                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-17-00042-CR


RAYFORD GLEN ROBERSON                                                 APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE

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          FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
                      TRIAL COURT NO. 1413326D

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                         MEMORANDUM OPINION1

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      Pro se appellant Rayford Glen Roberson appeals his state-jail felony

conviction for criminal mischief causing pecuniary loss between $1,500 and

$20,000. In what we construe as four points, Roberson argues that the evidence

is insufficient to support his conviction, that the trial court erred by denying his

motion to quash the indictment, that he did not receive effective assistance of

      1
       See Tex. R. App. P. 47.4.
counsel, and that the trial court abused its discretion by excluding an exhibit that

he offered. We reject these complaints and affirm the trial court’s judgment.

                                Background Facts

      By his admission, one day in April 2015, Roberson cut a catalytic converter

off Melvin Patterson Jr.’s Dodge truck, which was parked in a lot. Jacob Hansen,

a Euless police officer who is assigned to the Tarrant Regional Auto Crimes Task

Force, discovered the catalytic converter near three vehicles, looked on the

undercarriage of Patterson’s truck (one of the three vehicles), and noticed that

the catalytic converter had been cut off. Officer Hansen called Patterson to tell

him that his truck had been damaged. Patterson had the truck towed to a car

dealership to repair it. He paid the dealership $7,962.49 for the repair. The truck

ran well for a couple of weeks before breaking down, and Patterson then paid

$1,200 to repair it again. The police connected Roberson to the crime, and in a

pretrial statement, he admitted cutting off the catalytic converter.

      A grand jury indicted Roberson with committing criminal mischief. The

indictment alleged that he

      INTENTIONALLY     OR   KNOWINGLY    DAMAGE[D]    OR
      DESTROY[ED] TANGIBLE PROPERTY, TO-WIT: A DODGE PICK-
      UP TRUCK BY CUTTING OUT THE CATALYTIC CONVERTER,
      WITHOUT THE EFFECTIVE CONSENT OF MELVIN PATTERSON,
      THE OWNER OF SAID PROPERTY, AND DID THEREBY CAUSE
      PECUNIARY LOSS OF $1500 OR MORE, BUT LESS THAN
      $20000 TO THE SAID OWNER.

For sentence-enhancement purposes, the indictment also alleged that Roberson

had prior felony convictions.


                                          2
      The trial court appointed counsel to represent Roberson. Before trial, by a

handwritten letter, Roberson informed the trial court that he had a conflict with

counsel and that he wanted different counsel.        By another letter, Roberson

alleged that his counsel was “attempting to cause [him] harm.” Roberson also

filed a motion to quash the indictment, contending that the indictment failed to

state allegations in plain, intelligible words; wrongly based the pecuniary loss on

the cost to replace a catalytic converter rather than the fair market value of a new

catalytic converter; and alleged only a misdemeanor rather than a felony.

      Before the trial began, the trial court held a hearing in which Roberson

asked to represent himself. The trial court admonished Roberson about matters

related to self-representation and decided that he could proceed pro se. The trial

court also held a hearing on pretrial motions and denied Roberson’s motion to

quash the indictment.

      At a jury trial, Roberson, proceeding pro se but with the assistance of

standby counsel, pleaded not guilty. He testified that he knew that cutting off the

catalytic converter would damage Patterson’s truck.2 While he admitted that he

had acted illegally by cutting off the catalytic converter, he proposed that he

should have been charged with attempted theft instead of criminal mischief.3


      2
       When the State asked Roberson whether he had caused more than
$1,500 damage to Patterson’s truck, he responded, “That’s possible. The repair
cost and the installation, it could have been very well over that.”
      3
       Similarly, on appeal, Roberson argues that he “attempted to [commit] the
offense of theft . . . by cutting the catalytic converter off of the Dodge truck.”


                                         3
      After considering the parties’ evidence and arguments and deliberating for

thirteen minutes, the jury found Roberson guilty of criminal mischief. The jury

heard more evidence and arguments concerning his punishment, found the

indictment’s   enhancement     allegations   true,   and   assessed    ten   years’

confinement. The trial court sentenced him accordingly, and he brought this

appeal.

