SAMUEL NEWMAN FLOYD, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED and Opinion Filed March 30, 1998
 
 
 
S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-96-00038-CR
............................
SAMUEL NEWMAN FLOYD, Appellant
V.
THE STATE OF TEXAS, Appellee
..............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F95-30209-KJ
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O P I N I O N
Before Chief Justice Thomas and Justices Farris FN:1 and Miller FN:2
Opinion By Justice Miller
                Appellant Samuel Newman Floyd was charged by indictment with the offense of burglary of a habitation, enhanced by two prior felony convictions. Upon his plea of not guilty, the case went to trial before a jury, at the conclusion of which he was found guilty. The trial court was selected to set punishment and, after Floyd pled true to the two enhancement allegations, the court sentenced him to serve 40 years' confinement in the Institutional Division of the Texas Department of Criminal Justice. On appeal, Floyd brings three points. The first point concerns Floyd's assertion that the trial judge committed reversible error in instructing the jury concerning Floyd's extraneous offenses, and the remaining two points challenge the legal and factual sufficiency of the evidence. We affirm.
        Because sufficiency of the evidence is contested, a summation of the testimony and evidence adduced at trial is called for. The State's case began with the testimony of Hope Anderson Adams. According to Adams, she resided in the Wymberly Crossing Apartments in Grand Prairie, and on February 10, 1995, at around 11:30 p.m., she heard a knock on her door. Upon answering, she found an irate Floyd demanding to know the whereabouts of some persons named Curtis, Corey and Chad. Floyd appeared intoxicated or high on drugs. Floyd identified himself as "Sam." Claiming that the trio had damaged his house, Floyd went to the apartment above Adams's upon her assurance that that was where Curtis Malone, one of the persons he was seeking, lived. When Adams heard that apartment's door kicked in and glass breaking, she called the police.
        Floyd was gone when the police arrived, however Malone arrived shortly thereafter and took a Grand Prairie Police Officer, L.S. Burkett, through his apartment. Both observed that the front door had been broken open and extensive vandalism and damage had been done to the apartment, the appliances, the furniture and the personalty contained within. One police witness to the scene described the place as "torn up very badly." Malone testified that the damage to his possessions exceeded $2,000, and the apartment complex representative, Johna Robinson, estimated the damage to the apartment to be $1,158.85. Adams identified Floyd from a photo shown to her by Malone.
        Apparently, Floyd was "seeing" Malone's wife, Janet Malone. The defense called Janet and her son, Corey Fields, to testify that the contents of the apartment alleged to be damaged were largely non-functional and virtually worthless because of age or previous damage. Janet Malone said that she, in fact, had told Floyd to go to the apartment and trash it. The pair disputed the damage to the appliances belonging to the apartment complex. Floyd did not testify at the guilt stage of the trial. FN:3
        Point one concerns an instruction given to the jury in the court's charge at the close of the guilt stage of the trial. The complained of instruction, inserted just after the instruction concerning the failure of Floyd to testify, FN:4 was as follows:
            You are instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses other than the offense for which he is on trial, such evidence cannot be considered against the defendant as any evidence of guilt, if any, in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing on the credibility of the defendant as a witness for himself in this case, and to aid you, if it does aid you, in deciding upon the weight you will give to him as such witness, and you will not consider the same for any other purpose.
Floyd objected to the instruction, as follows:
        THE COURT: What is the objection?
    MR GJETLY: I don't believe it applies. The defendant did not testify. That implies that there may be something there.
Floyd's objection to this portion of the charge was overruled. FN:5
        On appeal, Floyd points out that there was no evidence of Floyd's having committed any extraneous offenses introduced at the guilt stage of the trial. Floyd maintains that the instruction focused the jury's attention on the fact that he did not testify at trial. Floyd alleges that this instruction was reversible error under Almanza v. State because it was a comment on the weight of the evidence and also a comment on the failure of the defendant to testify. See Almanza v. State, 686 S.W.2d 157, 171-172 (Tex. Crim. App. 1984).
        If a defendant timely objects to error in the court's charge, the appellate court must look to see if the error is calculated to injure the rights of the defendant. See id. If the error is of such a nature, then the defendant is entitled to a reversal of the judgement based on that charge. See id. An error is "calculated to injure the rights of the defendant" if the error causes some harm to the defendant from the error. See id. The degree of harm thus suffered must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. See Hughes v. State, 897 S.W.2d 285, 296-97 (Tex. Crim. App. 1994), cert denied, 514 U.S. 1112 (1995); Almanza, 686 S.W.2d at 171, 174. Our question under point one is therefore twofold: Was error committed by the trial court and, if so, was the error harmless under Almanza. See Almanza, 686 S.W.2d at 172.
