                                     NO. 12-14-00160-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

JOSHE LEESHEEN JOHNSON,                          §      APPEAL FROM THE 159TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      ANGELINA COUNTY, TEXAS

                                     MEMORANDUM OPINION

       Joshe Leesheen Johnson appeals her conviction for criminal mischief, for which she was
assessed a sentence of confinement for two years. In one issue, Appellant argues that the
evidence is legally insufficient to support her conviction. We affirm.


                                         BACKGROUND
       Appellant was charged by indictment with criminal mischief causing pecuniary loss of
$1,500 or more but less than $20,000, a state jail felony. She pleaded “not guilty,” and the
matter proceeded to a bench trial.
       The evidence at trial showed that after Appellant was evicted from her apartment, she,
her girlfriend Tiffany Hood, and her friend’s thirteen-year-old son “John Doe” went to the
apartment to retrieve some of Appellant’s belongings. While they were there, Appellant and
Hood broke windows, mirrors, and light and faucet fixtures before leaving.
       Ultimately, the trial court found Appellant “guilty” of state jail felony level criminal
mischief and assessed her punishment at confinement for two years. This appeal followed.
                                        EVIDENTIARY SUFFICIENCY
       In Appellant’s sole issue, she argues that the evidence is legally insufficient to support a
finding that she committed the offense of criminal mischief. Alternatively, Appellant argues that
the evidence is legally insufficient to support a finding that the pecuniary loss is over $1,500.
Standard of Review and Governing Law
       The Jackson v. Virginia1 legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v.
State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Legal sufficiency is the constitutional
minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a
criminal conviction. See Jackson, 443 U.S. at 315–16, 99 S. Ct. at 2786–87; see also Escobedo
v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a
legal sufficiency challenge is whether any rational trier of fact could have found the essential
elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is
examined in the light most favorable to the verdict. See Jackson, 443 U.S. at 320, 99 S. Ct. at
2789; Johnson, 871 S.W.2d at 186. This requires the reviewing court to defer to the trier of
fact’s credibility and weight determinations, because the trier of fact is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. See Brooks, 323 S.W.3d at
899; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. A “court faced with a record of historical facts
that supports conflicting inferences must presume—even if it does not affirmatively appear in the
record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must
defer to that resolution.” Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. A successful legal
sufficiency challenge will result in rendition of an acquittal by the reviewing court. See Tibbs v.
Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).
       The sufficiency of the evidence is measured against the offense as defined by a
hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Such a charge would include 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



       1
           443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979).


                                                        2
the State’s theories of liability, and adequately describes the particular offense for which the
defendant is tried.” Id.
       To prove Appellant guilty of state jail felony level criminal mischief in this case, the
State was required to prove that she intentionally or knowingly damaged or destroyed the
tangible property of Terri Allen without her effective consent, and that the amount of pecuniary
loss is $1,500 or more but less than $20,000. See TEX. PENAL CODE ANN. § 28.03 (West 2011).
Analysis
       In support of Appellant’s contention that the evidence is insufficient, she argues that the
only eyewitness is not credible, the amount of pecuniary loss observed by the eyewitness is less
than $1,500, there is no evidence of certain manners and means of destruction and damage
alleged in the indictment, and there is evidence that some of the damage was not a result of
vandalism.
       The indictment alleged in pertinent part as follows:


       [Appellant did] intentionally or knowingly damage or destroy tangible property, to-wit: an
       apartment unit located in the city of Lufkin, Texas, by pulling a dishwasher away from under a
       counter, pulling a faucet from a sink, breaking light bulbs, ceiling fans and fixtures with the
       defendant’s hand or by striking the light bulbs, ceiling fans, and fixtures with a faucet fixture, by
       placing items in a clothes washer, by breaking windows with the defendant’s foot, by creating a
       hole in a wall of the apartment unit by punching the wall with the defendant’s hand or kicking the
       wall with her foot, by removing cabinet doors and drawers with the defendant’s hand or hands, by
       pulling a thermostat fixture with the defendant’s hands or by striking the thermostat fixture with a
       faucet fixture, by breaking a mirror with the defendant’s hand or foot or with a faucet fixture, by
       damaging the threshold of the apartment unit by manner and means unknown to the grand jury
       without the effective consent of Terri Allen, the owner of said property, and did thereby cause
       pecuniary loss of $1,500 or more but less than $20,000 to the said owner.


       Appellant’s upstairs neighbor, Annette Caldwell, testified that Appellant called her on
September 2, 2012. Appellant asked Caldwell if her belongings had been placed outside her
apartment. Caldwell told her that nothing was outside, and Appellant said she would come and
get her belongings the next day. When Caldwell left for work the next morning, Appellant’s
apartment was “still closed tight.” When she came home that evening, the apartment was “tore
up.” She saw that the window was broken out, the door was left open, the light fixtures were
broken, the dishwasher was “tore up,” and there was debris all over the living room. Caldwell’s
boyfriend told her that he had seen Appellant there moving her things that day.




