                                          COURT OF APPEALS
                                       EIGHTH DISTRICT OF TEXAS
                                            EL PASO, TEXAS




    BRIAN CAMPBELL,                                        §
                                                                               No. 08-11-00159-CR
                                    Appellant,             §
                                                                                  Appeal from the
    v.                                                     §
                                                                                371st District Court
    THE STATE OF TEXAS,                                    §
                                                                            of Tarrant County, Texas
                                    Appellee.              §
                                                                                 (TC# 1227667R)
                                                            §



                                                   OPINION

         Appellant, Brian Campbell, was charged by indictment for committing the offenses of

arson (Count I) and criminal mischief with pecuniary loss in excess of $200,000 (Count II).1 A

jury convicted Appellant of the charged offenses, made affirmative deadly weapon findings, and

sentenced Appellant to ten years’ confinement for each count. In a single issue, Appellant

contends the evidence was legally insufficient to prove the pecuniary loss element of criminal

mischief.2 We agree.


1
  As this case was transferred from our sister court in Fort Worth, we decide it in accordance with the precedent of that
court. TEX. R. APP. P. 41.3.
2
  The State of Texas did not file a brief responding to Appellant’s issue.
                                          DISCUSSION

       In evaluating a legal sufficiency challenge, we view the evidence in the light most

favorable to the verdict in order to determine whether any rational fact finder could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307,

318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Moff v. State, 131 S.W.3d 485, 488

(Tex.Crim.App. 2004); Weightman v. State, 975 S.W.2d 621, 624 (Tex.Crim.App. 1998). In

implementing the Jackson sufficiency of the evidence standard, we are required to “consider all

evidence which the jury was permitted, whether rightly or wrongly, to consider,” and “give it

whatever weight and probative value it could rationally convey to a jury.” Moff, 131 S.W.3d at

488, 489 (citations omitted) (emphasis in original).

       A person commits criminal mischief when he intentionally or knowingly damages or

destroys tangible property without the effective consent of the owner. TEX. PENAL CODE ANN. §

28.03(a)(1) (West 2011). The amount of pecuniary loss suffered by an owner determines the

degree of the offense of criminal mischief. TEX. PENAL CODE ANN. § 28.03(b) (West 2011).

When property is destroyed, the amount of pecuniary loss is the fair market value of the property at

the time and place of the destruction. TEX. PENAL CODE ANN. §§ 28.03(a)(1), 28.06(a)(1) (West

2011). If that value cannot be determined, the amount of pecuniary loss is the cost of replacing

the property within a reasonable time after the destruction.         TEX. PENAL CODE ANN. §§

28.03(a)(1), 28.06(a)(2) (West 2011). When property is damaged, as opposed to destroyed, the

amount of pecuniary loss is determined by the cost of repairing or restoring the damaged property

within a reasonable time after the damage occurred. TEX. PENAL CODE ANN. §§ 28.03(a)(1),

28.06(b) (West 2011); Holz v. State, 320 S.W.3d 344, 345 (Tex.Crim.App. 2010).


                                                 2
          The State is not required to present expert testimony at trial to prove the cost of repair, but

an unsupported lay opinion as to damage, without more, is insufficient to prove the cost of repair in

a criminal mischief trial. TEX. PENAL CODE ANN. §§ 28.03(a)(1), 28.06(b) (West 2011); Holz,

320 S.W.3d at 345, 349.

          The criminal mischief count in the indictment alleged that Appellant caused pecuniary loss

to the owner of the property in excess of $200,000. An Arby’s restaurant was the anchor tenant of

the property that Appellant burned. At trial, Bob Bollinger, an owner of the property and building

where the Arby’s restaurant had been located, testified that the property was insured and stated the

total loss of the property was “somewhere around $400,000.[00], I believe[.]” Bollinger testified

that although he had considered rebuilding the property for Arby’s or another fast-food restaurant,

the cost to do so was approximately $1,000,000 and “it was too risky for them to have that kind of

investment on it at that spot.” He further explained that, “[W]e were not able to put any other type

of restaurant on the space. That’s been two years now. We advertised plenty, but there’s been

no serious interest.” Bollinger explained that his insurance carrier had paid “some money when it

was all over with” for the damage to the building as well as less than one-year’s rent.3

          The State attempted to elicit evidence of pecuniary loss from Haltom City Fire Marshall,

Fred Napp, a master arson investigator. However, upon asking whether Fire Marshall Napp had

an opinion, based on his years of experience and training, whether the loss was greater than

$200,000, Appellant’s counsel conducted a voir dire examination, which established that Fire

Marshall Napp was not an engineer, architect, draftsman, had not worked in construction, did not

know the price of concrete or other materials or supplies, and that his reports contained no

information regarding the rebuilding of Bollinger’s property. Because the trial court sustained
3
    The rent was $45,000 per year.
                                                    3
Appellant’s objection, Fire Marshall Napp presented no evidence of pecuniary loss.

       No other evidence of any kind was presented in support of Bollinger’s testimony. No

evidence was presented regarding the fair market value of the property or the cost of replacing the

property if destroyed, or regarding the cost of repairing or restoring the damaged property.

       Having considered all of the evidence, we find the evidence is legally insufficient to prove

a pecuniary loss in excess of $200,000. TEX. PENAL CODE ANN. §§ 28.03(a)(1), 28.06(b) (West

2011); Holz, 320 S.W.3d at 345, 349. Appellant’s sole issue on appeal is sustained.

                                        CONCLUSION

       The trial court’s judgment convicting Appellant of criminal mischief with pecuniary loss

of more than $200,000 is reversed and a judgment of acquittal is rendered.



                                             GUADALUPE RIVERA, Justice
May 15, 2013

Before McClure, C.J., Rivera, and Antcliff, JJ.
Antcliff, J., not participating

(Do Not Publish)




                                                  4
