By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Evidence was insufficient in criminal mischief
case when no proof was offered as to the amount of damage to the property
(99-4-02)
On September 1, 1999, the San Antonio Court of Appeals held that an
acquittal must be ordered when the State in a criminal mischief case failed to
offer evidence of the amount of damage to the property in question.
99-4-02. In the Matter of A.B.N, UNPUBLISHED, No. 04-98-00641-CV, 1999 WL
685685, 1999 Tex.App.Lexis ___ (Tex.App.—San Antonio 9/1/99)[Texas Juvenile
Law 168 (4th Edition 1996)].
Facts: This is a juvenile delinquency proceeding in which A.B.N. challenges the
sufficiency of the evidence to support a jury's finding that he engaged in
delinquent conduct by committing the offense of criminal mischief. A.B.N. was
charged with knowingly and intentionally damaging and destroying a windshield,
amounting to a pecuniary loss of $20 or more, but less than $500. A.B.N. asserts
that the evidence is legally insufficient because there was no evidence
introduced regarding the amount of the pecuniary loss. The State concedes error.
We reverse the trial court's judgment and remand the proceeding with
instructions that an order of acquittal be entered.
Held: Reversed and acquittal ordered.
Opinion Text: In reviewing a legal sufficiency challenge, we view the evidence
in the light most favorable to the verdict and 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, 61
L.Ed.2d 560 (1979); Moreno v. State, 961 S.W.2d 512, 514 (Tex.App.--San Antonio
1997, pet. ref'd). Where the State charges a defendant in the conjunctive with
"damage and destroy" under the criminal mischief statute, the State
can prove damage to property or destruction of property to support the charge.
Moreno, 961 S.W.2d at 514. The theory relied on by the State, damage or
destruction, determines what evidence the State must prove for the amount of
pecuniary loss. Id. However, under either theory, the State is required to
present some evidence to establish the amount of pecuniary loss. See id.; see
also Tex. Penal Code Ann. s 28.03, 28.06 (Vernon 1994).
In this case, the State failed to present any evidence regarding the amount of
the pecuniary loss. While there was evidence that A.B.N.'s actions caused damage
to the complainant's windshield, the State failed to meet its burden of proof on
the pecuniary loss element of the offense. The judgment of the trial court is
reversed, and the cause is remanded to the trial court with instructions that an
order of acquittal be entered.