Criminal mischief sounds like a do-anything crime for which police can pursue charges at their whim. Fortunately, that's not how broadly Texas Penal Code 28.03 defines it, although the statute does have its ambiguities. Rather, Texas criminal mischief is what some other states charge as vandalism or malicious destruction of property, including what the layperson would think of as graffiti.
In Texas, criminal mischief is a statutory crime. Texas Penal Code 28.03 first defines criminal mischief broadly before classifying levels of criminal mischief into increasingly stiff punishments. Texas Penal Code 28.03 is a relatively long statute. Criminal mischief in Texas has several levels covering everything from the lowest misdemeanor up to a first-degree felony. When it comes to vandalism, malicious destruction of property, or graffiti, what Texas calls criminal mischief, the message may be don't mess with Texas.
Texas's Statutory Definition of Criminal Mischief
As just indicated, Texas Penal Code 28.03 first defines criminal mischief broadly, only later defining levels of the crime by certain activities that suggest some specific forms of the crime. The statute begins:
(a) A person commits an offense if, without the effective consent of the owner:
(1) he intentionally or knowingly damages or destroys the tangible property of the owner;
(2) he 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; or
(3) he intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.
Thus, the core definition of criminal mischief is to intentionally damage, destroy, tamper with, or mark up (as with graffiti) another's tangible property, without that other's consent. Criminal mischief has nothing to do with harm to persons. Nor is it a robbery or theft crime involving the carrying away of tangible property or secreting or converting intangible assets like accounts. Rather, the crime addresses damage to tangible property, meaning physical things.
The statute's later classifications add abundant detail to the criminal-mischief crime. According to the statute, the lost value of destroyed or damaged property, the type of property, the method of the property's destruction (whether by explosives or shooting), and other details all affect whether criminal mischief has occurred or the level of its punishment. In the course of defining offense levels, Texas Penal Code 28.03 names each of these types of tangible property as specifically protected against criminal mischief (recognizing that other tangible property would also qualify outside of the specific classifications):
- cattle, bison, or horses;
- a fence to contain cattle, bison, horses, sheep, swine, goats, exotic livestock, exotic poultry, or game animals;
- flood-control property including a dam;
- property used for public communications;
- property used for public transportation;
- a public gas or power supply, or other public service;
- public water supply and devices;
- a place of worship;
- a place of human burial;
- a public monument; or
- a community center providing medical, social, or educational programs.
One can see from these statutory examples of the kind of tangible property to which Texas criminal mischief applies that the crime often involves property out in public. Vandals would have ready access to things like grazing livestock, floodgates, telephone towers, utility poles and transformers, water lift stations, cemeteries, and statues or other public monuments. Again, though, Texas criminal mischief could just as readily apply to private property of other kinds. Texas Penal Code 28.03 just uses the above examples to elevate the level of criminal mischief. Vandalizing public property or property out in public view of these types simply carries greater penalties. Criminal-mischief charges may also result from damage to, or destruction or defacement of:
- motor vehicles and their windshields, gas tanks, or tires;
- residences and their walls, windows, roof, decks, or garages;
- businesses and their signs and displays;
- trade tools and equipment, and their storage boxes and trailers;
- mailboxes, gates, and fences;
- lawn ornaments, garden walls, greenhouses, and related equipment;
- playgrounds and recreational equipment.
Punishment of Criminal Mischief
The above core definition is just the long statute's start. Texas Penal Code 28.03 goes on to classify several levels of the crime, each corresponding to increasingly stiff punishments. As to those offense-level classifications, with certain exceptions Texas Penal Code 28.03 treats criminal mischief as:
- a Class C misdemeanor punishable by up to a $500 fine with no jail time, if the loss is under $100 or the crime substantially inconveniences others;
- a Class B misdemeanor punishable by up to a $2,000 fine and 180 days of jail time, if the loss is $100 or more but less than $750;
- a Class A misdemeanor punishable by up to a $4,000 fine and one year of jail time, if the loss is $750 or more but less than $2,500 or the crime impairs, interrupts, or diverts in any part a public water supply;
- a state-jail felony punishable by up to a $10,000 fine and two years of jail time, if the loss is $2,500 or more but less than $30,000, or the crime damages or destroys a habitation using a firearm or explosives, damages a fence containing certain livestock, or impairs, interrupts, diverts any part of property used for public services, or damages a place of worship or human burial, public monument, community center providing medical, social, or educational programs, or public or private school;
- a third-degree felony punishable by two-to-ten years of imprisonment and up to a $10,000 fine, if the loss is $30,000 or more but less than $150,000 or the defendant by any means causes the death of one or more cattle, bison, or horses except in regular agricultural practices or military duties, or damages communications equipment;
- a second-degree felony punishable by two-to-twenty years of imprisonment and up to a $10,000 fine, if the loss is $150,000 or more but less than $300,000; and
- a first-degree felony punishable by five-to-ninety-nine years of imprisonment, up to life, and up to a $10,000 fine, if the loss is $300,000 or more or the property is livestock and the damage occurs by introducing mad-cow disease.
