Barbara Holz v. State , 2009 Tex. App. LEXIS 7618 ( 2009 )


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  •                     In The
    Court of Appeals
    Sixth Appellate District of Texas at Texarkana
    ______________________________
    No. 06-08-00224-CR
    ______________________________
    BARBARA HOLZ, Appellant
    V.
    THE STATE OF TEXAS, Appellee
    On Appeal from the 115th Judicial District Court
    Marion County, Texas
    Trial Court No. F13916
    Before Morriss, C.J., Carter and Moseley, JJ.
    Opinion by Chief Justice Morriss
    OPINION
    "Love is born lots of different places and it's not always clean." This is the statement
    septuagenarian Barbara Holz expressed to the jury that convicted her of criminal mischief for
    damage to, or destruction of, a house owned by the United States of America. Eighty-six dogs, many
    of which were allowed to live, defecate, and urinate in the house for months, were recovered from
    the property. Holz was sentenced to two years' confinement, ordered to pay $17,000.00 in
    restitution, and placed on community supervision. On appeal, she asserts the legal and factual
    insufficiency of the evidence, error in the denial of her motion to quash the indictment, a material
    variance between the indictment and the evidence, and error in the failure to charge the jury on the
    defense of necessity.
    We affirm because (1) legally and factually sufficient evidence supports the jury's finding that
    Holz intentionally or knowingly damaged or destroyed the property of another, (2) legally and
    factually sufficient evidence supports the jury's finding of the owner of the property, (3) legally and
    factually sufficient evidence supports the jury's finding that Holz caused damage or destruction of
    property with a pecuniary loss of more than $20,000.00, (4) the trial court did not err in overruling
    Holz's motion to quash the indictment, (5) no fatal variance existed between the indictment and the
    proof, and (6) no jury charge on the defense of necessity was required.
    2
    (1)     Legally and Factually Sufficient Evidence Supports the Jury's Finding that Holz Intentionally
    or Knowingly Damaged or Destroyed the Property of Another
    Holz argues that the evidence was insufficient in three ways: (A) she did not intend to
    destroy the property of another since "she acted in good faith under a reasonable claim of right
    regarding her use of the property"; (B) "U.S.D.A. Rural Development" was not the owner of the
    property as alleged in the indictment; and (C) the evidence was not sufficient to prove pecuniary loss
    in excess of $20,000.00. We address the mental-state sufficiency issue in this section and the other
    sufficiency issues in later sections.
    The requirement of legal sufficiency of the evidence serves as an aid in determining whether
    submission of an issue is required. Clewis v. State, 
    922 S.W.2d 126
    , 133 (Tex. Crim. App. 1996).
    In other words, if the evidence in this case was insufficient to raise an issue on Holz's guilt, it should
    not have been submitted for the jury's decision, and we must render a judgment of acquittal. 
    Id. When conducting
    this analysis, we review all of the evidence in the light most favorable to the
    verdict and determine whether, based on that evidence and reasonable inferences therefrom, any
    rational jury could find the essential elements of criminal mischief beyond a reasonable doubt.
    Laster v. State, 
    275 S.W.3d 512
    , 517 (Tex. Crim. App. 2009); Roberts v. State, 
    273 S.W.3d 322
    (Tex. Crim. App. 2008); Lacour v. State, 
    8 S.W.3d 670
    , 671 (Tex. Crim. App. 2000) (citing Jackson
    v. Virginia, 
    443 U.S. 307
    , 319 (1979)); 
    Clewis, 922 S.W.2d at 132
    –33.
    Once we determine the evidence raised issues for the jury's resolution, we will not sit as the
    thirteenth juror re-evaluating the weight and credibility of the evidence. Williams v. State, 235
    
    3 S.W.3d 742
    , 750 (Tex. Crim. App. 2007); Dewberry v. State, 
    4 S.W.3d 735
    , 740 (Tex. Crim. App.
    1999). Instead, we give full play to the jury's responsibility to weigh the evidence, resolve conflicts
    in the testimony, and draw reasonable inferences from basic facts. Johnson v. State, 
    23 S.W.3d 1
    , 7 (Tex. Crim. App. 2000); 
    Clewis, 922 S.W.2d at 133
    ; Bottenfield v. State, 
    77 S.W.3d 349
    , 354 (Tex. App.—Fort Worth 2002, pet. ref'd) (citing 
    Jackson, 443 U.S. at 319
    ).
