      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-13-00307-CR



                                  Marc Trace Wyatt, Appellant

                                                  v.

                                   The State of Texas, Appellee


        FROM THE DISTRICT COURT OF LEE COUNTY, 21ST JUDICIAL DISTRICT
         NO. 7583, HONORABLE REVA TOWSLEE-CORBETT, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant, Marc Trace Wyatt, of criminal mischief with pecuniary

loss of at least $20,000 but not more than $100,000, a third-degree felony. See Tex. Penal Code

§ 28.03(a),(b)(5). The jury assessed punishment, enhanced by two prior felony convictions, at

80 years in prison and a fine of $5,000. See id. §§ 12.32 (first-degree felony punishment range),

.42 (third-degree felony punished as first-degree felony for habitual offenders). On appeal, appellant

challenges the sufficiency of the evidence to support his conviction. We will affirm.

               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. Id.

§ 28.03(a)(1). The amount of pecuniary loss determines the degree of the offense and thus forms

the basis of the punishment assessed. See id. § 28.03(b). In the present case, the indictment alleged

that, on or about April 26, 2012, appellant “did . . . intentionally or knowingly damage or destroy
tangible property, to wit: four (4) 10-ton and one (1) 3-ton air-conditioning units, by removing all

aluminum coils from said units, without the effective consent of Eugene Fitzpatrick dba Tractor

Supply of Giddings, Lee County, Texas, the owner of said property, and did thereby cause pecuniary

loss of $20,000.00 or more but less than $100,000.00 to the said owner.”

                In two issues on appeal, appellant challenges the sufficiency of the evidence to

support two elements of the offense: (1) the amount of pecuniary loss, and (2) the identity of the

owner who suffered the loss. Due process requires that the State prove, beyond a reasonable doubt,

every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State,

434 S.W.3d 613, 616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to

support a conviction, we consider all the evidence in the light most favorable to the verdict to

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

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Rabb, 434 S.W.3d at 616. We review all the

evidence in the light most favorable to the verdict and assume that the trier of fact resolved conflicts

in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports

the verdict. Jackson, 443 U.S. at 318; see Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009). We consider only whether the jury reached a rational decision. Isassi v. State,

330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (“‘Our role on appeal is restricted to guarding against

the rare occurrence when a factfinder does not act rationally.’” (quoting Laster, 275 S.W.3d at 518)).

                In issue one, appellant challenges the sufficiency of the evidence to support the jury’s

finding that the amount of the loss was at least $20,000. Although the jury charge tracked the

indictment precisely, it is not disputed that the evidence at trial established that the air-conditioning



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units were destroyed, not merely damaged. If property is destroyed rather than damaged, the amount

of pecuniary loss is (1) the fair market value of the property at the time and place of the destruction,

or (2) if the fair market value of the property cannot be ascertained, the cost of replacing the property

within a reasonable time after the destruction. Tex. Penal Code § 28.06(a). The State concedes that

there is no evidence that the fair market value of the air conditioning units could not be ascertained;

accordingly, we must determine whether there is sufficient evidence that the fair market value of

the property at the time and place of destruction was at least $20,000. See Lackey v. State,

290 S.W.3d 912, 919 (Tex. App.—Texarkana 2009, pet. ref’d); Rivera v. State, 885 S.W.2d 581, 584

(Tex. App.—El Paso 1994, no pet.). The appellant contends there is no evidence of fair market

value and only evidence of replacement cost. We disagree.

                Eugene Fitzpatrick, manager of the Tractor Supply store, testified that the building

serviced by the air-conditioning units was newly constructed by Bingham Construction

approximately 18 months before the units were destroyed. Mike Stephens, sales manager for the

vendor who provided both the original and replacement air-conditioning units, testified that the

damaged units utilized the newest technology involving microchannels and that this type of

technology first became available near the time the Tractor Supply building was constructed.

According to Stephens, the units were very expensive, the price charged for the damaged units was

between $22,000 and $24,000, and the acquisition price reflected a discount because the purchaser

(presumably Bingham Construction) had purchased a large number of units from the vendor. David

Rose, an employee of Bingham Construction, which is affiliated with the building landlord, testified

that at the time the air-conditioning units were destroyed, they “were in perfect operating condition”



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and “[b]asically new units still.” Rose further testified that his company paid $28,500 for the

replacement units, which was the “usual and customary” price, and $5,700 for installation, which

was “very reasonable” for that type of work. There was also evidence that the replacement units had

to be obtained from a location outside of Texas. Finally, there is evidence that insurance paid for

all but $1,000 of the replacement cost. Although there was no express opinion testimony about the

fair market value of the units at the time of their destruction, we conclude that the foregoing evidence

is sufficient to permit a rational juror to find beyond a reasonable doubt that the fair market value

of the five damaged air-conditioning units at that time was at least $20,000. See Campbell v. State,

426 S.W.3d 780, 784, 785 (Tex. Crim. App. 2014) (owner’s opinion of fair market value to replace

property at time of destruction was sufficient to establish fair market value of property at time and

place of destruction); Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986) (owner of

property may give opinion or estimate of property in general terms while non-owner must be

qualified as to knowledge of the value of property and give explicit testimony as to fair market or

replacement value); Jimenez v. State, 67 S.W.3d 493, 506 (Tex. App.—Corpus Christi 2002, pet.

ref’d) (holding that owner’s testimony regarding amount insurance company paid for destroyed

vehicle was legally sufficient to prove fair market value even absent specific statement in record

regarding value). We therefore overrule appellant’s first issue.

