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On Appeal Texas Prisoner Acquitted of Damaging Jail Furnishing
A Texas court of appeals acquitted a Texas jail prisoner of criminal mischief charges for allegedly damaging jail furnishings because the state failed to provide any evidence of the value of the furnishings.
Jaccob Aaron Merwin, a prisoner in the Collin County Jail, had an altercation with another prisoner and was given twenty-three hours of cell restriction. During the restriction, he began yelling profanities and kicking the cell door. He refused to calm down, so he was removed from the cell and escorted to a barber shop. Five hours later, he was removed from the barber shop. An hour later, damage to the barbershop?s sink, towel dispenser, trash can, ceiling tile track and caulking was discovered. Merwin was charged with Class B misdemeanor criminal mischief.
At trail, Merwin testified that he was under continuous observation the whole time he was in the barber shop, that he did no damage to the barber shop and that the damage that was allegedly discovered an hour after he was removed form the barber shop had been there long before the was placed in the barber shop. After the state admitted that it had provided no proof of the value of the furnishings that were damaged or the cost of repairs made to them, the trial court found him guilt of the lesser-included offense of Class C misdemeanor criminal mischief and fined him $250. Merwin appealed.
The court of appeals found that the trial court could disbelieve Merwin?s testimony about the damage having been already present even though the state presented no live witnesses at all during the trial, relying exclusively on jail incident reports. However, pecuniary loss is an element of the offense of criminal mischief, which is a Class B misdemeanor if the damage is between $50 and $250 and a Class C misdemeanor if the damage is under $50. Because the state failed to prove the value of the furnishings or the value of the damages, the state failed to prove an element of the offense. Therefore, the evidence was legally insufficient to support the conviction. The conviction was reversed and a judgment of acquittal entered. The opinion is unpublished. See: Merwin v. State, 2006 Tex. App. LEXIS 5469.
Jaccob Aaron Merwin, a prisoner in the Collin County Jail, had an altercation with another prisoner and was given twenty-three hours of cell restriction. During the restriction, he began yelling profanities and kicking the cell door. He refused to calm down, so he was removed from the cell and escorted to a barber shop. Five hours later, he was removed from the barber shop. An hour later, damage to the barbershop?s sink, towel dispenser, trash can, ceiling tile track and caulking was discovered. Merwin was charged with Class B misdemeanor criminal mischief.
At trail, Merwin testified that he was under continuous observation the whole time he was in the barber shop, that he did no damage to the barber shop and that the damage that was allegedly discovered an hour after he was removed form the barber shop had been there long before the was placed in the barber shop. After the state admitted that it had provided no proof of the value of the furnishings that were damaged or the cost of repairs made to them, the trial court found him guilt of the lesser-included offense of Class C misdemeanor criminal mischief and fined him $250. Merwin appealed.
The court of appeals found that the trial court could disbelieve Merwin?s testimony about the damage having been already present even though the state presented no live witnesses at all during the trial, relying exclusively on jail incident reports. However, pecuniary loss is an element of the offense of criminal mischief, which is a Class B misdemeanor if the damage is between $50 and $250 and a Class C misdemeanor if the damage is under $50. Because the state failed to prove the value of the furnishings or the value of the damages, the state failed to prove an element of the offense. Therefore, the evidence was legally insufficient to support the conviction. The conviction was reversed and a judgment of acquittal entered. The opinion is unpublished. See: Merwin v. State, 2006 Tex. App. LEXIS 5469.
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Related legal cases
Merwin v. State
| Year | 2006 |
|---|---|
| Cite | 2006 Tex. App. LEXIS 5469 |
| Level | State Court of Appeals |
| Injunction Status | N/A |
Merwin v. State
| Year | 2006 |
|---|---|
| Cite | 2006 Tex. App. LEXIS 5469 |
| Level | State Court of Appeals |
2006 Tex. App. LEXIS 5469, *
JACOB AARON MERWIN, Appellant v. THE STATE OF TEXAS, Appellee
No. 05-05-01482-CR
COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS
2006 Tex. App. LEXIS 5469
June 27, 2006, Opinion Issued
NOTICE: [*1] PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Rehearing denied by Merwin v. State, 2006 Tex. App. LEXIS 8614 (Tex. App. Dallas, Oct. 5, 2006)
Petition for discretionary review refused by In re Merwin, 2007 Tex. Crim. App. LEXIS 803 (Tex. Crim. App., June 13, 2007)
DISPOSITION: REVERSED and RENDERED.
