                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-10-00042-CR


KEN JANNERETH                                                     APPELLANT

                                          V.

THE STATE OF TEXAS                                                     STATE


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      FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

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                        MEMORANDUM OPINION1
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                                   Introduction

      Appellant Ken Jannereth appeals his conviction for criminal mischief,2

claiming in three points that the evidence is insufficient and that the State‘s

witness list was inaccurate. We affirm.




      1
       See Tex. R. App. P. 47.4.
      2
       Tex. Penal Code Ann. § 28.03(a)(1), (b)(2) (West 2011).
                      Factual and Procedural Background

      Appellant resides in the Bar VK Air Ranch Estates (Bar VK) and is a

member of its homeowners‘ association (HOA). The HOA holds a warranty deed

for Bar VK‘s common areas, which include a private lake and a road providing

access to the lake (the lake road).

      The HOA holds annual meetings in October. Members who attended3 the

October 2008 meeting voted unanimously to erect a barrier on the lake road in

response to residents‘ complaints about use of the lake by non-residents. The

barrier consisted of twin PVC pipes inserted vertically into and locked onto metal

sleeves buried into the ground. The barrier was designed to curtail access by

large vehicles yet still allow small vehicles such as golf carts and ATVs to pass

through. Each executive committee (EC) member of the HOA was given a key

with which to unlock the padlocks and remove the pipes whenever a resident

wished to drive a larger vehicle to the lake.

      On January 31, 2009, Appellant told HOA president Vaughn Gary Petty

(Petty), that if the barrier was installed, Appellant would tear it down.      On

February 6, 2009, Appellant made similar statements to EC members while they

constructed the barrier.   Two days later, on February 8, 2009, EC members

found the barrier pipes removed from the metal sleeves and strewn alongside the




      3
       Appellant did not attend this meeting.


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road. They restored the barrier, and on February 11, 2009, found it removed

once more and broken as well.

       Appellant admitted to Petty and to law enforcement personnel that he had

cut the locks and dismantled the barrier pipes on both occasions, but he denied

that he had done any other damage to the barrier.

       Appellant was charged with criminal mischief, tried by a jury, and

convicted. The trial court, assessing punishment for the Class B misdemeanor

offense,4 ordered him to pay a fine and serve 180 days in the county jail,

probated for two years.

                           Sufficiency of the Evidence

       In his first two points, Appellant challenges the legal and factual sufficiency

of the evidence to support his conviction. The court of criminal appeals has held

that there is no meaningful distinction between the standards of review for

determining whether evidence at trial is legally sufficient as opposed to factually

sufficient.   Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010)

(overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)).

Accordingly, the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct.

2781 (1979), is the ―only standard that a reviewing court should apply in

determining whether evidence is sufficient to support each element of a criminal

offense that the State is required to prove beyond a reasonable doubt.‖ Id. at



       4
        See Tex. Penal Code Ann. § 28.03(b)(2).


                                          3
895; see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Applying the Jackson

standard to Appellant‘s first two points, we must consider the evidence in the light

most favorable to the prosecution to determine 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 319, 99 S. Ct. at 2789; Clayton v. State, 235

S.W.3d 772, 778 (Tex. Crim. App. 2007).

      The jury found Appellant guilty of criminal mischief that caused damage of

fifty dollars or more but less than $500. A person commits this offense if he

intentionally or knowingly damages or destroys tangible property without the

owner of that property‘s effective consent and in so doing causes a pecuniary

loss of fifty dollars or more but less than $500.     See Tex. Penal Code Ann.

§ 28.03(a)(1), (b)(2).

      Appellant contends that the evidence is insufficient because (1) the State

did not prove that he was not an owner of the damaged property, (2) he had a

right to take down the barrier in order to enforce a restrictive covenant, (3) no

witness had ―actual knowledge‖ that he caused the damage, and (4) the

pecuniary loss from the damage was less than that alleged by the State.

The evidence is sufficient to show that Petty was the owner.

