                                                                                          ACCEPTED
                                                                                     12-14-00160-CR
                                                                         TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                               1/20/2015 11:51:53 PM
                                                                                        CATHY LUSK
                                                                                              CLERK

                        Cause No. 12-14-00160-CR

                                                                     FILED IN
                                                              12th COURT OF APPEALS
                                                                   TYLER, TEXAS
                     In the Court of Appeals for the
                                                              1/20/2015 11:51:53 PM
                  Twelfth Judicial District at Tyler, Texas        CATHY S. LUSK
                                                                       Clerk



                         Joshe Leesheen Johnson,
                                Appellant

                                     v.

                              State of Texas,
                                 Appellee



             On Appeal from Cause No. 2013-0719 in the 159th
             Judicial District Court of Angelina County, Texas



                               State’s Brief



                                          April Ayers-Perez
                                          Assistant District Attorney
                                          Angelina County D.A.’s Office
                                          P.O. Box 908
                                          Lufkin, Texas 75902
                                          (936) 632-5090 phone
                                          (936) 637-2818 fax
                                          State Bar No. 24090975
                                          aperez@angelinacounty.net

Oral Argument Not Requested
                         Identity of Parties and Counsel

Joshe Leesheen Johnson, Appellant
405 Marion Street
Lufkin, Texas 75901

John D. Reeves
Attorney for Appellant (trial and appeal)
1007 Grant Ave.
Lufkin, Texas 75901
SBN: 16723000

Art Bauereiss
District Attorney
Attorney for the State (trial)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 01921800

April Ayers-Perez
Assistant District Attorney
Attorney for the State (appeal)
Angelina County District Attorney’s Office
P.O. Box 908
Lufkin, Texas 75902
SBN: 24090975




                                            ii
                                                 Table of Contents

Identity of Parties and Counsel ................................................................................. ii

Table of Contents ..................................................................................................... iii

Index of Authorities ..................................................................................................iv

Statement Regarding Oral Argument .......................................................................vi

Issue Presented ..........................................................................................................vi

Statement of Facts ...................................................................................................... 1

Summary of the Argument......................................................................................... 3

Argument.................................................................................................................... 3

         Reply Issue #1: The evidence is legally sufficient to sustain the trial
         court’s finding of guilt of the offense Criminal Mischief >=$1500
         <$20,000. ......................................................................................................... 3

                   Applicable law ....................................................................................... 4

                   Standard of review................................................................................. 4

                   Elements of Criminal Mischief >=$1,500 <$20,000 have been
                   met ......................................................................................................... 6

                   The Amount of Damages is Equal to or Greater than $1,500 ............. 10

Prayer ....................................................................................................................... 11

Certificate of Compliance ........................................................................................ 12


                                                               iii
Certificate of Service ............................................................................................... 12




                                                           iv
                                               Index of Authorities

Cases                                                                                                                   Page

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2012) ........................................ 5

Curry v. State, 30 S.W.3d 394 (Tex. Crim. App. 2004) ............................................ 4

Fitts v. State, 982 S.W.2d 175 (Tex. App.—Houston [1st Dist.] 1998, pet.
       ref’d) ................................................................................................................ 6

Guidry v. State, 896 S.W.2d 381 (Tex. App.—Texarkana 1995, pet. ref’d) ............. 6

Jackson v. Virginia, 443 U.S. 307 (1979).................................................................. 5

Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997) .......................................... 4

Parrish v. State, 950 S.W.2d 720 (Tex. App.—Fort Worth 1997, no pet.)............... 6

Temple v. State, 390 S.W.3d 341 (Tex. Crim. App. 2013) ........................................ 5

Rules

Tex. R. App. P. 9.4(i)(1) .......................................................................................... 12

Tex. R. App. P. 39.1................................................................................................ vii

Statutes

Tex. Pen. Code Ann. § 28.03 (West 2011) ................................................................ 4




                                                               v
vi
                     Statement Regarding Oral Argument

      Pursuant to Tex. R. App. P. 39.1, the State feels oral argument is

unnecessary, as the facts and legal arguments are adequately presented in the briefs

and record and the decisional process would not be significantly aided by oral

argument.

                                 Issue Presented

      Reply Issue #1: The evidence is legally sufficient to sustain the trial court’s

finding of guilt of the offense Criminal Mischief >=$1500 <$20,000.




