By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Sufficient evidence middle school was also
a community center under graffiti statute (00-2-26)
On May 25, 2000, the El Paso Court of
Appeals held that testimony about the community's access to a middle school
during non-class hours was proof that the school also was a community center
under the punishment provisions of the graffiti statute.
00-2-26. In the Matter of C.M.L., UNPUBLISHED, No. 08-99-00210-CV, 2000 WL
678845, 2000 Tex.App.Lexis ____ (Tex.App.--El Paso 5/25/00)[Texas Juvenile Law
168 (4th Ed. 1996)].
Facts: C.M.L., a juvenile, appeals his adjudication of delinquency for
committing the offense of graffiti. In a single issue on appeal, C.M.L. urges
that there is legally insufficient evidence to prove two elements of the
offense. We affirm the trial court's judgment.
C.M.L.'s point of error contends the evidence is legally insufficient to support
the juvenile court's finding that he committed the offense of graffiti such that
it is punishable as a state jail felony. Under due process guarantees of the
Fourteenth Amendment, no person may be found guilty of a criminal offense unless
criminal responsibility is proved beyond a reasonable doubt. As mandated by due
process considerations, charges of delinquency against a juvenile must also be
proved beyond a reasonable doubt.
In reviewing challenges to the legal sufficiency of the evidence in juvenile
cases, this court has determined that the criminal standard of Jackson v.
Virginia should be applied, at least insofar as the challenge goes to a finding
that the juvenile committed a criminal act. Under this standard, we review all
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 offense
beyond a reasonable doubt.
On April 26, 1999, a fellow student saw C.M.L. standing on a urinal at Clarke
Middle School, tagging the wall and the paper towel dispensers with an indelible
black marker. The student notified school authorities. C.M.L. was ultimately
adjudicated delinquent on the basis of two counts of graffiti, one of which
apparently occurred on private property is not challenged on appeal. This appeal
goes to elements of the second count of graffiti, the first alleging that the
marking was made at a community center; the second alleging pecuniary loss of
less that $20,000. The relevant evidence is all contained in the testimony of
Assistant Principal Michael Mackeben, who testified:
Q: So, let me ask you, Clarke Middle School--would you consider that a community
center?
A: Yes, ma'am.
Q: In what way?
A: We share facilities with the community. Our grounds are a cooperative park
with the City at nighttime. Our gym is in use until ten o'clock. The Catholic
Church uses our facilities throughout the week. So, there's definitely people in
and out of that building all day.
* * *
Q: It is used for community events?
A: Yes.
Q: It is open to the public?
A: Yes.
Q: And then you indicated that it's also open in the evenings?
A: Yes.
Q: Does it provide educational programs?
A: Yes, it does.
Upon cross-examination, he testified:
Q: Mr. Mackeben, you mentioned that you consider the school a community center?
A: Yes, sir.
Q: If I were to ask permission to the school to use your classrooms to--for a
conference on, let's say, any Labor Day, would you allow me to do that?
A: Yeah. The school--I think sometimes they lease it out; other times they let
groups use it for activities.
Q: So, you would allow me to use a classroom where the students take classes to
have an event there even during school hours?
A: If we weren't in session, it wouldn't be a problem. The Catholic Church uses
18 classrooms.
Q: Okay. But when you are in session, you don't allow it; right?
A: No, because we're in school at that time.
Q: So, it's not available all the time--no?
A: It's available after school hours.
Q: After school--but not before school hours?
A: No.
And on re-direct examination:
Q: Now, in regards to this community center issue, if I was to--I'm not a
student at that school. I'm not involved in that school; but, if I wanted to go
in there and wanted to dispense information to your students, would you allow
me?
A: No.
Q: If I wanted to go in and talk about the evils of assault to the students,
would you allow me to go and talk to your students?
A: That would be dependent upon who the organization is. We have to shield the
students and protect them. We can't let every group in. So, if it was part of
the police department or, you know, an educational-type thing, yes, we would let
them come in and do that. We do have programs like that. Usually the school will
initiate it.
