                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-13-00098-CR


                            MARIA ROSARIO, APPELLANT

                                           V.

                          THE STATE OF TEXAS, APPELLEE

                       On Appeal from the County Court at Law No. 1
                                  Lubbock County, Texas
              Trial Court No. 2011-466,223, Honorable Mark Hocker, Presiding

                                     March 6, 2014

                            MEMORANDUM OPINION
                Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


      Appellant Maria Rosario appeals from her jury conviction of the offense of

criminal mischief and the resulting sentence of confinement for 45 days. Her sentence

was probated and she was placed on community supervision for 180 days. Rosario

challenges her conviction through two appellate issues. We will affirm.
                                       Background


       The criminal mischief charge was based on damage Rosario caused to the

vehicle of her ex-husband Martin Martinez-Morales. They were divorced in 2007. In

April 2011, Martinez-Morales drove to Rosario’s house to pick up their daughter.

Rosario came outside to speak with him. He did not want to engage in the discussion.

Rosario became upset and broke both the passenger’s and driver’s side mirrors on his

car.


       Rosario was charged by information with the Class B Misdemeanor of Criminal

Mischief.1 On her not-guilty plea, the case was tried to a jury, which found Rosario

guilty as charged in the information.     Punishment was assessed as noted and this

appeal followed.


                                         Analysis


       Rosario brings two issues on appeal. The first challenges the trial court’s refusal

to include in the charge to the jury a mistake-of-fact instruction. The second challenges

the sufficiency of the evidence to support her conviction for criminal mischief.


Sufficiency of the Evidence


       We will address Rosario’s second issue first.          In evaluating a sufficiency

challenge, we view the evidence in the light most favorable to the verdict in order to

determine whether any rational fact finder could have found the essential elements of

the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99

       1
           TEX. PENAL CODE ANN. § 28.03(a)(1) (West 2011).

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S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moff v. State, 131 S.W.3d 485, 488 (Tex. Crim. App.

2004); Weightman v. State, 975 S.W.2d 621, 624 (Tex. Crim. App. 1998). In

implementing the Jackson sufficiency of the evidence standard, we are required to

consider all evidence which the jury was permitted, whether rightly or wrongly, to

consider, and the reviewing court is required to defer to the jury's credibility and weight

determinations. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).


         A person commits criminal mischief when she intentionally or knowingly

damages or destroys tangible property without the effective consent of the owner. TEX.

PENAL CODE ANN. § 28.03(a)(1) (West 2011). The amount of pecuniary loss suffered by

an owner determines the degree of the offense. TEX. PENAL CODE ANN. § 28.03(b) (West

2011).     The information alleged Rosario intentionally or knowingly damaged or

destroyed the vehicle without the effective consent of Martinez-Morales, its owner.


         Rosario does not dispute that she intentionally or knowingly damaged the mirrors

on the vehicle or that she did so without her ex-husband’s consent.           Rather, she

contends that some evidence showed she was a co-owner of the vehicle. Because, she

asserts, criminal mischief implicitly prohibits only damage to the tangible property of

another person, she could not have committed that offense. To support her contention,

she produced, without objection, a copy of a Certificate of Title to the vehicle, bearing

both her name and that of her ex-husband, dated in 2008.


         Martinez-Morales testified he was awarded the sole right of ownership of the

vehicle by the 2007 divorce decree, that he had completed the payments on it, paid for

insurance on it, kept the vehicle, and exclusively drove and used it. He testified Rosario


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did not possess, use, pay for or insure the vehicle. The divorce decree was entered into

evidence at trial.


       Rosario’s contention contains a faulty underlying premise.        Her argument is

based on the notion that she, as a co-owner of the vehicle, could not commit criminal

mischief by damaging it. The notion is incorrect. Section 28.05 of the Penal Code

reads, “It is no defense to prosecution under this chapter 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.” TEX. PENAL CODE ANN. § 28.05 (West 2012).


