ACCEPTED
12-14-00160-CR
TWELFTH COURT OF APPEALS
TYLER, TEXAS
1/20/2015 11:51:53 PM
CATHY LUSK
CLERK
Cause No. 12-14-00160-CR
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
In the Court of Appeals for the 1/20/2015 11:51:53 PM
Twelfth Judicial District at Tyler, Texas CATHY S. LUSK Clerk
Joshe Leesheen Johnson,
Appellant
v.
State of Texas,
Appellee
On Appeal from Cause No. 2013-0719 in the 159th Judicial District Court of Angelina County, Texas
State’s Brief
April Ayers-Perez Assistant District Attorney Angelina County D.A.’s Office P.O. Box 908 Lufkin, Texas 75902 (936) 632-5090 phone (936) 637-2818 fax State Bar No. 24090975 aperez@angelinacounty.net
Oral Argument Not Requested
Identity of Parties and Counsel
Joshe Leesheen Johnson, Appellant 405 Marion Street Lufkin, Texas 75901
John D. Reeves Attorney for Appellant (trial and appeal) 1007 Grant Ave. Lufkin, Texas 75901 SBN: 16723000
Art Bauereiss District Attorney Attorney for the State (trial) Angelina County District Attorney’s Office P.O. Box 908 Lufkin, Texas 75902 SBN: 01921800
April Ayers-Perez Assistant District Attorney Attorney for the State (appeal) Angelina County District Attorney’s Office P.O. Box 908 Lufkin, Texas 75902 SBN: 24090975
ii
Table of Contents
Identity of Parties and Counsel ................................................................................. ii
Table of Contents ..................................................................................................... iii
Index of Authorities ..................................................................................................iv
Statement Regarding Oral Argument .......................................................................vi
Issue Presented ..........................................................................................................vi
Statement of Facts ...................................................................................................... 1
Summary of the Argument......................................................................................... 3
Argument.................................................................................................................... 3
Reply Issue #1: The evidence is legally sufficient to sustain the trial court’s finding of guilt of the offense Criminal Mischief >=$1500 <$20,000. ......................................................................................................... 3
Applicable law ....................................................................................... 4
Standard of review................................................................................. 4
Elements of Criminal Mischief >=$1,500 <$20,000 have been met ......................................................................................................... 6
The Amount of Damages is Equal to or Greater than $1,500 ............. 10
Prayer ....................................................................................................................... 11
Certificate of Compliance ........................................................................................ 12
iii
Certificate of Service ............................................................................................... 12
iv
Index of Authorities
Cases Page
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2012) ........................................ 5
Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2004) ............................................ 4
Fitts v. State, 982 S.W.2d 175 (Tex. App.—Houston [1st Dist.] 1998, pet.
ref’d) ................................................................................................................ 6
Guidry v. State, 896 S.W.2d 381 (Tex. App.—Texarkana 1995, pet. ref’d) ............. 6
Jackson v. Virginia, 443 U.S. 307 (1979).................................................................. 5
Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) .......................................... 4
Parrish v. State, 950 S.W.2d 720 (Tex. App.—Fort Worth 1997, no pet.)............... 6
Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ........................................ 5
Rules
Tex. R. App. P. 9.4(i)(1) .......................................................................................... 12
Tex. R. App. P. 39.1................................................................................................ vii
Statutes
Tex. Pen. Code Ann. § 28.03 (West 2011) ................................................................ 4
v
vi
Statement Regarding Oral Argument
Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is
unnecessary, as the facts and legal arguments are adequately presented in the briefs
and record and the decisional process would not be significantly aided by oral
argument.
Issue Presented
Reply Issue #1: The evidence is legally sufficient to sustain the trial court’s
finding of guilt of the offense Criminal Mischief >=$1500 <$20,000.
vii
Statement of Facts
On September 3, 2012 the appellant, Joshe Johnson, is accused of
vandalizing her apartment as she was moving out after being evicted.1 Terry
Allen, the owner of the apartment that the appellant was renting, testified that the
appellant lived at the apartment in question starting in March 2012 until she moved
out on September 3, 2012.2 Despite signing a lease, the appellant breached her
lease by not paying her rent.3 It was at this point that Ms. Allen started the eviction
process.4 Ms. Allen was awarded a writ of possession as a result of the eviction
process against the appellant on August 30,2012.5 The following weekend was a
holiday (Labor Day) so the maintenance man was not able to go through the
apartment until September 4, 2012.6 While going through the apartment on
September 4, 2012, the maintenance man, Tracy Goodart, discovered that the
apartment had been vandalized.7 The damage to the apartment noted by Ms. Allen
was,
“…and the apartment was just totally trashed. The ceiling fan in the living room looked like somebody had took a bat or something and went through and busted all the glass, all the bulbs, all the fixtures out. They did it in the dining room, the hallway. They busted the – the light fixtures out of
1 V R.R. at 5-7. 2 Id. at 11. 3 Id. at 12. 4 Id. at 15. 5 Id.at 17-18 See State’s Exhibit 9 (Writ of Possession). 6 Id. at 19-20. 7 Id.at 21.