JUDGES: Before Chief Justice Thomas and Justices Moseley and Lagarde 1
1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
OPINION BY: SUE LAGARDE
OPINION
Jacob Aaron Merwin was charged by information with the Class B misdemeanor offense of criminal mischief. See TEX. PEN. CODE ANN. § 28.03(a) (Vernon Supp. 2005). After a trial before the court, appellant was found guilty of the lesser-included offense of Class C misdemeanor criminal mischief. See id. § 28.03(b)(1). The trial court assessed a $ 250 fine. In four points of error, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. Because we conclude the evidence presented was legally insufficient to prove the element of the value of the injury inflicted to the property, we reverse the trial court's judgment and render judgment of acquittal.
Background
[*2] The State presented no live witnesses at trial, relying instead on the documents contained within State's Exhibit 1 to prove its case. 2 Appellant was an inmate in the Collin County Jail when, on September 7, 2004, he had an altercation with another inmate. As a result, appellant was confined to his cell. After being so confined, appellant began yelling profanities at the guard and kicking the cell door. At approximately 3:25 p.m., the guard removed appellant from his cell and took him to the "barbershop," where he remained, unrestrained, until 9:00 p.m. "From time to time," the guards checked on him.
FOOTNOTES
2 The business records were admitted into evidence without objection at trial.
The documentary evidence contained numerous "Jail Incident Reports" about appellant's in-jail conduct. Specifically, the documents showed that on September 7, 2004, at 15:22, Joey Marler wrote a "Jail Incident Report" to Lieutenants Fields, Varner, and Crossland reflecting appellant had engaged in disruptive conduct and received [*3] a twenty-three hour in-cell restriction. After receiving the restriction, appellant began yelling profanities and kicking the door to his cell. Appellant disregarded orders to calm down and was removed from his cell and escorted to the cluster three barbershop, where the damage was later discovered.
The documents showed damage was not observed when the "B shift" made its rounds between 2:01p.m. and 2:33 p.m. However, when the "C shift" began its rounds at 9:55 p.m., the officer noticed damage to the paper towel dispenser, trash can, window caulking, sink, and wall. Appellant was the only occupant of the barbershop for about seven hours. There was no evidence anyone else had entered the room during the one-hour periods immediately before and after appellant occupied it.
Appellant testified at trial that the barbershop was already damaged when he was placed inside. Appellant specifically recalled the paper towel dispenser had "always been smashed." Appellant admitted that he and Joey Marler did not get along, and that "it was personal" between them.
The State argued to the trial court it had proved all elements of the offense except value, which it conceded it did not prove. Nevertheless, [*4] it requested the trial court to find appellant guilty of the lesser-included offense of criminal mischief under $ 50, which the trial court did.
Standard of Review and Applicable Law
The standard of review for legal sufficiency of the evidence is well established. In determining the legal sufficiency of the evidence to support a conviction, we must assess all the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481, 163 L. Ed. 2d 367 (2005). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).
A person commits criminal mischief [*5] 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.
TEX. PEN. CODE ANN. § 28.03(a) (Vernon Supp. 2005).
Analysis
The information alleged, in relevant part, that appellant,
on or about the 7th day of September A.D., 2004 in the County of Collin and State of Texas, did then and there intentionally and knowingly damage and destroy tangible property, namely: sink, towel dispenser, trash receptacle, ceiling tile track, caulking, by beating, prying, and tearing, without the effective consent of Melissa Pollard, the owner of said property, and did thereby cause pecuniary loss of the value of Fifty Dollars ($ 50.00) or more but less than Five Hundred Dollars ($ 500.00), to the said owner.
In his first issue, appellant contends the [*6] State did not meet its burden of proof that he is guilty of criminal mischief and no rational fact finder could have found all of the essential elements beyond a reasonable doubt. Specifically, appellant contends the business records on which the State based its case were insufficient to show beyond a reasonable doubt he committed the damage because there were gaps in time, both before and after he was in the barbershop. Appellant also argues that the State did not prove Melissa Pollard was the owner of the property.
The State responds that the documentary evidence is both legally and factually sufficient to prove all the elements of the offense of criminal mischief.
The evidence showed a check of the room occurred at 14:01 on September 7, 2005, and appellant was not placed in the room until 15:22 on that date. It further shows appellant was removed from the room at 20:45 on September 7, 2005, and the damage was not discovered until 22:00 on the same date. No one else was in the room during the periods immediately before and after appellant was in the room. Appellant argues he presented uncontroverted testimony the damage existed when he was placed in the cell, and that he was watched [*7] while he was in the barbershop and no damage occurred during that time. The trial court, as fact finder, was free to disbelieve appellant's testimony. We conclude the evidence is legally sufficient to show appellant caused the damage and that Pollard was the owner.
