Nicole Renee Glasschroeder v. State ( 2013 )

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
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Appellant Nicole Renee Glasschroeder appeals her conviction for criminal
mischief. See Tex. Penal Code Ann. § 28.03(a) (West 2011). In a single issue,
1
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.
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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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