    On the other hand, in judging factual sufficiency, we are not free to re-weigh the evidence
    and set aside the jury verdict merely because we feel a different result is more reasonable. 
    Clewis, 922 S.W.2d at 135
    . We do not engage in a second evaluation of the evidence, but ensure only that
    the jury reached a rational decision. Cuong Quoc Ly v. State, 
    273 S.W.3d 778
    , 783 (Tex.
    App.—Houston [14th Dist.] 2008, pet. ref'd) (citing Muniz v. State, 
    851 S.W.2d 238
    , 246 (Tex.
    Crim. App. 1993)). Thus, we give due deference to the jury determinations and will find the
    evidence factually insufficient only when necessary to prevent manifest injustice. 
    Johnson, 23 S.W.3d at 8
    –9, 12; 
    Clewis, 922 S.W.2d at 133
    , 135. Unlike our legal sufficiency review, we
    examine the evidence in a neutral light when assessing factual sufficiency and determine whether
    the proof of guilt is obviously weak as to undermine confidence in the verdict, or, if taken alone, is
    greatly outweighed by contrary proof so as to be clearly wrong and unjust. 
    Laster, 275 S.W.3d at 518
    ; Lancon v. State, 
    253 S.W.3d 699
    , 705 (Tex. Crim. App. 2008); 
    Roberts, 220 S.W.3d at 327
    ;
    Zuliani v. State, 
    97 S.W.3d 589
    , 595 (Tex. Crim. App. 2003); 
    Johnson, 23 S.W.3d at 11
    ; Cain v.
    State, 
    958 S.W.2d 404
    , 407 (Tex. Crim. App. 1997); Harris v. State, 
    133 S.W.3d 760
    , 764 (Tex.
    4
    App.—Texarkana 2004, pet. ref'd). A clearly wrong and unjust verdict is manifestly unjust, shocks
    the conscience or clearly demonstrates bias. Sells v. State, 
    121 S.W.3d 748
    , 754 (Tex. Crim. App.
    2003); Santellan v. State, 939 S.W.2d 155,164 (Tex. Crim. App. 1997).
    We measure the evidence "by the elements of the offense as defined by the hypothetically-
    correct jury charge for the case."1 Malik v. State, 
    953 S.W.2d 234
    , 240 (Tex. Crim. App. 1997); see
    also Grotti v. State, 
    273 S.W.3d 273
    , 280 (Tex. Crim. App. 2008). The hypothetically-correct jury
    charge "sets out the law, is authorized by the indictment, does not unnecessarily increase the State's
    burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the
    particular offense for which the defendant was tried." 
    Malik, 953 S.W.2d at 240
    . It is used to
    evaluate both legal and factual sufficiency. 
    Grotti, 273 S.W.3d at 281
    .
    To promote economic development, the United States Department of Agriculture (USDA)
    provides loans to low-income families to assist them in purchasing or building houses in rural areas.
    Holz applied for such a loan to purchase a residence in Marion County at a cost of $35,000.00. In
    April 2005, she contracted to purchase the residence in question with Joe B. Jones, an agent and area
    specialist for the USDA. The contract was contingent on USDA's approval of the credit sale. Holz's
    $100.00 earnest money check bounced for lack of sufficient funds. This prompted USDA's requests
    to Holz to re-verify her income. Holz never complied. As a consequence, the loan was never
    approved and the property sale was never closed. After the contract for sale was cancelled, Holz
    1
    Malik controls "even in the absence of alleged jury charge error." Gollihar v. State, 
    46 S.W.3d 243
    , 255 (Tex. Crim. App. 2001).
    5
    picked up the title company's file containing documentation to that effect. The cancellation of the
    sales contract did not stop Holz. She moved into the residence and lived there at no cost for over
    three years, collecting and housing dogs.
    Fourteen of Holz's Australian shepherds and blue heeler dogs moved into the new residence
    with her. Because Holz loved animals, she took in a large number of strays and "boxes of puppies"
    people abandoned close to the house. Neighbor Don Adams began to notice "more and more dogs
    and more and more litter on the yard." Adams, who lived a block and a half away from Holz, found
    dog carcasses on his property and throughout the neighborhood. He recounted that "a lot of the
    puppies that were running free were run over by cars." Adams testified that the smell emanating
    from the property was like that of a meat packing plant and affected the whole neighborhood. After
    some time, he contacted Caroline Wedding of the Marion County Humane Society.
