Samuel Lane, Jr. v. The State of Texas--Appeal from County Court at Law No 1 of Fort Bend County

IN THE

TENTH COURT OF APPEALS

No. 10-92-184-CR

SAMUEL LANE, JR.,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the County Court at Law

Fort Bend County, Texas

Trial Court # 49,849

O P I N I O N

In this case the Appellant was convicted of the offense of criminal mischief to property involving a pecuniary loss of $200.00 or more, and less than $750.00, under the provisions of Vernon's Texas Codes Annotated, Penal Code, Section 28.03(b)(3). Appellant elected to have punishment set by the court and received a sentence of 90 days in jail, 24 months probation; a fine of $750.00, with $250.00 of the fine being probated; court costs and restitution of $202.71.

Appellant comes to this court on one point of error, asserting that his conviction was not supported by evidence, where the only evidence of value was "replacement value," and there was no evidence that the property was destroyed as opposed to merely being damaged.

Margaret Hernandez, the complaining party, was having a New Year's Eve party on December 31, 1991, and among the guests were her nephew Larry Vasquez and the Appellant. During the party, Vasquez and Appellant got into an argument and came close to fighting. Ms. Hernandez, the hostess, told Appellant to go outside. She testified that Appellant pulled out a knife before she ordered him outside. She told her nephew to come back inside the house.

Shortly thereafter, when Ms. Hernandez and her nephew went outside, the Appellant was urinating on Vasquez's car. Ms. Hernandez and her husband again told Appellant to leave. The Hernandez couple went into the house a few minutes and then back outside to see if Appellant had gone. They saw Appellant walking away from the truck owned by Ms. Hernandez with air hissing out of both front tires. Both tires had knife slashes in them. Appellant was the only person around the truck and he was angry at Mr. and Mrs. Hernandez. Ms. Hernandez paid $202.71 to replace the two tires, the invoice shown to be dated January 2, 1992.

Section 28.06 of the Penal Code provides:

(a)The amount of pecuniary loss under this chapter, if the property is destroyed is:

(1)The fair market value of the property at the time and place of the destruction;

Ms. Hernandez, the owner of the vehicle, testified as follows:

Q.Were the tires destroyed or damaged from the puncture, from the stabbing?

A. Yes

Q. How much were the tires worth?

A. It cost me $100.00 apiece to put new tires back on.

We agree with Appellant that there is no evidence in the record to show that the property was destroyed as opposed to being merely damaged. Therefore, the evidence of replacement value was insufficient to prove a necessary element of the offense charged. To consider replacement cost in determining pecuniary loss requires the property to have been destroyed. See Deas v. State, (Tex. Crim. App. 1988) 752 S.W.2d 573 at p. 575.

We, therefore, sustain Appellant's point of error and reverse and remand the trial court's judgment with instructions that an order of acquittal be entered.

JOHN A. JAMES, JR.

Justice (Retired)

Before Justice Cummings,

Justice Vance and

Justice James (Retired)

Reversed and remanded with instructions

Opinion delivered and filed December 16, 1992

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