Criminal mischief is one of the most common property crimes charged under Texas law. It is found in §28.03 of the Texas Penal Code. The charge sounds simple enough, and a lot of criminal mischief cases are relatively straightforward. However, that’s not always the case.
Under Texas law, a person commits the offense of criminal mischief if, without effective consent of the owner of some property, the person intentionally or knowingly:
-damages or destroys the tangible property of the owner;
-intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person;
-intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.
For the most part, criminal mischief is classified and punished according to a damage ladder.
-If the pecuniary loss for the property owner is less than $100, then the charge is a Class “C” misdemeanor punishable by no more than a $500 fine and court costs.
-If the pecuniary loss for the property owner is $100 or more, but less than $750, the offense is a Class “B” misdemeanor punishable by up to 180 days in jail and a fine not to exceed $2,000.
-If the pecuniary loss for the property owner is $750 or more but less than $2,500, the offense is a Class “A” misdemeanor punishable by up to a year in jail and a fine not to exceed $4,000.
-In more uncommon instances where the pecuniary loss to a property owner is more than $2,500, the charge will become a felony. Criminal mischief felonies can range from state jail offenses, all the way up to first degree felonies, depending upon the dollar amount of damage.
There are exceptions to the value ladder under Texas law when certain property is afforded greater protection, and thus a harsher criminal penalty is assessed. For example, vandalism against churches, schools, or public infrastructure may carry a higher penalty. As another example, livestock and fencing are given special protection under the criminal mischief statute.
The government must prove, beyond all reasonable doubt, that an accused is specifically responsible for the damage at issue. There are a lot of complicated and messy situations that unfold in the real world where no one really knows what happened. The police may form a theory based on certain evidence available at the scene, but this doesn’t mean the government can prove its case beyond all reasonable doubt.
It is very important to note that criminal mischief under §28.03 requires an intentional or knowing mental intent. If your actions were merely reckless, and not intentional or knowing, then the government will only be able to charge you with a Class “C” misdemeanor under §28.04 of the penal code.
Criminal mischief offenses are often overcharged by law enforcement officers. This overcharging happens because of the way these crimes are investigated, and because our penal code differs between property that has been destroyed and merely damaged.
Consider this fictional example:
A bartender named Barry recently went through a tough breakup with his girlfriend. Barry’s ex-girlfriend comes over to the bar parking lot after dark, and uses her keys to slash Barry’s car. Barry catches her in the act, calls the police, and the police arrest Barry’s girlfriend. Barry tells the police the damage to his car is roughly $800. That’s the amount that goes into the arrest record. Barry’s girlfriend is arrested on the spot for a Class “A” criminal mischief offense. The police don’t investigate further.
However, it turns out that when Barry takes his car to the bodyshop, it only costs $240 to repair the damage. Under the value ladder, Barry’s pecuniary loss is only that of a Class “B” misdemeanor. This means that his girlfriend, at the time of her arrest, was mistakenly overcharged.
Barry’s initial $800 estimate may have been sufficient for a magistrate reviewing probable cause, but the government would not be able to rely upon it at trial because the actual cash value of repair was far less than Barry’s estimate.
When property is completely destroyed, calculating the amount of pecuniary loss under Texas law is fairly straightforward. §28.06 of the Texas Penal Code sets forth that pecuniary loss is the fair market value of the property at the time and place of the destruction. If the fair market value of the property cannot be ascertained, pecuniary loss is the cost of replacing the property within a reasonable time after the destruction.
However, in cases like Barry’s, where property is merely damaged as opposed to completely destroyed, calculating pecuniary loss is more complicated. Pecuniary loss will be the cost of repairing or restoring the damaged property within a reasonable time after the damage occurred. Bids for repairs can vary greatly, and be highly distorted.
Proving the actual cash value of pecuniary loss is not the most straightforward task for the government. This actual cash value must be based upon a credible and good faith estimate. It does not include the cost of labor or accrued interest, and it cannot be based on a trumped up bill that blows the cost of repair out of proportion.
§28.05 of the Texas Penal Code establishes that It is no defense to prosecution that the accused has an interest in the property damaged or destroyed, if another person also has an interest that the accused is not entitled to infringe.
In other words, you can’t be prosecuted for damaging or destroying your own property, but if you damage or destroy items that belong to you and to someone else, you’re going to be vulnerable to a criminal mischief charge.
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