Ronnie Ogene Massey, Jr. v. State ( 2016 )

Affirmed and Opinion Filed June 6, 2016
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00995-CR
RONNIE OGENE MASSEY, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-85841-2014
MEMORANDUM OPINION
Before Justices Myers, Stoddart, and Whitehill
Opinion by Justice Whitehill
While evading the police, appellant tried to squeeze through a metal fence and damaged
the bars. He now appeals his conviction for criminal mischief in an amount more than $50 but
less than $500, arguing that there is insufficient evidence that he damaged the fence or that the
damage was more than $50.
As discussed below, we affirm the trial court’s judgment because (i) the evidence was
sufficient to establish that appellant in fact bent the fence bars, (ii) his intent to do so may be
inferred from his conduct, and (iii) the lay opinion testimony concerning the repair cost was
admitted without objection.
I. Background
McKinney police officers Johnny Wade and Mitch Jenkins were called to do a welfare
check at a hospital. Appellant’s wife had taken him to the hospital for a mental evaluation, but
appellant left the hospital.
The officers found appellant at a car dealership near the hospital. Officer Wade called
out for appellant to stop, but appellant ducked between cars in the lot. Officer Wade finally
found appellant trying to squeeze through a hole in a wrought iron fence by pulling the bars
apart.
The dealership’s manager, Joe Schmidt, testified that the damaged fence was at the
employee parking lot and no one had previously reported it damaged. Schmidt also testified
about a local fence company’s estimate that it would cost $337.89 to repair the fence.
II. Analysis
A. Standard of review and applicable law
We review a sufficiency of the evidence issue under the standard of review stated in
Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.
App. 2010). Under the Jackson standard, we review all of the evidence in the light most
favorable to the verdict and determine whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330
S.W.3d 633, 638 (Tex. Crim. App. 2010). Although we consider all evidence presented at trial,
we do not reevaluate the weight and credibility of the evidence or substitute our judgment for
that of the fact finder. See Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
When the record supports conflicting inferences, a reviewing court must presume that the fact
finder resolved the conflicts in the State’s favor and defer to that determination. Id.
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A person commits criminal mischief as alleged in this case if, without the effective
consent of the owner, he intentionally or knowingly damages or destroys the tangible property of
the owner. TEX. PENAL CODE ANN. § 28.03 (a)(1).
B. First Issue: Is the evidence sufficient to establish that appellant damaged the fence
knowingly or intentionally?
Appellant’s first issue asserts that there is insufficient evidence that he damaged the fence
because Schmidt had no knowledge of the fence’s prior condition and no one saw appellant bend
the rails. Appellant further argues that even if he caused the bars to bend, there is no evidence
that he intentionally or recklessly caused the damage.
Contrary to appellant’s arguments, Officer Wade testified that he saw appellant pulling
the fence bars apart as he tried to get through:
Q. Okay. After you shouted out at him, what, if anything, happened?
A. He ducked back behind some cars. And at that time, I drew my weapon because I
didn’t know if he was armed and I thought he was a danger to myself. And I continued
towards the fence line looking around the vehicles, and when I got at the metal fence is
when I saw him at the end of the fence trying to squeeze through the fence line.
Q. Okay. Can you describe to the jury exactly what it is that you saw as you came to that
fence?
A. He was in between two of the railings. Half of his body -- he was stuck, and he was
trying to shimmy himself through when I saw him, and that’s when I radioed that he was
trying to go through the fence to other officers. We had a bunch of officers in the area.
Q. Okay. Where were his hands at that point in time?
A. Just trying to squeeze through. He was trying to get his body through --
Q. Okay.
A. -- pulling on the bars trying to get through because he was stuck.
On cross examination, the officer was asked whether he actually saw appellant push the
metal fence bars apart, and he confirmed that he had.
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Moreover, Schmidt testified that he never had issues with the fence before, and had never
seen the fence bars bent. After the incident, he discovered that the bars could be bent by hand
because the bars are hollow.
From the above evidence, the jury could reasonably have concluded that appellant
damaged the fence when he pulled the bars apart as he attempted to wriggle through them.
The jury could also infer from appellant’s conduct that he acted knowingly or
intentionally. See Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App. 1995) (defendant’s
intent may be inferred from his words, acts, or conduct). Thus, testimony that appellant was
pulling on the fence bars trying to fit through a small hole is sufficient to establish that he
knowingly or intentionally damaged the fence.
For the above reasons, we resolve appellant’s first issue against him.
C. Second Issue: Is the lay evidence sufficient to establish the repair costs?
Appellant’s second issue argues that the evidence is insufficient to prove the repair costs
because Schmidt was not an expert and he relied on hearsay. The evidence about which
appellant complains, however, was admitted without objection.
When conducting a legal sufficiency review, we consider all evidence, regardless of
whether it was admissible. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013).
Thus, inadmissible hearsay admitted without objection is not denied probative value merely
because it is hearsay. Chambers v. State, 711 S.W.2d 240, 247 (Tex. Crim. App. 1986). Instead,
it is treated like other evidence in that it is capable of sustaining a verdict. Maloy v. State, 990
S.W.2d 442, 445–446 (Tex. App.—Waco 1999, no pet.).
Here, Schmidt testified that a fence company provided him with an estimate, and based
on that estimate, it would cost $337.89 to repair the fence. Therefore, Schmidt’s lay opinion was
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not unsupported or “off the wall” and thus was sufficient to establish the cost of repair. See
Campbell v. State, 426 S.W.3d 780, 786 (Tex. Crim. App. 2014).
We thus resolve appellant’s second issue against him.
III. Conclusion
Having resolved all of appellant’s issues against him, we affirm the trial court’s
judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE
Do Not Publish
TEX. R. APP. P. 47
150995F.U05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
RONNIE OGENE MASSEY, JR., Appellant On Appeal from the County Court at Law
No. 4, Collin County, Texas
No. 05-15-00995-CR V. Trial Court Cause No. 004-85841-2014.
Opinion delivered by Justice Whitehill.
THE STATE OF TEXAS, Appellee Justices Myers and Stoddart participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered June 6, 2016.
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