Jones, Kelvin v. State

Court of Appeals of Texas

Jones, Kelvin v. State

DecidedJuly 19, 2013

Docket05-12-00480-CR

StatusPublished

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Jones, Kelvin v. State, (Tex. Ct. App. 2013).

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Opinion

Affirm and Opinion Filed July 19, 2013

S In The Court of Appeals Fifth District of Texas at Dallas

No. 05-12-00480-CR

KELVIN JONES, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the 203rd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-45815-P

MEMORANDUM OPINION Before Justices Moseley, Bridges, and Lang-Miers Opinion by Justice Bridges Appellant Kelvin Jones appeals his conviction for criminal mischief and accompanying

sentence of 25 years’ imprisonment. In a single issue, appellant contends the evidence was

insufficient to prove he was a party to the destruction of the air-conditioning units. We affirm.

Background

Officer Greg Astfalk with the Richardson Police Department testified he received a call

around 6:30 a.m. on October 2, 2011, a Sunday morning, that a tenant in an office building heard

a noise on the roof. Astfalk met with the tenant, Darla Braun, who told him she heard footsteps

along the roof and some kind of dragging sound. Braun provided Astfalk roof access from the

interior of the building.

Astfalk stuck his head out through the roof access and, although it was still dark outside,

he could see somebody moving across the roof. He radioed for additional officer assistance. Satisfied the officers were positioned, Astfalk and two other officers (Officer Matthew Lynch

and Officer Champion) went up onto the roof and began walking toward the person Astfalk had

seen.

The person had not spotted the officers yet and was pacing the roof. As the officers came

closer, they could see the person was dressed in all black and started running when he saw the

officers. The officers commanded the man to stop, but he jumped over the edge of the roof and

slid down a pipe. Officers on the ground apprehended the man.

After the man was detained, the three officers on the roof began searching the roof for

others. Lynch testified the sun had come up by that point, and he located appellant, lying on his

stomach up close to an air conditioning unit. Appellant was wearing dark clothing and dark-

colored gloves. The officers placed appellant in handcuffs and, after getting appellant off of the

roof, the officers searched the roof.

The officers found a “significant amount of damage to the AC units.” Astfalk explained

there were approximately 35 air conditioning units on the roof and almost all of them were torn

apart. The metal coils had been removed and there were several of the five-foot coils folded in

half and stacked. Braun testified no one had consent to be on the roof and cause the damage to

the air conditioning units. While searching the roof, Lynch testified he also found a pair of bolt

cutters and a backpack with a pry bar, socket wrench, and a socket set. The arresting officers did

not see appellant damaging the units.

James Alcorn, an estimator and salesperson for Air Performance Service, also testified.

Alcorn testified Air Performance Service does service, repairs, and replacement on air

conditioning equipment. Alcorn was called out to the building in question in October 3, 2011.

Alcorn explained several of the units had been damaged with the copper coils pulled out of them.

Some of the coils were lying on the roof. Other units had been cut, but the copper “hadn’t been

–2– jerked out of the units yet.” He agreed that a bolt cutter, pry bar and socket wrenches “are the

types of items that could have used to cause the damage” he saw on the roof. Alcorn testified he

prepared a proposal to replace the units with the exact same equipment in the amount of

$210,359, pre-tax.

A jury found appellant guilty of criminal mischief, and the trial court assessed

punishment at 25 years’ imprisonment.

Analysis

In a single issue, appellant argues the evidence was insufficient to prove he was a party to

the destruction of the air conditioning units. Specifically, appellant argues that while “he was

undoubtedly a party to the theft of the copper, there is no showing that he was involved in

damaging the units.” Appellant emphasizes that the officers did not witness appellant damaging

the air conditioning units and, without more, “the evidence not sufficient to establish that Jones

actually committed the act of damaging the air conditioning units.” We disagree.

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence

in the light most favorable to the verdict and determine whether a rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 894-95 (Tex. Crim. App. 2010)

(plurality op.). We are required to defer to the jury’s credibility and weight determinations

because the jury is the sole judge of the witnesses’ credibility and the weight to be given their

testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that

supports conflicting inferences must presume–even if it does not affirmatively appear in the

record–that the trier of fact resolved any such conflicts in favor of the prosecution, and must

defer to that resolution”).

–3– In order to obtain a conviction, the State was required to prove beyond a reasonable doubt

that appellant, without the effective consent of the owner, intentionally or knowingly tampered

with the tangible property of the owner and caused pecuniary loss or substantial inconvenience to

the owner or a third person. TEX. PENAL CODE ANN. §28.03(a)(2). A person is criminally

responsible as a party to an offense if the offense is committed by his own conduct, by the

conduct of another for which he is criminally responsible, or by both. Id. at §7.01(a). Each party

to the offense may be charged with the commission of the offense. Id. at §7.01(b). A person is

criminally responsible for an offense committed by the conduct of another if, acting with the

intent to promote or assist the commission of the offense, “he solicits, encourages, directs, aids,

or attempts to aid the other person to commit the offense.” Id. at §7.02(a)(2).

Here, Braun testified appellant did not have consent to be on the roof or to dismantle the

air conditioning units. The evidence shows officers first saw a man, dressed in black, pacing the

roof. When the officers approached the man, he tried to escape, jumping over the edge of the

roof. Appellant was later found, lying next to an air conditioning unit on the roof of an office

building on an early Sunday morning. He wore dark clothing and dark gloves. A bolt cutter was

found on the roof, along with a backpack that held a pry bar, socket wrenches, and sockets.

Alcorn agreed that a bolt cutter, pry bar and socket wrenches “are the types of items that could

have used to cause the damage” he saw on the roof. Several of the units had been damaged with

the copper coils pulled out of them. Some of the coils were lying on the roof. Other units had

been cut, but the copper “hadn’t been jerked out of the units yet.” A proposal to replace the units

with the exact same equipment was prepared by Alcorn in the amount of $210,359, pre-tax.

Having examined all the evidence in the light most favorable to the verdict, we conclude

the evidence was sufficient to convict appellant of criminal mischief. See Jackson v. Virginia,

–4– 443 U.S. at 319; TEX.

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