                                                        3
       Doe testified that the day Appellant was moving out of the apartment, she came to his
house to put some of her things in his mother’s storage building. He then went with Appellant
and Hood to get more things out of the apartment. When they arrived, Doe observed that there
were some things broken and the apartment was in disarray. Appellant took some of her things
out of the apartment and then went back inside. She and Hood began breaking things. They
asked Doe to participate, but he refused. Doe saw Appellant break the sink handle in the kitchen,
the bathroom mirror, and the windows. Appellant used the sink handle to break the bathroom
mirror. Doe saw Hood break the lights off of the ceiling fan.
       Terri Allen, the apartment complex manager, testified that she rented apartment 206 to
Appellant in March 2012. Appellant soon became delinquent in paying her rent. A judgment
evicting Appellant was rendered in July 2012. Allen received a writ of possession on August 30,
2012. On September 4, 2012, she sent Tracy Goodart, the man who performs maintenance for
the complex, to the apartment to make it ready to rent. Goodart called Allen and told her that the
apartment had been vandalized. Allen stated that she went to the apartment and it was “totally
trashed.” She saw that the glass from the front window was removed and shattered. She said it
looked as though someone had broken all of the light fixtures with a bat or something similar.
The thermostat was broken off of the wall. The dishwasher was torn out, open, and tilted onto
the floor. The sink and washing machine had all kinds of trash stuffed into them. In the
bathroom, the medicine cabinet was “completely busted” and glass was on the floor and in the
bathtub. In one of the bedrooms, another glass was removed from a window and broken. There
was a hole knocked into a wall. The front door and threshold were damaged. Allen and Goodart
took pictures that were subsequently admitted at trial.         Allen stated that no one had her
permission to damage the apartment.
       Allen further testified that she and Goodart compiled a list of the damages. Goodart got
bids on the repairs, gave Allen an estimate, and charged her for the repairs. That list was
admitted into evidence and reads as follows:


       Hole in Wall                                 $200
       New Kitchen Faucet                           $120
       Removal of Garbage in Washer                 $50
       New Dishwasher                               $450
       New Thermostat                               $75
       (3) Windows                                  $450
       New Light Fixtures & Ceiling Fans            $450



                                                4
       Fronts to Cabinets (Kit. & Bathroom)           $250
       Medicine Cabinet                               $200
       Front Door & Threshold                         $375
       Trash Out                                      $250
       New flooring & removal                         $1500
       Blinds                                         $35

       TOTAL DAMAGES                                  $4405.00


Allen testified that the estimate was a fair evaluation of the damage done to the apartment.
       Goodart testified that when he walked into the apartment, he saw that the glass and some
of the porcelain part of the ceiling fan light fixture were broken. He said that all of the light
fixtures were broken and on the floor. The dishwasher was pulled out of the cabinet. Goodart
noted that someone had to work to pull the dishwasher out because it was held in by screws. The
washing machine was full of trash.
       Goodart testified that a few days later, he did some restoration work at the apartment. He
repaired and patched a hole in the wall. He removed the garbage. He replaced the thermostat,
the kitchen faucet, the medicine cabinet mirrors, and all three windows. Goodart said that the
carpet had to be replaced because of all the glass in it. He stated that vacuuming would not
assure all of the glass was removed. Goodart stated that some of the damage to the door was
caused by rain, but he repaired only the damage that was from vandalism. He said that the
damage to the threshold was prior damage not caused by vandalism. Goodart had checked the
dishwasher prior to Appellant’s moving in, and it had worked. The trash inside the washing
machine did not cause any damage to it. Goodart said that the list he and Allen prepared was a
fair evaluation of the damage to the apartment.
       Appellant first argues that the evidence of her guilt is insufficient because Doe’s
testimony is not credible. She contends that his testimony should not be considered because he
is a troubled fifteen-year-old boy with bipolar disorder and a history of vandalism. She notes
that Doe’s testimony is inconsistent with his prior statement to the police in that he told the
police he did not see Hood break anything, but testified that she broke the ceiling fan light
fixture. Appellant asserts that no other witness corroborated Doe’s testimony that she was at the
apartment when the damage occurred.           However, Appellant’s neighbor testified, without
objection, that her boyfriend told her he saw Appellant there that day. As is required of a
reviewing court, we defer to the trial court’s credibility and weight determinations. See Brooks,
323 S.W.3d at 899; Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The trial court is the sole judge