                             Evidentiary Sufficiency

      In his first point, Roberson contends that the evidence is insufficient to

support his conviction.   In our due-process review of the sufficiency of the

evidence to support a conviction, we view all of 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 crime beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Jenkins v. State, 493

S.W.3d 583, 599 (Tex. Crim. App. 2016). To determine whether the State has

met its burden under Jackson to prove a defendant’s guilt beyond a reasonable

doubt, we compare the elements of the crime as defined by the hypothetically

correct jury charge to the evidence adduced at trial. See Jenkins, 493 S.W.3d at

599; Crabtree v. State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The

essential elements of the crime are determined by state law.”). Such a charge is

one that accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or restrict the State’s theories

of liability, and adequately describes the particular offense for which the


                                        4
defendant was tried. Jenkins, 493 S.W.3d at 599. The law as authorized by the

indictment means the statutory elements of the charged offense as modified by

the factual details and legal theories contained in the charging instrument. See

id.

      Under section 28.03 of the penal code, a person commits criminal mischief

if the person intentionally or knowingly damages or destroys tangible property

without the property owner’s effective consent.         Tex. Penal Code Ann.

§ 28.03(a)(1) (West Supp. 2017). At the time of Roberson’s offense, criminal

mischief that caused pecuniary loss between $1,500 and $20,000 was a state jail

felony. See Act of May 23, 2009, 81st Leg., R.S., ch. 638, § 1, 2009 Tex. Gen.

Laws 1433 (amended 2015) (current version at Tex. Penal Code § 28.03);

Lackey v. State, 290 S.W.3d 912, 918 (Tex. App.—Texarkana 2009, pet. ref’d)

(explaining that the value of pecuniary loss is a “crucial element of the offense

because it forms the basis of the punishment assessed”). “Pecuniary loss” for

property destroyed by criminal mischief is, if ascertainable, the fair market value

of the property at the time and place of the destruction. Tex. Penal Code Ann.

§ 28.06(a)(1) (West Supp. 2017).     “Pecuniary loss” for property damaged by

criminal mischief is the “cost of repairing or restoring the damaged property

within a reasonable time after the damage occurred.” Id. § 28.06(b). When a

criminal mischief indictment alleges that the defendant damaged or destroyed

property, the evidence is sufficient if it shows either damage or destruction. See




                                        5
Adams v. State, 222 S.W.3d 37, 48 (Tex. App.—Austin 2005, pet. ref’d); Cullen

v. State, 832 S.W.2d 788, 796 (Tex. App.—Austin 1992, pet. ref’d).

      We construe Roberson’s brief as arguing that the evidence is insufficient to

prove that he caused damage or destruction, to prove his culpable mental state,

and to prove Patterson’s resulting pecuniary loss under theories of either

damage or destruction.     We disagree.      The evidence, including Roberson’s

testimony, established that he cut a catalytic converter off of Patterson’s truck

without Patterson’s consent, that he knew that he was damaging Patterson’s

truck by cutting off the catalytic converter, and that repairs to the damaged truck

cost Patterson between $1,500 and $20,000, as the indictment alleged.4

Viewing the evidence in the light most favorable to the jury’s verdict, we conclude

that a rational factfinder could have found all the elements of criminal mischief

causing pecuniary loss between $1,500 and $20,000 beyond a reasonable

doubt.5 See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Jenkins, 493 S.W.3d at


      4
        To the extent that Roberson argues that the State was required to present
expert testimony about the amount of Patterson’s pecuniary loss or that
Patterson’s testimony along with the repair receipt were insufficient to prove the
loss, we disagree. See Holz v. State, 320 S.W.3d 344, 350, 352 (Tex. Crim.
App. 2010); see also Evans v. State, No. 04-13-00457-CR, 2014 WL 2802909, at
*3 (Tex. App.—San Antonio June 18, 2014, no pet.) (mem. op., not designated
for publication) (holding that an invoice showing the amount paid to repair
damaged windows proved pecuniary loss in a criminal mischief case).
Furthermore, nothing in the record supports Roberson’s assertion on appeal that
the State “elected to proceed on a theory of destruction to the catalytic converter”
rather than on a theory of damage to the truck.
      5
        We reject Roberson’s argument that his conviction for criminal mischief is
infirm simply because his conduct could have also constituted theft or attempted

                                         6
599; see also Tex. Penal Code Ann. §§ 28.03(a)(1), .06(b).               We overrule

Roberson’s first point.6

                                  Motion to Quash

      In Roberson’s second point, he challenges the trial court’s denial of his

motion to quash. He argues that the indictment was defective because it did not

describe the manner and means by which he damaged or destroyed the truck,

because it did not allege “facts by which the prosecution would establish damage

or [destruction],” because it did “not appear from the indictment that an offense

against the law was committed,” because the indictment’s “pecuniary loss

amount . . . [was] not the fair market value for the repair, restoration, [or]

replacement of the property,” because the indictment did not use plain and

intelligible words, and because the indictment was duplicitous.