What the evidence does not show is the pecuniary loss suffered. A person commits the offense of criminal mischief if, without the consent of the owner, he intentionally and knowingly damages or destroys the tangible property of the owner. TEX. PEN. CODE ANN. § 28.03(a). Pecuniary loss is one of the elements of criminal mischief the State must prove. See In the Matter of M.C.L., 110 S.W.3d 591, 594 (Tex. App.-Austin 2003, pet. denied) (citing TEX. PEN. CODE ANN. § 28.03(b); Gallardo v. State, 167 Tex. Crim. 511, 321 S.W.2d 581, 581 (1959)). The amount of the pecuniary loss determines the punishment range for the offense. See TEX. PEN. CODE. ANN. § 28.03(b). If the property was damaged, the amount of pecuniary loss is "the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred." In the Matter of M.C.L., 110 S.W.3d at 594; [*8] see also TEX. PEN. CODE. ANN. § 28.06(b) (Vernon 2003).
The State conceded at trial that it presented no evidence of value. 3 In other words, the State presented no evidence of the cost of repairing or restoring the damaged property. Inasmuch as pecuniary loss is an element of the offense, we conclude the State did not prove beyond a reasonable doubt all of the elements of the offense of criminal mischief, and no rational trier of fact could have rationally so found. Consequently, the evidence is legally insufficient to support the conviction. We sustain appellant's first issue.
FOOTNOTES
3 Notwithstanding its concession in the trial court, on appeal the State argues the evidence is legally sufficient to prove all of the elements of the offense for which appellant was convicted. In fact, neither appellant nor the State addresses the element of value. Nevertheless, we conclude appellant's first issue questioning whether the State met its burden of proof on legal sufficiency of the evidence to allow a rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt raises the issue of value.
[*9] Due to our disposition of the legal sufficiency challenge, we do not reach appellant's factual sufficiency complaints.
We reverse the trial court's judgment and render judgment of acquittal.
SUE LAGARDE
JUSTICE, ASSIGNED
JACOB AARON MERWIN, Appellant v. THE STATE OF TEXAS, Appellee
No. 05-05-01482-CR
COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS
2006 Tex. App. LEXIS 5469
June 27, 2006, Opinion Issued
NOTICE: [*1] PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
SUBSEQUENT HISTORY: Rehearing denied by Merwin v. State, 2006 Tex. App. LEXIS 8614 (Tex. App. Dallas, Oct. 5, 2006)
Petition for discretionary review refused by In re Merwin, 2007 Tex. Crim. App. LEXIS 803 (Tex. Crim. App., June 13, 2007)
DISPOSITION: REVERSED and RENDERED.
JUDGES: Before Chief Justice Thomas and Justices Moseley and Lagarde 1
1 The Honorable Sue Lagarde, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
OPINION BY: SUE LAGARDE
OPINION
Jacob Aaron Merwin was charged by information with the Class B misdemeanor offense of criminal mischief. See TEX. PEN. CODE ANN. § 28.03(a) (Vernon Supp. 2005). After a trial before the court, appellant was found guilty of the lesser-included offense of Class C misdemeanor criminal mischief. See id. § 28.03(b)(1). The trial court assessed a $ 250 fine. In four points of error, appellant challenges the legal and factual sufficiency of the evidence to support the conviction. Because we conclude the evidence presented was legally insufficient to prove the element of the value of the injury inflicted to the property, we reverse the trial court's judgment and render judgment of acquittal.
Background
[*2] The State presented no live witnesses at trial, relying instead on the documents contained within State's Exhibit 1 to prove its case. 2 Appellant was an inmate in the Collin County Jail when, on September 7, 2004, he had an altercation with another inmate. As a result, appellant was confined to his cell. After being so confined, appellant began yelling profanities at the guard and kicking the cell door. At approximately 3:25 p.m., the guard removed appellant from his cell and took him to the "barbershop," where he remained, unrestrained, until 9:00 p.m. "From time to time," the guards checked on him.
FOOTNOTES
2 The business records were admitted into evidence without objection at trial.
The documentary evidence contained numerous "Jail Incident Reports" about appellant's in-jail conduct. Specifically, the documents showed that on September 7, 2004, at 15:22, Joey Marler wrote a "Jail Incident Report" to Lieutenants Fields, Varner, and Crossland reflecting appellant had engaged in disruptive conduct and received [*3] a twenty-three hour in-cell restriction. After receiving the restriction, appellant began yelling profanities and kicking the door to his cell. Appellant disregarded orders to calm down and was removed from his cell and escorted to the cluster three barbershop, where the damage was later discovered.
The documents showed damage was not observed when the "B shift" made its rounds between 2:01p.m. and 2:33 p.m. However, when the "C shift" began its rounds at 9:55 p.m., the officer noticed damage to the paper towel dispenser, trash can, window caulking, sink, and wall. Appellant was the only occupant of the barbershop for about seven hours. There was no evidence anyone else had entered the room during the one-hour periods immediately before and after appellant occupied it.