2
it. On the wall to the right where the thermostat is, it was completely busted off the wall. I look over to the left in the kitchen, the dishwasher was completely, completely tore out and bent over, tilted over onto the floor and opened. The sink, and the washing machine had trash, McDonald’s stuff, had all kinds of trash stuffed into the washer machine… into the bathroom, the vanity area where you have your medicine cabinet deal. It was completely busted. Glass was on the floor, glass was in the tub. The back – one of the back bedrooms, another glass was completely removed out of it and laying on the floor. And it was all busted up, the window. I don’t recall the sliding glass door to be broke, but all of the fixtures and the ceiling, everywhere was completely busted.”8
Ms. Allen noted that the appellant was the only person with a key to the apartment
and nobody else had any sort of dispute at that time with Ms. Allen or her
company.9 Annette Caldwell, the appellant’s upstairs neighbor, then testified
about the fact that the appellant sent her a text message on September 2, 2012
asking if her stuff was outside her apartment.10 Ms. Caldwell assured her it was
not, and Ms. Caldwell informed the court that there was no damage to the
apartment at that point.11 The juvenile witness, who will be referred to as John
Doe for privacy purposes, testified that the appellant drove him to the apartment on
September 3, 2012 to help move her stuff out.12 The appellant had already made at
least one trip to the apartment before John Doe went.13 John Doe witnessed the
8 Id. at 21-22. 9 Id. at 29. 10 Id. at 91. 11 Id. 12 Id. at 106. 13 Id. at 111.
3
appellant breaking numerous items within the apartment and vandalizing it.14
John Doe was able to point to all the pictures taken of the vandalized apartment
and point out that either the appellant damaged it in front of him or it was damaged
prior to him arriving.15 Lastly, Officer Petty took the stand and testified that the
appellant was no cooperative with the investigation.16
Summary of the Argument
The appellant vandalized an apartment that she was renting from Terry Allen
after being evicted on September 3, 2012. The appellant called her neighbor,
Annette Caldwell, to make sure her belongings were still in her apartment. The
next day the appellant went to the apartment and, after moving her belongings out
with the help of Tiffany Booth, the appellant damaged the apartment causing
almost $4,000 worth of repairs. A juvenile witness, John Doe, witnessed the
appellant damaging the apartment.
Argument
Reply Issue #1: The evidence is sufficient to sustain the trial court’s finding
of guilt in the charged offense of criminal mischief, >=$1,500 <$20,000.
14 Id. at 110-13.
15 Id. at 111-14.
16 Id.at 159.
4
Applicable law
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.17 A criminal mischief charge is a state jail felony if
the amount of pecuniary loss is $1,500 or more but less than $20,000.18
Standard of review
Sufficiency of the evidence in a bench trial is measured by a standard
analogous to the “hypothetically correct jury charge” standard, which includes the
statutory elements of the offense as modified by the charging instrument.19 Such a
charge would be one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately describes the
particular offense for which the defendant was tried.”20
In this case, the charging instrument (indictment) alleged:
Defendant, on or about the 6th day of September, 2012 A.D. ... did then and there intentionally or knowingly damage or destroy tangible property, to-wit: an apartment unit located in the city of Lufkin, Texas, by pulling a dishwasher away from under a counter, pulling a faucet from a sink, breaking light bulbs, ceiling fans and fixtures with the defendant’s hand or by striking the light bulbs, ceiling fans, and
17 Tex. Pen. Code Ann. § 28.03 (West 2011).
18 Tex. Pen. Code Ann. § 28.03 (West 2011).
19 Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2004).
