                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-16-00261-CR

TONY DWAYNE ERSKINE,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                          From the 443rd District Court
                              Ellis County, Texas
                            Trial Court No. 38492CR


                          MEMORANDUM OPINION


      In one issue, appellant, Tony Erskine, contends that the evidence is insufficient to

support his conviction for criminal mischief. See TEX. PENAL CODE ANN. § 28.03(a)(1)

(West Supp. 2016). We affirm.
                             I.     SUFFICIENCY OF THE EVIDENCE

        In his sole issue on appeal, Erskine contends that the evidence supporting his

conviction is insufficient because one of his friends, Jeremy Borders, did not see or hear

Erskine cause any damage to Staci Norman’s car.

        In reviewing the sufficiency of the evidence to support a conviction, we view all

of the evidence in the light most favorable to the prosecution 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, 2789, 61 L. Ed. 2d

560 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007). This standard enables the fact finder to draw

reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W.3d at 778. In performing our sufficiency review, we may not re-evaluate the

weight and credibility of the evidence or substitute our judgment for that of the fact

finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Instead, we determine

whether the necessary inferences are reasonable based upon the combined and

cumulative force of all the evidence when viewed in the light most favorable to the

verdict. Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007).

        A person commits the offense of criminal mischief when he intentionally or

knowingly damages or destroys tangible property without the effective consent of the

owner. TEX. PENAL CODE ANN. § 28.03(a)(1). The amount of pecuniary loss suffered by


Erskine v. State                                                                        Page 2
the owner determines the degree of the offense. Id. § 28.03(b). If the property is damaged,

the amount of pecuniary loss is determined by “the cost of repairing or restoring the

damaged property within a reasonable time after the damage occurred.” Id. § 28.06(b)

(West Supp. 2016). On appeal, Erskine only challenges the identity element of the offense,

arguing that his mere presence at the scene of the crime, without any other evidence

linking him to the commission of the offense, is insufficient to prove that he committed

the offense.

        Identity may be proved by direct or circumstantial evidence. Roberson v. State, 16

S.W.3d 156, 167 (Tex. App.—Austin 2000, pet. ref’d) (citing Earls v. State, 707 S.W.2d 82,

85 (Tex. Crim. App. 1986); Couchman v. State, 3 S.W.3d 155, 162 (Tex. App.—Fort Worth

1999, pet. ref'd); Creech v. State, 718 S.W.2d 89, 90 (Tex. App.—El Paso 1986, no pet.)). “In

fact, identity may be proven by inferences.” Id. (citing United States v. Quimby, 636 F.2d

86, 90 (5th Cir. 1981)); see Clark v. State, 47 S.W.3d 211, 214 (Tex. App.—Beaumont 2001,

no pet.); see also Jones v. State, 900 S.W.2d 392, 399 (Tex. App.—San Antonio 1995, writ

ref'd) (explaining that the jury may use common sense and apply common knowledge,

observation, and experience gained in ordinary affairs of life when giving effect to

inferences that may reasonably be drawn from evidence).

        The positive identification of a defendant as the perpetrator of a crime is sufficient

to support a conviction. See Garcia v. State, 563 S.W.2d 925, 928 (Tex. Crim. App. [Panel

Op.] 1978); Gilmore v. State, 397 S.W.3d 226, 240 (Tex. App.—Fort Worth 2012, pet. ref’d);


Erskine v. State                                                                        Page 3
Cate v. State, 124 S.W.3d 922, 928-29 (Tex. App.—Amarillo 2004, pet. ref'd). Moreover,

“[a] conviction may be based on the testimony of a single eyewitness.” Pitte v. State, 102

S.W.3d 786, 794 (Tex. App.—Texarkana 2003, no pet.) (citing Aguilar v. State, 468 S.W.2d

75, 77 (Tex. Crim. App. 1971)).

        Here, Norman testified that she had an intimate relationship with Erskine. After

Erskine’s house burned down, Norman invited Erskine and his roommate to move into

her apartment. After a few days, Erskine moved into his mother’s house. However, in

the early morning hours of April 22, 2013, Erskine returned to Norman’s apartment.

Norman testified that Erskine had been drinking and was belligerent. After arguing with

Erskine, Norman later witnessed Erskine breaking the windows of her car. Erskine used

the butt of a baseball bat to make holes in the windows. When Norman tried to chase

him, Erskine and his brother, Vincent Sargent, jumped into a truck driven by Borders and

left. Norman recalled seeing Erskine’s face while he was breaking the windows of her

car without permission. Later, Steven McDonald, an auto damage supervisor with

GEICO Insurance, testified that Norman made a claim for vandalism in April 2013, and

that the estimated damage to her car was $2,028.

        Based on Norman’s identification of Erskine as the individual who broke the

windows in her car without permission, we conclude that the evidence is sufficient to

support Erskine’s conviction for criminal mischief. See Garcia, 563 S.W.2d at 928; see also

Gilmore, 397 S.W.3d at 240; Cate, 124 S.W.3d at 928-29; Pitte, 102 S.W.3d at 794.


Erskine v. State                                                                     Page 4
Nevertheless, Erskine urges us to ignore Norman’s testimony and instead focus on the

testimony of Erskine’s friend, Borders, who testified that he did not see or hear Erskine

cause damage to Norman’s car. Our governing standard of review does not authorize

the cherry-picking of testimony from the record; rather, we view all of the evidence in the

light most favorable to the prosecution to determine whether any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. Jackson,

443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895; Clayton, 235 S.W.3d at 778.

        And to the extent that Borders’s testimony creates a conflict in the evidence, we

note that the resolution of such conflicts is within the province of the jury and that we

must defer to the jury’s resolution of such conflicts. See Chambers v. State, 805 S.W.2d 459,

461 (Tex. Crim. App. 1991); see also Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-93; Lancon v.

State, 253 S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 846, 859 (Tex.

App.—Dallas 2010, pet. ref’d) (“An appellate court must give deference to a jury’s

decision regarding what weight to give contradictory testimonial evidence because the

decision is most likely based on an evaluation of credibility and demeanor, which the

jury is in a better position to judge.”). In convicting Erskine of the charged offense, the

jury clearly believed Norman’s version of the events and did not believe Borders’s

testimony in favor of Erskine. As such, we must defer to the jury’s resolution of the

conflict in the evidence. See Chambers, 805 S.W.2d at 461; see also Jackson, 443 U.S. at 326,

99 S. Ct. at 2792-93; Lancon, 253 S.W.3d at 706; Render, 316 S.W.3d at 859.


Erskine v. State                                                                        Page 5
        Viewing the evidence in the light most favorable to the verdict, we hold that a

rational factfinder could have concluded that the State proved beyond a reasonable doubt

that Erskine committed the offense of criminal mischief when he broke the windows of

Norman’s car without permission on the night in question. See TEX. PENAL CODE ANN. §

28.03(a)(1); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895;

Clayton, 235 S.W.3d at 778. Accordingly, we conclude that the evidence is sufficient to

support Erskine’s conviction for criminal mischief.        See TEX. PENAL CODE ANN. §

28.03(a)(1); see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 895;

Clayton, 235 S.W.3d at 778. We overrule his sole issue on appeal.

                                     II.    CONCLUSION

        We affirm the judgment of the trial court.




                                                  AL SCOGGINS
                                                  Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed March 8, 2017
Do not publish
[CR25]




Erskine v. State                                                                       Page 6