      In subpoint IA, Appellant argues that the State failed to meet its burden to

prove that he was not an owner of the property the jury found him guilty of

damaging. As the State correctly points out, however, the State was not required

to prove a negative. Contrary to Appellant‘s claim, in order to sustain a guilty


                                         4
verdict the State had to prove ownership by the complainant, not non-ownership

by Appellant. An owner is 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 person charged with damaging or destroying the property. See

Tex. Penal Code Ann. § 1.07(a)(35)(A) (West 2011). Ownership may be proven

by oral testimony. Smith v. State, 638 S.W.2d 476, 478 (Tex. Crim. App. 1982);

Milo v. State, 748 S.W.2d 614, 616 (Tex. App.––San Antonio 1988, no pet.).

      Article 21.08 of the code of criminal procedure provides in part:

      Where one person owns the property, and another person has the
      possession of the same, the ownership thereof may be alleged to be
      in either. Where property is owned in common, or jointly, by two or
      more persons, the ownership may be alleged to be in all or either of
      them . . . .

Tex. Code Crim. Proc. Ann. art. 21.08 (West 2009).           The court of criminal

appeals has frequently said that this statute applies to property owned by a

corporation. Eaton v. State, 533 S.W.2d 33, 34 (Tex. Crim. App. 1976). The

court has also said that when the property referred to in an indictment belongs to

a corporation, it is not only permissible but also the better pleading practice to

allege ownership in a natural person acting for the corporation. Id. (citing Castillo

v. State, 469 S.W.2d 572, 573 (Tex. Crim. App. 1971); Walling v. State, 437

S.W.2d 563, 564 (Tex. Crim. App. 1969)).

      Here, the indictment alleged Petty as the owner of the subject property.

The record shows that the HOA is a non-profit corporation holding a warranty

deed to the common areas of the Bar VK. Petty testified that he was president of


                                         5
the HOA during October 2008. Because the State alleged Petty as the owner

and the evidence showed that he was the president of the HOA, that the HOA

was a non-profit corporation, and that Petty acted on its behalf during the

relevant time period, we hold the evidence is sufficient to show ownership as

alleged and we overrule subpoint IA.

      In subpoint IB, Appellant argues that ―the jury erred when it did not

consider Appellant‘s property interest as a defense.‖ In other words, he, as one

with an ownership interest, gave effective consent to himself to damage the

pipes. We have already held that the evidence is sufficient to establish that

Petty, acting on behalf of the HOA, was the owner of the subject property. The

most that the evidence shows by virtue of Appellant‘s membership in the HOA is

that he enjoyed a privilege to use the HOA‘s common areas. But a privilege to

use is akin to a license; it is not ownership. See Settegast v. Foley Bros. Dry

Goods Co., 114 Tex. 452, 455, 270 S.W. 1014, 1016 (1925) (defining license as

a privilege or authority given to one or retained by one to do some act or acts on

land belonging to another, but which does not amount to an interest in the land

itself); Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex. App.––El Paso, no

writ) (1993) (same). Moreover, even if we were to accept Appellant‘s claim that

he had some ownership interest in the property, which we do not, Appellant

concedes that the penal code provides that ―[i]t is no defense to prosecution [that

he] has an interest in the property damaged or destroyed if another person also

has an interest that the actor is not entitled to infringe.‖ See Tex. Penal Code


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Ann. § 28.05 (West 2011).         As stated above, the evidence is sufficient to

establish that Petty acted for the HOA as the owner.            Furthermore, Petty

specifically testified that no one had his consent to damage the pipe, cut the

locks, or bend the pipes down. There is no evidence in the record showing that

Appellant was entitled to infringe upon the HOA‘s ownership interest in the

property despite his claim that he was justified in damaging the HOA‘s property in

order to enforce its covenants.