                                         vii
                                      Statement of Facts

       On September 3, 2012 the appellant, Joshe Johnson, is accused of

vandalizing her apartment as she was moving out after being evicted.1 Terry

Allen, the owner of the apartment that the appellant was renting, testified that the

appellant lived at the apartment in question starting in March 2012 until she moved

out on September 3, 2012.2 Despite signing a lease, the appellant breached her

lease by not paying her rent.3 It was at this point that Ms. Allen started the eviction

process.4 Ms. Allen was awarded a writ of possession as a result of the eviction

process against the appellant on August 30,2012.5 The following weekend was a

holiday (Labor Day) so the maintenance man was not able to go through the

apartment until September 4, 2012.6              While going through the apartment on

September 4, 2012, the maintenance man, Tracy Goodart, discovered that the

apartment had been vandalized.7 The damage to the apartment noted by Ms. Allen

was,

               “…and the apartment was just totally trashed. The ceiling fan in the
       living room looked like somebody had took a bat or something and went
       through and busted all the glass, all the bulbs, all the fixtures out. They did
       it in the dining room, the hallway. They busted the – the light fixtures out of


1
  V R.R. at 5-7.
2
  Id. at 11.
3
  Id. at 12.
4
  Id. at 15.
5
  Id.at 17-18 See State’s Exhibit 9 (Writ of Possession).
6
  Id. at 19-20.
7
  Id.at 21.
                                                 1
        it. On the wall to the right where the thermostat is, it was completely busted
        off the wall. I look over to the left in the kitchen, the dishwasher was
        completely, completely tore out and bent over, tilted over onto the floor and
        opened. The sink, and the washing machine had trash, McDonald’s stuff,
        had all kinds of trash stuffed into the washer machine… into the bathroom,
        the vanity area where you have your medicine cabinet deal. It was
        completely busted. Glass was on the floor, glass was in the tub. The back –
        one of the back bedrooms, another glass was completely removed out of it
        and laying on the floor. And it was all busted up, the window. I don’t recall
        the sliding glass door to be broke, but all of the fixtures and the ceiling,
        everywhere was completely busted.”8


Ms. Allen noted that the appellant was the only person with a key to the apartment

and nobody else had any sort of dispute at that time with Ms. Allen or her

company.9         Annette Caldwell, the appellant’s upstairs neighbor, then testified

about the fact that the appellant sent her a text message on September 2, 2012

asking if her stuff was outside her apartment.10 Ms. Caldwell assured her it was

not, and Ms. Caldwell informed the court that there was no damage to the

apartment at that point.11 The juvenile witness, who will be referred to as John

Doe for privacy purposes, testified that the appellant drove him to the apartment on

September 3, 2012 to help move her stuff out.12 The appellant had already made at

least one trip to the apartment before John Doe went.13 John Doe witnessed the



8
  Id. at 21-22.
9
  Id. at 29.
10
   Id. at 91.
11
   Id.
12
   Id. at 106.
13
   Id. at 111.
                                            2
appellant breaking numerous items within the apartment and vandalizing it.14

John Doe was able to point to all the pictures taken of the vandalized apartment

and point out that either the appellant damaged it in front of him or it was damaged

prior to him arriving.15 Lastly, Officer Petty took the stand and testified that the

appellant was no cooperative with the investigation.16

                           Summary of the Argument

      The appellant vandalized an apartment that she was renting from Terry Allen

after being evicted on September 3, 2012. The appellant called her neighbor,

Annette Caldwell, to make sure her belongings were still in her apartment. The

next day the appellant went to the apartment and, after moving her belongings out

with the help of Tiffany Booth, the appellant damaged the apartment causing

almost $4,000 worth of repairs. A juvenile witness, John Doe, witnessed the

appellant damaging the apartment.

                                    Argument

      Reply Issue #1: The evidence is sufficient to sustain the trial court’s finding

of guilt in the charged offense of criminal mischief, >=$1,500 <$20,000.




14
      Id. at 110-13.
15
      Id. at 111-14.
16
      Id.at 159.
                                         3
                                     Applicable law

      A person commits the offense of Criminal Mischief if, without the effective

consent of the owner, he intentionally or knowingly damages or destroys the

tangible property of the owner.17 A criminal mischief charge is a state jail felony if

the amount of pecuniary loss is $1,500 or more but less than $20,000.18

                                      Standard of review

      Sufficiency of the evidence in a bench trial is measured by a standard

analogous to the “hypothetically correct jury charge” standard, which includes the

statutory elements of the offense as modified by the charging instrument.19 Such a

charge would be 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.”20

      In this case, the charging instrument (indictment) alleged:

      Defendant, on or about the 6th day of September, 2012 A.D. ... did
      then and there 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

17
      Tex. Pen. Code Ann. § 28.03 (West 2011).
18
      Tex. Pen. Code Ann. § 28.03 (West 2011).
19
      Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997); Curry v. State, 30 S.W.3d
      394, 404 (Tex. Crim. App. 2004).
20
      Malik, 953 S.W.2d at 240.
                                             4
      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.21

