
COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-02-205-CR
 
CHARLES M. HARVEY                                                              
        
APPELLANT
V.
THE STATE OF TEXAS                                                              
            
STATE
 
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FROM COUNTY CRIMINAL COURT NO. 6 OF TARRANT COUNTY
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OPINION
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I. Introduction
A jury convicted Appellant Charles
M. Harvey for the misdemeanor offense of graffiti, and the trial court assessed
his punishment at one day's confinement in the Tarrant County Jail and a $500
fine. On appeal, Appellant challenges the legal and factual sufficiency of the
evidence in support of the jury's implicit finding that Appellant made the
graffiti with an indelible marker. See Tex. Penal Code Ann. §
28.08(a)(2) (Vernon 2003). We affirm.
II. Factual
Background
Appellant was charged by
information for intentionally and knowingly marking the wall of a restroom with
an indelible marker without the effective consent of the property owner on
September 12, 2000. See id. At trial the State presented evidence that
over a period of time in 2000, employees at a work area of the Dallas-Fort Worth
International Airport noticed a graffiti problem in one of the men's restrooms,
consisting of racially-motivated words and drawings. Frank Baker, an employee at
American Eagle, described the symbols and words in the graffiti as being racial
slurs, offensive, and hateful. Baker testified that the following had been
written in the bathroom: "I hate n*****s," "Kill all
n*****s," and "Die n****r."
Baker testified that all of the
markings he saw were made with a black marker. Efforts had been made to clean
the walls with an abrasive hand soap used by mechanics; however, the markings
could not be wiped off without removing the paint from the wall. Consequently,
American Eagle, which was responsible for maintaining the bathroom, adopted a
policy of spray-painting over any graffiti found in the bathroom.
On September 12, 2000, American
Eagle employee Michael Wright decided to monitor the bathroom to see if he could
catch the person who was writing on the walls. Wright testified that he went
into the bathroom after it had been freshly painted and inspected the toilet,
mirror, sink, paper towel dispenser, and garbage can. Wright observed no
graffiti in the bathroom.
Wright sat outside of the bathroom
and watched each person who went inside. After every person came out, Wright
went inside and made a full inspection of the bathroom. Wright testified that he
followed three people, inspected the bathroom, and found no graffiti. Appellant
went inside the bathroom next, and Wright went in after Appellant had left.
Wright observed a marking on the paper towel dispenser that had not been in the
bathroom before Appellant entered. Wright reported the new graffiti to his
supervisors.
The mark on the paper towel
dispenser consisted of a symbol with "SWP" and "KKK" written
underneath the symbol. Wright testified that "SWP" stood for
"Supreme White Power" and "KKK" stood for "Ku Klux
Klan." Officer E. Rice, an officer with the DFW Department of Public
Safety, saw the graffiti and described the markings as follows:

       
  What I observed was it had an outer circle with a couple of triangles pointing
  at different directions that crossed each other, and then in the center it had
  the letters "KKK." And then, on the outside of that, inside the
  circle, it had "S" at the left corner, "W" at the bottom,
  and then "P" at the right corner, "SWP."