    Wedding observed approximately forty-five dogs outside the house on the property occupied
    by Holz, some of these dogs contained in pens Holz had built with 560 feet of chain link fence. Holz
    claimed that, inside the house, there were eight dogs that should be euthanized, but denied entry to
    Wedding, who reported her observations to the sheriff's department. Shortly thereafter, Society for
    the Prevention of Cruelty to Animals investigator Christopher West met with Holz and was also
    denied access into the house. This time, Holz claimed there were only four dogs inside. A warrant
    authorizing seizure of the dogs was obtained.
    6
    The following day, hoping to avoid confrontation during seizure of the animals, Investigator
    Shawn Cox, accompanied by West and Wedding, executed an outstanding, unrelated warrant for
    Holz's arrest. The seizure of the dogs was recorded on video and later played back for the jury.
    West's testimony punctuated the video, depicting the utterly deplorable condition of the house caused
    by animals living in vile conditions. West carried an ammonia warning meter that determined
    whether dangerous levels of ammonia given off by urine existed in the environment. He clarified
    that any reading above twelve parts per million is hazardous to human health, that a person can work
    only eight hours in an environment with an ammonia level above twenty-five parts per million, and
    that if the meter reads fifty parts per million, no more than five minutes should be spent in the
    environment. The video and testimony demonstrated that West's ammonia meter read sixteen parts
    per million while located on the front porch before West's entry into the house. The meter jumped
    to ninety-nine when the front door was opened. "We had max'd our meter out. It does not go any
    higher than that." West recounted:
    On my initial entry into the home I lasted about fifteen to twenty seconds before I had
    to leave due to the ammonia smell and fecal smell inside the home. There were
    about 30 dogs, 30 to 32 dogs running loose, nipping at my heels, free roaming inside
    the home. There was compressed feces basically from wall to wall. I could not see
    the floor, it was all feces. In all of the rooms I did not see any furniture with the
    exception of a TV set that I remember in the home and the dogs were just free
    roaming. The smell was incredible. The dogs were running back and forth, hard to
    get my footing because of all the feces.
    7
    West noticed a lot of damage to the walls and floor, and a hole beneath the slab that "[m]ultiple dogs
    were climbing into." Thirty-five to thirty-nine dogs were recovered from inside the house. The
    video shown to the jury confirmed the horrific conditions and profound damage to the house.
    Despite her prior background managing residential real estate sales, and knowledge that
    "[w]e had to show up at the closing," Holz testified that she believed she owned the property
    because her real estate agent gave her the key. To this effect, Holz testified that she made repairs
    to the house as if it were hers, put her name on the mailbox, received mail, and had telephone and
    water service. Thus, she argues, she believed the damage being done to the house was damage to
    her own property.
    Meanwhile, Jones was not aware that anyone was occupying the property. He testified that,
    after discovery of the situation at the house, he was required to go to an "environmental type
    specialty firm" to receive cleanup estimates due to the hazardous environment. The trial court
    sustained Holz's hearsay objection to the estimates, and they were never admitted. Based on Jones'
    experience in estimating the value of property, however, he considered the property to be a total loss
    and would probably condemn it and haul it off.
    Attorney Chase Palmer testified that, on an earlier occasion, Holz had left his client's rental
    property in a deplorable condition by allowing dogs to live there. He described the "terrible smell
    emanating from the house" and told the jury that the earlier house was eventually bulldozed.
    8
    A person commits criminal mischief if he or she, without the effective consent of the owner,
    intentionally or knowingly damages or destroys the tangible property of the owner. TEX . PENAL
    CODE ANN . § 28.03 (Vernon Supp. 2008). Also, since the value of pecuniary loss determines the
    grade of the offense, it is a crucial additional element of criminal mischief. TEX . PENAL CODE ANN .
    § 28.03(b); see Lackey v. State, No. 06-08-00162-CR, 
    2009 WL 1884421
    , at *5, 8 (Tex.
    App.—Texarkana July 2, 2009, pet. filed) (citing Elomary v. State, 
    796 S.W.2d 191
    , 192–93 (Tex.