What, though, if a vandal damages several distinct pieces of property having smaller values, all in one crime spree? Under certain circumstances, the criminal-mischief statute allows prosecutors to aggregate property-loss values, increasing the offense-level of the crime. Texas Penal Code 28.03(e) provides that if the criminal mischief occurs as one scheme or continuing course of conduct, then a charge may aggregate the property-loss values. In that case, damaging, destroying, or marking up several low-value properties could aggregate into a high-offense crime. The Texas legislature doesn't want to see vandals go on a spree.
Defending Criminal-Mischief Charges
Just because you or someone you know faces a criminal-mischief charge does not mean that a conviction is likely. Authorities may not have the evidence to support each element of the criminal-mischief charge, in which case the court should dismiss the charge before or during trial.
Here is a good example. Texas Penal Code 28.03(a) requires that the defendant have intended or known that the damage or destruction was of another's property without that other's consent. Many circumstances may lead a person to mistakenly believe that they were affecting only their own property or the property of a person who had given them consent. In a dispute over the defendant's own state of mind, fact issues of intent and knowledge are naturally within the defendant's own control and influence.
In one respect, only the defendant knows what the defendant was thinking. People do make innocent, even if sometimes careless, mistakes over who owns certain property or has given consent to what use of it. A person who believes that they have only destroyed their own property, when in fact, they have destroyed the property of another, does not commit criminal mischief. Fact disputes over knowledge and intent can throw into serious question the prosecution's ability to prove the guilty-state-of-mind element beyond a reasonable doubt.
Even if the prosecution does have evidence supporting each element of criminal mischief, investigators may have obtained that evidence in violation of constitutional rights, such as the Fourth Amendment right against unreasonable search and seizure. A skilled Texas criminal-defense lawyer like Doug Murphy, who has Board Certification in Criminal Law from the Texas Board of Legal Specialization, would challenge with a motion to suppress any evidence, such as the defendant's coerced confession or material evidence from an unlawful search, that investigators obtained in violation of the defendant's Fourth Amendment rights. When a court grants a motion suppressing the only evidence the prosecution has on an element of the charge, the full remedy is the charge's dismissal.
Texas law also offers several defenses to criminal mischief. Consent, mistake of fact, and necessity are three defenses that Texas law recognizes and that may especially apply to a criminal-mischief charge. As indicated just above, criminal mischief is an intent crime. The defendant may be readily able to show from the defendant's own testimony, the testimony of others, and circumstantial evidence that the defendant subjectively believed that the defendant had the owner's consent, or was mistaken about ownership of the property, or needed to access the property out of compelled circumstances constituting a necessity.
Texas criminal-defense lawyer Doug Murphy knows how to marshal and present evidence on, and aggressively argue, these and other defenses to criminal mischief. The US News & World Report list of Best Lawyers in America has recognized Doug Murphy every year from 2013 to 2020 for his criminal-defense successes. Thomson Reuters has also named Doug a Texas Super Lawyer in 2009 and every year from 2013 to 2020. You can trust Doug Murphy for the most-aggressive defense of mistaken, unjustified, and insupportable criminal-mischief charges.
Consequences of a Criminal-Mischief Conviction
Any conviction of a crime can have serious consequences, and that warning is no less true for criminal mischief. The very name of the crime--criminal mischief--implies things that no self-respecting person would wish to advertise to others. A criminal history of a criminal-mischief conviction on its face speaks ill of the person, even if the conviction was a Class A, B, or C misdemeanor rather than one of the felony levels.
The consequences of criminal conviction begin with the crime's punishment, which the above discussion shows could include not just substantial fines but also substantial jail or even prison time, depending on the specifics of the criminal mischief. Probation often follows, sometimes with hundreds of hours of community service.
But criminal convictions, whether for criminal mischief or other crimes, carry career implications, too. The dishonesty and property-destruction aspects of a criminal-mischief conviction may warrant many employers either to terminate the defendant's employment or to refuse to hire the defendant. Crimes of dishonesty and violence disqualify applicants from many jobs requiring security and safety, of which the workforce has many. Such convictions can also lead to the loss of a professional or vocational license to practice medicine, nursing, law, accounting, teaching, or real estate, or licenses or certifications for piloting, attendant care, and a host of other important opportunities.
Convictions can also affect access to credit, whether personal loans, home or other real-estate mortgages, or business loans or credit cards, and access to education, especially higher and graduate education and professional schools. The terms of a sentence and probation may also restrict travel. And convictions of crimes of dishonesty or violence can also affect child custody, parental rights, and other family and social rights and relationships.
Get the Best Representation
These and other consequences of a criminal-mischief conviction warrant retaining the best available criminal-defense lawyer. Texas criminal defense attorney Doug Murphy is a past President of the Harris County Criminal Lawyers Association. Doug has also served on the board of directors for both the Harris County Criminal Lawyers Association and the Texas Criminal Defense Lawyers Association. He has received numerous Texas Criminal Defense Lawyers Association President's Awards for his leadership in educating the bar and public about criminal defense, and for his courageous advocacy on behalf of the wrongly accused.
Contact Doug Murphy Law Firm, P.C., online or at (713) 229-8333 to discuss your criminal charge or matter today. A charge of criminal mischief can carry serious penalties, depending on its classification level. And any criminal charge is serious when considering the collateral consequences of a conviction. You need the best representation, especially if your charge involves the prospect for significant jail time. Trust leading Texas criminal-defense attorney Doug Murphy with your defense, no matter the charge.