      The State must prove every element of the crime charged beyond a

reasonable doubt.22 In reviewing the legal sufficiency of the evidence to support a

conviction, the court considers the evidence in the light most favorable to the

verdict to determine whether the fact-finder was rationally justified in finding guilt

beyond a reasonable doubt.23 When evaluating the sufficiency of the evidence, the

court must presume the trier of fact resolved any conflicts in the evidence in favor

of the verdict and defer to that resolution.24

      A criminal conviction may be based upon circumstantial evidence and

circumstantial evidence alone can be sufficient to establish guilt.25              In

circumstantial evidence cases, not every fact and circumstance needs to point




21
      C.R. at 11.
22
      Jackson v. Virginia, 443 U.S. 307, 313-14 (1979).
23
      Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).
24
      Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2012).
25
      Temple, 390 S.W.3d at 359.
                                            5
“directly and independently to the defendant’s guilt.”26 If the conclusion is

supported by the “combined and cumulative force” of all the incriminating

circumstances, the evidence is sufficient to establish guilt.27            Circumstantial

evidence is often used to prove the requisite mens rea, and one’s actions are

generally reliable circumstantial evidence of one’s intent.28

       Elements of Criminal Mischief >=$1,500 <$20,000 have been met

       In order to find a defendant has committed the offense of criminal mischief

>=$1,500 <$20,000 the state must prove, beyond a reasonable doubt, that:

       a. A person commits an offense if, without the effective consent of the
          owner:
          (1) He intentionally or knowingly damages or destroys the tangible
              property of the owner
          (2) He intentionally or knowingly tampers with the tangible property of
              the owner and causes pecuniary loss or substantial inconvenience to
              the owner or a third person; or
          (3) He intentionally or knowingly makes markings, including
              inscriptions, slogans, drawings, or paintings, on the tangible property
              of the owner
          (4) A state jail felony if the amount of pecuniary loss is (A) $1,500 or
              more but less than $20,000.




26
       Id.
27
       Id.
28
       Fitts v. State, 982 S.W.2d 175, 188 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d);
Parrish v. State, 950 S.W.2d 720, 722 (Tex. App.—Fort Worth 1997, no pet.); Guidry v. State,
896 S.W.2d 381, 386-87 (Tex. App.—Texarkana 1995, pet. ref’d);
                                             6
        In the present case, the appellant lived at an apartment complex that was

owned by Terry Allen.29 Shortly after moving in to the apartment the appellant

was behind on her rent payments, and Ms. Allen sent her late notices.30 After the

appellant vacated the apartment Ms. Allen saw the damage left in the appellant’s

wake,

         “…and the apartment was just totally trashed. The ceiling fan in the living
        room looked like somebody had took a bat or something and went through
        and busted all the glass, all the bulbs, all the fixtures out. They did it in the
        dining room, the hallway. They busted the – the light fixtures out of it. On
        the wall to the right where the thermostat is, it was completely busted off the
        wall. I look over to the left in the kitchen, the dishwasher was completely,
        completely tore out and bent over, tilted over onto the floor and opened.
        The sink, and the washing machine had trash, McDonald’s stuff, had all
        kinds of trash stuffed into the washer machine… into the bathroom, the
        vanity area where you have your medicine cabinet deal. It was completely
        busted. Glass was on the floor, glass was in the tub. The back – one of the
        back bedrooms, another glass was completely removed out of it and laying
        on the floor. And it was all busted up, the window. I don’t recall the sliding
        glass door to be broke, but all of the fixtures and the ceiling, everywhere was
        completely busted.”31

        The appellant also had the only key to the apartment, failed to ever return

that key, and her neighbors saw her home in the days leading up to the discovery of

the vandalism of the apartment.32 The maintenance man at the apartments, Tracy

Goodart, had checked the apartment prior to the appellant moving in 2012 and



29
   V R.R. at 8.
30
   Id. at 14. See State’s Exhibit 2 (late notice) and State’s Exhibit 3 (late notice).
31
   Id. at 21-22.
32
   Id. at 32.
                                                   7
there was no major damage to the apartment.33 In the four months that the

appellant lived there, more specifically on September 3, 2012, the apartment was

damaged.34 As soon as Ms. Allen and Mr. Goodart noticed the damage they took

pictures of the damage to the apartment.35 The appellant’s neighbor, Annette

Caldwell, also testified that the appellant called her the day before the vandalism of

the apartment occurred to tell her that she would be going over to her apartment the

next day.36 At the time Ms. Caldwell noted that the appellant’s apartment had no

evidence of damage and the door was closed.37 Ms. Caldwell also witnessed the

damage left by the appellant, “I saw the window was tow all out, the door was left

