                    COURT OF APPEALS
                 SECOND DISTRICT OF TEXAS
                      FORT WORTH

                            NO. 02-12-00161-CR


NICOLE RENEE                                                    APPELLANT
GLASSCHROEDER
                                        V.
THE STATE OF TEXAS                                                    STATE
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      FROM COUNTY CRIMINAL COURT NO. 4 OF DENTON COUNTY


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                       MEMORANDUM OPINION 1

                                  ----------


     Appellant Nicole Renee Glasschroeder appeals her conviction for criminal

mischief. See Tex. Penal Code Ann. § 28.03(a) (West 2011). In a single issue,




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      See Tex. R. App. P. 47.4.
she argues that the trial court erred by denying her motion for a directed verdict

of acquittal. We affirm.

                                  I. BACKGROUND

                               A. Factual Background


      On January 17, 2011, at approximately 2:20 a.m., Officer David Bohannan,

a patrol officer with the University of North Texas’s Police Department (“the

police department”), saw a car “weaving within the roadway.” Officer Bohannan

followed the car “to make sure that the driving pattern . . . continued.” The driver,

Appellant, continued to weave, failed to use turn signals, and went over the

speed limit. Officer Bohannan pulled the car over, and Appellant got out of the

car. She was “slurring some of her words,” and Officer Bohannan could tell she

was “possibly intoxicated.” Officer Bohannan arrested Appellant for driving while

intoxicated, handcuffed her, and put her in the back passenger seat of his patrol

car. Throughout, Appellant’s behavior varied widely between arguing, crying,

and laughing. Officer Bohannan kept the back passenger door open to read

Appellant the required warnings, but Appellant repeatedly tried to get out of the

car; thus, Officer Bohannan shut the back passenger door and rolled the window

“all the way down to keep her inside the vehicle.” Appellant then threw herself

head first out of the back passenger window, again trying to get out of the car.

Officer Bohannan caught her and placed her back into the patrol car with the help

of his back-up officer, Corporal Bredger Thomason. Officer Bohannan closed the


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back passenger door again and rolled the window up halfway. At this point,

Appellant began “cussing and using vulgarities.”

      Officer Bohannan left Appellant in the car and began to leave in order to

help Corporal Thomason impound Appellant’s car. As he walked away, he heard

“a loud thud.” Officer Bohannan turned around and saw that the patrol car’s

“window seal was out of the frame, pushed out of the frame a little bit.” Pictures

of the patrol car showed that one of the back passenger windows was gaping

away from the door of the patrol car near the top window seal. Video from inside

the patrol car showed that Appellant spun to the side and kicked the back

passenger window.     The patrol car was not damaged before Appellant was

placed in the rear passenger seat.

                             B. Procedural History

      Appellant was charged by information with criminal mischief, causing

pecuniary loss of $500 or more, but less than $1,500. See Tex. Penal Code Ann.

§ 28.03(a)(1), (b)(3)(A) (West 2011). At trial, the State introduced an invoice

showing that the University of North Texas paid Bill Utter Ford, a Ford dealership,

$1,003.79 to repair the door. The invoice showed that the charges included

$79.80 for labor, $836.99 for parts (specifically, a rear-window assembly, molding

for the rear window, and window trim), and $87.00 to tint the stationary rear

window, which was included as part of the rear-window assembly.

      Lieutenant Mark Bergstrom, who was in charge of maintaining all vehicles

used by the police department, testified that he took the patrol car to Bill Utter

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Ford the day after Appellant’s arrest. Lieutenant Bergstrom believed the entire

window assembly would have to be replaced because, based on his past

experiences with similar damage to patrol car doors, the rear passenger door

would leak if the entire window assembly was not replaced.            Indeed, the

assembly for a damaged window frame comes in “one piece,” which does not

allow for partial replacement of part of the window assembly. He stated that the

police department used Bill Utter Ford whenever a patrol car needed body work

because the dealership completes the work quickly, patrol cars must be repaired

to meet factory specifications, and Bill Utter Ford is approved as a company that

could do such work for the police department. Lieutenant Bergstrom testified that

the cost to repair Officer Bohannan’s patrol car was consistent with previous

similar repairs done by Bill Utter Ford.