       Even under Rosario’s theory of the evidence, her ex-husband indisputably had

an interest in the vehicle, and we see no basis for a suggestion his interest was one she

was “entitled to infringe.” By the plain language of section 28.05, Rosario’s asserted

ownership interest in the vehicle did not provide a defense to her prosecution. See

Tackett v. State, No. 05-02-01338-CR, 2003 Tex. App. LEXIS 3760, at *4-6 (Tex.

App.—Dallas May 1, 2003, no pet.) (mem. op., not designated for publication) (so

holding on very similar facts).


       By the Penal Code’s definition, an "owner" of property includes 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.” TEX. PENAL CODE ANN. §

1.07(a)(35)(A) (West 2003). The trial court’s charge also defined “owner” to include all

three of those definitions. "Possession" means actual care, custody, control, or

management. TEX. PENAL CODE ANN. § 1.07(a)(39) (West 2003).




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       Martinez-Morales’s testimony and the divorce decree provide evidence by which

the jury rationally could have determined that he was owner of the vehicle, under any of

the three quoted definitions; that is, that he had title, possession or a greater right to

possession than Rosario, the actor. The evidence, viewed in the light most favorable to

the judgment, thus supports the jury’s finding that Rosario’s conduct was without the

effective consent of the owner. See, e.g., Barstow v. State, No. 03-10-00142-CR, 2011

Tex.App. LEXIS 3236, at *17 (Tex. App.—Austin April 27, 2011, no pet.) (mem. op., not

designated for publication) (applying statutory definition of “owner”). Rosario’s asserted

evidence of co-ownership does not defeat the State’s proof her ex-husband met the

statutory definition of owner of the vehicle. Finding the evidence is sufficient to support

Rosario’s conviction, we overrule her second issue.


Requested Jury Instruction


       During the charge conference, Rosario requested that the court include in the

charge a mistake-of-fact instruction.2 The court denied her request. By her first issue,

Rosario contends the trial court’s denial of her request was error.



       2
           Rosario’s requested instruction read:

       Mistake of Fact

   1. You are instructed that it is a defense to prosecution that an individual, through
      mistake, formed a reasonable belief about a matter of fact, if her mistaken belief
      negated the kind of culpability required for commission of the offense.

   2. A reasonable belief means a belief that would be held by an ordinary and prudent
      individual in the same circumstances as the defendant.

   3. Now, if you find from the evidence in this case that when the defendant, MARIA
      ROSARIO, intentionally or knowingly damaged or destroyed the tangible property

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       Generally, a defendant is entitled to submission of an affirmative defensive

instruction on every issue raised by the evidence even if the trial court thinks that the

testimony could not be believed. See Chavers v. State, 991 S.W.2d 457, 459 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref'd). The State argues that from Penal Code

section 28.05 it “follows inexorably that she had no right to a jury instruction authorizing

a defense that was precluded as a matter of law. That is, her “purported (but

unestablished) belief in her purported co-ownership of the vehicle would not have

negated her culpability for the offense.” We agree that the evidence did not raise a

defensive issue authorizing Rosario’s requested instruction. The requested instruction

merely would have supported a defense the statute precludes. See Tackett, 2003 Tex.

App. LEXIS 3760, at *4-6.       The trial court did not err by refusing to include the

requested instruction in the charge to the jury. We overrule Rosario’s first issue.


       Having resolved each of Rosario’s issues against her, we affirm the judgment of

the trial court.




                                                 James T. Campbell
                                                     Justice

Do not publish.




       of Martin Martinez-Morales, the owner thereof, to-wit: an automobile, by breaking
       the side mirrors of said automobile, she acted under a mistake of fact, that is, a
       reasonable belief that MARIA ROSARIO also had an ownership interest in the
       automobile that was damaged, or if you have a reasonable doubt thereof, then
       you will find the defendant "Not Guilty."

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