      An accused is guaranteed fair notice of the nature and cause of the

accusations against him. Rodriguez v. State, No. 02-16-00169-CR, 2017 WL

3910979, at *5 (Tex. App.—Fort Worth Sept. 7, 2017, pet. ref’d) (mem. op., not



theft. See Mallett v. State, 65 S.W.3d 59, 68 (Tex. Crim. App. 2001) (holding that
a defendant could be convicted of both aggravated assault and criminal mischief
based on one criminal incident). We also reject Roberson’s contention that the
State failed to establish the corpus delicti of criminal mischief; the cut-off catalytic
converter proved the essential nature of the crime. See Miller v. State, 457
S.W.3d 919, 924 (Tex. Crim. App. 2015) (stating that when a defendant makes
an extrajudicial confession, the corpus delicti rule requires evidence showing that
the essential nature of a charged crime was committed by someone).
      6
       We deny Roberson’s “Motion to Take Judicial Notice,” which he filed in
this court in September 2017.


                                           7
designated for publication) (citing State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim.

App. 2004)); see State v. Barbernell, 257 S.W.3d 248, 250–51 (Tex. Crim. App.

2008). “Toward that end, Chapter 21 of the Texas Code of Criminal Procedure

governs charging instruments and provides legislative guidance concerning the

requirements and adequacy of notice.” State v. Zuniga, 512 S.W.3d 902, 906

(Tex. Crim. App. 2017).

      Under chapter 21, an indictment is sufficient if it

      charges the commission of the offense in ordinary and concise
      language in such a manner as to enable a person of common
      understanding to know what is meant, and with that degree of
      certainty that will give the defendant notice of the particular offense
      with which he is charged, and enable the court, on conviction, to
      pronounce the proper judgment.

Tex. Code Crim. Proc. Ann. art. 21.11 (West 2009); see also id. § 21.02 (West

2009) (setting forth requisites of an indictment, including that the indictment must

set forth the offense in “plain and intelligible words”). In most cases, “a charging

instrument possesses sufficient specificity to provide a defendant with notice of a

charged offense when it tracks the language of a criminal statute.” Rodriguez,

2017 WL 3910979, at *5 (citing State v. Edmond, 933 S.W.2d 120, 128 (Tex.

Crim. App. 1996)); see State v. Jarreau, 512 S.W.3d 352, 354 (Tex. Crim. App.

2017) (“An indictment that tracks the language of a statute usually gives sufficient

notice.”). We review a trial court’s denial of a motion to quash an indictment de

novo. See State v. Richardson, 439 S.W.3d 403, 404 (Tex. App.—Fort Worth

2014, pet. ref’d).



                                          8
      Roberson’s indictment tracked section 28.03’s language by alleging, in

plain and intelligible words, that without Patterson’s effective consent, Roberson

intentionally or knowingly damaged or destroyed tangible property, the truck,

therefore causing pecuniary loss between $1,500 and $20,000. The indictment

also alleged the means by which Roberson damaged the truck: cutting out the

catalytic converter.7 We conclude and hold that the language in the indictment

satisfied the notice requirements articulated above in charging the single offense

of criminal mischief and that the trial court did not err by overruling Roberson’s

motion to quash the indictment in this case.8 We overrule his second point.




      7
       We reject Roberson’s contention that the indictment did not specify a
manner and means of committing criminal mischief. We also reject Roberson’s
argument that there was any material variance (or any variance at all) between
cutting “out” the catalytic converter, as the indictment alleged, and cutting “off”
the catalytic converter, which he concedes he did. See Johnson v. State, No. 12-
14-00160-CR, 2015 WL 5439743, at *5 (Tex. App.—Tyler Sept. 16, 2015, no
pet.) (mem. op., not designated for publication) (holding that in a criminal
mischief case, a variance between the indictment’s allegation that the defendant
broke a window with her foot and the evidence that she broke it in an unspecified
way was immaterial because the gravamen of criminal mischief is “damage to
tangible property, not the particular way the damage was caused”).
      8
      Roberson also appears to contend that the trial court erred by not ruling
on motions to quash other indictments related to theft charges. This appeal,
however, concerns a conviction from a single indictment for criminal mischief.


