cross-examination, Melanie DeShon testified that she and appellant discussed who

should be employed to clear their property but appellant did the hiring and paid for the clearing of the

property by check. Appellant proudly showed Melanie how the clearing done on the Scharingers’

property greatly enhanced the view of the lake from their property.

               Timmy Brown testified:


       Q: Did you ever hear Mr. DeShon discussing working across the side, the other side
          of the Rocky Road in order to effect a view of the lake.

       A: Yes, sir.

       Q: What, what did you hear him say?

       A: Well, he said -- showed my dad where he was going to build the house.



                                                    7
            And he said, me and my wife can’t see the lake and so could you go over there
            and clear some property so I can have a view.

                                             *****
       Q: Where were you all standing when you heard him say that?

       A: I think it was like in between the driveway of Mr. Dean DeShon’s property and
          where he was going to build the house.

       Q: Were you all looking down toward the lake at that point?

       A: Yes, sir. We were looking toward the property and towards the lake.

       Q: Did you ever hear him say anything else, instructing your dad to bulldoze across the
          road?

       A: No. He just told him go back over there, clear some more property. I don’t remember
          if it was the same day or the following day but he told him he still couldn’t, didn’t have
          a clear view, go do some more.
       Q: Mr. DeShon said that?

       A: Yes, sir.

       Q: To who?
       A: My dad.


               The testimony of Melanie DeShon and Timmy Brown shows appellant was on the

scene before the Scharingers’ property was cleared and that he instructed Johnny Brown, his

employee, to improve the view of the lake from his property. After trees had been cleared from

Scharingers’ property, appellant took Melanie to their property and expressed his pleasure that his

view of the lake had been significantly improved after Scharingers’ property had been cleared. The

direct and circumstantial evidence furnished by the non-accomplice witnesses tend to connect

appellant to the commission of the offense and satisfies the test for corroborating the accomplice

witness testimony of Johnny Brown. Appellant’s fourth point of error is overruled.




                                                8
                                          The Indictment
               In his third point of error, appellant asserts that the trial court erred in denying his

motions to quash the indictment. In the indictment, it is alleged that:


       WESLEY DEAN DESHON, hereinafter referred to as Defendant, on or about the 7th
       day of September, 1999, and before the presentment of this Indictment, in the County
       of BURNET, and the State of Texas, did then and there intentionally and knowingly
       damage and destroy tangible property, to wit: TREES,

       PARAGRAPH A

               by cutting and bulldozing down said trees, without the effective consent of
               RICHARD SCHARINGER, the owner, and did thereby cause a pecuniary
               loss in the amount of $20,000 or more but less than $100,000,

       PARAGRAPH B

               by directing that the said trees be cut and bulldozed down, without the
               effective consent of RICHARD SCHARINGER, the owner, and did thereby
               cause a pecuniary loss in the amount of $20,000 or more but less than
               $100,000,

       PARAGRAPH C
               by instructing Johnny Brown to cut and bulldoze down said trees, without the
               effective consent of RICHARD SCHARINGER, the owner, and did thereby
               cause a pecuniary loss in the amount of $20,000 or more but less than
               $100,000,

       PARAGRAPH D

               by paying for said trees to be cut and bulldozed down, without the effective
               consent of RICHARD SCHARINGER, the owner, and did thereby cause a
               pecuniary loss in the amount of $20,000 or more but less than $100,000.


       Specifically, appellant complains that he was not accorded his Sixth Amendment right to

notice of what property he allegedly damaged or destroyed, because the State failed to allege the

number, type, size, and location of the trees bulldozed or cut down.


               If known, personal property alleged in an indictment shall be identified by
       name, kind, number and ownership. When such is unknown, that fact shall be stated,
       and a general classification, describing and identifying the property as near as may be,
       shall suffice. If the property be real estate, its general locality in the county, and the


                                                   9
        name of the owner, occupant or claimant thereof, shall be a sufficient description of
        the same.


Tex. Code Crim. Proc. Ann. art. 21.09 (West 1989).

                Real property has been defined as “land and anything growing on . . . the land.”
Black’s Law Dictionary 1234 (7th ed) 1999; and see Chastain v. Koonce, 700 S.W.2d 579, 584 (Tex.

1985) (Gonzales, J., concurring).

                The trees allegedly bulldozed and cut down were not personal property but were part

of the real property on which they were growing. The indictment gave appellant notice that the trees

destroyed were on property owned by Richard Scharinger in Burnet County having an alleged value

in excess of twenty thousand dollars. We hold that the allegations of the indictment sufficiently

described the property destroyed. Appellant was accorded his Sixth Amendment right to notice.