open, there was the debris all in the living room. And then all the light fixtures in

there was tow all up.”38 The juvenile witness, John Doe, also spoke to the damage

caused by the appellant to her apartment.39 On September 3, 2012 the defendant

drove John Doe over to the apartment to help her move her belongings out.40 The

appellant made one trip to the apartment prior to picking up John Doe and having

him go with her to the apartment.41 When John Doe arrived at the apartment with



33
   Id. at 56.
34
   Id.
35
   Id. at 60. See State’s Exhibits 4-23.
36
   Id.at 91.
37
   Id.at 99.
38
   Id. at 96.
39
   Id. at 104.
40
   Id.at 108.
41
   Id.at 111.
                                           8
the appellant damage had already been done to the apartment, and the appellant

and a friend continued to do more damage to the apartment.42 John Doe stated,

“she [appellant] broke the sink handle in the kitchen. She broke the bathroom

mirror. She broke the windows out, and then Tiffany had broke the lights off the

fan.”43 The appellant even asked John Doe to help her vandalize the apartments,

which he refused to do.44 John Doe stated that he recognized the State’s pictures of

damage to have been done by the appellantor have already been done prior to John

Doe arriving at the apartment.45

       It is up to the finder of fact to determine the credibility and weight to give

each witness. In the case at hand the finder of fact, the trial court, chose to believe

that the totality of the circumstances dictated that the appellant committed the

offense of criminal mischief for the damages done, not just in front of John Doe,

but prior to John Doe’s arrival. It is not just John Doe who provides testimony

toward the appellant’s guilt, but Annette Caldwell saw the apartment was not

damaged prior to the appellant moving out, and Tracy Goodart testified that the

apartment was not damaged prior to the appellant moving in.


42
   Id.at 109.
43
   Id. at 110.
44
   Id. at 109.
45
   Id. at 112-13. See State’s Exhibit 18 (John Doe stated defendant caused this damage in front
of him), State’s Exhibit 17 (John Doe stated this damage was already there), State’s Exhibit 16
(John Doe stated defendant caused this damage in front of him), State’s Exhibit 13 (John Doe
stated this damage was already there), State’s Exhibit 12 (John Doe stated defendant caused this
damage in front of him), and State’s Exhibit 10 (John Doe stated this damage was already there).
                                               9
                The Amount of Damages is Equal to or Greater than $1,500

         During the non-jury trial of the defendant the maintenance man for the

apartments, Tracy Goodart, stated that the damage was estimated around $4,400.46

This estimate was based on bids that Mr. Goodart received in order to perform the

repairs to the apartment that was vandalized by the defendant.47 At the end of the

non-jury trial the court expressed some doubts as to State’s Exhibit 24, which

listed the amount of damages.48 As such, the state revised the figure to comply

with the courts findings and the new amount of restitution, which the defendant

was ordered to pay by the trial court, was $3,892.49 Appellant is joint and

severally liable for all the damage caused by both the defendant and any damage

caused by her friend, Tiffany. It is not just the damage witnessed by John Doe that

the defendant is responsible for, but all the damage caused by the defendant in the

court of vandalizing the apartment owned by Terry Allen that the defendant is

liable for. The total amount of that is $3,892 as recognized and ordered by the trial

court.

         Given the totality of the circumstances, in a light most favorable to the trial

court’s verdict, the defendant was properly convicted of criminal mischief

>=$1,500 <$20,000.

46
   Id. at 27.
47
   Id. See State’s Exhibit 24 (cost of damage done to the apartment).
48
   II R.R. at 88-90.
49
   III R.R. at 9.
                                                10
                                     Prayer

       The State of Texas prays that this Court of Appeals affirm the judgment of

the trial court.




                                       11
                                                Respectfully Submitted,

                                                 /s/ April Ayers-Perez
                                                Assistant District Attorney
                                                Angelina County D.A.’s Office
                                                P.O. Box 908
                                                Lufkin, Texas 75902
                                                (936) 632-5090 phone
                                                (936) 637-2818 fax
                                                State Bar No. 24090975
                                                ATTORNEY FOR THE
                                                STATE OF TEXAS

                             Certificate of Compliance

      I certify that this document contains 2,629 words, counting all parts of the

document except those excluded by Tex. R. App. P. 9.4(i)(1). The body text is in

14 point font, and the footnote text is in 12 point font.


                                                /s/ April Ayers-Perez


                                Certificate of Service

      I certify that on January 20, 2015, a true and correct copy of the above

document has been forwarded to John Reeves, 1007 Grant Street, Lufkin, TX

75901, by electronic service through efile.txcourts.gov.


                                                /s/ April Ayers-Perez



                                           12