                                        9
                             Assistance of Counsel

      In what we construe as his third point, Roberson contends that the trial

court denied his right to effective assistance of counsel. He first argues that the

trial court erred by denying his motion to substitute counsel.

      Before trial, in 2016, Roberson informed the trial court in writing of his

request for different appointed counsel. In letters, he stated that he had a conflict

with his appointed counsel and expressed his belief that counsel wanted to

physically harm him.

      In November 2016, the trial court held a pretrial hearing. At that hearing,

Roberson complained that his counsel had not visited him and had not “done

anything that [Roberson expected] from [his] attorney, not even the minimum.”

When the trial court asked Roberson whether he wanted to represent himself,

Roberson said, “I would like another attorney that would represent me. . . . [J]ust

him standing in as appointed [counsel] is not representation as far as I’m

concerned.” Without expressly ruling on Roberson’s request for new appointed

counsel, the trial court again asked Roberson whether he wanted to represent

himself. Roberson said that he wanted to do so.

      In January 2017, the trial court held another pretrial hearing, and appointed

counsel appeared with Roberson.         The trial court stated that counsel had

contacted the court and had informed the court of Roberson’s desire to represent

himself.   Roberson again confirmed that he wanted to represent himself and

expressed that he was “confident” that he could do so; he did not ask for the


                                         10
appointment of new counsel.       The trial court expressed that it would allow

Roberson to proceed pro se. In February 2017, when the trial began, Roberson

again expressed his desire to proceed pro se, and the trial court permitted him to

do so with the assistance of standby counsel.

       Assuming, without deciding, that the trial court implicitly denied Roberson’s

request for new appointed counsel, we must review that denial for an abuse of

discretion. See Coleman v. State, 246 S.W.3d 76, 85 n.36 (Tex. Crim. App.

2008); King v. State, 29 S.W.3d 556, 566 (Tex. Crim. App. 2000). A trial court

has no duty to search for counsel agreeable to a defendant. King, 29 S.W.3d at

566.   The defendant carries the burden of proving an entitlement to change

counsel. Barnett v. State, 344 S.W.3d 6, 24 (Tex. App.—Texarkana 2011, pet.

ref’d). “[P]ersonality conflicts and disagreements concerning trial strategy are

typically not valid grounds for withdrawal.” King, 29 S.W.3d at 566.

       Here, Roberson presented scant evidence to the trial court to support his

request for a change of appointed counsel. His statements to the trial court at

the November 2016 hearing indicate that he principally differed with counsel

about their interpretations of the relevant law and about the validity of his motion

to quash the indictment (which the trial court ultimately denied). At that hearing,

Roberson’s counsel informed the trial court that he had explained legal issues to

Roberson and that Roberson had expressed “different opinions” about those

issues. Counsel also stated,




                                        11
      Judge, he keeps saying I didn’t do anything. I’ve researched all the
      points. I’ve told him what my interpretation of the law is on them, and
      I believe his interpretation is wrong. I mean, that’s all I can do. He
      won’t take the offer that the State’s made. He keeps saying I’m
      trying to make him go to trial and stuff. But he’s the one that won’t
      take an offer.

During the hearing, the State also opined about counsel’s representation of

Roberson; the prosecutor stated,

      I just want to . . . put on the record that [defense counsel] and I had
      numerous conversations. [Defense counsel] has come to me on a
      number of occasions and asked me to get items from another
      county, which I have done on a number of occasions, and I have
      done everything he’s asked me to do.

             We have frequently talked about the law, and he and I are in
      agreement with what the statute says and what our indictment says,
      and it tracks the language of the statute. But . . . [defense counsel]
      is working very hard for his client. Even though his client doesn’t
      think so, we have had numerous conversations and negotiations
      about this case.