    Crim. App. 1990); Barnes v. State, 
    248 S.W.3d 217
    , 220 (Tex. App.—Houston [1st Dist.] 2007, pet.
    struck)).
    Holz contends that because she operated under the belief that the property was hers, she did
    not intend to damage or destroy another's property.2 Holz's belief as to ownership of property does
    not affect the analysis of the mens rea element. A person acts intentionally "when it is his conscious
    objective or desire to engage in the conduct that caused the result." TEX . PENAL CODE ANN .
    § 6.03(a) (Vernon 2003). A person acts knowingly "with respect to a result of his conduct when he
    is aware that his conduct is reasonably certain to cause the result." TEX . PENAL CODE ANN . § 6.03(b)
    (Vernon 2003). The conduct at issue is Holz's housing of the dogs within the house where they
    defecated, urinated, created holes in the wall, and otherwise destroyed the house. The result of Holz's
    conduct was damage or destruction of the property. She testified on direct examination that she
    2
    Holz argues her belief that she had a right to possess the property was reasonable because
    the contract for sale stating, "The purchaser will close with the property vacant; subject to the
    Purchaser's own occupancy only," entitled her to immediately move in. She ignores the language
    making the contract for sale contingent upon agency approval of the credit sale.
    9
    realized the dogs were doing some damage to the carpeting and floors. A review of the evidence
    demonstrates it was legally and factually sufficient for a jury to at least find Holz was reasonably
    certain that housing over thirty dogs inside the house, and allowing them to roam free, defecate,
    urinate, and create holes in the walls, would cause damage or destruction of the property.
    (2)       Legally and Factually Sufficient Evidence Supports the Jury's Finding of the Owner of the
    Property
    Holz complains that the evidence was insufficient to demonstrate "Joe B. Jones, agent for
    the U.S.D.A. Rural Development" was the owner of the property because title was in the name of
    the United States of America. She also contends Rural Development is "a collection of programs"
    that cannot be an owner as a matter of law.
    An owner, as defined in the Texas Penal Code, is a person who "has title to the property,
    possession of the property, whether lawful or not, or a greater right to possession of the property than
    the actor." TEX . PENAL CODE ANN . § 1.07(35)(A) (Vernon Supp. 2008). Ownership may be alleged
    through the actual owner or a special owner. TEX . CODE CRIM . PROC. ANN . art 21.08 (Vernon 2009).
    A special owner is an individual in custody or control of property belonging to another person.
    Harrell v. State, 
    852 S.W.2d 521
    , 523 (Tex. Crim. App. 1993). When a government entity is the
    owner of property subject to criminal mischief, it is the preferable practice to allege special
    ownership in a natural person acting for the entity. Id.; State v. Bartee, 
    894 S.W.2d 34
    , 44 (Tex.
    App.—San Antonio 1994, no pet.) (citing Sowders v. State, 
    693 S.W.2d 448
    , 451 (Tex. Crim. App.
    1985)).
    10
    In this case, the indictment alleges that Jones was the owner of the property. The deed
    offered by Holz's counsel at trial names him as the substitute trustee for the property which was
    "struck off to United States of America, Rural Housing Service." The deed lists Jones' office address
    as the address of the owner. A tax receipt demonstrates taxes were paid by owners the United States
    of America/Rural Housing Services, and also listed Jones' work address as the address for the
    property owner. The sales contract signed by Holz was executed by "The United States of America,
    acting through the Rural Housing Service," and was signed by Jones as the "Rural Development
    Specialist" for USDA. Additionally, Jones testified that as agent for USDA, he is authorized to
    execute documents relating to the residence on behalf of the United States of America.
    On the other hand, the jury heard that Holz never closed on the purchase of the house,
    bounced the escrow check, did not have a deed to the property, never made a payment on the house,
    did not pay property taxes or insurance, and did not inform Jones she was living in the house. Holz's
    testimony regarding her belief in ownership merely raised an issue of ownership for the jury to
    resolve. We find this evidence was both legally and factually sufficient to enable the jury to find that
    Jones had title as a representative and had a greater right to possession of the property than Holz.3
    3
    Holz complains that the evidence was insufficient to show "USDA, Rural Development,"
    had title to the property. Because we determine Jones was alleged to be the special owner, and
    because legal and factual sufficiency are evaluated based on the hypothetically correct jury charge,
    we need not assess this contention. We do, however, analyze whether the trial court should have
    quashed the indictment or whether a material variance existed between the indictment and proof.