Moreover, appellant had additional notice of the description of the property destroyed at a pretrial
hearing conducted almost one month before trial. Although the judge hearing the pretrial motion

ruled the witness was not qualified as an expert witness, the witness testified to facts giving notice

of the location, size, kinds, and the number of trees destroyed. See Erlandson v. State, 763 S.W.2d
845, 849-50 (Tex. App.—Houston [14th Dist.] 1988, pet. ref’d).

                Also, for the first time on appeal, appellant argues the insufficiency of the indictment

would not allow a conviction under this indictment to be raised in bar to another charge with identical

allegations. Jeopardy determinations are made by reference to the entire record of the previous

proceeding and not simply by reference to the allegations in the indictment. Stahle v. State, 970

S.W.2d 682, 693 (Tex. App.—Dallas 1998, pet. re’fd). When one cannot determine from the State’s

pleadings whether the offenses prosecuted are the same, the court must look to the proof offered at

trial. Ex parte Goodbread, 967 S.W.2d 859, 860 (Tex. Crim. App. 1998). Appellant’s delayed

contention that the pleading is insufficient to protect him from future prosecution for the same offense

is without merit. See 41 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice



                                                  10
and Procedure § 20.213 (2d ed. 2001). The trial court did not err in refusing to quash the
indictment. Appellant’s third point of error is overruled.


                                   Measure of Pecuniary Loss

               In his fifth point of error, appellant claims that the trial court erred “in allowing the

witness Don Gardner to testify as to a ‘cost of cure’ measure of damages.”

       (a) The amount of pecuniary loss under this chapter, if the property is destroyed, is:

            (1) the fair market value of the property at the time and place of the destruction;
                or

            (2) if the fair market value of the property cannot be ascertained, the cost of
                replacing property within a reasonable time after the destruction.


Tex. Pen. Code Ann. § 28.06(a) (West 1994). Don Gardner testified that there is “no fair market

value in tree appraisal.” As explained by Gardner, the “cost of cure” method of determining the value

of destroyed trees is essentially the cost of replacement. Simplified, “cost of cure” or replacement
value of destroyed trees is the amount of money required to buy trees of the same size and kind, to

plant them in place of the destroyed trees, and to care for the trees until they can, without special

care, sustain their own growth. Here, in Gardner’s opinion, the replacement cost of the destroyed
trees was between thirty-five and forty thousand dollars.

               Gardner’s testimony was not admitted before the jury until the trial court, at the

insistence of defense counsel, conducted a “Kelly” hearing out of the presence of the jury. See Kelly

v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). The “Kelly” hearing had several purposes. First,

the trial court needed to determine whether technical or specialized knowledge would aid the jury in

understanding the evidence and in assessing the amount of pecuniary damages, a fact issue for the

jury. See Tex. R. Evid. 702. Second, the trial court needed to determine whether Gardner was

qualified by education, training, experience, and knowledge to give his opinion as an expert on the

issue of pecuniary damages. Id. Third, the trial court needed to determine whether Gardner’s


                                                  11
proffered testimony was reliable and relevant on the issue of pecuniary damage. See id. Rule 401,
402. Fourth, the trial court needed to determine whether the admission of Gardner’s testimony would

create a danger of unfair prejudice, confuse the issues, mislead the jury, be cumulative, or cause

undue delay. See id. Rule 403.
                In the “Kelly” hearing, Gardner was interrogated by the State, extensively cross-

examined by defense counsel, and carefully questioned by the trial court. There was substantial

evidence to support the trial court’s finding that Gardner was an expert consulting arborist qualified

to testify about the pecuniary loss resulting from the loss of the destroyed trees. Gardner fully

explained the generally accepted methodology he used in forming his opinion of the pecuniary

damages resulting from the destruction of trees on the Scharingers’ property. The evidence supports

the trial court’s decision to admit Gardner’s testimony. On appeal, the trial court’s ruling must be

upheld unless the trial court abused its discretion. Kelly, 824 S.W.2d at 574. We hold the trial court
did not abuse its discretion in allowing Gardner to testify about the “cost of cure” measure of

damages that is essentially the replacement cost of the trees destroyed.

                Appellant argued during trial and now on appeal argues that Gardner’s opinion as to
the pecuniary damages is absurd because the amount of pecuniary damages Gardner found was about

the same amount as that which the Scharingers had paid for the entire property on which the trees

were destroyed. This complaint is about the weight of the evidence not about its admissibility. All

of the evidence was before the jury for its consideration. 2 Appellant’s fifth point of error is overruled.


