By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Restitution may be ordered only for damages
for which respondent was adjudicated (99-4-03)
On September 8, 1999, the San Antonio Court of Appeals held that restitution
may be ordered only for an offense plead and proved; even if other related
offenses are properly proved as extraneous offenses in the adjudication
proceeding, restitution may not be ordered for the loss they caused.
99-4-03. In the Matter of M.J.L., UNPUBLISHED, No. 04-98-00072-CV, 1999 WL
692635, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 9/8/99)[Texas Juvenile
Law 192 (4th Edition 1996)].
Facts: A jury found that M.J.L. engaged in delinquent conduct by committing
criminal mischief. Following a disposition hearing, the court placed M.J.L. on
juvenile probation until his eighteenth birthday. In his first issue, M.J.L.
alleges that the court erred by failing to properly admonish him. In his second
and third issues, M.J.L. contends that the court erred in admitting evidence of
extraneous offenses. In his fourth issue, M.J.L. asserts that the court erred in
denying his requested jury instruction. In his fifth issue, M.J.L. argues that
the court erred in setting the amount of restitution.
According to the evidence, M.J.L. was enrolled at the Juvenile Justice
Alternative Education Program ("JJAEP") and took part in a field trip
to the IMAX theater. While the students waited in the lobby for the movie to
begin, Andrea Davis, M.J.L.'s teacher, observed M.J.L. and another boy standing
near a plexiglass display case containing a map. According to Davis, she
observed M.J.L. making large movements with his hand and arm over the surface of
the case. When Davis called M.J.L.'s name, he dropped his hand. Davis then
walked over to the case and observed scratches on the map display case. After
discovering the scratches, Davis contacted the IMAX management who inspected the
case and also found some similar damage to a shadow box, a statue case, and the
men's restroom. Melinda Miller, manger of IMAX operations, testified that the
premises had been inspected prior to the arrival of the JJAEP group and that the
damages did not exist at that time. Miller called the police who discovered a
small rock inside a nearby plant. In its petition, the State alleged that M.J.L.
intentionally and knowingly damaged and destroyed one window by scratching it
with a rock. The window referred to in the petition was shown to be the map
display case.
Held: Affirmed as modified.
Opinion Text: Admonishments
In his first issue, M.J.L. asserts that the court erred by failing to admonish
him pursuant to section 54.03 of the Family Code. Specifically, M.J.L. contends
that the trial court failed to explain the allegations made against him as
required by section 54.03(b)(1). Tex. Fam.Code Ann. 54.03(b)(1) (Vernon 1996).
The court gave the following admonishments concerning the nature of the
allegations:
[COURT]: I need to make sure that you understand what is going on here, that you
understand the charges against you, that you understand what your constitutional
rights are, and just the nature and the consequences of this hearing....
You also need to understand what the nature of the charges pending against you
are. I'll have the State read those out loud. But if a jury or a judge find that
the charges are true, a jury is not going to assess any disposition, that's up
to the Court and not the jury....
Any reason to believe that [M.J.L.] does not understand the nature of the
charges, the consequences and his constitutional rights here today?
[DEFENSE COUNSEL]: No, your Honor.
[COURT]: Okay. Would the State read the charges against [M.J.L.]?
[STATE]: In Cause Number 97-JUV-01056, the State alleges that on or about the
7th day of February, 1997, in the County of Bexar and the State of Texas, [M.J.L.]
hereinafter referred to as Respondent, did then and there knowingly and
intentionally damage and destroy tangible property of [M]elinda Miller, the
owner, namely one window, without the effective consent of the owner, by
scratching said window with a rock and did thereby cause pecuniary loss of
$1,500 or more but less than $20,000 without the effective consent of the owner,
and that said act on the part of the Respondent is an offense against the State
of Texas at the grade of felony.
[COURT]: Okay. Did you hear the charges against you, sir?
[M.J.L.]: Yes, sir.
[COURT]: True or not true?
[M.J.L.]: Not true.
Section 54.03(b)(1) directs the trial court to explain to the child the
allegations made against him and that duty cannot be delegated to the
prosecutor. See In re K.L.C., 990 S.W.2d 242, 243 (Tex.1999). Because the trial
court had the prosecutor read the allegations against M.J.L., the trial court
failed to satisfy section 54.03(b)(1). M.J.L. asserts that the court's failure
to satisfy section 54.03(b)(1) constitutes fundamental reversible error. See In
re I.G., 727 S.W.2d 96, 99 (Tex.App.-San Antonio 1987, no writ). The Texas
Supreme Court, however, recently held that courts of appeals should conduct a
harm analysis when the trial court fails to give the required admonishments. See
In re D.I.B., 988 S.W.2d 753, 759 (Tex.1999). [FN3]
FN3. The court noted that the only issue before the court was whether an
appellate court should conduct a harm analysis when a trial court fails to
explain the potential use of the juvenile record in a future criminal case and,
therefore, did not decide whether harm analysis was appropriate for failure to
give other admonishments required by section 54.03(b). In re D.I.B., 988 S.W.2d
at 759. In a subsequent case, the court, however, conducted a harm analysis with
regard to the failure to explain the allegations as required by section
54.03(b)(1). See K.L.C., 990 S.W.2d at 244.