    11
    (3)     Legally and Factually Sufficient Evidence Supports the Jury's Finding that Holz Caused
    Damage or Destruction of Property with a Pecuniary Loss of More than $20,000.00
    Next, we address Holz's point of error questioning whether the evidence was sufficient to
    establish "damages."4 The pecuniary loss resulting from the criminal mischief determines the grade
    of the offense. TEX . PENAL CODE ANN . § 28.03(b); see Lackey, 
    2009 WL 1884421
    , at *8. Thus,
    criminal mischief also includes, as a crucial element, the value of pecuniary loss. 
    Id. at *5
    (citing
    
    Elomary, 796 S.W.2d at 192
    –93; 
    Barnes, 248 S.W.3d at 220
    ). If property is damaged, pecuniary
    loss is determined by the cost of repairing or restoring the damaged property within a reasonable
    time. TEX . PENAL CODE ANN . § 28.06(b) (Vernon 2003). If property is destroyed, the amount of
    pecuniary loss is either the fair market value of the property at the time and place of destruction, or,
    if fair market value cannot be ascertained, the cost of replacing the property within a reasonable time
    after destruction. TEX . PENAL CODE ANN . § 28.06(a) (Vernon 2003). A pecuniary loss of more than
    $20,000.00 but less than $100,000.00 supports conviction of the offense as a third-degree state jail
    felony. TEX . PENAL CODE ANN . § 28.03(b)(5).
    Holz contends that there is no competent evidence to demonstrate the property was destroyed.
    We disagree. Because the term "destroy" is not statutorily defined in the Texas Penal Code, the
    term's meaning is determined by its common usage. TEX . GOV 'T CODE ANN . § 311.011 (Vernon
    2005); Cullen v. State, 
    832 S.W.2d 788
    , 796–97 (Tex. App.—Austin 1992, pet. ref'd). "Destruction"
    4
    Damages "is not the issue here; the statutory measure is the 'amount of pecuniary loss' as
    defined by Section 28.06 of the Texas Penal Code." Lackey, 
    2009 WL 1884421
    , at *5.
    12
    means "1. The act of destroying or demolishing; the ruining of something. 2. Harm that substantially
    detracts from the value of property." BLACK'S LAW DICTIONARY 513 (9th ed. 2009). The term
    "destroy" can refer to total or partial destruction. 
    Cullen, 832 S.W.2d at 796
    –97.5 Jones testified that
    the property was an environmental hazard which he considered a total loss. He stated that he would
    probably condemn it and haul it off. The jury heard that another house Holz left in a deplorable
    condition also had been bulldozed as a result. When reviewing the evidence in a light most
    favorable to the verdict, we conclude the jury had legally sufficient evidence to determine the
    residence was ruined, or that the harm done to the house substantially detracted from its value.
    Holz claimed that the house was merely damaged, that it was structurally sound, and that she
    could clean it up. The house was a concrete slab house, and her plan was to clean the feces from the
    floor and sand it. She testified the repair work would cost less than $500.00. Even when viewing
    this evidence in a neutral light, we cannot conclude that a finding of destruction was so obviously
    weak as to undermine confidence in the verdict, or, if taken alone, was greatly outweighed by
    contrary proof so as to be clearly wrong and unjust.6
    5
    Definitions of the word "destroy" listed in Cullen include "to reduce (an object) to useless
    fragments, a useless form, or remains, as by rending, burning, or dissolving; injure beyond repair or
    renewal" and "to ruin completely, spoil so that restoration is impossible." 
    832 S.W.2d 796
    at n.2.
    6
    We agree with Holz's contention that expert testimony or testimony from a person with
    personal knowledge is required to establish cost of repair, and that a mere estimate, without more,
    is not sufficient to establish cost of repair. See generally 
    Elomary, 796 S.W.2d at 192
    –93; Deas v.
    State, 
    752 S.W.2d 573
    , 576 (Tex. Crim. App. 1988); English v. State, 
    171 S.W.3d 625
    , 629 (Tex.