20 Malik, 953 S.W.2d at 240.
5
fixtures with a faucet fixture, by placing items in a clothes washer, by breaking windows with the defendant’s foot, by creating a hole in a wall of the apartment unit by punching the wall with the defendant’s hand or kicking the wall with her foot, by removing cabinet doors and drawers with the defendant’s hand or hands, by pulling a thermostat fixture with the defendant’s hands or by striking the thermostat fixture with a faucet fixture, by breaking a mirror with the defendant’s hand or foot or with a faucet fixture, by damaging the threshold of the apartment unit by manner and means unknown to the grand jury, without the effective consent of Terri Allen, the owner of said property, and did thereby cause pecuniary loss of $1,500 or more but less than $20,000 to the said owner.21
The State must prove every element of the crime charged beyond a
reasonable doubt.22 In reviewing the legal sufficiency of the evidence to support a
conviction, the court considers the evidence in the light most favorable to the
verdict to determine whether the fact-finder was rationally justified in finding guilt
beyond a reasonable doubt.23 When evaluating the sufficiency of the evidence, the
court must presume the trier of fact resolved any conflicts in the evidence in favor
of the verdict and defer to that resolution.24
A criminal conviction may be based upon circumstantial evidence and
circumstantial evidence alone can be sufficient to establish guilt.25 In
circumstantial evidence cases, not every fact and circumstance needs to point
21 C.R. at 11.
22 Jackson v. Virginia, 443 U.S. 307, 313-14 (1979).
23 Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
24 Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2012).
25 Temple, 390 S.W.3d at 359.
6
“directly and independently to the defendant’s guilt.”26 If the conclusion is
supported by the “combined and cumulative force” of all the incriminating
circumstances, the evidence is sufficient to establish guilt.27 Circumstantial
evidence is often used to prove the requisite mens rea, and one’s actions are
generally reliable circumstantial evidence of one’s intent.28
Elements of Criminal Mischief >=$1,500 <$20,000 have been met
In order to find a defendant has committed the offense of criminal mischief
>=$1,500 <$20,000 the state must prove, beyond a reasonable doubt, that:
a. A person commits an offense if, without the effective consent of the owner: (1) He intentionally or knowingly damages or destroys the tangible property of the owner
(2) He intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or (3) He intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner
(4) A state jail felony if the amount of pecuniary loss is (A) $1,500 or more but less than $20,000.
26 Id.
27 Id.
28 Fitts v. State, 982 S.W.2d 175, 188 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d);
Parrish v. State, 950 S.W.2d 720, 722 (Tex. App.—Fort Worth 1997, no pet.); Guidry v. State, 896 S.W.2d 381, 386-87 (Tex. App.—Texarkana 1995, pet. ref’d);
7
In the present case, the appellant lived at an apartment complex that was
owned by Terry Allen.29 Shortly after moving in to the apartment the appellant
was behind on her rent payments, and Ms. Allen sent her late notices.30 After the
appellant vacated the apartment Ms. Allen saw the damage left in the appellant’s
wake,
“…and the apartment was just totally trashed. The ceiling fan in the living room looked like somebody had took a bat or something and went through and busted all the glass, all the bulbs, all the fixtures out. They did it in the dining room, the hallway. They busted the – the light fixtures out of it. On the wall to the right where the thermostat is, it was completely busted off the wall. I look over to the left in the kitchen, the dishwasher was completely, completely tore out and bent over, tilted over onto the floor and opened. The sink, and the washing machine had trash, McDonald’s stuff, had all kinds of trash stuffed into the washer machine… into the bathroom, the vanity area where you have your medicine cabinet deal. It was completely busted. Glass was on the floor, glass was in the tub. The back – one of the back bedrooms, another glass was completely removed out of it and laying on the floor. And it was all busted up, the window. I don’t recall the sliding glass door to be broke, but all of the fixtures and the ceiling, everywhere was completely busted.”31
The appellant also had the only key to the apartment, failed to ever return
that key, and her neighbors saw her home in the days leading up to the discovery of
the vandalism of the apartment.32 The maintenance man at the apartments, Tracy
Goodart, had checked the apartment prior to the appellant moving in 2012 and
29 V R.R. at 8. 30 Id. at 14. See State’s Exhibit 2 (late notice) and State’s Exhibit 3 (late notice). 31 Id. at 21-22. 32 Id. at 32.
