                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00181-CR


MICHAEL YARIAN                                                   APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE

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      FROM COUNTY CRIMINAL COURT NO. 1 OF TARRANT COUNTY
                   TRIAL COURT NO. 1362151

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                       MEMORANDUM OPINION 1

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     Appellant Michale Yarian appeals his conviction and sentence for

misdemeanor criminal mischief. See Tex. Penal Code Ann. § 28.03(a), (b) (West

2011). We affirm.

                             Background Facts

     Around 10:00 p.m. on the evening of August 9, 2013, Appellant was at the

Domino’s Pizza in downtown Fort Worth.         The manager of the restaurant,

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      See Tex. R. App. P. 47.4.
Zachariah Adams, saw Appellant talking to one of the employees and observed

that Appellant was upset. Adams asked Appellant if he could help him, and

Appellant responded in “muddled English.” Eventually, Adams understood that

Appellant wanted the phone number for Domino’s corporate office. Adams gave

the number to Appellant, who went outside to call on his cellphone.

      Appellant tried to re-enter the store to give Adams his cellphone to talk.

Adams, knowing that that was not the normal company policy, told Appellant to

leave. Appellant sat down outside the store’s door and refused to leave. He

then started walking around the parking lot in front of the store looking “extremely

agitated.” He then started “slapping and banging” on the store’s glass door.

Adams called 911.

      While Adams was on the phone with the 911 dispatch, Appellant pulled the

spoiler off the trunk of one of the delivery cars. He used the spoiler to break the

glass door of the store. 2 Police arrived and found Appellant sitting in a pile of

broken glass. He was bleeding from his hands and arms. Police treated his


      2
        Appellant denied intentionally damaging the spoiler and window.          He
testified,

            I got out to about where the sidewalk was at, and another car
      was there, a black car, and the next thing I know, this car has
      dragged me down the parking lot, okay? And the reason the spoiler
      came off is because my shoe got caught up underneath the car and
      I had to pull on the spoiler to actually get my foot out from
      underneath the car. That’s one thing they didn’t tell you. And pretty
      soon the car stops, slams on its brakes, the spoiler came off, and I
      went through the [store’s glass door].


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wounds and tried to question him, but Appellant “wasn’t able to give accurate

details as to exactly why certain events unfolded, like why the glass was broken

or even why he had a problem with the establishment.” The two officers who

questioned him believed he was impaired from alcohol or drugs. Appellant was

taken to the hospital and then arrested.

      Appellant was charged with two counts of criminal mischief, one for the

damage to the door and one for the damage to the car. During trial, the State

waived the count for the damage to the car. A jury found Appellant guilty of

criminal mischief.     The trial court assessed a punishment of 180 days’

confinement in Tarrant County Jail. Appellant then appealed.

                                    Discussion

      In Appellant’s sole point of error, he argues that the trial court abused its

discretion by admitting a written witness statement by the damaged car’s owner.

An appellate court reviews a trial court’s decision to admit evidence for an abuse

of discretion. Sauceda v. State, 129 S.W.3d 116, 120 (Tex. Crim. App. 2004). A

trial court abuses its discretion in admitting evidence if that decision falls outside

the wide zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d

372, 391 (Tex. Crim. App. 1990) (op. on reh’g). Relevant evidence is that which

has any tendency to make the existence of any fact of consequence to the

determination of the action more probable or less probable. See Tex. R. Evid.

401, 403; Hawkins v. State, 871 S.W.2d 539, 541 (Tex. App.—Fort Worth 1994,

no pet.) (citing Montgomery, 810 S.W.2d at 387).


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      After the State had rested and had waived the count of criminal mischief

for damage to the car, it questioned Appellant about his claim that he had been

hit by the car:

             [THE STATE:] Did the car stop there in the parking lot?

             [APPELLANT:] Yeah. Right there at the front door.

             [THE STATE:] What happened to the driver?

             [APPELLANT:] He took off down Texas Avenue, back street.

             [THE STATE:] Walking?

             [APPELLANT:] No. With the car.

            [THE STATE:] I asked you if the car stopped, so he stopped
      and then drove off away?

             [APPELLANT:] Yeah. The statement says that.

             [THE STATE:] Excuse me?

           [APPELLANT:] The statement says he went down Texas
      Avenue after he hit me.

             [THE STATE:] Whose statement is this?

             [APPELLANT:] You’re going to play games, huh?

             [THE STATE:] I’m sorry? Whose statement is this, sir?

             [APPELLANT:] You never read a statement in the whole case
      talking about a guy drove down Texas Avenue looking for a cop?

             [THE STATE:] You mean the statement by Mr. Nelson?

             [APPELLANT:] I believe so.

             [THE STATE:] He opened the door.



                                        4
            . . . All right, sir. I’m going to show you what’s been marked as
      State’s Seven and ask you if that’s the statement you’re asking
      about.

             [APPELLANT:] Yeah. Right here, it says pulled out on 10th
      Street, a left onto Texas—that means Texas Avenue—and made a
      right on East Lancaster, or Lancaster. I’m sorry. Lancaster. When I
      spotted a cop.

            [THE STATE:] Why don't you read the rest of the statement
      since you read part of it?

            [APPELLANT:] I immediately did—

            [THE STATE:] Start at the very beginning.

            [APPELLANT:] I ain’t reading all that.

           [THE STATE:] Your Honor, since the witness is refusing the
      request, I would request that the statement be admitted at this point.

             [APPELLANT’S COUNSEL]: We would object, Your Honor.
      It’s impeachment, but I think it’s irrelevant. The State has the
      statement of another witness.

             [THE STATE]: It was hearsay, Your Honor, and he brought it
      up. He started talking about it and he read from it; therefore, the
      State is entitled to bring it back up.

            THE COURT: All right. It’s in. It’s admitted.

The witness statement read in its entirety:

            A man was in the carry[-]out [area] acting unruly, so the
      [Manager] on Duty asked him to leave. The man remained in the
      parking lot, so the [Manager] on duty makes a 911 call. I had a
      delivery up so I went on with business as usual[,] headed to my
      vehicle. The man was at the building making a ruckus, so I used the
      chance to leave[.] [A]s I back out[,] I see the man running my way
      then he takes/snatches the spoiler of[f] of the rear of my vehicle and
      then runs to the building using the spoiler as a weapon. I
      immediately pull off and go looking for police officers.



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             I pull out on 10th Street[,] made a left onto [T]exas[,] made a
      right on [L]ancaster when I spot police. I immediately do a u[-]turn
      and follow the police to the store.

      Relevancy is the only objection that Appellant made at trial and his only

argument on appeal. Appellant’s defense was premised on his contention that

he did not intentionally or knowingly damage the glass door but was instead

thrown into it by a car that had hit him. See Tex. Penal Code Ann. § 28.03(a)

(requiring for the commission of criminal mischief that the person intentionally or

knowingly damage property). Appellant’s mental state at the time of the incident

was a fact of consequence. The statement that Appellant “[ran] to the building

using the spoiler as a weapon” makes it more likely that Appellant intentionally or

knowingly damaged the door and is thus relevant. The trial court did not err by

admitting the statement. We overrule Appellant’s point.

                                   Conclusion

      Having overruled Appellant’s sole point of error, we affirm the trial court’s

judgment.


                                                   /s/ Lee Gabriel

                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 30, 2015



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