    App.—Houston [1st Dist.] 2005, no pet.); Sebree v. State, 
    695 S.W.2d 303
    , 305 (Tex.
    App.—Houston [1st Dist.] 1985, no pet.). However, since there is sufficient evidence to prove the
    13
    We next address whether the evidence was sufficient to establish pecuniary loss in an amount
    greater than $20,000.00. "[W]hen the State seeks to establish the value of an item of property
    through the testimony of a non-owner[,] the witness must first be qualified as having personal
    knowledge of the value of the property." Sullivan v. State, 
    701 S.W.2d 905
    , 908 (Tex. Crim. App.
    1986). Yet, "[i]t has long been the rule in this State that the owner of property is competent to
    testify" as to the fair market value of his own property. 
    Id. Because such
    testimony is an offer of
    the owner's best knowledge of the value of his property, it "constitutes legally sufficient evidence
    for a trier of fact to make a determination as to the value based on the witness's credibility." Jones
    v. State, 
    814 S.W.2d 801
    , 803 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (citing 
    Sullivan, 701 S.W.2d at 909
    ).
    Fair market value is the amount of money that the property would sell for given a reasonable
    time for selling it. Keeton v. State, 
    803 S.W.2d 304
    , 305 (Tex. Crim. App. 1991). Jones stated the
    sales price of the house, at least the amount Holz was previously willing to pay for the house, was
    $35,100.00. A Marion County tax receipt outlining all of the taxes paid on the property in November
    2007 valued the house at $48,250.00.7 By law, all Texas taxing authorities are required to appraise
    all taxable property at fair market value. TEX . TAX CODE ANN . § 23.01 (Vernon 2008). We find the
    evidence was sufficient for the jury to conclude that Jones suffered over $20,000.00 in pecuniary
    property was destroyed, and pecuniary loss is measured by fair market value, rather than cost of
    repair, Holz's arguments and cited caselaw are inapplicable.
    7
    The tax receipt valued the land separately at $1,000.00.
    14
    loss. Further, in order to challenge the fair market value presented by Jones, Holz was required to
    offer controverting evidence of the value of the property, not her own estimates of damage repair.
    
    Id. She did
    not present any evidence contradicting the fair market value as established by Jones'
    testimony and the Marion County taxing authority. Thus, we find the evidence was legally and
    factually sufficient for the jury to determine the amount of pecuniary loss exceeded $20,000.00. This
    point of error is overruled.
    (4)       The Trial Court Did Not Err in Overruling Holz's Motion to Quash the Indictment
    Holz also argues on appeal that the trial court should have quashed the indictment because
    the manner and means of committing the alleged offense was not set out in sufficient detail. We
    review de novo a trial court's denial of a motion to quash. Lawrence v. State, 
    240 S.W.3d 912
    , 915
    (Tex. Crim. App. 2007), cert. denied, __U.S.__, 
    128 S. Ct. 2056
    (2008). The indictment in this case
    alleged
    that Barbara Holz, on or about the 10th day of July, 2008, . . . did then and there
    intentionally or knowingly damage or destroy tangible property, to wit: a house by
    allowing numerous dogs to remain in said house, without the effective consent
    of Joe B. Jones, agent for the U.S.D.A. Rural Development, the owner of said
    property, causing pecuniary loss of $20,000 or more but less than $100,000 to said
    owner.
    Holz's motion to quash complained the indictment "fails to specify by what manner or means
    Defendant did damage or destroy tangible property of the complainant and therefore fails to give
    defendant sufficient notice, or precise notice of the manner and means she did damage or destroy"
    the property.
    15
    One statutory manner of committing the offense of criminal mischief is by intentionally or
    knowingly damaging or destroying tangible property of the owner. TEX PENAL CODE ANN .
    § 28.03(a)(1). This is the gravamen of the offense, which was properly alleged. A charging
    instrument which tracks the language of a criminal statute possesses sufficient specificity to provide
    a defendant with notice of a charged offense in most circumstances. State v. Edmond, 
    933 S.W.2d 120
    , 128 (Tex. Crim. App. 1996) (citing Bynum v. State, 
    767 S.W.2d 769
    , 778 (Tex. Crim. App.