        Floyd attempts to show both harm and error by arguing that the objected to instruction commented on the weight of the evidence and also commented on the failure of Floyd to testify. Floyd quotes from, and the State cites, Bailey v. State, a case where the Houston court of appeals was itself reversed for holding similar charge error reversible. See Bailey v. State, 848 S.W.2d 321, 322 (Tex. App.--Houston [1st Dist.] 1993), vacated, 867 S.W.2d 42, 42-43 (Tex. Crim. App. 1993). In Bailey, the defendant did not testify. Nevertheless, the trial court instructed the jury that:
    [C]ertain evidence was admitted before you in regard to the defendant's having been charged and convicted for an offense or offenses other than the one for which he is now on trial. Such evidence cannot be considered against the defendant as any evidence of guilt, if any, in this case. Said evidence was admitted before you for the purpose of aiding you, if it does aid you, in passing on the weight you will give his testimony, and you will not consider the same for any other purpose.
Bailey, 848 S.W.2d at 322. Just as in this case, the Bailey instruction immediately followed the instruction concerning the failure of Bailey to testify. See id.
        The Houston court of appeals found this instruction to be error for the very reasons argued by Floyd in this case; that the instruction was a comment on the weight of the evidence and also a comment on the failure of the defendant to testify. See id. The Houston court did not, however, apply the correct test for harm required by Almanza, and for that reason it's ultimate decision, that this charge error was also reversible error, was vacated by the court of criminal appeals. See Bailey, 867 S.W.2d at 43.
        In this case, the State distinguishes Bailey by pointing out that the complained of instruction here is conditional and the instruction in Bailey was not. True, the instruction here begins: "You are instructed that if there is any testimony before you in this case regarding the defendant's having committed offenses other than the offense for which he is on trial, . . .," and the instruction in Bailey began: "[C]ertain evidence was admitted before you in regard to the defendant's having been charged and convicted for an offense or offenses other than the one for which he is now on trial." Bailey, 848 S.W.2d at 322 (emphasis added). We find this variance to be a factual distinction without a difference as regards the nature of the action of the trial court in instructing the jury. That is, we agree with the Houston court's analysis in Bailey, that this action was error in that it drew the jury's attention to the fact that the defendant did not testify and also commented on the weight of evidence. See id. We will therefore move to assess the potential harm caused by the error under the standard espoused in Almanza, focusing on the entire jury charge, the evidence presented, and the argument of counsel, among other things. See Bailey, 867 S.W.2d at 43; Almanza, 686 S.W.2d at 171.
        In this regard, the fact that the objected to instruction was conditioned on the introduction of evidence that the defendant had committed other offenses is more important than it was in the analysis of whether or not giving the instruction was error. This is true because no evidence of extraneous offenses was offered or admitted. Appellate courts presume that juries follow instructions given them in the court's charge. See Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). We therefore presume that the jury did not pay attention to any part of this paragraph. See id. Additionally, the charge specifically instructed the jury not to consider the fact that Floyd didn't testify as a circumstance against him. We therefore presume that the jury did not consider that fact as a circumstance against Floyd. See id.
        Also, we note that during argument neither side commented on or speculated about Floyd having committed other offenses. Floyd's attorney, in fact, came close in argument to conceding that the evidence showed beyond a reasonable doubt that Floyd entered Malone's apartment and did damage to it. The focus of the argument was the monetary amount of damage caused. In the evidentiary portion of the trial, Adams, an impartial, disinterested, witness, identified Floyd as the person who entered, and caused damage to, the apartment. Disinterested police officer witnesses testified to the damaged condition of the apartment. The main contested issue in the case was the dollar amount of damage caused. Janet Malone and her son, Corey Fields, testified that the amount was small, while Malone and Robinson testified that it was large. It therefore would seem that the complained of charge had no logical bearing on the main issue in the case.
        There was no "other relevant information revealed by the record of the trial as a whole" that bears on the issue at hand. See Almanza, 686 S.W.2d at 171-173. Analyzing the charge as a whole, the argument of counsel, the evidence presented, and the real issue contested in this case, we hold that Floyd suffered no harm from the trial court's charge error. See id. Point one is overruled.
        In his second and third points, Floyd attacks the legal and factual sufficiency of the evidence proving the pecuniary amount of damage caused. The indictment alleged that Floyd knowingly and intentionally entered a habitation owned by Curtis D. Malone with the intent to commit criminal mischief, a felony. The court's charge instructed the jury as follows:
            A person commits the offense of burglary if, without the effective consent of the owner, he enters a building or a habitation, and commits or attempts to commit a felony or theft.
 
