No. 05-02-01338-CR.
Opinion Issued May 1, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.
Appeal from the County Court at Law No. 4, Collin County, Texas, Trial Court Cause No. 004-86210-01. AFFIRMED.
Before Justices WRIGHT, FITZGERALD, and LANG.
Opinion By DOUGLAS S. LANG, Justice.
Lanita Jean Tackett appeals her conviction, after a bench trial, of criminal mischief. The trial court assessed punishment at seven days in jail, suspended for one year, and a $750 fine. In one issue, appellant contends the evidence is legally insufficient to support the verdict in this case. For reasons that follow, we resolve appellant's sole issue against her and affirm the trial court's judgment.
Factual Procedural Background
Appellant was married to the complainant, Greg Tackett, for approximately nine years. The couple separated in the summer of 2001. On August 29, 2001, after Mr. Tackett had moved out, appellant went to his new residence. Mr. Tackett was sitting in his Ford F-350 pickup truck in the driveway, and appellant parked behind him, blocking him in. Appellant ostensibly attempted to "talk" to Mr. Tackett, but he remained in his locked vehicle. When Mr. Tackett would not roll his window down, appellant returned to her car and grabbed her keys. Appellant then used the keys to severely scratch the paint on the passenger side and tailgate of Mr. Tackett's truck, an action commonly referred to as "keying" a vehicle. Mr. Tackett eventually had to drive through his yard to get away, and he immediately reported the incident to police. A subsequent estimate from a local Ford dealership revealed the damage to the truck would cost $791.12 to repair. Appellant was charged by information with criminal mischief causing pecuniary loss between $500 and $1500, a class A misdemeanor. The trial court found appellant guilty but believed the damage to the truck was less than $500. Therefore, appellant was convicted of the lesser-included offense of class B misdemeanor criminal mischief. The trial court then sentenced appellant to seven days in jail and a $750 fine, both probated for one year. Criminal Mischief
In her sole issue, appellant contends the evidence is legally insufficient to show that she "did not have a right to scratch or damage her truck." Appellant argues that because Mr. Tackett's truck was purchased during the marriage, it was community property entitling her to some interest in it. Since criminal mischief implicitly prohibits only damage to the tangible property of another person, she argues that her conviction cannot stand because it would mean that one cannot legally damage one's own property. Appellant's argument has no merit. A. Standard of Review and Applicable Law
When reviewing challenges to the legal sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). We must examine the evidence in the light most favorable to the prosecution and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. To show appellant committed criminal mischief, the State had to prove beyond a reasonable doubt that "without the effective consent of the owner [she] intentionally or knowingly damaged or destroyed the tangible property of the owner." Tex. Pen. Code Ann. § 28.03(a) (Vernon 2003). "Owner" is defined under the penal code as "a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Id. § 1.07(a)(35). The penal code further provides that it is no defense to a criminal mischief prosecution "that the actor has an interest in the property damaged or destroyed if another person also has an interest that the actor is not entitled to infringe." Id. § 28.05. B. Application of Law To the Facts
1. The Evidence Is Legally Sufficient Mr. Tackett testified at trial that he was the "sole owner" of the Ford pickup truck. The truck was purchased in early 2001 while Mr. Tackett and appellant were still married. The truck was financed in Mr. Tackett's name. Further, Mr. Tackett testified that appellant "had her own car," a Ford Mustang, which was also purchased in his name. Appellant did not drive the truck after the couple separated, and the truck remained in Mr. Tackett's possession. Mr. Tackett did not give appellant permission to "key" the truck. Viewing the evidence in the light most favorable to the prosecution, we conclude a rational trier of fact could have found that appellant intentionally or knowingly damaged Mr. Tackett's pickup truck without his effective consent. 2. Appellant's Interest In the Damaged Property As a Defense
Appellant does not dispute that she caused damage to the Ford pickup. Likewise, she does not dispute that Mr. Tackett is an "owner" of the truck. Instead, she argues that she cannot be convicted of criminal mischief because she is also an "owner," since the pickup is community property purchased during her marriage. However, section 28.05 disallows such a defense. According to that section, it is no defense that appellant had an interest in the damaged property "if another person also has an interest that [she] is not entitled to infringe." See Tex. Pen. Code Ann. § 28.05. There is no dispute that Mr. Tackett had an "interest" in the truck. Further, Mr. Tackett's testimony at trial established that appellant was not entitled to infringe on that interest. We conclude that section 28.05 defeats appellant's argument that she could not destroy "her" truck. Appellant cites to Krupa v. State, 750 S.W.2d 258 (Tex.App.-Dallas 1988, pet. ref'd), in support of her argument that section 28.05 should not apply. Indeed, we held that section 28.05 did not apply, but only to the unique facts of the Krupa case. In Krupa, a husband appealed his conviction for criminal mischief after he set fire to the mobile home in which he lived. The mobile home was his wife's separate property, but both had lived there for their entire marriage. Before trial, husband filed a motion to quash his indictment, in part, for its failure to allege the specific type of "ownership" his wife had in the mobile home. The State amended the indictment to allege that wife was the owner of the home "by virtue of having a greater right of possession of said property than defendant." On appeal, the husband argued that he was entitled to a jury instruction on the applicability of homestead law. It was his position that if the mobile home was his homestead, then his wife could not have a "greater right to possession." Hence, he reasoned, the jury would be required to find him not guilty. The State argued that section 28.05 rendered husband's interest in the property irrelevant. However, we stated: "As we understand [husband's] complaint, he is not arguing that his interest in the property excused or justified actions that, in the absence of such an interest, would establish criminal mischief. Clearly, section 28.05 forecloses that defense." Id. at 261-62 (emphasis added). Although Krupa does not support appellant's defense, the reasoning in Krupa does support preclusion of her defense. Essentially, appellant asks this Court to hold that her interest in the community property excused her actions. Yet, she does not dispute that, in the absence of such an interest, her conduct established each element of criminal mischief. As we stated in Krupa, "[c]learly, section 28.05 forecloses [her] defense." Id. at 262. Conclusion
We conclude the evidence is factually sufficient to show that appellant intentionally or knowingly damaged Mr. Tackett's pickup truck without his effective consent. We further conclude that section 28.05 of the penal code precludes appellant's defense that because she was also an "owner" of the truck she was entitled to infringe upon Mr. Tackett's interest. Having resolved appellant's sole issue against her, we affirm the judgment of the trial court.