Forrest Newsom, Jr. v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: August 25, 2022
• Docket: 03-21-00694-CR
• Status: Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00694-CR

Forrest Newsom, Jr., Appellant

v.

The State of Texas, Appellee

FROM THE COUNTY COURT AT LAW NO. 1 OF WILLIAMSON COUNTY, NO. 21-03011-1, THE HONORABLE BRANDY HALLFORD, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found Forrest Newsom, Jr. guilty of the Class B misdemeanor of criminal

mischief for destruction of property valued at $100 or more but less than $750. See Tex. Penal

Code § 28.03. The trial court assessed sentence at 120 days in jail pursuant to the parties’

agreement. The trial court certified that Newsom had the right to appeal, and Newsom contends

that the jury verdict is not supported by legally sufficient evidence that he caused $100 or more

worth of pecuniary loss. We will reverse the judgment, modify it to be a conviction for a Class C

misdemeanor of criminal mischief, and remand to the trial court for assessment of punishment on

that offense.

BACKGROUND

Newsom’s estranged wife (Owner) drove a vehicle purchased by her father in

October 2017 for which she cosigned. Owner testified that she lived separately from Newsom by

October 9, 2021, when Newsom texted her at 3:49 a.m.: “I’ll be at your front door sometime this morning.” He later appeared outside her apartment without invitation and began knocking on her

door. She did not answer but called the police. He texted her at 9:29 a.m. as follows:

If you don’t answer the door this morning (now) you will be buying new tires for that Jeep. Not trying to hear it today. All of my shit is at the park except for the bag I have with me. I need you to take me to the Washatopia to do laundry. I have the money just need a ride please.

I’ll be a real dick today. If I leave without you opening this door you WILL replace a tire today! Count on it And I don’t give a fuck about the hoe ass cops showing up. Fed up with life anyway and having you act like a real fucking bitch.

She then watched through her window as Newsom went to her vehicle, stabbed twice, then walked

away. Police arrested Newsom nearby. He admitted popping Owner’s vehicle’s back driver side

tire with a knife.

Owner took photos of the punctured tire that were admitted at trial, put on the spare,

and drove to Walmart. There, she replaced the punctured tire and bought a second so that the pair

of tires had the same wear. She had replaced these tires in 2020. She paid $97 for each new tire

in 2021, plus a $3 tire-pressure-monitoring-system (TPMS) service fee, other fees, and taxes. The

cost for one tire plus tax was $105; including fees for TPMS and a valve-stem, the total was

$112.50. Owner testified that she did not ask for or receive a valuation of the non-slashed tire that

was replaced nor did she receive trade-in credit for it because she kept it as a spare. There was no

evidence of the value of any spare that was replaced.

Newsom was charged with criminal mischief for, without the effective consent of

the owner, intentionally or knowingly damaging or destroying her tangible property. See Tex.

Penal Code § 28.03(a)(1). The jury was instructed that the offense was a Class B misdemeanor if

the pecuniary loss was $100 or more but less than $750, and was a Class C misdemeanor if the

2 pecuniary loss was less than $100, and was presented a question on each offense. See id.

§ 28.03(b). The jury was instructed to consider the Class C question only if it found him not guilty

of the Class B offense. The jury found Newsom guilty of the Class B offense so did not expressly

answer the Class C question.

APPLICABLE LAW

Under a legal-sufficiency standard of review, appellate courts view the evidence in

the light most favorable to the verdict and decide whether 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); Hernandez v. State, 556 S.W.3d 308, 315 (Tex. Crim. App. 2017); McCall

v. State, 635 S.W.3d 261, 272 (Tex. App.—Austin 2021, pet. ref’d).

