NO. 07-06-0139-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 4, 2008 ______________________________
STEVEN ORTIZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE COUNTY COURT AT LAW OF TOM GREEN COUNTY;
NO. 05-03274L2; HONORABLE BEN NOLEN, JUDGE _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Steven Ortiz appeals his conviction for the Class C misdemeanor offense
of criminal mischief. Via his sole point of error, appellant challenges the legal and factual
sufficiency of the evidence to support his conviction. Agreeing the evidence is legally
insufficient, we will reverse.
Appellant was charged by information with the misdemeanor offense of criminal
mischief.1 Specifically, the complaint alleged he intentionally and knowingly damaged or
1 See Tex. Penal Code Ann. § 28.03 (Vernon 2003 & Supp. 2007). destroyed police department property, without its owner’s effective consent, by spitting on
its window. The property was a police car. Following appellant’s plea of not guilty, the
matter proceeded to a bench trial.
Evidence showed that on September 7, 2005, Detective Jaime Padron of the San
Angelo Police Department was working as a school security officer at San Angelo’s Central
Freshman Campus. He testified he parked his unmarked Crown Victoria in its customary
space next to gates leading into the schoolyard. Later that morning, Detective Padron
observed spit on the passenger door and window of his vehicle. He later wiped the spit
from the car with a cloth.2
The detective sought to learn the identity of the one who spit on his vehicle. A video
recording from a security camera showed a group of students walking by the vehicle. One
student, identified as appellant, came closer to the vehicle than the others, and faced the
vehicle before walking away. Another student seemed to confirm that appellant was the
spitter, but when the detective and school authorities confronted appellant, he denied it.
Detective Padron issued a citation and this proceeding resulted. The State
presented the testimony of Detective Padron, two school officials and the other student. The
video recording also was in evidence, and was reviewed several times during trial. The
other student’s testimony was equivocal. Appellant testified, acknowledging that he was the
2 In his most direct description of the spit, the detective testified that when he wiped it off, “it’s still bubbly and water.”
2 student who appeared in the recording approaching the vehicle, but insisting he did not spit
on it. Appellant’s parents testified on his behalf.
The trial court found appellant guilty and assessed a fine of $100 and court costs.
Appellant timely filed his notice of appeal.
Appellant contends on appeal that the evidence presented at trial was legally and
factually insufficient to support his conviction. In reviewing issues of legal sufficiency, an
appellate court views the evidence in the light most favorable to the verdict to determine
whether a rational fact finder could have found each element of the offense beyond a
reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner
v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
The State has not filed an appellee’s brief. Appellant’s argument in his brief, and the
position taken by the State during argument to the trial court, lead us to conclude this case
is of the type represented by Curry v. State, 30 S.W.3d 394 (Tex.Crim.App. 2000). Penal
Code § 28.03(a) describes three categories of conduct constituting the offense of criminal
mischief. Here, as noted, the charging instrument alleged appellant committed criminal
mischief by intentionally or knowingly damaging or destroying the tangible property of the
owner, which is the conduct proscribed by § 28.03(a)(1). Section 28.03(a)(2) provides that
a person commits criminal mischief if “he intentionally or knowingly tampers with the
3 tangible property of the owner and causes pecuniary loss or substantial inconvenience to
the owner or a third person[.]”3
At trial, in partial response to appellant’s argument the State had not shown the
spitting caused pecuniary loss, the State argued there was evidence the action had caused
substantial inconvenience to Detective Padron. In his appellate brief, appellant
acknowledges the evidence raised a question of fact whether the spitting caused substantial
inconvenience. But, appellant notes, the issue is of no moment because the State did not
charge him under § 28.03(a)(2), only under § 28.03(a)(1), which requires proof of pecuniary
loss.4
We must measure the sufficiency of the evidence against the elements of the offense
as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex.Crim.App. 1997). See also Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.