      Once the State closed its presentation of evidence, Appellant moved for a

directed verdict of not guilty:

      [O]ur first motion is we’d ask the Court enter a judgment of acquittal,
      a directed verdict of acquittal, on the ground that the State has not
      presented one iota of testimony or evidence showing that the repairs
      that were made under this invoice were either necessary or that the
      costs which are indicated on the exhibit were—constitute the fair
      market of those repairs.

            They have presented, I think unwisely, or they relied solely
      upon this [invoice] to establish both of those things . . . . [Y]ou’ll
      nowhere see anything in here that says these repairs were
      necessary or even an assertion by Bill Utter that this is the fair
      market value of the services being provided for repair. There is
      zero.



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             . . . And the invoice doesn’t say that these repairs were
      necessary. It doesn’t say that they were fair market value anywhere.
      And so not only can the State not prevail on its Information that
      alleges the repairs cost more than $500.00, they can’t prevail even
      on a lesser included offense or lower degree offense.

              . . . [T]hey quite shockingly have not put on anybody that
      testified that the services and repairs were reasonable and
      necessary. Nowhere.

The trial court denied the motion, and Appellant began to present her evidence.

      Appellant called Jon Schell as an expert in auto glass repair.         Schell

testified that the damage shown in the pictures of the patrol car would cost less

than $50 to repair by taking a rubber hammer and tapping the window area back

into place. If he needed to replace the rear-window assembly as Bill Utter Ford

did, however, Schell stated he could use junkyard or “aftermarket” parts to

significantly lower the price to $287 versus the $836.99 charged by Bill Utter

Ford. Schell generally charges $100 an hour for labor. Schell admitted that if

original parts from the manufacturer are required for a repair, a dealership is the

only way to get such parts.

      The trial court charged the jury in the application paragraph that it could

find Appellant guilty of criminal mischief if it found beyond a reasonable doubt

that she “did . . . intentionally and knowingly damage 2 tangible property, to wit:




      2
        During the conference on the jury charge, the State argued that the only
allegation that should be included in the charge was that the accused damaged
tangible property, thereby eliminating the need for an instruction concerning the
fair market value or necessity of the cost of repair, which relate to destruction.
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an automobile, by pushing or kicking the window, without the effective consent of

David Bohannon, the owner of the property, and did thereby cause pecuniary

loss of $500.00 or more, but less than $1,500.00 to the said owner.” The trial

court also charged the jury, however, that if it had a reasonable doubt regarding

the amount of the pecuniary loss, it could find that such loss equated to either (1)

less than $500, but $50 or more or (2) less than $50, but greater than $0. The

trial court defined pecuniary loss as “the cost of repairing or restoring the

damaged property within a reasonable time after damage occurred.” 3 The jury

found Appellant guilty of criminal mischief and determined that the pecuniary loss

was less than $500, but $50 or more—a class B misdemeanor. The jury then

assessed Appellant’s punishment at 14 days’ confinement and a $500 fine. This

appeal followed.

     In one issue, Appellant argues that the trial court erred by denying her

motion for directed verdict because there was no evidence (1) as to the fair

market value of the repair cost or (2) that the repairs were necessary. The State




Defense counsel agreed with the State’s election stating, “[I]t’s just absurd that
they would be entitled—or they would assert that they’re entitled to get an
instruction on destruction of the motor vehicle. So I think that should be left out
too.” The Court also agreed after finding “I am taking out the destruction portion
of the charge because I don’t find that there’s any evidence on that.”
      3
        Although Appellant objected to this definition, she does not challenge any
part of the jury charge on appeal.

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responds that proof of the actual cost of repairs, introduced through the invoice,

is sufficient.

                                   II. DISCUSSION

                              A. Standard of Review


       We treat a challenge to the denial of a motion for directed verdict as a

challenge to the sufficiency of the evidence. See Williams v. State, 937 S.W.2d

479, 482 (Tex. Crim. App. 1996). 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.          See

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Wise v.

