Updated September 20, 2021; Original Post: June 28, 2020
What exactly is criminal mischief?
Good question. In our state, there are several criminal acts that fall under the umbrella of criminal mischief. Even more confusing — these crimes that fall under the umbrella of criminal mischief can range greatly and can be very serious in their penalties.
In this post, we’ll examine some of the different actions and behaviors that fall under this umbrella term of criminal mischief and cover what the penalties are for each of these crimes, if convicted.
2020 was a year for the record books. We saw a pandemic ravage the world, political unrest and protests create strife and division. With protests popping up all around the country and the energy that comes with them, it can be easy to get a little carried away — on both sides.
Some protesters were surprised to find themselves engaging in activities that in normal circumstances they would avoid as criminal behavior. On the flip side, police officers experiencing a siege mentality may have acted too quickly and with too much force to get protesters to disperse, sometimes arresting huge swaths of people all at once.
When this happens in Texas, the people arrested tend to be charged with criminal mischief.
What Qualifies as Criminal Mischief in Texas?
The crime of criminal mischief covers a wide range of activities that all end with one result: the willful destruction of another person’s property. In the protests from 2020, this came from damage from rioting, damage done to stores from looting, or other activities such as throwing bricks or destroying city property.
Here’s the definition of criminal mischief according to the Texas Penal Code:
“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.”
Outside of looting, there are several actions that can fall under these the umbrella of criminal mischief, including:
How many of us pulled pranks on others when we were younger? Most of us! However, what may be a prank to one person could be considered a crime to the person on the receiving end of the prank.
You may think that wrapping someone’s tree in toilet paper or throwing an egg on someone’s car is just a harmless practical joke, but it isn’t if there is property damage that occurs as a result of the prank. If there is damage arising from the prank, you could be responsible for those damages and charged with the crime of criminal mischief.
Vandalism can include everything from tearing down street signs to graffiti to general damaging of others’ property. Defacing property that you don’t specifically own — regardless of whether it is public or private — is a crime. This falls under criminal mischief laws and, depending on the value of the property damaged, can be a serious crime.
We’ve touched on this already, but if you commit acts during a riot, regardless of the reason for that riot, you are committing criminal mischief. Whether the riot stems from protests against police or from sporting events, the reason doesn’t matter. If you participate in the damage of public or private property that isn’t yours, you can be charged with criminal mischief.
How Does Texas Punish Criminal Mischief?
The penalty for criminal mischief varies depending on the value of the damage done. Because of this, these charges can range from a Class C misdemeanor up to a first-degree felony in the most serious of cases.
The penalty levels for criminal mischief are as follows:
- Damage to property under $100:Class C Misdemeanor — up to $500 in fines
- Damage to property between $100 and $750:Class B Misdemeanor — up to 180 days in jail and/or a fine not to exceed $2,000
- Damage to property between $750 and $2,500: Class A Misdemeanor — up to one year in jail and/or a fine not to exceed $4,000
- Damage to property between $2,500 and $30,000:State Jail Felony — between 180 days and two years in jail and/or a fine not to exceed $10,000
- Damage to property between $30,000 and $150,000: Third Degree Felony — between two and 10 years in prison and/or a fine not to exceed $10,000
- Damage to property between $150,000 and $300,000:Second Degree Felony — between two and 20 years in prison and/or a fine not to exceed $10,000
- Damage to property over $300,000:First Degree Felony — between five and 99 years in prison and/or a fine not to exceed $10,000
As you can see, the penalties for criminal mischief can be extreme. In situations like protests and riots, it’s easy to get carried away with the emotions of the moment. However, the damage caused can add up quickly when things like arson and destruction of expensive public property are involved. Remember to stay away from these types of situations during protests and avoid criminal mischief at all cost.
Defenses To Criminal Mischief In Texas
Can Value Be Proven?
If you have been arrested and charged with felony criminal mischief, one of the best arguments you can make on your criminal case is to assess the strength of the damage alleged to have been caused. How did the alleged victim come up with this damage estimate? Did they write it down on a piece of paper? Did they guess? Or did they go to a reputable third party that has special experience and knowledge that can provide a reliable damage estimate?
Remember, if your felony criminal mischief charge alleges a damage estimate more than $2,500, your criminal defense attorney needs to thoroughly examine the source and reliability of that damage estimate to see if it is reliable. What if the alleged victim’s estimate claims damage of $3,000 but the estimate lacks specificity and appears to be a conclusory receipt? In this situation, your criminal defense lawyer can obtain information regarding the alleged damage caused and seek an independent assessment of the value of the damage and prepare a professional document clearly supporting the lower valuation. Remember, the State of Texas must prove the element of value beyond a reasonable doubt. If your criminal attorney can create reasonable doubt regarding the value of the repairs, you may be able to get your criminal mischief case lowered to a lesser misdemeanor charge.