When performing this review, we must bear in mind that it is the factfinder’s duty

to weigh the evidence, to resolve conflicts in the testimony, and to make “reasonable inferences

from basic facts to ultimate facts.” Id.; see also Tex. Code Crim. Proc. art. 36.13 (explaining that

“jury is the exclusive judge of the facts”). The factfinder is “free to apply common sense,

knowledge, and experience gained in the ordinary affairs of life in drawing reasonable inferences

from the evidence.” Eustis v. State, 191 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2006,

pet. ref’d). On appeal, we must determine whether the necessary inferences are reasonable based

upon the combined and cumulative force of all the evidence when viewed in the light most

favorable to the verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

A person commits the offense of criminal mischief by intentionally or knowingly

damaging or destroying the owner’s tangible property without her effective consent. Tex. Penal

Code § 28.03. Though the charge included alternate methods of commission—destruction or

3 damage, see id. §28.03(a)(1)—the facts of this case focus on destruction. The State proved only

that the victim replaced the tire, and replacement cost is an alternate method of measuring the

pecuniary loss for destroyed property. See id. § 28.06(a). By contrast, the measure of the

pecuniary loss for damaged property is the cost of repairing or restoring the damaged property.

See id. § 28.06(a). There is no evidence in the record of the cost to repair or restore the slashed tire.

The amount of pecuniary loss to the owner determines the basis for the offense

level. Id. § 28.03(b); Campbell v. State, 426 S.W.3d 780, 784 (Tex. Crim. App. 2014). For

destructive mischief, the amount of pecuniary loss is the fair market value of the destroyed property

at the time and place of the destruction, Tex. Penal Code § 28.06(a)(1); if the fair market value of

the property cannot be ascertained, the cost of replacing the property within a reasonable time after

the destruction is an alternative measure of the amount of pecuniary loss. Id. § 28.06(a)(2).

DISCUSSION

On appeal, Newsom argues that the record lacks legally sufficient evidence to

support a finding that his destruction of the tire inflicted at least $100 of pecuniary loss on Owner.

The State offered Owner’s testimony and the receipts for the tires purchased after

the slashing. But replacement value can be used to show pecuniary loss of destroyed property only

if evidence shows that the fair market value of the property cannot be ascertained. See Tex. Penal

Code § 28.06(a)(2); Deas v. State, 752 S.W.2d 573, 575 (Tex. Crim. App. 1988). 1 In Deas, the

complainant stated that a destroyed garage door had a fair market value of $590 at the time of the

1 The San Antonio Court of Appeals explained that the requirement to assess fair market value of the destroyed item guards against the use of inflated replacement-cost testimony. Moreno v. State, 961 S.W.2d 512, 515 (Tex. App.—San Antonio 1997, pet. ref’d). The Moreno court noted that four used tires could have a fair market value of less than fifty dollars (Class C misdemeanor), but might take $1500 to replace (state-jail felony). Id. at 515.

4 incident; but on cross-examination, the complainant testified that he based his opinion solely on

what he had paid to replace the door and did not know the fair market value of the destroyed door.

752 S.W.2d at 575-76. The Deas court cited Phillips v. State, an appeal from a criminal-mischief

conviction for destruction of tires on a police vehicle by cutting them. 672 S.W.2d 885, 886-87

(Tex. App.—Dallas 2000, no pet.). In reversing and acquitting, the Dallas court held:

Although the prosecutor asked both witnesses if they were familiar with the fair market value of the tires, neither witness testified as to fair market value but only as to replacement cost. Nor did either witness testify that the fair market value could not be ascertained. Therefore, replacement cost can not be considered as evidence of pecuniary loss.

Id. at 887. There is no indication that the trial court in Phillips instructed the jury on lesser-

included offenses.

Replacement cost and fair market value cannot be presumed identical because that

would render meaningless the express condition that replacement cost can establish the pecuniary

loss only if the fair market value of the property cannot be ascertained. See Tex. Penal Code

§ 28.06(a)(2). When interpreting a statute, “we presume that every word in a statute has been used

for a purpose and that each word, clause, and sentence should be given effect if reasonably

possible.” Liverman v. State, 470 S.W.3d 831, 836 (Tex. Crim. App. 2015); cf. Whole Woman’s

Health v. Jackson, 642 S.W.3d 569, 581 (Tex. 2022).

Here, Owner did not expressly deny knowing the fair market value of the destroyed

tire, but she did testify that she did not receive a valuation of the replaced tires from the store; the

only tire value admitted is the replacement cost. But because there is no evidence in the record

that the fair market value of the destroyed tire could not have been ascertained, the value of the

replacement tire is not the authorized measure of pecuniary loss. See Deas, 752 S.W.2d at 575-76;

5 see also Tex. Penal Code § 28.06(a)(2); Lackey v. State, 290 S.W.3d 912, 919 (Tex. App.—

Texarkana 2009, pet. ref’d).

