Holz v. State

• Decision Date: 10 February 2010
• Docket Number: No. 06–08–00224–CR.,06–08–00224–CR.
• Parties: Barbara HOLZ, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

418 S.W.3d 651

Barbara HOLZ, Appellant,

v.The STATE of Texas, Appellee.

No. 06–08–00224–CR.

Court of Appeals of Texas, Texarkana.

Submitted Aug. 19, 2009.

Decided Sept. 30, 2009.

Rehearing Overruled Oct. 20, 2009.

Discretionary Review Refused

Feb. 10, 2010.

James P. Finstrom, for appellant.

William Gleason, for the State of Texas.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

“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.

(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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 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, 99 S.Ct. 2781).

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, 273 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.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.” ¹Malik 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 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 entryto 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.

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:

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