Appellant testified at trial that the barbershop was already damaged when he was placed inside. Appellant specifically recalled the paper towel dispenser had "always been smashed." Appellant admitted that he and Joey Marler did not get along, and that "it was personal" between them.
The State argued to the trial court it had proved all elements of the offense except value, which it conceded it did not prove. Nevertheless, [*4] it requested the trial court to find appellant guilty of the lesser-included offense of criminal mischief under $ 50, which the trial court did.
Standard of Review and Applicable Law
The standard of review for legal sufficiency of the evidence is well established. In determining the legal sufficiency of the evidence to support a conviction, we must assess all the evidence in a light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex. Crim. App.), cert. denied, 126 S. Ct. 481, 163 L. Ed. 2d 367 (2005). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003).
A person commits criminal mischief [*5] 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.
TEX. PEN. CODE ANN. § 28.03(a) (Vernon Supp. 2005).
Analysis
The information alleged, in relevant part, that appellant,
on or about the 7th day of September A.D., 2004 in the County of Collin and State of Texas, did then and there intentionally and knowingly damage and destroy tangible property, namely: sink, towel dispenser, trash receptacle, ceiling tile track, caulking, by beating, prying, and tearing, without the effective consent of Melissa Pollard, the owner of said property, and did thereby cause pecuniary loss of the value of Fifty Dollars ($ 50.00) or more but less than Five Hundred Dollars ($ 500.00), to the said owner.
In his first issue, appellant contends the [*6] State did not meet its burden of proof that he is guilty of criminal mischief and no rational fact finder could have found all of the essential elements beyond a reasonable doubt. Specifically, appellant contends the business records on which the State based its case were insufficient to show beyond a reasonable doubt he committed the damage because there were gaps in time, both before and after he was in the barbershop. Appellant also argues that the State did not prove Melissa Pollard was the owner of the property.
The State responds that the documentary evidence is both legally and factually sufficient to prove all the elements of the offense of criminal mischief.
The evidence showed a check of the room occurred at 14:01 on September 7, 2005, and appellant was not placed in the room until 15:22 on that date. It further shows appellant was removed from the room at 20:45 on September 7, 2005, and the damage was not discovered until 22:00 on the same date. No one else was in the room during the periods immediately before and after appellant was in the room. Appellant argues he presented uncontroverted testimony the damage existed when he was placed in the cell, and that he was watched [*7] while he was in the barbershop and no damage occurred during that time. The trial court, as fact finder, was free to disbelieve appellant's testimony. We conclude the evidence is legally sufficient to show appellant caused the damage and that Pollard was the owner.
What the evidence does not show is the pecuniary loss suffered. A person commits the offense of criminal mischief if, without the consent of the owner, he intentionally and knowingly damages or destroys the tangible property of the owner. TEX. PEN. CODE ANN. § 28.03(a). Pecuniary loss is one of the elements of criminal mischief the State must prove. See In the Matter of M.C.L., 110 S.W.3d 591, 594 (Tex. App.-Austin 2003, pet. denied) (citing TEX. PEN. CODE ANN. § 28.03(b); Gallardo v. State, 167 Tex. Crim. 511, 321 S.W.2d 581, 581 (1959)). The amount of the pecuniary loss determines the punishment range for the offense. See TEX. PEN. CODE. ANN. § 28.03(b). If the property was damaged, the amount of pecuniary loss is "the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred." In the Matter of M.C.L., 110 S.W.3d at 594; [*8] see also TEX. PEN. CODE. ANN. § 28.06(b) (Vernon 2003).
The State conceded at trial that it presented no evidence of value. 3 In other words, the State presented no evidence of the cost of repairing or restoring the damaged property. Inasmuch as pecuniary loss is an element of the offense, we conclude the State did not prove beyond a reasonable doubt all of the elements of the offense of criminal mischief, and no rational trier of fact could have rationally so found. Consequently, the evidence is legally insufficient to support the conviction. We sustain appellant's first issue.
FOOTNOTES
3 Notwithstanding its concession in the trial court, on appeal the State argues the evidence is legally sufficient to prove all of the elements of the offense for which appellant was convicted. In fact, neither appellant nor the State addresses the element of value. Nevertheless, we conclude appellant's first issue questioning whether the State met its burden of proof on legal sufficiency of the evidence to allow a rational trier of fact to have found the essential elements of the offense beyond a reasonable doubt raises the issue of value.
[*9] Due to our disposition of the legal sufficiency challenge, we do not reach appellant's factual sufficiency complaints.
We reverse the trial court's judgment and render judgment of acquittal.
SUE LAGARDE
JUSTICE, ASSIGNED