COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00042-CR

KEN JANNERETH APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM COUNTY CRIMINAL COURT NO. 5 OF DENTON COUNTY

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MEMORANDUM OPINION1

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Introduction

Appellant Ken Jannereth appeals his conviction for criminal mischief,

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claiming in three points that the evidence is insufficient and that the State‘s 

witness list was inaccurate. We affirm.

 

1See Tex. R. App. P. 47.4.

2

Tex. Penal Code Ann. § 28.03(a)(1), (b)(2) (West 2011).
2

Factual and Procedural Background

Appellant resides in the Bar VK Air Ranch Estates (Bar VK) and is a 

member of its homeowners‘ association (HOA). The HOA holds a warranty deed 

for Bar VK‘s common areas, which include a private lake and a road providing 

access to the lake (the lake road).

The HOA holds annual meetings in October. Members who attended3the 

October 2008 meeting voted unanimously to erect a barrier on the lake road in 

response to residents‘ complaints about use of the lake by non-residents. The

barrier consisted of twin PVC pipes inserted vertically into and locked onto metal 

sleeves buried into the ground. The barrier was designed to curtail access by 

large vehicles yet still allow small vehicles such as golf carts and ATVs to pass 

through. Each executive committee (EC) member of the HOA was given a key 

with which to unlock the padlocks and remove the pipes whenever a resident 

wished to drive a larger vehicle to the lake.

On January 31, 2009, Appellant told HOA president Vaughn Gary Petty 

(Petty), that if the barrier was installed, Appellant would tear it down. On 

February 6, 2009, Appellant made similar statements to EC members while they 

constructed the barrier. Two days later, on February 8, 2009, EC members 

found the barrier pipes removed from the metal sleeves and strewn alongside the 

 

3Appellant did not attend this meeting.
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road. They restored the barrier, and on February 11, 2009, found it removed 

once more and broken as well.

Appellant admitted to Petty and to law enforcement personnel that he had 

cut the locks and dismantled the barrier pipes on both occasions, but he denied 

that he had done any other damage to the barrier.

Appellant was charged with criminal mischief, tried by a jury, and 

convicted. The trial court, assessing punishment for the Class B misdemeanor 

offense,

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ordered him to pay a fine and serve 180 days in the county jail, 

probated for two years.

Sufficiency of the Evidence

In his first two points, Appellant challenges the legal and factual sufficiency 

of the evidence to support his conviction. The court of criminal appeals has held 

that there is no meaningful distinction between the standards of review for 

determining whether evidence at trial is legally sufficient as opposed to factually

sufficient. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) 

(overruling Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996)). 

Accordingly, the standard set out in Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 

2781 (1979), is the ―only standard that a reviewing court should apply in 

determining whether evidence is sufficient to support each element of a criminal 

offense that the State is required to prove beyond a reasonable doubt.‖ Id. at 

 

4See Tex. Penal Code Ann. § 28.03(b)(2).
4

895; see Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Applying the Jackson

standard to Appellant‘s first two points, we must consider the evidence in the light 

most favorable to the prosecution to determine whether any rational trier of fact 

could have found the essential elements of the offense beyond a reasonable 

doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton v. State, 235 

S.W.3d 772, 778 (Tex. Crim. App. 2007).

The jury found Appellant guilty of criminal mischief that caused damage of 

fifty dollars or more but less than $500. A person commits this offense if he 

intentionally or knowingly damages or destroys tangible property without the 

owner of that property‘s effective consent and in so doing causes a pecuniary 

loss of fifty dollars or more but less than $500. See Tex. Penal Code Ann. 

§ 28.03(a)(1), (b)(2).

Appellant contends that the evidence is insufficient because (1) the State 

did not prove that he was not an owner of the damaged property, (2) he had a 

right to take down the barrier in order to enforce a restrictive covenant, (3) no 

witness had ―actual knowledge‖ that he caused the damage, and (4) the 

pecuniary loss from the damage was less than that alleged by the State.

The evidence is sufficient to show that Petty was the owner.

In subpoint IA, Appellant argues that the State failed to meet its burden to 

prove that he was not an owner of the property the jury found him guilty of 

damaging. As the State correctly points out, however, the State was not required 

to prove a negative. Contrary to Appellant‘s claim, in order to sustain a guilty 
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verdict the State had to prove ownership by the complainant, not non-ownership

by Appellant. An owner is a 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 person charged with damaging or destroying the property. See

Tex. Penal Code Ann. § 1.07(a)(35)(A) (West 2011). Ownership may be proven 

by oral testimony. Smith v. State, 638 S.W.2d 476, 478 (Tex. Crim. App. 1982); 

Milo v. State, 748 S.W.2d 614, 616 (Tex. App.––San Antonio 1988, no pet.).