State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

       We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. See Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011)

(citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). Such a

charge is one that accurately sets out the law, is authorized by the indictment,

does not unnecessarily restrict the State’s theories of liability, and adequately

describes the particular offense for which the defendant was tried. See id. at

246. The law as authorized by the indictment means the statutory elements of

the charged offense as modified by the factual details and legal theories


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contained in the charging instrument. See Curry v. State, 30 S.W.3d 394, 404–

05 (Tex. Crim. App. 2000).


                         B. Application to Criminal Mischief


      A person commits criminal mischief if she intentionally or knowingly

damages or destroys tangible property without the owner’s effective consent. 4

See Tex. Penal Code Ann. § 28.03(a)(1). The degree of the offense—Class C

misdemeanor, Class B misdemeanor, or Class A misdemeanor—is determined

by the amount of the pecuniary loss to the property. See Tex. Penal Code Ann.

§ 28.03(b); Miller v. State, 343 S.W.3d 499, 501 (Tex. App.—Waco 2011, pet.

ref’d). “The ‘value of pecuniary loss’ is a crucial element of the offense because

it forms the basis of the punishment assessed.” Lackey v. State, 290 S.W.3d

912, 918 (Tex. App.—Texarkana 2009, pet. ref’d). If the property is damaged

(instead of 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. § 28.06(b). To prove pecuniary loss

regarding damaged property, evidence of the actual cost of repairing the property

is sufficient. See Lackey, 290 S.W.3d at 918. Therefore, if the property is not




      4
       Appellant does not challenge the sufficiency of the evidence to show that
she damaged the property of Officer Bohannan without his consent.

                                        8
destroyed, a defendant is not entitled to an instruction on fair market value. See

Milo v. State, 748 S.W.2d 614, 618 (Tex. App.—San Antonio 1988, no pet.).

      A hypothetically correct jury charge in this case, therefore, would have

defined pecuniary loss as the cost of repairing or restoring the patrol car within a

reasonable time after the damage occurred. The State introduced evidence of

what the repairs actually cost the police department. This evidence, which was

more than a mere guess or estimate, was sufficient to prove cost of repair. See

Holz v. State, 320 S.W.3d 344, 347, 350–51 (Tex. Crim. App. 2010); Barnes v.

State, 248 S.W.3d 217, 222–23 (Tex. App.—Houston [1st Dist.] 2007, pet.

struck). Evidence of the fair market value of the repair was not required to prove

pecuniary loss. See Kinkade v. State, 787 S.W.2d 507, 508–09 (Tex. App.—

Houston [1st Dist.] 1990, no pet.).

      Appellant further argues that because there was no evidence that the

repairs made to the patrol car were necessary, her conviction cannot withstand a

sufficiency attack. Proof of the necessity or reasonableness of the repairs is not

required to support Appellant’s conviction. See id. at 509. As discussed above,

proof of the actual cost of repair is all that is required if the property was

damaged but not destroyed.

      In sum, the evidence shows that the police department paid $1,003.79 to

repair the damage Appellant admittedly caused to the window of the patrol car.

The entire window assembly had to be replaced based on how Ford provides

replacement parts for such a repair. The police department used a local Ford

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dealership to do the body work because such repairs would meet factory

specifications and because the dealership had been approved to do such work

for the police department. Appellant’s expert witness testified that he could have

replaced the window assembly for less than $500 if a rear-window assembly was

required. Indeed, the jury found that the pecuniary loss was $50 or more, but

less than $500. This evidence is sufficient to support the jury’s verdict based on

the hypothetically correct jury charge regarding pecuniary loss.

                                     III. CONCLUSION

      We conclude that the evidence was sufficient to convict Appellant of the

Class B misdemeanor offense of criminal mischief.          Therefore, we overrule

Appellant’s sole issue and affirm the trial court’s judgment.



                                                    LEE GABRIEL
                                                    JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: May 2, 2013




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