2001). Such a charge includes 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.” Id. This test is applicable in bench trials as well as jury
3 The statute also requires the State to prove the conduct was committed without the effective consent of the owner. Tex. Penal Code Ann. § 28.03(a) (Vernon 2003 and Supp. 2007). 4 Tex. Penal Code Ann. § 28.06; Barnes v State, No. 01-06-00600-CR, 2007 WL 1559853 (Tex.App.–Houston [1st Dist.] May 31, 2007, pet. stricken) (mem. op., not designated for publication). The State alleged the pecuniary loss here was less than $50.00, making the offense a Class C misdemeanor. Tex. Penal Code Ann. § 28.03 (Vernon 2003 & Supp. 2007).
4 trials. Malik, 953 S.W.2d at 240; Harvey v. State, 135 S.W.3d 712, 716 (Tex.App.–Dallas
2003, no pet.).
A hypothetically correct jury charge in this case, accurately setting out the law and
authorized by the charging instrument, Gollihar, 46 S.W.3d at 246, would require for
conviction a finding that appellant damaged or destroyed5 the window of the police car. See
Curry, 30 S.W.3d at 404; Fuller v. State, 73 S.W.3d 250, 255 (Tex.Crim.App. 2002) (Keller,
P.J., concurring) (“When a statute lists more than one method of committing an offense,
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NO. 07-06-0139-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
MARCH 4, 2008 ______________________________
STEVEN ORTIZ, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE _________________________________
FROM THE COUNTY COURT AT LAW OF TOM GREEN COUNTY;
NO. 05-03274L2; HONORABLE BEN NOLEN, JUDGE _______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Steven Ortiz appeals his conviction for the Class C misdemeanor offense
of criminal mischief. Via his sole point of error, appellant challenges the legal and factual
sufficiency of the evidence to support his conviction. Agreeing the evidence is legally
insufficient, we will reverse.
Appellant was charged by information with the misdemeanor offense of criminal
mischief.1 Specifically, the complaint alleged he intentionally and knowingly damaged or
1 See Tex. Penal Code Ann. § 28.03 (Vernon 2003 & Supp. 2007). destroyed police department property, without its owner’s effective consent, by spitting on
its window. The property was a police car. Following appellant’s plea of not guilty, the
matter proceeded to a bench trial.
Evidence showed that on September 7, 2005, Detective Jaime Padron of the San
Angelo Police Department was working as a school security officer at San Angelo’s Central
Freshman Campus. He testified he parked his unmarked Crown Victoria in its customary
space next to gates leading into the schoolyard. Later that morning, Detective Padron
observed spit on the passenger door and window of his vehicle. He later wiped the spit
from the car with a cloth.2
The detective sought to learn the identity of the one who spit on his vehicle. A video
recording from a security camera showed a group of students walking by the vehicle. One
student, identified as appellant, came closer to the vehicle than the others, and faced the
vehicle before walking away. Another student seemed to confirm that appellant was the
spitter, but when the detective and school authorities confronted appellant, he denied it.
Detective Padron issued a citation and this proceeding resulted. The State
presented the testimony of Detective Padron, two school officials and the other student. The
video recording also was in evidence, and was reviewed several times during trial. The
other student’s testimony was equivocal. Appellant testified, acknowledging that he was the
2 In his most direct description of the spit, the detective testified that when he wiped it off, “it’s still bubbly and water.”
2 student who appeared in the recording approaching the vehicle, but insisting he did not spit
on it. Appellant’s parents testified on his behalf.
The trial court found appellant guilty and assessed a fine of $100 and court costs.
Appellant timely filed his notice of appeal.
Appellant contends on appeal that the evidence presented at trial was legally and
factually insufficient to support his conviction. In reviewing issues of legal sufficiency, an
appellate court views the evidence in the light most favorable to the verdict to determine
whether a rational fact finder could have found each element of the offense beyond a
reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner
v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S.
307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).