    1989); DeVaughn v. State, 
    749 S.W.2d 62
    , 67 (Tex. Crim. App. 1988)). The indictment must state
    facts which, if proved, show a violation of the law; the indictment must be dismissed if such facts
    would not constitute a criminal offense. Posey v. State, 
    545 S.W.2d 162
    , 163 (Tex. Crim. App.
    1977).
    Here, the indictment alleges facts—that Holz intentionally or knowingly damaged or
    destroyed tangible property of the owner—constituting a particular statutory manner or means of
    committing the offense of criminal mischief. "[W]hen a statute defines the manner or means of
    committing an offense, an indictment based upon that statute need not allege anything beyond that
    definition." 
    Edmond, 933 S.W.2d at 130
    .
    In this instance, the indictment went further than the mere statutory language and alleged the
    damage or destruction occurred when Holz allowed dogs to remain in the house. That further
    description does not invalidate the previous allegation of a specific statutory manner or means of
    16
    committing the offense or make the indictment more vague or indefinite. The indictment gave Holz
    ample notice of the manner and means of accomplishing the offense of criminal mischief.
    Holz's motion to quash also claimed the indictment failed "to give defendant sufficient notice
    of the owner of the property." The motion to quash listed Jones as the owner of the property. This
    was sufficient notice to Holz. In her brief, while Holz "acknowledges that generally an allegation
    of a person as the owner is sufficient to give an accused sufficient notice, . . . the owner was alleged
    to be an agent for the U.S.D.A. Rural Development, an abbreviated name that should not be
    sufficient to withstand a motion to quash." As the argument relating to the abbreviation was not
    included in the motion to quash, we decline to address it.
    Also, the motion to quash stated that "the defendant shows that her attorney has researched
    the indices for real property records . . . and finds neither a record of ownership in Joe B. Jones or
    U.S.D.A. Rural Development." This statement to the merits of the case in the motion to quash did
    not address the sufficiency of notice of the owner, and would not serve as a basis to quash the
    indictment. The trial court did not err in overruling Holz's motion to quash the indictment.
    (5)     No Fatal Variance Existed Between the Indictment and the Proof
    Holz also claims there was a fatal variance between the property owner alleged in the
    indictment and the owner proved at trial. She notes that the actual name of the owner of the property
    was the United States of America. However, as previously explained, the indictment states that
    Jones is special owner of the property, an undisputed fact. Holz does not contend that Jones was
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    without greater right of possession, and does not describe how the alleged variance prejudiced her
    substantial rights. We have also already determined that the indictment sufficiently informed Holz
    of the offense such that she could prepare an adequate defense.
    "[A] hypothetically correct charge need not incorporate allegations that give rise to
    immaterial variances." 
    Gollihar, 46 S.W.3d at 256
    . When faced with a sufficiency of the evidence
    claim based on a variance between the indictment and proof, only a material variance, i.e., one that
    prejudices the defendant's substantial rights, will render the evidence insufficient. 
    Id. at 257.
    When
    reviewing such a variance, we determine whether the indictment informed the defendant of the
    charge against him or her sufficiently to allow preparation of a defense, and whether the State under
    the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later
    for the same crime. 
    Id. The Fifth
    Amendment to the United States Constitution, and Article I, Section 14, of the
    Texas Constitution, prohibit double jeopardy and protect individuals from being tried twice for the
    same offense, possibly receiving double punishments. Albernaz v. United States, 
    450 U.S. 333
    , 343
    (1981); Illinois v. Vitale, 
    447 U.S. 410
    , 415 (1980); Stephens v. State, 
    806 S.W.2d 812
    , 814–15 (Tex.
    Crim. App. 1990). In the event of a subsequent prosecution, the entire record, not just the indictment
    is reviewed to ensure protection from double jeopardy. 
    Gollihar, 46 S.W.3d at 258
    . Since the home
    address, deeds, tax record, contract for sale, and testimony regarding the actual owner of the property
    could be used in any subsequent prosecution, a conviction under the indictment in this case would
    18
    bar prosecution of criminal mischief for damage to this house specially owned by Jones, regardless
    of the owner's name alleged in the indictment. See In re J.M.R., 
    149 S.W.3d 289
    , 295 (Tex.
    App.—Austin 2004, no pet.). Thus, there was no material variance between the indictment and
    proof, and this point of error is overruled.