      Without citing any authority for his position, Appellant argues that he ―had

‗effective consent‘ to cut the locks effective[ly] blocking the roadway pursuant to

the deed restrictions and the covenants running with the land.‖          He makes

several references in his brief to the original deed restrictions admitted as State‘s

Exhibit 2.   A careful reading of that exhibit, however, reveals that the deed

restrictions do not authorize the self-help remedy Appellant employed and

therefore do not provide, as he claims, any defense to his criminal conduct. On

the other hand, the deed restrictions do provide the following remedy, one that

drastically differs from the one chosen by Appellant:

      If any person or persons shall violate or attempt to violate any of the
      restrictions and covenants herein, it shall be lawful for any person or
      persons owning any lot in said subdivision to prosecute proceedings
      at law or in equity against the person violating or attempting to
      violate any such restriction and covenant, either to prevent him or
      them from so doing or to correct such violation or to recover
      damages or other relief for such violation.

      Instead, Appellant chose a vigilante approach and took the law where it did

not belong: into his own hands. We overrule subpoint IB.


                                         7
The evidence is sufficient to show that Appellant damaged the barrier.

      While conceding that there is evidence in the record that he cut the locks

and removed the barrier, Appellant contends in subpoint 2A that the evidence is

nevertheless insufficient to show that he caused any damage to the barrier pipes

or to the pins that held them because no witness testified to having ―actual

knowledge as to who or what caused the damage.‖

      The jury, however, as trier of fact, was entitled to draw reasonable

inferences from the evidence and under the appropriate standard of review, we

will uphold those inferences if they are supported by the evidence viewed in the

light most favorable to the verdict. See Hooper v. State, 214 S.W.3d 9, 13 (Tex.

Crim. App. 2007). We look at events occurring before, during, and after the

commission of the offense and may rely on actions of the defendant which show

an understanding and common design to do the prohibited act.             Id. (citing

Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied, 476

U.S. 1101 (1986)). Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt. Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex.

Crim. App. 2004)).    It is enough if the jury‘s conclusion is warranted by the

combined and cumulative force of all the incriminating circumstances. Johnson

v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993), cert. denied, 511 U.S.

1047 (1994).




                                         8
      Petty testified that on January 31, 2009, before the barrier pipes were

installed, Appellant threatened to tear them down. Karl Towle testified that as he

and other EC members were physically installing the barrier on February 6, 2009,

Appellant, appearing ―fairly upset,‖ drove up, and threatened to knock down ―any

pipes installed on the road.‖

      Ray Walker, a resident of Bar VK and member of the EC, testified that he

was among those who put up the barrier and to whom Appellant threatened to

take it down. Walker further testified that early on the morning of February 8,

2009, two days after the barrier was installed, Appellant telephoned him wanting

him to unlock the posts so that Appellant could access the lake. Walker replied

that he would need to get dressed but that he would ―absolutely come down

there and let [Appellant] in.‖ The airline that Walker worked for called during their

conversation, and Appellant told him to go ahead and take the call. Walker

promised to call Appellant right back and when he did within fifteen minutes,

Appellant‘s wife told Walker that Appellant was down at the pipes going to the

lake. Walker called Petty.

      The locks were found cut, one PVC pipe had been snapped off and broken

from its socket with a hole punched through it, and pieces of the barrier were

scattered in the ditch.

      Appellant admitted to Petty and to law enforcement personnel that he cut

the locks. He further admitted to Petty that after cutting the locks, he removed

the posts and threw them to the side, but he denied damaging the pipes.


                                         9
      On February 11, 2009, after new locks and at least one new pin had been

purchased and the barrier pipes re-installed, Walker was in his front yard when

he saw Appellant drive a car down to the barrier. He watched as Appellant

exited the car and bent over near one of the barrier posts. Appellant moved his

arms in a way that made Walker think he was using bolt cutters to cut the locks.

This time, sheriff‘s deputies were called to investigate.

      The new locks had been cut, the pipes had been removed, the pins were

missing, the steel loops which anchored the posts to the metal sleeve were

folded over, and the wall of one sleeve was bent.

      Texas Ranger Tracy Murphree testified that upon his review of the

investigation, he concluded that the pipes were damaged at the same time the

locks were cut.