Reviewing the record for harm, we note that the judge told M.J.L. that he needed
to make sure that M.J.L. understood the charges against him and asked M.J.L.'s
counsel if there was any reason to believe that M.J.L. did not understand the
charges against him to which counsel responded "no." At the court's
direction, the prosecutor read the allegations from the petition in the presence
of the judge, M.J.L. and his attorney. The criminal mischief allegations in the
petition specifically and clearly alleged that M.J.L. damaged and destroyed a
window by scratching it with a rock. After the prosecutor read the allegations,
M.J.L. pled not true. Under similar facts, the Texas Supreme Court found that
the reading of the allegations in the petition by the prosecutor at the
direction and in the presence of the trial court was not harmful error because
the allegations in the petition were sufficiently clear and direct to explain
the allegations against the juvenile. See K.L.C., 990 S.W.2d at 244. Likewise,
we find that the reading of the allegations in the petition by the prosecutor
was not harmful. We overrule the first issue.
Admission of evidence
In the second issue, M.J.L contends that the court erred in allowing evidence
that he was enrolled in JJAEP because it was not relevant and the prejudicial
effect outweighed its probative value. Although M.J.L. filed a motion in limine
requesting the exclusion of evidence of M.J.L.'s enrollment in JJAEP, M.J.L
failed to object when Andrea Davis, M.J.L.'s teacher, testified that she taught
at JJAEP and M.J.L. was her student. Because M.J.L. failed to object to the
admission of testimony concerning M.J.L's enrollment at JJAEP, the issue is
waived. See Tex.R.App. P. 33.1; Dinkins v. State, 894 S.W.2d 330, 355
(Tex.Crim.App.1995) (finding that appellant must make a timely objection in
order to preserve complaint about admission of testimony). Therefore, we
overrule the second issue.
Extraneous offenses
In his third issue, M.J.L. complains that the court erred by admitting evidence
of extraneous offenses and that the probative value of the evidence was
outweighed by the danger of unfair prejudice. See Tex.R.Crim. Evid. 404(b);
Tex.R.Crim. Evid. 403. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident, provided, upon timely request by the accused, reasonable
notice is given in advance of trial of intent to introduce in the State's case
in chief such evidence other than that arising in the same transaction.
Tex.R.Crim. Evid. 404(b). "To constitute an extraneous offense, the
evidence must show a crime or bad act, and that the defendant was connected to
it." Lockhart v. State, 847 S.W.2d 568, 573 (Tex.Crim.App.1992). Rule 403
provides that evidence, although relevant, may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice. See
Tex.R.Crim. Evid. 403. An appellate court reviews the court's rulings under Rule
404(b) and Rule 403 under an abuse of discretion standard. See Montgomery v.
State, 810 S.W.2d 372, 391 (Tex.Crim.App.1990).
With regard to extraneous offenses, M.J.L. complains of the admission of
evidence of damage at the IMAX other than scratches to the window alleged in the
State's petition. After inspecting the premises, Miller testified that a shadow
box and a statue case had been scratched in a manner similar to the scratches on
the map display case. Miller also testified that the stall partitions, soap
dispenser and paper towel dispensers in the men's restroom were damaged.
In response to M.J.L.'s allegation of improper character evidence, the State
argues that the testimony concerning damage to the IMAX constitutes same
transaction contextual evidence and, therefore, is admissible as an exception to
Rule 404(b). As an exception to Rule 404(b), same transaction contextual
evidence is admissible where "several crimes are intermixed, or blended
with one another, connected so that they form an indivisible criminal
transaction, and full proof by testimony, whether direct or circumstantial, of
any one of them cannot be given without showing the others." Mayes v.
State, 816 S.W.2d 79, 86 n.4 (Tex.1991) (quoting Nichols v. State, 97 Tex.Crim.
174, 260 S.W. 1050 (1924)). "Only if the facts and circumstances of the
instant offense would make little or no sense without also bringing in the same
transaction contextual evidence, should the same transaction evidence be
admitted." Rogers v. State, 853 S.W.2d 29, 33 (Tex.Crim.App.1993).
M.J.L. contends that the damage to the map display case was distinct from the
other damage and, therefore, testimony concerning other damage was unnecessary
for the jury to understand the facts and circumstances of the damage to the map
display case. Because the shadow box, statute case and dispensers in the men's
restrooms were scratched in the same manner as the map display case, within the
same time period, and in close proximity to the map display case, we find that
the offenses were intermixed or blended so as to form an indivisible criminal
transaction. Therefore, we cannot say that the court abused its discretion in
allowing evidence of damage to property other than the map display case.