                Appellant’s second issue complains of an alleged discrepancy between the indictment

and the evidence at trial regarding the identity of the property owner who bore the loss. The

indictment alleges that Eugene Fitzpatrick, d/b/a Tractor Supply of Giddings, Lee County, Texas

(Tractor Supply) was the owner of the air-conditioning units and that “the said owner” suffered



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pecuniary loss of at least $20,000. Under the Penal Code, an “owner” is defined 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.” Tex. Penal Code § 1.07(a)(35)(A). It is undisputed that

Tractor Supply leases the building that was serviced by the destroyed air-conditioning units.

Appellant therefore concedes that Tractor Supply was properly named in the indictment as an

“owner” of the units. The evidence, however, reflects that Tractor Supply did not pay to replace the

air-conditioning units. Rather, it is undisputed that the building’s owner, Tractor Supply’s landlord,

incurred the loss. Accordingly, appellant contends that there is a fatal variance between the

indictment and the proof offered at trial with regard to the “owner” who suffered the loss. That is,

the indictment alleged that Tractor Supply suffered a loss of at least $20,000, but the evidence at trial

established that the landlord actually suffered the loss.

                A variance occurs when there is a discrepancy between the charging instrument and

proof at trial. In such a situation, “the State has proven the defendant guilty of a crime, but has

proven its commission in a manner that varies from the allegations in the charging instrument.”

Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). A variance between the wording of

the indictment and the evidence presented is fatal only if it is material and prejudices the defendant’s

substantial rights. Id. at 257. In assessing materiality, we are to ask two questions: first, “whether

the indictment, as written, informed the defendant of the charge against him sufficiently to allow him

to prepare an adequate defense at trial,” and, second, “whether prosecution under the deficiently

drafted indictment would subject the defendant to the risk of being prosecuted later for the same

crime.” Id. at 248.



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                We conclude that the variance between the indictment’s allegation that Tractor

Supply suffered the loss and the proof at trial that the landlord actually suffered the loss is immaterial

because (1) Tractor Supply and the landlord are joint owners of the same property under the

definition of “owner” in section 1.07(a)(35)(A) of the Penal Code, (2) the name of the owner is not

a statutory element of the offense in section 28.03 of the Penal Code, (3) the identity of the owner

who suffers the pecuniary loss is also not a statutory element under section 28.03, (4) the record

reflects that the variance did not operate to surprise or mislead appellant or impair his ability to

prepare an adequate defense, and (5) the variance does not affect the allowable unit of prosecution

such that appellant would be in danger of being prosecuted in the future for the same criminal

offense (i.e., the proof at trial does not show “an entirely different offense” than what was alleged

in the indictment). See Johnson v. State, 364 S.W.3d 292, 295, 298-99 (Tex. Crim. App. 2012) (“[A]

variance involving a non-statutory allegation that describes an ‘allowable unit of prosecution’

element of the offense may or may not render the evidence legally insufficient, depending upon

whether the variance is material . . . [and] other types of variances involving immaterial non-

statutory allegations do not render the evidence legally insufficient.”); Gollihar, 46 S.W.3d at 257

(“A variance between the wording of an indictment and the evidence presented at trial is fatal

only if ‘it is material and prejudices [the defendant’s] substantial rights.’”); cf. Cada v. State,

334 S.W.3d 766, 768 (Tex. Crim. App. 2011) (“[A] variance between the pleading of one statutory

element (‘a witness’) and proof of a different statutory element (‘a prospective witness’ or ‘an

informant’) is material.”); Byrd v. State, 336 S.W.3d 242, 244-45, 257-58 (Tex. Crim. App. 2011)

(holding evidence insufficient to support conviction where indictment alleged theft from one person



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but evidence showed another owner and no evidence linked person named in indictment to actual

owner). We therefore review the sufficiency of the evidence under the hypothetically correct jury

charge for the case, not the jury charge that was actually given. Gollihar, 46 S.W.3d at 257. The

hypothetically correct charge need not incorporate allegations that give rise to immaterial variances.

Id. Applying this standard, the evidence is sufficient to support the jury’s finding that (1) Tractor

Supply and the landlord were owners of the air-conditioning units, (2) Tractor Supply did not

consent to the destruction of that property, and (3) the landlord suffered pecuniary loss from their

destruction. We overrule appellant’s second issue.

                 Having overruled the issues presented on appeal, we affirm the judgment

of conviction.



                                       _________________________________________________
                                       J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Pemberton and Field

Affirmed

Filed: December 19, 2014

Do Not Publish




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