            A person commits the offense of criminal mischief if without the effective consent of the owner he intentionally or knowingly damages or destroys the tangible property of the owner.
 
            Criminal mischief is a State Jail Felony if the amount of pecuniary loss is $1,500.00 or more but less than $20,000.
 
            "Pecuniary loss" as used herein means the cost of repairing or restoring the damaged property within a reasonable time after damage occurred.
                                *                  *                *
            Now, bearing in mind the forgoing instructions, if you believe from the evidence beyond a reasonable doubt that the defendant, Samuel Newman Floyd, on or about the 10th day of February, 1995, in the County of Dallas, and State of Texas, as alleged in the indictment, did unlawfully, knowingly or intentionally, enter a habitation without the effective consent of Curtis D. Malone, the owner thereof, and destroy or damage the tangible personal property of the said Curtis D. Malone, and you further find from the evidence that the pecuniary loss of the said tangible property is $1,500 or more but less than $20,000, you will find the defendant guilty of the offense of Burglary of a Habitation, as charged in the indictment.
        At trial, Malone testified in detail about the destruction of his property. Of all the items that Floyd damaged, only a model airplane could be repaired. The rest of the damaged items could not be repaired and therefore had to be replaced. These items included, according to Malone's testimony, three television sets, a VCR, a deep freezer, a toaster, an entertainment center, a glass table top, a mirror and an ironing board. Malone gave itemized cost of replacement of all these items, and the total replacement cost added up to $2182.75. The model airplane could be repaired for $50.00.
        Janet Malone testified that she had been married to Malone for ten years and knew the condition of the property Floyd damaged or destroyed in Malone's apartment. Her description and characterization of the various items varied markedly from Malone's. Janet testified, for instance, that one of the television sets was worthless and another belonged to her son Fields, not Malone. Item by item she continued disputing Malone's testimony about the age and worth of furniture and appliances. She also added that much of the damaged property was hers, not Malone's, and that she had told Floyd to damage it. Fields then took the stand and also refuted Malone's testimony.
        As previously stated, Floyd, under point two, contests the legal sufficiency of the evidence of the amount of pecuniary loss and argues that the State was limited by the charge to proving the cost of repairing or restoring the property, as opposed to the fair market value of the property or the cost of replacing the property. Floyd relies on the statutory definition of pecuniary loss contained in the penal code:
    Sec. 28.06. Amount of Pecuniary Loss
            (a) The amount of pecuniary loss under this chapter [Chapter 28, containing the offense of criminal mischief in section 28.03], 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 the property within a reasonable time after the destruction.
            (b) The 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. Penal Code Ann. § 28.06 (Vernon 1994). Floyd maintains that when the trial court charged that pecuniary loss was "the cost of repairing or restoring the damaged property," the State could not satisfy their burden of proof by evidence of the fair market value of the property under (a)(1) or of the replacement cost of the property under (a)(2), above. Since all but the model plane portion of Malone's testimony was about replacement cost, Floyd asserts that the State only proved pecuniary loss in the amount of $50, the cost of repairing or restoring the air plane.
        The State takes issue with Floyd's interpretation of their burden of proof. Conceding that the jury was instructed to consider the cost of repairing or restoring the damaged property in determining amount of pecuniary loss, the State seeks to have us interpret the word "restore" so as to encompass the entirety of Malone's testimony, which was largely couched in terms of the replacement cost of the damaged items.
        In deciding whether the word "restore" should have or did have an expanded meaning or a restricted one, we are guided by cases such as Vernon v. State, which hold: "Words not specifically defined by the legislature are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any meaning which is acceptable in common parlance." Vernon v. State, 841 S.W.2d 407, 409 (Tex. Crim. App. 1992). Specific to challenges to the sufficiency of the evidence, reviewing courts cannot use definitions of common words that are more restrictive than, or in any ways different than, the possible ordinary meaning that the jury was authorized to give such words, to wit: "any meaning which is acceptable in common parlance." See id. This concept is an offshoot of the notion that a jury knows the ordinary meaning of words and thus the trial court need not define them. Russell v. State, 665 S.W.2d 771, 780 (Tex. Crim. App. 1983). In Russell, the court reasoned: "Where terms used are simple in themselves and are used in their ordinary meaning, jurors are supposed to know such common meaning and terms, and under such circumstances such common words are not necessarily to be defined in the charge to the jury." Id. Thus, when read in context, ordinary words that have a usual acceptation rooted in the commonality of our language should be read to have the broadest possible meaning to which they are reasonably susceptible to being interpreted in ordinary, day-to-day usage. See Bingham v. State, 915 S.W.2d 9, 10 (Tex. Crim. App. 1994).
        Germane to the case at bar, we believe that in common usage the word "restore" is an expansive word with many different meanings depending on the context within which it is used. The dictionary definition bears this out:
    restore 1. to bring back into existence, use, or the like; reestablish: to restore order. 2. to bring back to a former, original, or normal condition, as a building, statue, or painting. 3. to bring back to a state of health, soundness or vigor. 4. to put back to a former place, or to a former position, rank, etc.: to restore the king to his throne. 5. to give back; make return or restitution of (anything taken away or lost). 6. to reproduce or reconstruct (an ancient building, extinct animal, etc.) in the original state.
    --Syn[onym]. 2. mend. See renew. 4. replace, reinstate. 6. rebuild.
 
