Bobby Carl Minchew, Jr. v. The State of Texas--Appeal from 2nd District Court of Cherokee County

NO. 12-05-00344-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

BOBBY CARL MINCHEW, APPEAL FROM THE SECOND

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE CHEROKEE COUNTY, TEXAS

MEMORANDUM OPINION

Bobby Carl Minchew appeals his conviction for the offense of criminal mischief. In four issues, Appellant contends that the evidence is legally and factually insufficient to sustain the conviction. We affirm.

Background

Patricia Graham was at home alone with her four year old granddaughter when her dogs began to bark at about four o clock in the morning. She got up to let the dogs out. Ordinarily, Graham would not have closed the door behind the dogs, but it was very cold that morning and she closed and latched the door. As soon as she closed the door, she saw Appellant, whom she did not know, standing on her back porch. He began yelling that he was going to get into the house. Graham immediately called her brother who lived a short distance away and then called the police. Appellant continued to yell and moved around the house toward the front door. At trial, Graham testified that Appellant attempted to gain entry through most of the windows around her house as he moved from the back door to the front. Once he reached the front door, Appellant began trying to open that door. The door was a large oak door with twenty one wooden inlays. Appellant damaged many of the inlaid pieces of wood and managed to put a hole in at least one of the panels. Despite the fact that the door was deadbolted shut, Appellant was able to force the door open. His progress was impeded by some items stored behind the door, but Appellant managed to open the door about eighteen inches.

Graham s brother arrived as Appellant was trying to push the door open. Armed with a handgun, the brother persuaded Appellant to desist in his efforts to gain entrance to the home. A sheriff s deputy arrived a short time later and Appellant was taken into custody. Appellant was intoxicated and the deputy discovered a small knife in his pocket.

A Cherokee County grand jury indicted Appellant for the felony offenses of burglary of habitation and criminal mischief.1 Appellant and the State both waived a trial by jury and the case was heard by the trial court. Appellant testified that his truck had broken down near the home, he had consumed twelve beers the evening before, he had merely wanted to call his wife to have her pick him up, and he did not damage Graham s home. The court found insufficient evidence that Appellant had committed a burglary, but convicted him of criminal mischief, a state jail felony. The court assessed punishment at two years in a state jail facility. This appeal followed.

Sufficiency of the Evidence

In four issues, Appellant argues that the evidence was legally and factually insufficient to show that he damaged the home or that he caused more than $1,500.00 in losses. The State failed to file a brief.

Standard of Review Legal Sufficiency

The Fourteenth Amendment due process guarantee requires that there be legally sufficient evidence to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979); see also Russeau v. State, 171 S.W.3d 871, 877 (Tex. Crim. App. 2005). Examined in a light most favorable to the jury s verdict, evidence is legally sufficient if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.

The legal sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge 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 is tried. Id.

As authorized by the indictment, the State was required to prove that Appellant intentionally or knowingly damaged or destroyed tangible property causing a pecuniary loss of more than $1,500.00. Tex. Pen. Code Ann. 28.03 (a)(1), (b)(4)(A) (Vernon 2005).

Standard of Review Factual Sufficiency

In reviewing factual sufficiency of the evidence, we must determine whether a neutral review of the evidence, both for and against the finding, demonstrates that a rational jury could find guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). Evidence is factually insufficient when evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also factually insufficient when contrary evidence is so strong that the beyond a reasonable doubt standard could not have been met. Id. at 484 85. A verdict will be set aside only if the evidence supporting guilt is so obviously weak, or the contrary evidence so overwhelmingly outweighs the supporting evidence, as to render the conviction clearly wrong and manifestly unjust. Sims v. State, 99 S.W.3d 600, 601 (Tex. Crim. App. 2003); Ortiz v. State, 93 S.W.3d 79, 87 (Tex. Crim. App. 2002). A clearly wrong and manifestly unjust verdict occurs where the jury s finding shocks the conscience or clearly demonstrates bias. Zuniga, 144 S.W.3d at 481.

As in legal sufficiency review, the fact finder is the sole judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111-12 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The jury may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).

Analysis

The evidence is legally and factually sufficient to support the conclusion that Appellant was the one who damaged the home. The homeowner was inside the home as it was being damaged. She heard Appellant trying to get in the windows and saw the front door being pushed open. The homeowner testified that the windows and front door were not damaged before Appellant attempted to gain entry. Under either standard, the evidence is sufficient for a rational finder of fact to conclude that Appellant was the person who damaged or destroyed the property.

The question of the amount of pecuniary loss is a closer question. The method of determining the amount of pecuniary loss is established by statute. Pecuniary loss is the fair market value of the property at the time it was destroyed or the replacement cost if that cannot be determined. Tex. Pen. Code Ann. 28.06 (Vernon 2005); Deas v. State, 752 S.W.2d 573, 575 (Tex. Crim. App. 1988). If the property is merely damaged, the pecuniary loss is the cost of repairing or restoring the damaged property. Tex. Pen. Code Ann. 28.06(b).

The homeowner testified that she had received an estimate for more than $2,800.00 to replace the door, to replace the lock, and to repair the windows and screens. If the cost of the new door is subtracted, the cost of the repairs is less than $1,500.00. The question then is whether replacing the door was required. The homeowner testified that it was. She testified that, as a result of Appellant s efforts, the door had holes in it and nearly every one of the inlaid wooden panels had some kind of damage. Additionally, her brother, who is a contractor and who submitted the estimate, testified that the door was not a modern sized door, and an exact replica would cost substantially more than the amount of the estimate, which was for a new door and assembly.

This case is different from Deas, where there was testimony that a repair could be done that would have been cheaper than replacing the garage door. Deas, 752 S.W.2d at 575. The door in this case was a large oak door with 21 inlaid panels. The homeowner testified that the door had to be replaced due to the damage done to it, including damage to nearly all of the inlaid panels and to the lock and handle mechanism. The finder of fact credited this testimony and accepted it as evidence either that the door was destroyed or that a repair was either not feasible or would cost more than a new door. In his summation, Appellant s counsel did not question the need to replace the door but argued that the lower cost of a steel door, which is what the homeowner was going to use for security purposes, should be the measure of the pecuniary loss.

The evidence is legally and factually sufficient to show that the damage done to the door was sufficient to require replacement. As such, the replacement cost is the reasonable measure of the loss. We accept the implicit finding that the fair market price of the door would be high enough to meet the statutory threshold or that the cost of repair would be more than the cost of a new door.2 A rational trier of fact could conclude that the appropriate measure of the pecuniary loss was in excess of $1,500.00. Likewise, the evidence supporting that conclusion is neither unsupported nor is there contrary evidence that outweighs it. We overrule Appellant s four issues.

Disposition

We affirm the judgment of the trial court.

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 16, 2006.

Panel consisted of Worthen, C.J. and Griffith, J.

(DO NOT PUBLISH)

1 The indictment was amended to allege criminal mischief as a state jail felony.

2 The cost of other repairs, which are not disputed on appeal, is $305.00, which means the loss attributed to the door only needed to total $1,195.00.