The limitation of Owner’s testimony to replacement cost renders inapposite this

Court’s statement that an “owner may testify regarding the purchase price or replacement cost and

is presumed to be testifying regarding an assessment of the fair-market value.” Wearren v. State,

No. 03-15-00445-CR, 2016 WL 3918125, at *2 (Tex. App.—Austin July 13, 2016, no pet.) (mem.

op., not designated for publication) (construing theft statute with scheme for assessing pecuniary

loss similar to criminal mischief statute) (citing Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim.

App. 1986)). The owner in Wearren testified that he did not know whether fence panels that were

stolen from him were new or used, but that he would have charged a friend $3,000 for the work he

performed in exchange for the later-stolen panels; this Court held that evidence sufficient to

support a verdict that the fair-market value of the panels was at least $1,500. Id. at *3. In Sullivan,

the owner testified in response to questions about the “market value” of the weapon on the date it

was stolen, not its replacement cost, even though the owner was not a market expert. 701 S.W.2d

at 907. An owner’s testimony that used tools were worth about half the purchase price was

accepted as evidence establishing the fair market value of the tools. Id. (citing Coronado v. State,

508 SW.2d 373, 374 (Tex. Crim. App. 1974)). Based on the evidence in this case that the value

testified about was replacement cost and not the fair market value, the presumption discussed in

Wearren does not apply here. As discussed above, the Court of Criminal Appeals in Deas clarified

that testimony about the replacement value of a destroyed item is not, without more, sufficient to

establish the fair market value of the replaced property when destroyed. 752 S.W.2d at 575-76.

Here, Owner testified only about the cost of a replacement tire and said she did not know the

market value of the replaced tire.

6 The State argues that the Dallas Court of Appeals held that an owner’s testimony

of the cost to replace slashed tires was sufficient to establish the fair market value of the slashed

tires in Mohdi v. State, No. 05-06-00714, 2007 WL 1192275 (Tex. App.—Dallas 2007, pet. ref’d)

(mem. op., not designated for publication). In that case, a car owner testified that he spent $600

to replace his slashed tires and that the retail value of the tires on his truck was between $150-

$160; the court of appeals found that evidence sufficient to support a finding that the fair market

value of the destroyed tires exceeded $500—then the minimum for a Class A misdemeanor of

criminal mischief. Id. at *1-2. That court distinguished Deas because the owner in Deas testified

that he did not know the value of his property, whereas there was no such testimony in Mohdi. Id.

at *2. In this case, like in Deas, Owner testified that she did not receive a valuation for the

destroyed tires but knew only the cost of the replacement tires.

The evidence does not support the finding that the used tire had a fair market value

of at least $100 at the time Newsom destroyed it. The record contains no evidence of the fair

market value of the tire when Newsom destroyed it and no showing that the fair market value of

the destroyed tire could not be ascertained. Though the record contains evidence of the

replacement cost of the tire and testimony establishing that we must assume the destroyed tire was

used for at most nine months and nine days, the record contains no evidence of what that tire cost

when new, how much the tire was used, and how much value remained.

The State provided testimony and receipts for tire-purchase costs totaling $302.77.

But, even if good practices favor replacing tires a pair at a time, the jury could only consider the

value of a single tire to calculate the pecuniary loss because Newsom destroyed only one tire and

Owner retained the other replaced tire. A receipt showed a single tire cost $105—$97 for the tire

plus $8 tax. A separate receipt showed additional fees for a TPMS service ($3), a valve stem ($3),

7 and a tire fee ($1.50). Even if we assume without deciding that these fees and the tax are part of

the fair market value, the total is $112.50. But there is no evidence regarding the value of the

destroyed tire when it was purchased nor of its depreciated value. The tire, purchased sometime

in 2020, had at least nine months of use when destroyed. There is no evidence of how to calculate

the depreciation of tires, thus there is no evidence of the fair market value of the tire

when destroyed. 2

Though the record contains evidence of the cost to replace the destroyed tire, that

evidence does not establish that the fair market value of the destroyed tire was at least $100;

because the record contains no evidence that the fair market value could not have been ascertained,

the replacement cost does not establish the amount of pecuniary loss. See Tex. Penal Code

