                                    NO. 07-06-0139-CR

                                 IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                      AT AMARILLO

                                         PANEL B

                                   MARCH 4, 2008
                           ______________________________

                                 STEVEN ORTIZ, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE
                         _________________________________

            FROM THE COUNTY COURT AT LAW OF TOM GREEN COUNTY;

                  NO. 05-03274L2; HONORABLE BEN NOLEN, JUDGE
                         _______________________________


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


                                  MEMORANDUM OPINION


       Appellant Steven Ortiz appeals his conviction for the Class C misdemeanor offense

of criminal mischief. Via his sole point of error, appellant challenges the legal and factual

sufficiency of the evidence to support his conviction. Agreeing the evidence is legally

insufficient, we will reverse.


      Appellant was charged by information with the misdemeanor offense of criminal

mischief.1 Specifically, the complaint alleged he intentionally and knowingly damaged or

       1
           See Tex. Penal Code Ann. § 28.03 (Vernon 2003 & Supp. 2007).
destroyed police department property, without its owner’s effective consent, by spitting on

its window. The property was a police car. Following appellant’s plea of not guilty, the

matter proceeded to a bench trial.


       Evidence showed that on September 7, 2005, Detective Jaime Padron of the San

Angelo Police Department was working as a school security officer at San Angelo’s Central

Freshman Campus. He testified he parked his unmarked Crown Victoria in its customary

space next to gates leading into the schoolyard. Later that morning, Detective Padron

observed spit on the passenger door and window of his vehicle. He later wiped the spit

from the car with a cloth.2


       The detective sought to learn the identity of the one who spit on his vehicle. A video

recording from a security camera showed a group of students walking by the vehicle. One

student, identified as appellant, came closer to the vehicle than the others, and faced the

vehicle before walking away. Another student seemed to confirm that appellant was the

spitter, but when the detective and school authorities confronted appellant, he denied it.


       Detective Padron issued a citation and this proceeding resulted.               The State

presented the testimony of Detective Padron, two school officials and the other student. The

video recording also was in evidence, and was reviewed several times during trial. The

other student’s testimony was equivocal. Appellant testified, acknowledging that he was the




        2
            In his most direct description of the spit, the detective testified that when he wiped
it off, “it’s still bubbly and water.”

                                               2
student who appeared in the recording approaching the vehicle, but insisting he did not spit

on it. Appellant’s parents testified on his behalf.


       The trial court found appellant guilty and assessed a fine of $100 and court costs.

Appellant timely filed his notice of appeal.


       Appellant contends on appeal that the evidence presented at trial was legally and

factually insufficient to support his conviction. In reviewing issues of legal sufficiency, an

appellate court views the evidence in the light most favorable to the verdict to determine

whether a rational fact finder could have found each element of the offense beyond a

reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003); Conner

v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) (citing Jackson v. Virginia, 443 U.S.

307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).


       The State has not filed an appellee’s brief. Appellant’s argument in his brief, and the

position taken by the State during argument to the trial court, lead us to conclude this case

is of the type represented by Curry v. State, 30 S.W.3d 394 (Tex.Crim.App. 2000). Penal

Code § 28.03(a) describes three categories of conduct constituting the offense of criminal

mischief. Here, as noted, the charging instrument alleged appellant committed criminal

mischief by intentionally or knowingly damaging or destroying the tangible property of the

owner, which is the conduct proscribed by § 28.03(a)(1). Section 28.03(a)(2) provides that

a person commits criminal mischief if “he intentionally or knowingly tampers with the




                                               3
tangible property of the owner and causes pecuniary loss or substantial inconvenience to

the owner or a third person[.]”3


         At trial, in partial response to appellant’s argument the State had not shown the

spitting caused pecuniary loss, the State argued there was evidence the action had caused

substantial inconvenience to Detective Padron.           In his appellate brief, appellant

acknowledges the evidence raised a question of fact whether the spitting caused substantial

inconvenience. But, appellant notes, the issue is of no moment because the State did not

charge him under § 28.03(a)(2), only under § 28.03(a)(1), which requires proof of pecuniary

loss.4


         We must measure the sufficiency of the evidence against the elements of the offense

as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240

(Tex.Crim.App. 1997). See also Gollihar v. State, 46 S.W.3d 243, 246 (Tex.Crim.App.

2001). Such a charge includes one that “accurately sets out the law, is authorized by the

indictment, does not unnecessarily increase the State's burden of proof or unnecessarily

restrict the State's theories of liability, and adequately describes the particular offense for

which the defendant was tried.” Id. This test is applicable in bench trials as well as jury



         3
        The statute also requires the State to prove the conduct was committed without
the effective consent of the owner. Tex. Penal Code Ann. § 28.03(a) (Vernon 2003 and
Supp. 2007).
         4
        Tex. Penal Code Ann. § 28.06; Barnes v State, No. 01-06-00600-CR, 2007 WL
1559853 (Tex.App.–Houston [1st Dist.] May 31, 2007, pet. stricken) (mem. op., not
designated for publication). The State alleged the pecuniary loss here was less than
$50.00, making the offense a Class C misdemeanor. Tex. Penal Code Ann. § 28.03
(Vernon 2003 & Supp. 2007).

                                              4
trials. Malik, 953 S.W.2d at 240; Harvey v. State, 135 S.W.3d 712, 716 (Tex.App.–Dallas

2003, no pet.).


       A hypothetically correct jury charge in this case, accurately setting out the law and

authorized by the charging instrument, Gollihar, 46 S.W.3d at 246, would require for

conviction a finding that appellant damaged or destroyed5 the window of the police car. See

Curry, 30 S.W.3d at 404; Fuller v. State, 73 S.W.3d 250, 255 (Tex.Crim.App. 2002) (Keller,

P.J., concurring) (“When a statute lists more than one method of committing an offense,

and the indictment alleges some, but not all, of the statutorily listed methods, the State is

limited to the methods alleged”). Appellant contends there is no evidence the window was

damaged. We agree.6


       The term “damage” is not statutorily defined so its meaning is to be determined by

its common usage. Cullen v. State, 832 S.W.2d 788, 797 (Tex.App.–Austin 1992, writ

ref’d). Dictionary definitions of damage include “loss or injury to person or property,”

Black’s Law Dictionary 393 (7th ed. 1999), and “loss or harm resulting from injury to person,

property or reputation,” Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). In its

comparison of synonyms to the word “injure,” Merriam-Webster’s Collegiate Dictionary

states that damage “suggests injury that lowers value or impairs usefulness[.]” As noted,

Detective Padron testified he wiped the spit off the window later in the day. He did not


       5
           The State never asserted any property was destroyed in this case.
       6
         For damaged property, the amount of pecuniary loss is “the cost of repairing or
restoring the damaged property within a reasonable time after the damage occurred.” Tex.
Penal Code Ann. § 28.06(b) (Vernon 2003). Appellant contends also there is no evidence
of the cost of repairing or restoring the window. We do not reach that contention.

                                             5
testify to any effect its presence had on the value or usefulness of the vehicle or its window.

Even viewing the evidence in the light most favorable to the court’s finding of guilt, we find

no evidence in this record that the presence of the spit on the Crown Victoria’s window

damaged it. We must conclude the evidence is legally insufficient to support the conviction.

Accordingly, we sustain appellant’s issue, reverse the trial court’s judgment and render a

judgment of acquittal.




                                                  James T. Campbell
                                                      Justice




Publish.




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