The State has not filed an appellee’s brief. Appellant’s argument in his brief, and the
position taken by the State during argument to the trial court, lead us to conclude this case
is of the type represented by Curry v. State, 30 S.W.3d 394 (Tex.Crim.App. 2000). Penal
Code § 28.03(a) describes three categories of conduct constituting the offense of criminal
mischief. Here, as noted, the charging instrument alleged appellant committed criminal
mischief by intentionally or knowingly damaging or destroying the tangible property of the
owner, which is the conduct proscribed by § 28.03(a)(1). Section 28.03(a)(2) provides that
a person commits criminal mischief if “he intentionally or knowingly tampers with the
3 tangible property of the owner and causes pecuniary loss or substantial inconvenience to
the owner or a third person[.]”3
At trial, in partial response to appellant’s argument the State had not shown the
spitting caused pecuniary loss, the State argued there was evidence the action had caused
substantial inconvenience to Detective Padron. In his appellate brief, appellant
acknowledges the evidence raised a question of fact whether the spitting caused substantial
inconvenience. But, appellant notes, the issue is of no moment because the State did not
charge him under § 28.03(a)(2), only under § 28.03(a)(1), which requires proof of pecuniary
loss.4
We must measure the sufficiency of the evidence against the elements of the offense
as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240
(Tex.Crim.App. 1997). See also Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.
2001). Such a charge includes 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.” Id. This test is applicable in bench trials as well as jury
3 The statute also requires the State to prove the conduct was committed without the effective consent of the owner. Tex. Penal Code Ann. § 28.03(a) (Vernon 2003 and Supp. 2007). 4 Tex. Penal Code Ann. § 28.06; Barnes v State, No. 01-06-00600-CR, 2007 WL 1559853 (Tex.App.–Houston [1st Dist.] May 31, 2007, pet. stricken) (mem. op., not designated for publication). The State alleged the pecuniary loss here was less than $50.00, making the offense a Class C misdemeanor. Tex. Penal Code Ann. § 28.03 (Vernon 2003 & Supp. 2007).
4 trials. Malik, 953 S.W.2d at 240; Harvey v. State, 135 S.W.3d 712, 716 (Tex.App.–Dallas
2003, no pet.).
A hypothetically correct jury charge in this case, accurately setting out the law and
authorized by the charging instrument, Gollihar, 46 S.W.3d at 246, would require for
conviction a finding that appellant damaged or destroyed5 the window of the police car. See
Curry, 30 S.W.3d at 404; Fuller v. State, 73 S.W.3d 250, 255 (Tex.Crim.App. 2002) (Keller,
P.J., concurring) (“When a statute lists more than one method of committing an offense,
and the indictment alleges some, but not all, of the statutorily listed methods, the State is
limited to the methods alleged”). Appellant contends there is no evidence the window was
damaged. We agree.6
The term “damage” is not statutorily defined so its meaning is to be determined by
its common usage. Cullen v. State, 832 S.W.2d 788, 797 (Tex.App.–Austin 1992, writ
ref’d). Dictionary definitions of damage include “loss or injury to person or property,”
Black’s Law Dictionary 393 (7th ed. 1999), and “loss or harm resulting from injury to person,
property or reputation,” Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). In its
comparison of synonyms to the word “injure,” Merriam-Webster’s Collegiate Dictionary
states that damage “suggests injury that lowers value or impairs usefulness[.]” As noted,
Detective Padron testified he wiped the spit off the window later in the day. He did not
5 The State never asserted any property was destroyed in this case. 6 For damaged property, the amount of pecuniary loss is “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.” Tex. Penal Code Ann. § 28.06(b) (Vernon 2003). Appellant contends also there is no evidence of the cost of repairing or restoring the window. We do not reach that contention.
5 testify to any effect its presence had on the value or usefulness of the vehicle or its window.
Even viewing the evidence in the light most favorable to the court’s finding of guilt, we find
no evidence in this record that the presence of the spit on the Crown Victoria’s window
damaged it. We must conclude the evidence is legally insufficient to support the conviction.
Accordingly, we sustain appellant’s issue, reverse the trial court’s judgment and render a
judgment of acquittal.
James T. Campbell Justice
Publish.