§ 28.06(a); see also Deas, 752 S.W.2d at 575-76; Phillips, 672 S.W.2d at 887. Even construed

most favorably to the verdict, the record does not contain legally sufficient evidence to support the

verdict. We sustain Newsom’s point of error to the extent that he requests reversal of his

2 Even if the jury could use its common knowledge to calculate a linear rate of depreciation of value based on the use of the first set of tires on the vehicle, the replacement cost does not provide legally sufficient evidence to support a depreciated fair market value of at least $100. The vehicle was purchased in October 2017 and the original tires were replaced in 2020. Construed most favorably to the verdict—the longer the tires ran, the lower the depreciation rate for tires used by Owner—the previous tires lasted at most 39 months (vehicle purchased on October 1, 2017 and tire replacement on December 31, 2020). There is no evidence of why the previous tires were replaced in 2020, how their quality and cost compared to the tire that Newsom destroyed, or whether Owner used the tires in 2021 comparably to how she used them in 2017-2020. If we assume that all of the tires used on this vehicle were of comparable value when new and that their value depreciated at the same linear rate over time, the original tires depreciated at $2.88 per month ($112.50 / 39 months). After nine months of use and depreciation at that rate in 2021, the tire would have had a fair market value of $86.40 when destroyed. The record contains legally insufficient evidence to support a finding that Newsom destroyed a tire valued at least $100 when he destroyed it.

8 conviction for the Class B misdemeanor of criminal mischief. That does not conclude our review

of the trial court’s judgment, however.

The Texas Rules of Appellate Procedure authorize a court of appeals to reform a

judgment of conviction after a jury trial to reflect conviction for a lesser included offense if the

court determines the evidence is insufficient to support a conviction for the greater offense. See

Tex. R. App. P. 43.2(c), (d); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993). After

concluding that the evidence is insufficient to support an appellant’s conviction for a greater-

inclusive offense, a court reviews whether to reform the judgment to reflect a conviction for a

lesser-included offense by answering two questions: 1) in the course of convicting the appellant of

the greater offense, must the jury have necessarily found every element necessary to convict the

appellant for the lesser-included offense; and 2) conducting an evidentiary sufficiency analysis as

though the appellant had been convicted of the lesser-included offense at trial, is there sufficient

evidence to support a conviction for that offense? Thornton v. State, 425 S.W.3d 289, 299-300

(Tex. Crim. App. 2014). The answer to both questions in this case is yes.

The trial court instructed the jury to convict Newsom of the Class B misdemeanor

if it found beyond a reasonable doubt that Newsom

did then and there intentionally or knowingly damage or destroy tangible property, to wit: a car tire, by puncturing the tire with a sharp object, without the effective consent of [Owner], and did thereby cause pecuniary loss of $100 or more but less than $750 to the said owner

The trial court further instructed the jury that, if it did not find Newsom guilty of the Class B

misdemeanor, but nevertheless believed that Newsom did

9 intentionally or knowingly damage or destroy tangible property, to wit: a car tire, by puncturing the tire with a sharp object, without the effective consent of [Owner], and did thereby cause pecuniary loss of less than $100, you will find the defendant guilty of the offense of Criminal Mischief—Class C.

When the jury found Newsom guilty of the Class B misdemeanor, it necessarily found every

element of the Class C misdemeanor except for pecuniary loss of less than $100. As set out above,

the record contains the text message in which he threatened that Owner would be replacing a tire

if she did not answer her door, testimony that she saw him walk to her vehicle and stab it after she

did not answer his knocking, and pictures of the slashed tire. The evidence is legally sufficient to

support finding Newsom guilty of criminal mischief involving destruction of property with a fair

market value of less than $100, a Class C misdemeanor.

CONCLUSION

We modify Newsom’s judgment of conviction for the Class B misdemeanor of

criminal mischief to reflect that he was convicted of the Class C misdemeanor of criminal mischief

and affirm the judgment of guilt as modified. We reverse the part of the judgment imposing

sentence and remand to the county court for a new punishment hearing for that offense.

__________________________________________ Darlene Byrne, Chief Justice

Before Chief Justice Byrne, Justices Triana and Smith

Modified and Affirmed in Part, Reversed and Remanded in Part

Filed: August 25, 2022

Do Not Publish