      Given the weak evidence supporting Roberson’s request to change

counsel, counsel’s representation that he had researched the matters that

Roberson had brought to his attention, and the State’s representation that

counsel had diligently worked on Roberson’s case, including presenting to the

State the legal matters that Roberson was concerned about, we cannot conclude

that the trial court abused its discretion by denying Roberson’s request to change

appointed counsel. See Coleman, 246 S.W.3d at 85 n.36; King, 29 S.W.3d at

566. To that extent, we overrule Roberson’s third point.

      Roberson also appears to contend that in counsel’s role as standby

counsel at trial, counsel was ineffective. This argument is not legally cognizable


                                        12
because when a “defendant has insisted upon self-representation, any

subsequent claim of ineffective assistance of counsel is not to be considered.”

Perez v. State, 261 S.W.3d 760, 766 (Tex. App.—Houston [14th Dist.] 2008, pet.

ref’d); see Rodriguez v. State, 491 S.W.3d 18, 29 (Tex. App.—Houston [1st Dist.]

2016, pet. ref’d) (citing Perez and rejecting an appellant’s claim that his standby

counsel was ineffective); see also Curry v. State, No. 07-11-00425-CR, 2014 WL

931246, at *1 (Tex. App.—Amarillo Mar. 6, 2014, pet. ref’d) (mem. op., not

designated for publication) (“[A] defendant acting pro se has no constitutional

right to the effective assistance of standby counsel.”). We overrule Roberson’s

third point to the extent that he argues that standby counsel was ineffective.

      Finally, to the extent that Roberson argues that his decision to proceed pro

se was not voluntary, we cannot agree. See Cofer v. State, No. 02-16-00101-

CR, 2017 WL 3821885, at *2 (Tex. App.—Fort Worth Aug. 31, 2017, no pet.)

(mem. op., not designated for publication) (stating that a waiver of counsel is

valid if it is made “competently, knowingly and intelligently, and voluntarily” and

explaining that the “decision to waive counsel . . . is made ‘knowingly and

intelligently’ if it is made with a full understanding of the right to counsel being

abandoned, as well as the dangers and disadvantages of self-representation”).

The record establishes that on multiple occasions, the trial court admonished

Roberson about the challenges of self-representation and ensured that he

wanted to represent himself despite those challenges. Roberson expressed that

he would “be fine” and that he was “confident to move forward.” We hold that the


                                        13
record establishes Roberson’s knowing, competent, and voluntary choice to

represent himself. We overrule the remainder of this third point.

                             Exclusion of Evidence

      In what we construe as his fourth point, Roberson argues that the trial

court abused its discretion by excluding relevant evidence.         During the trial,

Roberson asked the trial court to admit an exhibit that had the printed text of

section 31.08 of the penal code along with handwritten references to two

websites that, according to Roberson, showed the fair market value of catalytic

converters. The State objected to the admission of the document on the ground

that it contained hearsay. The trial court sustained the State’s objection and told

Roberson that the court would “provide the jury with the law during the Court’s

Charge.”

      We review a trial court’s decision to exclude evidence for an abuse of

discretion. Pantoja v. State, 496 S.W.3d 186, 191 (Tex. App.—Fort Worth 2016,

pet. ref’d). If the trial court’s “evidentiary ruling is correct on any theory of law

applicable to that ruling, it will not be disturbed.” Devoe v. State, 354 S.W.3d

457, 469 (Tex. Crim. App. 2011).

      Only relevant evidence is admissible. Tex. R. Evid. 402. Evidence is

admissible when it makes a fact of consequence more or less probable. Tex. R.

Evid. 401. As the State argues, the text of section 31.08—a provision within the

chapter of the penal code related to theft—was not relevant to this case because

the State did not charge Roberson with theft.         See Tex. Penal Code Ann.


                                         14
§ 31.08(a) (West 2016) (providing the definitions for value “under this chapter”).

Furthermore, Roberson’s proffer at trial failed to show the relevance to any fact of

consequence of his handwritten references to two websites.

      We conclude that the trial court did not abuse its discretion by excluding

Roberson’s proffered exhibit. See Pantoja, 496 S.W.3d at 191. We overrule his

fourth point.

                                   Conclusion

      Having overruled all of Roberson’s points, we affirm the trial court’s

judgment.


                                                   /s/ Wade Birdwell
                                                   WADE BIRDWELL
                                                   JUSTICE

PANEL: GABRIEL, PITTMAN, and BIRDWELL, JJ.

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

DELIVERED: February 1, 2018




                                        15