M.J.L also argues that exhibits one and two constituted evidence of extraneous
offenses and, therefore, under Rule 404(b) should not have been admitted. M.J.L.
contends that the exhibits were introduced to show that M.J.L. wrote
inappropriate things at school. The State, on the other hand, argues that the
evidence was admitted to identify the markings on the map display case as having
been made by M.J.L. Davis identified exhibit one as a newspaper she found under
M.J.L's desk containing his tag name. Davis identified exhibit two as a cover of
a notebook that contained M.J.L's writing. Because she was familiar with
M.J.L.'s tagging, Davis testified that she was able to identify the scratches on
the map display case as M.J.L's tag.
In order to constitute an extraneous offense, the conduct must amount to a crime
or a bad act. See Lockhart, 847 S.W.2d at 573. In Lockhart, the Court found that
a diary containing miscellaneous names and notations did not depict any criminal
activity or bad act. Id. Likewise, we find that the admission of the newspaper
and notebook cover containing M.J.L.'s tag name does not depict a bad act.
Evidence that M.J.L. wrote his name or made particular markings on a piece of
newspaper and notebook cover does not constitute a bad act. Thus, the exhibits
were not excludable as extraneous offenses.
Although we have found that the evidence is not excludable under Rule 404(b), we
must still determine whether the probative value of the evidence was outweighed
by the danger of unfair prejudice. See Tex.R.Crim. Evid. 403. In reviewing the
court's determination, we look at the following relevant criteria: (1) whether
the ultimate issue was seriously contested by the opponent; (2) whether the
State had other convincing evidence to establish the ultimate issue to the which
the extraneous misconduct was relevant; (3) whether the probative value of the
misconduct evidence was, either alone or in combination with other evidence,
particularly compelling; and (4) whether the misconduct was of such a nature
that a jury instruction to disregard it for any but its proffered purpose would
likely have been efficacious. Montgomery, 810 S.W.2d at 392-93. At trial, M.J.L.
did not seriously contest the ultimate issue of whether he scratched the map
display case. In fact, M.J.L.'s brief contains the assertion that the majority
of the probative and non-prejudicial evidence connected M.J.L. to the scratching
of the map display case. Further, the State introduced convincing evidence that
M.J.L. committed the offense through the testimony of Davis who observed
M.J.L.'s arm moving across of the surface of the map display case. Because the
State offered convincing evidence that M.J.L. committed the offense, we find
that the probative value of the evidence about which M.J.L. complains was not
outweighed by the danger of unfair prejudice. Thus, the court did not abuse its
discretion in admitting the evidence. We overrule the third issue.
Jury Instruction
In the fourth issue, M.J.L. alleges that the court erred in denying his request
for a jury instruction requiring extraneous offenses to be proven beyond a
reasonable doubt. At the charge conference, M.J.L.'s counsel requested a
limiting instruction concerning the jury's consideration of extraneous offenses.
Because the extraneous offenses were admitted as same transaction contextual
evidence, the court was not required to give a limiting instruction. See Sparks
v. State, 935 S.W.2d 462, 466 (Tex.App.-Tyler 1996, no pet.) (citing Camacho v.
State, 864 S.W.2d 524, 535 (Tex.Crim.App.1993)).
Restitution
In the fifth issue, M.J.L. urges that the court abused its discretion by
considering damages not pled by the State in determining the amount of
restitution. Under section 54.041(b) of the Family Code, the court is authorized
to order full or partial restitution to the victim for offenses in which
property damage or loss or personal injury occurred. Tex. Fam.Code Ann. §
54.041(b) (Vernon 1996). Because juvenile proceedings are
"quasi-criminal" in nature, the rules of restitution in criminal cases
apply to juvenile proceedings. See In re D.S., 921 S.W.2d 860, 861 (Tex.App.-San
Antonio 1996, no writ). In a criminal proceeding, a restitution award must be
supported by factually sufficient evidence. In re J.R., 907 S.W.2d 107, 109 (Tex.App.-Austin
1995, no writ). Further, restitution may be ordered only where property damage
or loss occurs in the offense for which the defendant is convicted. D.S., 921
S.W.2d at 861; see also Gonzalez v. State, 954 S.W.2d 98, 106 (Tex.App.-San
Antonio 1997, no pet.) (finding that restitution limited to the results of the
offense charged).
In its petition, the State alleged that M.J.L. intentionally and knowingly
damaged one window by scratching the window with a rock. According to the
evidence, the map display case was the "window" referred to in the
State's petition. Miller, the IMAX manager, testified that replacement of the
map display case would cost $2,250. Additionally, Miller testified that the
statue box was damaged in the amount of $1,102 and the shadow box was damaged in
the amount of $82. The court ordered restitution in the amount of $3,434, an
amount which included the damage to all three items. Because M.J.L. was only
charged and convicted of scratching the map display case, restitution was
limited to $2,250 which was the amount of damage sustained to the map display
case. We sustain the fifth issue. Accordingly, we reform the judgment to order
restitution in the amount of $2,250 rather than the amount of $3,434.