8
there was no major damage to the apartment.33 In the four months that the
appellant lived there, more specifically on September 3, 2012, the apartment was
damaged.34 As soon as Ms. Allen and Mr. Goodart noticed the damage they took
pictures of the damage to the apartment.35 The appellant’s neighbor, Annette
Caldwell, also testified that the appellant called her the day before the vandalism of
the apartment occurred to tell her that she would be going over to her apartment the
next day.36 At the time Ms. Caldwell noted that the appellant’s apartment had no
evidence of damage and the door was closed.37 Ms. Caldwell also witnessed the
damage left by the appellant, “I saw the window was tow all out, the door was left
open, there was the debris all in the living room. And then all the light fixtures in
there was tow all up.”38 The juvenile witness, John Doe, also spoke to the damage
caused by the appellant to her apartment.39 On September 3, 2012 the defendant
drove John Doe over to the apartment to help her move her belongings out.40 The
appellant made one trip to the apartment prior to picking up John Doe and having
him go with her to the apartment.41 When John Doe arrived at the apartment with
33 Id. at 56. 34 Id. 35 Id. at 60. See State’s Exhibits 4-23. 36 Id.at 91. 37 Id.at 99. 38 Id. at 96. 39 Id. at 104. 40 Id.at 108. 41 Id.at 111.
9
the appellant damage had already been done to the apartment, and the appellant
and a friend continued to do more damage to the apartment.42 John Doe stated,
“she [appellant] broke the sink handle in the kitchen. She broke the bathroom
mirror. She broke the windows out, and then Tiffany had broke the lights off the
fan.”43 The appellant even asked John Doe to help her vandalize the apartments,
which he refused to do.44 John Doe stated that he recognized the State’s pictures of
damage to have been done by the appellantor have already been done prior to John
Doe arriving at the apartment.45
It is up to the finder of fact to determine the credibility and weight to give
each witness. In the case at hand the finder of fact, the trial court, chose to believe
that the totality of the circumstances dictated that the appellant committed the
offense of criminal mischief for the damages done, not just in front of John Doe,
but prior to John Doe’s arrival. It is not just John Doe who provides testimony
toward the appellant’s guilt, but Annette Caldwell saw the apartment was not
damaged prior to the appellant moving out, and Tracy Goodart testified that the
apartment was not damaged prior to the appellant moving in.
42 Id.at 109. 43 Id. at 110. 44 Id. at 109. 45 Id. at 112-13. See State’s Exhibit 18 (John Doe stated defendant caused this damage in front of him), State’s Exhibit 17 (John Doe stated this damage was already there), State’s Exhibit 16 (John Doe stated defendant caused this damage in front of him), State’s Exhibit 13 (John Doe stated this damage was already there), State’s Exhibit 12 (John Doe stated defendant caused this damage in front of him), and State’s Exhibit 10 (John Doe stated this damage was already there).
10
The Amount of Damages is Equal to or Greater than $1,500
During the non-jury trial of the defendant the maintenance man for the
apartments, Tracy Goodart, stated that the damage was estimated around $4,400.46
This estimate was based on bids that Mr. Goodart received in order to perform the
repairs to the apartment that was vandalized by the defendant.47 At the end of the
non-jury trial the court expressed some doubts as to State’s Exhibit 24, which
listed the amount of damages.48 As such, the state revised the figure to comply
with the courts findings and the new amount of restitution, which the defendant
was ordered to pay by the trial court, was $3,892.49 Appellant is joint and
severally liable for all the damage caused by both the defendant and any damage
caused by her friend, Tiffany. It is not just the damage witnessed by John Doe that
the defendant is responsible for, but all the damage caused by the defendant in the
court of vandalizing the apartment owned by Terry Allen that the defendant is
liable for. The total amount of that is $3,892 as recognized and ordered by the trial
court.
Given the totality of the circumstances, in a light most favorable to the trial
court’s verdict, the defendant was properly convicted of criminal mischief
>=$1,500 <$20,000.
46 Id. at 27. 47 Id. See State’s Exhibit 24 (cost of damage done to the apartment). 48 II R.R. at 88-90. 49 III R.R. at 9.
11
Prayer
The State of Texas prays that this Court of Appeals affirm the judgment of
the trial court.
12
Respectfully Submitted,
/s/ April Ayers-Perez Assistant District Attorney Angelina County D.A.’s Office P.O. Box 908 Lufkin, Texas 75902 (936) 632-5090 phone (936) 637-2818 fax State Bar No. 24090975 ATTORNEY FOR THE STATE OF TEXAS
Certificate of Compliance
I certify that this document contains 2,629 words, counting all parts of the
document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in
14 point font, and the footnote text is in 12 point font.
/s/ April Ayers-Perez
Certificate of Service
I certify that on January 20, 2015, a true and correct copy of the above
document has been forwarded to John Reeves, 1007 Grant Street, Lufkin, TX
75901, by electronic service through efile.txcourts.gov.
/s/ April Ayers-Perez