                        *                *                  *                *
 
    synonym 1. a word having the same or nearly the same meaning as another in the language, as joyful, elated, glad.
The Random House Dictionary of the English Language 1952, (2d ed. 1987) (underlining added for emphasis; all other emphasis original). In the dictionary definition then, the word "restore" has many common meanings when used in different contexts, and is synonymous with the word "replace" in some contexts.
        We agree with the State therefore that a reasonable jury could have interpreted the word "restore" to have the same meaning as the word "replace" because "restore" is reasonably susceptible to being interpreted in ordinary, day-to-day usage, as having the same meaning as "replace." See Bingham, 915 S.W.2d at 10. Such a broad meaning of "restore" is acceptable in common parlance, and thus we will use that meaning in determining the sufficiency of the evidence points. See Vernon, 841 S.W.2d at 409.
        In a challenge to the legal sufficiency of the evidence, it has long been held that the reviewing court must decide whether, considering the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Geesa v. State, 820 S.W.2d 154, 160-61 (Tex. Crim. App. 1991); Emery v. State, 881 S.W.2d 702, 705 (Tex. Crim. App. 1994), cert. denied, 513 U.S. 1192 (1995). The jury is the sole judge of the credibility of the witnesses and of the weight to be given their testimony. See Bonham v. State, 680 S.W.2d 815, 819 (Tex. Crim. App. 1984). The jury is allowed to accept or reject any or all testimony of the witnesses in determining the facts and issues set out before it. See Pizano v. State, 489 S.W.2d 284, 285 (Tex. Crim. App. 1973).
        As to the meaning and context of "the essential elements," the court of criminal appeals held that in a challenge to the legal sufficiency of the evidence from a jury verdict, sufficiency is no longer to be measured against the jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Under Malik, the correct test of sufficiency of the evidence is a "hypothetically correct charge." See id. FN:6 Thus, we will examine the evidence in this case in the light most favorable to the guilty verdict to see if any rational trier of fact could have found the essential elements of the crime, as set out in a "hypothetically correct charge," beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. at 318-19; Malik, 953 S.W.2d at 240.
        In this case, Malone testified that he was the owner of the property damaged or destroyed by Floyd. He testified to the cost or replacement cost of the property, and that the total cost was in excess of $2,000. Although this testimony about ownership and value was contested by Janet Malone and her son, the jury was entitled to reject their testimony and accept Malone's, which they apparently did in rendering a guilty verdict. Considering the evidence in the light most favorable to the verdict, we hold that the evidence was legally sufficient to justify any rational trier of fact in finding, beyond a reasonable doubt, that the cost of replacing Malone's damaged or destroyed items was in excess of $1500. See Jackson v. Virginia, 443 U.S. at 318-19; Bowers v. State, 570 S.W.2d 929, 932 (Tex. Crim. App. 1978). Point two is overruled.
        Point three deals with Floyd's challenge to the factual sufficiency of the evidence to prove that the value of the damaged or destroyed property was $1500 or more. This is the same challenge made under point two, albeit under a different standard of appellate review. The methodology for reviewing a challenge to the factual sufficiency of the evidence is quite different than that employed in a challenge to the legal sufficiency of the evidence. See Clewis v. State, 922 S.W.2d 126, 128-129 (Tex. Crim. App. 1996). When addressing a factual sufficiency complaint, an appellate court is charged with the responsibility to consider and weigh all of the evidence "without the prism of `in the light most favorable to the prosecution,'" as required under Jackson. See id. at 129. The evidence is, in essence, compared and contrasted in an evaluation of the comparative weight of that evidence. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997); Roper v. State, 917 S.W.2d 128, 132 (Tex. App.--Fort Worth 1996, pet. ref'd). A jury's verdict should be set aside only if it is so against the great weight and preponderance of the evidence as to be clearly wrong, manifestly unjust, shocking to the conscience, or clearly demonstrative of bias. See Clewis, 922 S.W.2d at 135.
        In this case, we are aware that the ownership and value of the property in question was hotly contested by witnesses that were anything but disinterested. There was animosity all around between Malone, Floyd, Janet Malone and Fields. The jury however was in an excellent position to view the biases of the respective witnesses, consider the inherent believability of their testimony, observe their demeanor, and decide both their credibility and the accuracy of their testimony. The identity of the perpetrator and the extent of the damage was born out by seemingly disinterested witnesses, Adams and Burkett. The disputed issues of ownership and pecuniary loss could be and obviously were solved by the jury's careful evaluation of credibility and weight. We are of a mind to honor the jury's solution.
        True, we have the power to disagree with a jury's determination and set it aside, even if probative evidence supporting the verdict exists. See Clewis, 922 S.W.2d at 133. Still, an appellate court must be on guard so as to not substitute its own judgment for that of the judge or jury. See id. Avoiding substantial intrusion upon the jury's role as the sole judge of the weight and credibility of the witnesses is our primary goal in a factual sufficiency review. See Santellan, 939 S.W.2d at 164. In this case, the key witnesses on the issues of value and ownership of the damaged and destroyed property were all subject to an accusation of having their own private agenda in testifying as they respectively did. Also, either story, that the property was Malone's and cost in excess of $2000 to replace, or that the property was pretty much worthless junk and mostly belonged to Janet Malone and Fields, is reasonable and not inconsistent with commonly perceived reality. Only an evaluation of credibility and weight could sort out the truth under the criteria of beyond a reasonable doubt. Where evidence is subject to equally reasonable interpretations, the jury's decision is not unjust merely because the jury resolved conflicting views of evidence in favor of the State. See Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997).
        Having reviewed the record as a whole, we believe that the jury's verdict, that the amount of pecuniary loss to Malone was greater than $1500, was not so against the great weight and preponderance of the evidence as to be clearly wrong, manifestly unjust, shocking to the conscience, or clearly demonstrative of bias. See Clewis, 922 S.W.2d at 135. To hold otherwise would be, in our view, a substantial and prohibited intrusion upon the jury's role as the sole judge of the weight and credibility of the witnesses. See Cain, 958 S.W.2d at 407 n.5; Santellan, 939 S.W.2d at 164. Point three is overruled.
        The judgment of the trial court is affirmed.
 