Wright testified that he did not
find a marking pen in the bathroom and did not actually see the pen used to mark
the bathroom. Baker testified that he knew Wright was monitoring the bathroom on
September 12, 2000. Baker testified that after Wright discovered the new
marking, he too observed the graffiti and saw a circle with an emblem in it and
the letters "SWP" and "KKK" written nearby.(1)
Baker testified that the graffiti
was done with the same black marker that had been used in the previous
incidents. At trial, Baker testified that he noted that Appellant had a black
marker in his shirt pocket. Baker conceded on cross-examination, however, that
he did not mention seeing the black marker in Appellant's pocket when he gave
his statement to the investigating DPS officer. Appellant was brought to trial
solely for the September 12 incident, and after hearing all of the testimony and
considering all of the evidence presented, a jury found Appellant guilty as
charged in the information.
III. Discussion
In two issues on appeal, Appellant
complains that the evidence was legally and factually insufficient to support
his conviction for the offense of graffiti. Specifically, Appellant argues that
there was no evidence showing that the graffiti was made with an "indelible
marker" as alleged in the information. See id. § 28.08(e).
A. Applicable Law
A person commits an offense if,
without the effective consent of the owner, the person intentionally or
knowingly makes markings, including inscriptions, slogans, drawings, or
paintings, on the tangible property of the owner with an indelible marker. Id.
§ 28.08(a)(2). Section 28.08 defines "indelible marker" to mean
"a device that makes a mark with a paint or ink product that is
specifically formulated to be more difficult to erase, wash out, or remove than
ordinary paint or ink products." Id. § 28.08(e)(3).
B. Legal
Sufficiency
In reviewing the legal sufficiency
of the evidence to support a conviction, we view all the evidence in the light
most favorable to the verdict in order 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); Burden v. State, 55 S.W.3d 608, 612 (Tex. Crim. App. 2001).
This standard gives full play to the responsibility of the trier of fact to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319, 99 S. Ct. at 2789. When performing a legal sufficiency review, we
may not sit as a thirteenth juror, re-evaluating the weight and credibility of
the evidence and, thus, substituting our judgment for that of the fact finder. Dewberry
v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. denied,
529 U.S. 1131 (2000). The standard of review is the same for direct and
circumstantial evidence cases. Burden, 55 S.W.3d at 613; Kutzner v.
State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999).
C. Factual
Sufficiency
In reviewing the factual
sufficiency of the evidence to support a conviction, we are to view all the
evidence in a neutral light, favoring neither party. Johnson v. State,
23 S.W.3d 1, 7 (Tex. Crim. App. 2000); Clewis v. State, 922 S.W.2d 126,
129, 134 (Tex. Crim. App. 1996). Evidence is factually insufficient if it is so
weak as to be clearly wrong and manifestly unjust or the adverse finding is
against the great weight and preponderance of the available evidence. Johnson,
23 S.W.3d at 11. Therefore, we must determine whether a neutral review of all
the evidence, both for and against the finding, demonstrates that the proof of
guilt is so obviously weak as to undermine confidence in the verdict, or the
proof of guilt, although adequate if taken alone, is greatly outweighed by
contrary proof. Id. In performing this review, we are to give due
deference to the fact finder's determinations. Id. at 8-9; Clewis, 922
S.W.2d at 136. We may not substitute our judgment for that of the fact finder's.
Johnson, 23 S.W.3d at 12. Consequently, we may find the evidence
factually insufficient only where necessary to prevent manifest injustice. Johnson,
23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App.
1997).
To make a determination of factual
insufficiency, a complete and detailed examination of all the relevant evidence
is required. Johnson, 23 S.W.3d at 12. A proper factual sufficiency
review must include a discussion of the most important and relevant evidence
that supports the appellant's complaint on appeal. Sims v. State, 99
S.W.3d 600, 603 (Tex. Crim. App. 2003).
D. Application of
Law to the Facts
Appellant contends that there was
no evidence showing what type of marker or pen was used, and that no effort or
tests were made to determine the difficulty of removing the marks in the
bathroom. In his brief, Appellant concedes that the State presented testimony
regarding the difficulty of removing graffiti from the bathroom wall in other
instances, before the date of the charged offense. He argues, however, that
there was no evidence about the marker or the difficulty of removing the marks
Appellant made on September 12, 2000.
The State cites In re A.F.
to support its contention that the evidence is sufficient to support the jury's
implicit finding that Appellant used an indelible marker. No. 08-01-00441-CV,
2002 WL 1767567, at *2 (Tex. App.--El Paso Aug. 1, 2002, no pet.) (not
designated for publication); see Tex. R. App. P. 47.7 (providing that
unpublished cases may be cited, although they have no precedential value).
Similar to the present case, the marker in A.F. was never recovered, a
fact that A.F. argued rendered the evidence legally insufficient to prove that
an indelible marker was used. A.F., 2002 WL 1767567, at *2. The court
rejected this contention and stated,

       
  Taken in the light most favorable to the verdict, the evidence showing that
  the markings were permanent and could not be erased or washed off establishes
  indirectly or circumstantially that the ink product in this marker is
  specifically formulated to be more difficult to erase, wash out, or remove
  than ordinary ink products.

Id.
It is undisputed that the State did
not offer into evidence the specific marker used to commit the September 12
graffiti offense. Contrary to Appellant's assertions, however, the State
presented evidence demonstrating that the marker Appellant used to draw on the
bathroom paper towel dispenser was an "indelible marker," as defined
by section 28.08(e)(3) of the penal code. See Tex. Penal Code Ann. §
28.08(e)(3). Officer Rice testified that the graffiti "appeared to be
written in a black permanent ink marker."(2)
Wright also testified that the graffiti was made with a marker similar to a
Sharpie, and he agreed that the marking was permanent. Likewise, Baker testified
that the graffiti was made with a black marker. Thus, two of the State's
witnesses testified that the marker was permanent, as opposed to being
erasable, washable, or otherwise short-lasting. See Webster's Third New
Int'l Dictionary 1147 (1981) (defining "indelible" as "that
cannot be removed, washed away, or erased[;] that cannot be effaced or
obliterated[;] permanent, lasting").
When Baker was asked what was used
to make the graffiti in the September 12 offense, he testified, "The black
marker, the same one they'd been using." The State offered testimony that
prior attempts at cleaning the graffiti had failed, so American Eagle began
spray-painting over all graffiti found in the restroom.(3)
In accordance with company policy, no one tried to remove the graffiti found on
September 12, but instead spray-painted over the marks. With this evidence, the
State offered circumstantial proof that the September 12 graffiti was made with
an ink product that was specifically formulated to be more difficult to erase,
wash out, or remove than ordinary ink products. See Tex. Penal Code
Ann. § 28.08(e)(3).
We have reviewed the record
extensively, and under the applicable standards of review, giving due deference
to the fact finder's determinations, we hold that the evidence was both legally
and factually sufficient to support the jury's implicit finding that Appellant
used an indelible marker. See id. Accordingly, we overrule Appellant's
two issues.
IV. Conclusion
Having overruled Appellant's two
issues, we affirm the trial court's judgment.
 
                                                                      
ANNE GARDNER
                                                                      
JUSTICE
 
PANEL F: CAYCE, C.J.; GARDNER and
WALKER, JJ.
PUBLISH
DELIVERED: August 27, 2003

1. State's Exhibit One was a photograph of the graffiti
Wright saw on the paper towel dispenser. Other photographs were taken but
mistakenly destroyed by the DPS prior to trial because, according to Officer
Rice, the department thought the case against Appellant had been dismissed.
2. This testimony is similar to that in A.F., in
which a police officer opined that the graffiti was made with an "indelible
marker." A.F., 2002 WL 1767567, at *2.
3. The day after the September 12 graffiti incident, the
company tiled the bathroom walls from the floor to the ceiling because of the
graffiti problem.