      Based on the evidence in the record—including evidence that Appellant

had been a longstanding and vocal opponent of the barrier—showing that the

barrier was twice found taken down and damaged almost as soon as it was

installed and close in time to instances in which Appellant threatened to take the

barrier down, and that he was seen close to it moving in a manner that looked

like he was using bolt cutters on it, we hold that the jury was able to reasonably

infer that Appellant damaged all the property, not just the locks. Further, the jury

was free to weigh the evidence and reach a credibility determination that

Appellant had lied when he denied knowing what caused the damage. Viewed in

the appropriate light, the evidence supports reasonable inferences that in turn


                                         10
support the verdict. Therefore, we hold that the evidence is sufficient and we

overrule Appellant‘s subpoint 2A.

The evidence is sufficient to show that the pecuniary loss was as alleged.

      In subpoint 2B, Appellant takes issue with the jury‘s determination that

Appellant caused at least fifty dollars worth of damage. The amount of pecuniary

loss in a case of criminal mischief causing property damage is the cost of

repairing or restoring the damaged property within a reasonable time after the

damage occurs.     Tex. Penal Code Ann. § 28.06(b) (West 2011); Milo, 748

S.W.2d at 617.

      Towle testified that after the barrier was damaged the first time, he and

other members of the EC had to buy two new locks and at least one pin to hold

the pipes in the metal sleeve. He further testified that when the barrier was

damaged the second time, they had to purchase a new PVC pipe, a new cap,

new reflective tape, and two new locks with six keys for the EC members and the

airport manager; that two new cross pins had to be constructed; and that one of

the members had to prepare and paint the new PVC pipe. He produced receipts

which were admitted in evidence. The cost to replace the first two padlocks

damaged totaled $15.94 before sales tax. The cost of replacing the locks the

second time, sales tax again excluded, was $15.32. The keys cost $4.74, the

PVC cap cost $7.35, the PVC pipe cost $8.50, the pins cost $4.68, and the

reflective tape cost $8.99. We calculate that these items before sales tax totaled

$65.52. On top of that, Towle testified that the sales tax on these items was


                                       11
8.25%.       Viewed in the light most favorable to the verdict, the evidence is

sufficient to support the jury‘s finding beyond a reasonable doubt that the

pecuniary loss was greater than fifty dollars. Accordingly, we overrule subpoint

2B.

              Vaughn Gary Petty’s Name on the State’s Witness List

       In Appellant‘s third and final point he complains that the State listed Petty‘s

name on the witness list as Gary Petty instead of his full legal name, Vaughn

Gary Petty, and that he was unfairly surprised when Petty was sworn in and

testified.    At any stage of trial, the State should disclose the names of all

witnesses it intends to call. Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App.

1977). It is within the trial court‘s discretion to decide to allow a witness not on

the State‘s witness list to testify. Martinez v. State, 867 S.W.2d 30, 39 (Tex.

Crim. App. 1993), cert. denied, 512 U.S. 1246 (1994); Lemasurier v. State, 91

S.W.3d 897, 900 (Tex. App.––Fort Worth 2002, pet. ref‘d). Among the factors a

reviewing court considers in determining whether there has been an abuse of

discretion are: (1) a showing of bad faith on the part of the prosecutor in failing to

disclose the witness‘s name before trial; and (2) whether the defendant could

have reasonably anticipated that the witness would testify, although his or her

name was not included on the witness list. Lemasurier, 91 S.W.3d at 900–01

(citing Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992); Stoker

v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951

(1990)).


                                         12
      The State, in its indictment, alleged the owner of the damaged property as

Vaughn Petty. The record indicates that three days after Appellant made his

request for discovery and well in advance of trial, the State provided a witness list

identifying a witness as ―Vaughn Gary Petty,‖ followed by ―Gary‖ in parenthesis.

The State apparently provided a second list to Appellant just prior to jury

selection that listed ―Gary Petty‖ as the first witness. We hold that on the record

before us, Petty‘s name was on the witness list provided to Appellant and that

Appellant reasonably could have anticipated that Petty would testify.            We

overrule Appellant‘s third point.

                                    Conclusion

      Having overruled all of Appellant‘s points, we affirm the trial court‘s

judgment.




                                                    LEE GABRIEL
                                                    JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

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

DELIVERED: August 4, 2011




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