                                               Restitution

                In his sixth point of error, appellant urges that the trial court abused its discretion in

ordering the payment of restitution in the sum of twenty thousand dollars. The criteria for ordering

restitution in criminal cases is statutory. See Tex. Code Crim. Proc. Ann. art. 42.037 (West Supp.



        2
          Sometimes as in the repair of automobiles, the sum of the cost of parts is much greater than
the entire cost of a new vehicle.

                                                    12
2002). In summary, article 42.037 as applied to this case provides that when a criminal offense
results in destruction of a victim’s property, a judge sentencing the defendant and granting him

community supervision may, as a condition of community supervision, order that the defendant make

restitution to the victim in an amount equal to the value of the destroyed property at the time it was
destroyed. The court may allow the defendant to make restitution in installments, with the last

installment due at the end of the period of community supervision. The court in determining whether

to order restitution and the amount of restitution shall consider: (1) the amount of the loss sustained

by the victim as a result of the offense, (2) the financial resources of the defendant, (3) the financial

needs and earning ability of the defendant and the defendant’s dependents, and (4) other factors the

court deems appropriate. The court shall impose an order of restitution that is as fair as possible to

the victim.

                The record reflects that the trial court carefully followed the statutory criteria in
ordering restitution. There was evidence of pecuniary loss that varied from one hundred thousand

dollars to less than five hundred dollars. The State asked the court to order restitution of ninety

thousand dollars. The victims asked for between sixty thousand and one hundred thousand dollars.
Appellant insisted that restitution should not exceed two thousand dollars. The court considered the

evidence of pecuniary loss shown by the record, considered appellant’s financial statement,

appellant’s earning ability, and his and his dependents’ needs in assessing the amount of restitution.

The court’s order for restitution in the amount of twenty thousand dollars is supported by the record;

abuse of discretion is not shown. Appellant’s sixth point of error is overruled.


                                        Court’s Jury Charge

                Appellant presents five points of error complaining about the jury charge. Appellant

asserts that the trial court erred “in applying the law of parties to the law of parties in its charge to

the jury.” Appellant argues that the court “in its charge, charged both the law of parties and then by

tracking the indictment charged the law of parties again.” Also, he argues “such charge allowed the


                                                   13
jury to apply the law of parties to the law of parties and allowed the defendant to be convicted twice
removed from the offense.” The trial court defined the law of parties and then applied the law to the

facts. We find no merit in appellant’s complaint and overrule point of error eleven.

               Appellant complains that the trial court erred “in overruling appellant’s objections to
the charge for not including a requirement that the appellant acted with a required culpable mental

state.” The trial court charged the jury that it must find beyond a reasonable doubt that appellant

“either acting alone or with another, did then and there intentionally and knowingly destroy tangible

property, to wit: TREES.” The court’s charge properly instructed the jury on the law of culpability

required to convict appellant of the charged offense. Appellant’s tenth point of error is overruled.

               Also, appellant complains the trial court erred in denying him “a requested instruction

defining ‘fair market value’ of tangible property severed from real estate.” The facts in this case did

not require the submission of the requested charge, and the refusal of the trial court to give the
requested charge was not error. Appellant’s ninth point of error is overruled.

               In his eighth point of error, appellant contends that the court erred in overruling his

objection and in failing to submit his requested charge defining “pecuniary loss.” Appellant agrees
that the trial court’s jury charge on the definition of pecuniary loss “tracked the statute. Article

28.06(a)(1) and (2).” The instruction submitted by the court was the statutory definition. The charge

was proper and adequate. Appellant’s eighth point of error is overruled.

               Appellant complains that the trial court erred in overruling his requested instruction

defining “easement.” The trial court instructed the jury that:


               By the term “easement” is meant that an owner of land adjoining a roadway
       described in an instrument dedicating that road in a subdivided tract of land as a
       private way for the exclusive use, benefit, and convenience of the owners of land in
       such tract, has the right to grade, cut out and use the entire dedicated width of such
       easement provided that he does not destroy the use and benefit and convenience of
       such easement by the other owners of such easement, if any.




                                                  14
               Appellant argues this instruction did not go far enough. He contends that in addition
to “the right to grade, cutout and use the entire dedicated width of the easement” the court should

have added “the right to cut and remove trees, brush or other obstacles located within the easement.”

Appellant is hypercritical of the court’s charge which, in defining the rights in the easement, was
perhaps more favorable to appellant than he was entitled. Appellant’s seventh point of error is

overruled.

               The judgment is affirmed.




                                              Carl E. F. Dally, Justice
Before Justices Kidd, Puryear and Dally*

Affirmed

Filed: February 14, 2002
Do Not Publish




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*
    Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See
    Tex. Gov’t Code Ann. § 74.003(b) (West 1998).




                                                16
