Under Texas Penal Code §28.03, Criminal Mischief involves tampering, damaging or destroying property. Graffiti is a related property crime found under Texas Penal Code §28.08.
If you are charged with intentionally damaging or destroying property then contact an experienced criminal defense attorney.
Houston Criminal Mischief Lawyer
Horak Law represents clients facing misdemeanor or felony charges of criminal mischief in Houston, Harris County and The Woodlands in Montgomery County, Texas and throughout the area, including Fort Bend, Liberty, Galveston and Brazoria Counties, and in Pasadena, League City, Pearland, Sugar Land, Katy and Cypress.
Issues in Harris County Criminal Mischief
- Elements of Criminal Mischief Charges in Texas
- Level of the Criminal Mischief Offense
- Destruction of Jointly Owned Property
- Criminal Mischief for Diverting Electricity
Texas Penal Code §28.03 provides that a person commits criminal mischief when:
- without the effective consent of the owner;
- he or she intentionally or knowingly;
- damages or destroys the tangible property of the owner.
If the property is destroyed, the pecuniary loss is either “the fair market value of the property at the time and place of the destruction” or, “if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the destruction.” Tex. Penal Code § 28.06(a)(1)–(2).
If the property is damaged, the pecuniary loss is “the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred.” Id. § 28.06(b).
In many of these criminal mischief by destruction cases, the prosecutor will attempt to show the amount of the pecuniary loss through the owner’s testimony estimating the value of the property. Such testimony may or may not be sufficient evidence.
In most cases, unsupported lay opinion about the value of the damage is not sufficient. Instead, the prosecutor must often present some form of expert testimony to prove the cost of repairing the property. The courts have also held that an insurance adjuster’s testimony about payment to the owner is sufficient to prove the cost of repair.
The amount of the pecuniary loss sets the level of the offense and applicable penalty. Id. § 28.03(b). The amount of pecuniary loss is an essential element of criminal mischief. When property is destroyed, the amount of pecuniary loss is the fair market value of the property at the time and place of the destruction.
In limited circumstances, if that value cannot be determined, the amount of pecuniary loss is the cost of replacing the property within a reasonable time after the destruction. When property is damaged, as opposed to 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. §§ 28.03(a)(1), 28.06(b) (2011).
Under most circumstances, if the amount of pecuniary loss is:
- less than $50 or it causes substantial inconvenience to others then it is a Class C misdemeanor ;
- $50 or more but less than $500 then is is a Class B misdemeanor;
- $500 or more but less than $1,500 then it is a a Class A misdemeanor;
- $1,500 or more but less than $20,000 then it is a state jail felony;
- $20,000 or more but less than $100,000 then it is a felony of the third degree;
- $100,000 or more but less than $200,000 then it is a felony of the second degree; or
- $200,000 or more then it is a felony of the first degree.
In many of these cases, the person that allegedly committed the damage to or the distraction of the property will show that he or she had some interest in the property damaged or destroyed.
Section 28.05 of the Penal Code reads, “It is no defense to prosecution under this chapter that the actor has an interest in the property damaged or destroyed if another person also has an interest that the actor is not entitled to infringe.” Tex. Penal Code Ann. § 28.05 (West 2012).
The term “owner” of property is defined to include any 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(a)(35)(A) (2003). The term “possession” is defined to mean actual care, custody, control, or management. Tex. Penal Code Ann. § 1.07(a)(39) (2003).
One form of criminal mischief can be charged if it is alleged that the person tampered with a metering device in order to divert electricity which the person did not pay for. These charges are particularly common in marijuana grow house cases. The theft of electricity often leads to the discovery of marijuana being grown inside the residence.
Criminal mischief by diverting a public service is a state-jail felony offense of if, without the effective consent of the owner, the person intentionally or knowingly diverts a public power supply and thereby causes pecuniary loss to the owner in an amount less than $20,000. The statute provides for a statutory presumption that a person who receives the “economic benefit” of the service has engaged in the prohibited conduct.
The criminal defense attorney must use great care to limit the impact of these statutory presumptions including making arguments that any mandatory presumption is unconstitutional. Even to the extent that the presumptions are merely permissive—the jury may accept and apply it if the State proves the underlying facts beyond a reasonable doubt or it may reject the presumption as inapplicable in a particular case, the defense attorney should argue that the presumptions are unconstitutional as applied to the particular facts of the case.
Finding a Criminal Defense Attorney for Criminal Mischief
If you are charged with either a felony or misdemeanor version of criminal mischief, then contact an aggressive Houston criminal defense attorney to defend you against these serious charges. Call Matt Horak to discuss your case for charges in the greater Houston area, including all of the surrounding areas.
With offices in The Woodlands, Texas, Horak Law also represents clients throughout Montgomery County, Texas, and the surrounding areas.