    (6)    No Jury Charge on the Defense of Necessity Was Required
    Where a defensive issue is raised by the evidence, a defendant is entitled to an affirmative
    instruction in the jury charge, regardless of the strength, weakness, or credibility of the evidence.
    Hamel v. State, 
    916 S.W.2d 491
    , 493 (Tex. Crim. App. 1996). This is a matter of law, which we
    review de novo. See Guzman v. State, 
    955 S.W.2d 85
    , 89 (Tex. Crim. App. 1997).
    The defense of necessity would be available to Holz if the evidence demonstrated: (A) she
    reasonably believed her conduct was immediately necessary to avoid imminent harm; (B) the
    desirability and urgency of avoiding the harm clearly outweighed, according to ordinary standards
    of reasonableness, the harm sought to be prevented; and (C) no legislative purpose existed to exclude
    the defense. TEX . PENAL CODE ANN . § 9.22 (Vernon 2003). We review the evidence offered in
    support of the necessity defense in the light most favorable to Holz, and assess any justification
    based on necessity from her standpoint. Wood v. State, 
    271 S.W.3d 329
    , 333 (Tex. App.—San
    Antonio 2008, pet. ref'd).
    The evidence presented in support of the defense was Holz's testimony that it was necessary
    to keep the dogs inside the house because someone had destroyed a portion of the fence where she
    19
    had kept them, and the dogs would otherwise be at risk. Holz claimed that although she had restored
    the fence, there were some dogs which were so sick, they needed to be fed with syringes. With the
    exception of the need to feed the animals, no further justification or description of imminent harm
    is briefed. Holz did not explain why the dogs had to reside inside the house rather than be placed
    with the other dogs in the outdoor pens left intact. She also provided no justification for why the
    dogs remained inside the house, destroying the property, after the fence was replaced.
    Holz's belief that housing the dogs inside was necessary can be deemed unreasonable as a
    matter of law if there is a complete absence of immediate necessity or harm. Arnwine v. State, 
    20 S.W.3d 155
    , 159 (Tex. App.—Texarkana 2000, no pet.). Imminent harm is one that "requires an
    emergency situation where a split-second decision is necessary to avoid that harm." 
    Wood, 271 S.W.3d at 334
    . The harm "must be impending, not pending; that is, it must be on the 'point of
    happening, not about to happen.'" Washington v. State, 
    152 S.W.3d 209
    , 212 (Tex. App.—Amarillo
    2004, no pet.) (quoting Smith v. State, 
    874 S.W.2d 269
    , 272–73 (Tex. App.—Houston [14th Dist.]
    1994, pet. ref'd). We conclude there was no evidence presented to the jury that risk to the dogs from
    starvation or otherwise was an imminent, rather than a theoretical threat, requiring keeping them
    inside the house.
    Moreover, before one can properly raise the defense of necessity, he or she must admit to
    having committed criminal mischief . Young v. State, 
    991 S.W.2d 835
    , 839 (Tex. Crim. App. 1999);
    
    Arnwine, 20 S.W.3d at 158
    . Holz's argument on appeal makes clear that she seeks to use the defense
    20
    of necessity, coupled with the belief that she owned the house, to rebut the State's evidence that she
    had the requisite criminal mischief mens rea. Texas law clarifies
    with respect to defenses such as necessity . . . when the defensive evidence merely
    negates the necessary culpable mental state, it will not suffice to entitle the defendant
    to a defensive instruction. Rather, a defensive instruction is only appropriate when
    the defendant's defensive evidence essentially admits to every element of the offense
    including the culpable mental state, but interposes the justification to excuse the
    otherwise criminal conduct.
    Shaw v. State, 
    243 S.W.3d 647
    , 658 (Tex. Crim. App. 2007) (citing 
    Young, 991 S.W.2d at 838
    ).
    Because Holz did not admit she committed criminal mischief, and her defensive "posture serve[d]
    only to negate the culpable mental element of the offense," the trial court did not err in refusing the
    necessity defense instruction. See 
    Shaw, 243 S.W.3d at 660
    ; 
    Young, 991 S.W.2d at 839
    . Holz's last
    point of error is overruled.
    We affirm the trial court's judgment.
    Josh R. Morriss, III
    Chief Justice
    Date Submitted:        August 19, 2009
    Date Decided:          September 30, 2009
    Publish
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