William "Wild Bill" Collins v. The State of Texas--Appeal from County Court at Law No. 2 of Bell County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-196-CR
WILLIAM "WILD BILL" COLLINS,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE COUNTY COURT AT LAW NO. 2 OF BELL COUNTY,
NO. 2C90-92,574, HONORABLE JOHN BARINA, JUDGE

PER CURIAM

 

In a bench trial, appellant was convicted of criminal mischief (over $20.00 but less than $200.00), sentenced to 15 days in the Bell County Jail (probated for 6 months), and ordered to pay a fine of $60.00. Tex. Pen. Code Ann. 28.03 (Supp. 1991). In one point of error, appellant contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt because the State failed to prove: (1) the requisite mental state; (2) the actual ownership of the property; and (3) the pecuniary loss involved. We will affirm the judgment of conviction.

According to the complainant, Sandra Darling, on August 16, 1990, at about 7:30 p.m., she and a friend went shopping, leaving her house with both doors locked. Appellant, who stayed at the house "off and on," had departed earlier. Darling and her friend returned home about 45 minutes later. Shortly thereafter, appellant opened the front door, and according to them, said that he had "made a boo-boo." Darling then found her rear kitchen door "demolished." Darling and her friend testified that appellant told them that he had returned home to find both doors locked. It was cold and he wanted in. He unsuccessfully attempted to kick in the front door. He then went to the rear door and after two tries, finally gave the door a "roundhouse" kick, which succeeded in gaining him entry.

At trial, appellant denied kicking in the door. According to appellant's testimony, he found the door demolished on his return to the house and in an attempt not to disturb the scene, he entered the home through a bedroom window.

We review a challenge to the sufficiency of the evidence to support a criminal conviction by viewing the evidence in the light most favorable to the verdict and determining if any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Cr. App. 1988). The trier of fact is the sole judge of the credibility of the witnesses and may believe or disbelieve all or any part of any witness's testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Cr. App. 1984).

The evidence is sufficient to show appellant's intent. Appellant had to know that the result of his repeated kicks to both doors, culminating in a "roundhouse" kick to the rear door, would be to damage or destroy the door so that he could have access to the house. He need not have intended the damage to be permanent. See Athey v. State, 697 S.W.2d 818, 820 (Tex. App. 1985, no pet.) (tenant's intent to remove the cabinets, sheetrock, and tiles from rental house without the owner's consent was the requisite intent to damage the house under 28.03, even though the tenant intended to repair the damage).

The evidence is sufficient to prove the complainant's ownership of the property. The owner of property is one with title, possession, or a greater right to possession than the actor. Tex. Pen. Code Ann. 1.07(24) (1974). Darling was the sole lessee of the property. The property's lessor said that Darling exercised sole control of the property. Appellant was a visitor who did not pay any rent. As well, it is not a defense under 28.03 that the actor has an interest in the property if another has an interest that the actor is not entitled to infringe. Tex. Pen. Code Ann. 28.05 (1989).

Appellant contends that the evidence was insufficient to prove the element of pecuniary loss because there was no evidence that the property was destroyed, rather than merely damaged. If property is destroyed, rather than damaged, the State must prove the property's fair market value at the time and place of destruction; or, if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the destruction. Tex. Pen Code Ann. 28.06(a) (1989). If the property is damaged, rather than destroyed, the State must prove that the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred was the amount alleged. Id. at (b).

Appellant relies on Deas v. State, 752 S.W.2d 573 (Tex. Cr. App. 1988), for the proposition that replacement value was the incorrect standard for assessing the pecuniary loss in this case. In Deas, however, there was no evidence that the garage door had been destroyed, as opposed to damaged. In this case, there was evidence that the door had been destroyed. The door was described as "demolished"; as having all of the wood kicked off. Another witness said that the door had been broken completely in half. The owner of the property said that the bottom half of the door had been scattered all over the kitchen. Other witnesses said that the yard outside could be seen from the house's inside by looking through the shattered door. Another difference is that in Deas the defendant offered evidence that the door could have been repaired. No such evidence was offered here.

In Sepulveda v. State, 751 S.W.2d 667, 669 (Tex. App. 1988, pet. ref'd), the court held that a property owner is permitted to testify to the fair market value of the property either in terms of purchase price or cost of replacement in a prosecution for criminal mischief arising from destruction of property. The lessor of the property testified to the cost of replacing the door. In this case, there was sufficient evidence to show that the property was destroyed, and the pecuniary loss was as alleged in the information.

We overrule the point of error and affirm the judgment of conviction.

 

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: January 23, 1991

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