                                                  5
of Doe’s credibility and the weight to be given his testimony. See id. Based on our review of the
record, we conclude that a rational trier of fact could have found beyond a reasonable doubt that
Appellant intentionally or knowingly damaged or destroyed the tangible property of Terri Allen
without her effective consent. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also
Johnson, 871 S.W.2d at 186.
       Appellant further argues that even if Doe’s testimony is considered, the evidence
supports a conviction for only misdemeanor level criminal mischief because the pecuniary loss
Doe saw her cause is less than $1,500. She notes that Doe testified he did not see anyone pull
the dishwasher out of its place, knock the thermostat off the wall, put a hole in the wall, or fill
the washing machine with trash. Appellant also observes that Doe testified he saw Hood, not
Appellant, break the lights off of the ceiling fan. Finally, she notes that Goodart testified the
damage to the threshold was not a result of vandalism. Appellant therefore argues that the only
damage the evidence supports her responsibility for is the damage to the windows, the mirror,
and the sink handle. We disagree.
       First, the evidence is sufficient under the law of parties to support all of the pecuniary
loss caused by Appellant and Hood.         Under the law of parties, “[a] person is criminally
responsible as a party to an offense if the offense is committed by [her] own conduct, by the
conduct of another for which [s]he is criminally responsible, or by both.” TEX. PENAL CODE
ANN. § 7.01(a) (West 2011). “A person is criminally responsible for an offense committed by
the conduct of another if . . . acting with intent to promote or assist the commission of the
offense, [s]he solicits, encourages, directs, aids, or attempts to aid the other person to commit the
offense.” Id. § 7.02 (West 2011). Appellant was charged with damaging an apartment unit in
various ways. The evidence shows that Appellant and Hood aided each other in accomplishing
this offense by each damaging different parts of the apartment unit. Therefore, Appellant is
responsible for Hood’s acts as well as her own. See id.
       Regarding the damage that Doe did not see anyone cause, the evidence is sufficient to
support an inference that Appellant was responsible for that damage as well. Doe testified that
he believed the dishwasher was pulled out of its place, the hole was put in the wall, and the
washing machine was filled with trash before he arrived with Appellant and Hood. Doe, Hood,
and Appellant all testified that Hood and Appellant had been at the apartment before Doe, Hood,




                                                 6
and Appellant went there. The trial court could rationally infer that Appellant and Hood caused
the prior damage on their previous trip to the apartment.
       Even when questionable items are removed from the list of damages created by Allen and
Goodart, the total pecuniary loss is over $1,500. Leaving trash in the apartment and in the
washing machine, without causing damage, does not constitute criminal mischief. See Patterson
v. State, 55 S.W. 338 (Tex. Crim. App. 1900). There was no testimony regarding blinds or
cabinet fronts being damaged by vandalism.            The testimony was conflicting regarding the
damage to the threshold. But even without these items, the pecuniary loss is $3,445. Thus, the
evidence is sufficient to prove that the pecuniary loss is greater than $1,500.
       Finally, Appellant argues that the evidence is insufficient because it did not prove all of
the manners and means alleged in the indictment. Specifically, Appellant observes Doe did not
testify that Appellant used her foot to break the windows.
       A “variance” occurs when there is a discrepancy between the allegations in the charging
instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).
In a variance situation, the State has proven a defendant guilty of a crime, but has proven its
commission in a manner that varies from the manner alleged in the indictment. Id. When faced
with a sufficiency challenge based upon a variance between the indictment and the proof, only a
material variance will render the evidence insufficient. Id. at 257.
       A variance involving a nonstatutory allegation that does not help define the allowable
unit of prosecution is never material. Johnson v. State, 364 S.W.3d 292, 298 (Tex. Crim. App.
2012). What is essential about variances with respect to nonstatutory allegations is that the
variance should not be so great that the proof at trial shows an entirely different offense from
what was alleged in the indictment. Id. at 295.
       The variance in Johnson—an aggravated assault case—involved the charged acts of
“hitting the victim with his hand” and “twisting the victim’s arm with his hand” versus the
proved act of “throwing the victim against the wall.” Id. at 298. The court of criminal appeals
observed that the focus or gravamen of the offense was the victim and the bodily injury inflicted,
not the cause of the injury. Id. The court noted that if the variance had been between different
injuries pleaded and proved by the State, it might have been material. Id. But the act that caused
the particular injury in the case did not help define the allowable unit of prosecution. Id. Thus,
the court held that the variance was immaterial. Id.



                                                  7
         In this case, the variance involves the nonstatutory allegation that Appellant used her foot
to break the windows versus the proof at trial that she broke the windows in an unspecified way.
The focus or gravamen of the offense charged is the damage to tangible property, not the
particular way the damage was caused. See TEX. PENAL CODE ANN. § 28.03(a)(1).2 Doe’s
testimony that Appellant broke the windows does not show an entirely different offense from the
one alleged in the indictment—breaking the windows with her foot. Therefore, the allegation
that Appellant used her foot to break the windows does not help define the allowable unit of
prosecution, and the variance is immaterial. See Johnson, 364 S.W.3d at 298. Because the
variance is immaterial, it does not render the evidence insufficient. See Gollihar, 46 S.W.3d at
257. Accordingly, Appellant’s sole issue is overruled.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgment.

                                                                       GREG NEELEY
                                                                          Justice

Opinion delivered September 16, 2015.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




         “A person commits an offense if, without the effective consent of the owner: (1) he intentionally or
         2

knowingly damages or destroys the tangible property of the owner[.] . . .”


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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 16, 2015


                                         NO. 12-14-00160-CR


                                 JOSHE LEESHEEN JOHNSON,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 159th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2013-0719)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