Q: But you do this for the protection of the kids?
A: Yes.
Q: Okay. But if it was--for the most part, if it was relevant to the kids, I
would be allowed, even though I'm not a member of that school, to go in and talk
to the students?
A: Yes, yes.
Q: In fact, don't you have like a day when you have professionals come in and
talk to the students?
A: Yes. We have a career day where they bring in, gosh, probably a hundred
different professionals--all professions.
Q: And those professionals aren't involved in the school, other than to go and
speak to the students at that time?
A: Yes. And we have groups that partnership with the community, and they come in
and provide services and help us with stuff.
Q: So, like any community center, you would screen certain people coming in?
A: Yes, definitely--volunteers, as well.
As to the issue of pecuniary loss, Mr. Mackeben testified:
Q: Did you guys clean it [the graffiti] up?
A: Yes, we did.
Q: How much did it cost?
A: Roughly about $50.00 for cleaning supplies and a couple of custodians.
Q: And how do you figure that, Mr. Mackeben?
A: I'm estimating probably about $10.00 a can for the cleaner. It probably took
one to two cans and one to two custodians a couple of hours to clean it all up.
Q: So, you would say the amount is less than $20,000.00?
A: Definitely.
No objection was lodged to any of this evidence.
Held: Affirmed.
Opinion Text: The juvenile, C.M.L., was alleged by petition to have engaged in
delinquent conduct by violating a Texas penal law, namely marking with indelible
marker on tangible property at a community center. At the time of the incident
which is at issue here, the Texas Penal Code provided:
(a) A person commits an offense if with aerosol paint or an indelible marker and
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.
* * *
(d) An offense under this section is a state jail felony if the marking is made
on a place of worship or human burial, a public monument, or a community center
that provides medical, social, or educational programs and the amount of the
pecuniary loss to real property or to tangible personal property is less than
$20,000.
The statute was amended in 1999 to specifically include schools and institutions
of higher learning within the categories which make the offense a state jail
felony. This change is the basis of C .M.L.'s argument on appeal: he claims that
"[i]f the legislature had meant to include schools in this category, they
would surely have stated elementary or secondary schools as a category. A
community center is not a school within the common usage of the word 'school.'
"
Whether we find this argument persuasive or not, we think it is irrelevant under
the evidence in this case. We hold that the juvenile court could reasonably
conclude, beyond a reasonable doubt, that Clarke Middle School was a community
center. The dictionary defines "community center" as a building or
group of buildings constituting a focal point of educational and recreational
activities serving a whole community. Testimony that the school is a cooperative
park with the City, that the gym is used until ten o'clock, that the Catholic
Church uses eighteen classrooms, that it is used for community events, that it
is open to the public, and that it provides educational programs, all establish
it is a community center as well as a school. The trial court did not err in
determining that this element of the offense was met.
C.M.L. next urges that the pecuniary loss element of the offense was not met,
despite the uncontroverted, unobjected-to testimony of Mr. Mackeben that the
pecuniary loss was approximately $50, which is less than $20,000, accompanied by
an explanation of how he arrived at this figure. Clearly this evidence met the
requirement set out in the plain language of the statute. Nevertheless, C.M.L.
argues that "ordinarily the pecuniary loss in order to raise an offense to
a state jail felony is $1,500 or more but less than $20,000. Subsection (d) of
the graffiti statute omitted the lower end and left in 'less than $20,000.'
" Thus, C.M.L. would have us read into the statute a requirement that the
pecuniary loss be not only less than $20,000, but also more than $1,500. He
cites no authority in support of this suggestion. We note that, although the
statute was amended in 1999 as discussed in the preceding section, no change in
the statute adding a minimum loss requirement was added by the legislature. We
must conclude that the legislature intended for the statute to contain a
maximum, but not minimum amount. We hold, therefore, that the juvenile court
could find beyond a reasonable doubt the pecuniary loss element of the offense
as charged. C.M.L.'s point of error is overruled.