If your criminal mischief case is a felony in Texas, your criminal defense attorney can prepare this evidence into a grand jury packet and make a presentation to the grand jury. Under Texas law, every felony in Texas must be presented to a grand jury. A grand jury is a panel of citizens that listen to felony criminal cases to determine if there is sufficient probable cause for the case to proceed forward in the justice system.
After the presentation of the evidence by your criminal lawyer, the grand jury may choose to keep the charge as a felony criminal mischief, lower the charge to a lesser misdemeanor criminal mischief or conclude that the charge lacks sufficient evidence and No Bill the case. A No Bill is the equivalent of a dismissal of the charge. If your criminal attorney can achieve a no bill, you will be eligible to have the arrest, charge and all paperwork related to your criminal mischief charge expunged from your criminal record
Can Criminal Intent Be Proven?
Being charged with criminal mischief requires the State of Texas to prove beyond a reasonable doubt that the damage was intentionally or knowingly caused. What if it was an accident? What if there was no criminal intent? In that case, there is no crime!
Think about it. If the prosecutor could prosecute someone every time there was damage that was caused accidentally, then every person who was ever in a car accident would be arrested on the scene because of the damage that occurred. However, this does not happen!
It is common for the alleged victim to believe that the person that caused the damage to their property must have done so intentionally. However, if you hire an experienced and aggressive criminal defense attorney, they will be able to dig through the evidence and examine the totality of the circumstances do determine if criminal intent can be proven. Did the circumstances make it appear it was just as likely an accident as intentional? Was there a motive to cause the damage?
For example: A man is on his way out of Home Depot and is pushing a cart with wood and supplies. As he makes the turn to get to his car, he scrapes the side of another car parked near his own. The owner of this car becomes irate and confronts this man and claims he did this intentionally. The police are called and although the man with the damaged car claims he believes it was intentional, what motive would this man have to scratch his car? Do they know each other? What would he gain from doing this? All these questions are issues that must be examined to determine if criminal intent can be proven beyond a reasonable doubt.
Was The Damage Current Or From A Prior Incident?
If you are facing a criminal mischief charge in Texas, it is critical that your criminal defense lawyer evaluate the photos and/or video of the damage. Does the damage appear to be related to the alleged conduct? In other words, it may be possible that the alleged victim is attempting to “double dip” by including damage from a previous incident in the estimate.
For example: A girlfriend and boyfriend get into an argument and break up. She finds out he was cheating on her and she gets angry and damages his side mirror on his car. The boyfriend gets angry and calls the police and she is arrested for criminal mischief $100 – $750. However, the boyfriend brings a damage estimate to the prosecutor that includes repair for scratches on the side of the door. Additionally, these scratches on the side of the door show rust on them. The girl’s criminal defense attorney can use this evidence to show that the alleged victim is lying and that the damage is not what is claimed.
Was The Wrong Person Charged or Arrested?
Were you arrested and charged with criminal mischief because an alleged victim assumed you were the one that caused the damage? This happens frequently when there are multiple people around property that was damaged. To hold someone accountable, an alleged victim may have jumped to conclusions and assumed you were the responsible party. The State of Texas must prove beyond a reasonable doubt that you were the person that intentionally or knowingly caused property damage to the owner’s property. Failure to prove this element of the crime will result in a dismissal of your criminal mischief charge.
Can Restitution Be Made?
Finally, what if all the evidence appears to point to the fact you did commit the crime of criminal mischief? Can you still achieve a favorable result for your case even if you are guilty? It is possible. Criminal mischief cases are usually focused on one primary issue: money! The victim wants money to repair the damages. One strategy to negotiate a criminal mischief dismissal is to gather the funds necessary to offer full restitution to the victim.
One of the goals of a prosecutor on a criminal mischief case is to try to make the victim whole for their loss. This can be achieved through full restitution. An experienced and aggressive criminal defense attorney may be able to negotiate a conditional dismissal of your criminal mischief charge in exchange for full restitution being provided. At the end of the day, a dismissal is a dismissal, regardless of how it is achieved. Upon passage of the statute of limitations, you will be eligible to have your criminal mischief charged expunged from your criminal record.
Our team of 5 former prosecutors stands ready to assist you with your criminal mischief charge. If you are facing a criminal mischief charge, contact the Fulgham Law Firm for a free case analysis and one of your criminal defense attorneys will provide you a custom defense strategy to help put this charge behind you.
About the Author:
Brandon Fulgham has an in-depth understanding of both Texas law and Texans themselves. Before practicing law here, he received his undergraduate degree from TCU, and his law degree from South Texas College of Law in Houston. After graduation, he worked in District Attorneys’ offices as a prosecutor, building cases designed to put people behind bars. Now, he uses that knowledge to protect the rights of people in and around Fort Worth. He has been recognized for his work by Expertise (Best Criminal Defense Lawyers in Fort Worth and Best DUI Lawyers in Fort Worth, both 2020), The National Trial Lawyers, Fort Worth Magazine, and others.