 
 
                                                          
                                                          CHUCK MILLER
                                                          JUSTICE, ASSIGNED
 
 
 
Do Not Publish
Tex. R. App. P. 47.3
 
 
FN:1 The Honorable David F. Farris, Former Justice, Second District Court of Appeals, Fort Worth, Texas, sitting by assignment.
FN:2 The Honorable Chuck Miller, Judge, Texas Court of Criminal Appeals, Retired, sitting by assignment.
FN:3 At the punishment phase of the trial Floyd took the stand and admitted that he broke into the place and damaged the property.
FN:4 The instruction concerning the failure of Floyd to testify was worded thusly:
 
    Our law provides that a defendant may testify in his own behalf if he elects to do so. This, however, is a privilege accorded a defendant, and in the event he elects not to testify, that fact cannot be taken as a circumstance against him. In this case, the defendant has elected not to testify, and you are instructed that you cannot and must not refer or allude to that fact throughout your deliberations or take it into consideration for any purpose whatsoever as a circumstance against the defendant.
FN:5 Originally the trial court sustained the objection. However, the court reversed its ruling prior to the completion of the out-of-presence hearing on the court's charge, saying "[Y]ou can litigate that with the appellate court."
FN:6 Prior case law which held that sufficiency of the evidence was to be measured by the "application" paragraph, the paragraph that authorizes a conviction, in the charge actually given. See Arceneaux v. State, 803 S.W.2d 267, 270-271 (Tex. Crim. App. 1990); Boozer v. State, 717 S.W.2d 608, 610-611 (Tex. Crim. App. 1984).