Article 21.08 of the code of criminal procedure provides in part:

Where one person owns the property, and another person has the 

possession of the same, the ownership thereof may be alleged to be 

in either. Where property is owned in common, or jointly, by two or 

more persons, the ownership may be alleged to be in all or either of 

them . . . .

Tex. Code Crim. Proc. Ann. art. 21.08 (West 2009). The court of criminal 

appeals has frequently said that this statute applies to property owned by a 

corporation. Eaton v. State, 533 S.W.2d 33, 34 (Tex. Crim. App. 1976). The 

court has also said that when the property referred to in an indictment belongs to 

a corporation, it is not only permissible but also the better pleading practice to 

allege ownership in a natural person acting for the corporation. Id. (citing Castillo 

v. State, 469 S.W.2d 572, 573 (Tex. Crim. App. 1971); Walling v. State, 437 

S.W.2d 563, 564 (Tex. Crim. App. 1969)).

Here, the indictment alleged Petty as the owner of the subject property. 

The record shows that the HOA is a non-profit corporation holding a warranty 

deed to the common areas of the Bar VK. Petty testified that he was president of 
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the HOA during October 2008. Because the State alleged Petty as the owner

and the evidence showed that he was the president of the HOA, that the HOA 

was a non-profit corporation, and that Petty acted on its behalf during the 

relevant time period, we hold the evidence is sufficient to show ownership as 

alleged and we overrule subpoint IA.

In subpoint IB, Appellant argues that ―the jury erred when it did not 

consider Appellant‘s property interest as a defense.‖ In other words, he, as one 

with an ownership interest, gave effective consent to himself to damage the 

pipes. We have already held that the evidence is sufficient to establish that

Petty, acting on behalf of the HOA, was the owner of the subject property. The 

most that the evidence shows by virtue of Appellant‘s membership in the HOA is 

that he enjoyed a privilege to use the HOA‘s common areas. But a privilege to 

use is akin to a license; it is not ownership. See Settegast v. Foley Bros. Dry 

Goods Co., 114 Tex. 452, 455, 270 S.W. 1014, 1016 (1925) (defining license as 

a privilege or authority given to one or retained by one to do some act or acts on 

land belonging to another, but which does not amount to an interest in the land 

itself); Samuelson v. Alvarado, 847 S.W.2d 319, 323 (Tex. App.––El Paso, no 

writ) (1993) (same). Moreover, even if we were to accept Appellant‘s claim that 

he had some ownership interest in the property, which we do not, Appellant 

concedes that the penal code provides that ―[i]t is no defense to prosecution [that 

he] has an interest in the property damaged or destroyed if another person also 

has an interest that the actor is not entitled to infringe.‖ See Tex. Penal Code 
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Ann. § 28.05 (West 2011). As stated above, the evidence is sufficient to 

establish that Petty acted for the HOA as the owner. Furthermore, Petty 

specifically testified that no one had his consent to damage the pipe, cut the 

locks, or bend the pipes down. There is no evidence in the record showing that 

Appellant was entitled to infringe upon the HOA‘s ownership interest in the 

property despite his claim that he was justified in damaging the HOA‘s property in 

order to enforce its covenants.

Without citing any authority for his position, Appellant argues that he ―had 

 ̳effective consent‘ to cut the locks effective[ly] blocking the roadway pursuant to 

the deed restrictions and the covenants running with the land.‖ He makes 

several references in his brief to the original deed restrictions admitted as State‘s 

Exhibit 2. A careful reading of that exhibit, however, reveals that the deed 

restrictions do not authorize the self-help remedy Appellant employed and 

therefore do not provide, as he claims, any defense to his criminal conduct. On 

the other hand, the deed restrictions do provide the following remedy, one that 

drastically differs from the one chosen by Appellant:

If any person or persons shall violate or attempt to violate any of the 

restrictions and covenants herein, it shall be lawful for any person or 

persons owning any lot in said subdivision to prosecute proceedings 

at law or in equity against the person violating or attempting to 

violate any such restriction and covenant, either to prevent him or 

them from so doing or to correct such violation or to recover 

damages or other relief for such violation.

Instead, Appellant chose a vigilante approach and took the law where it did 

not belong: into his own hands. We overrule subpoint IB.
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The evidence is sufficient to show that Appellant damaged the barrier.

While conceding that there is evidence in the record that he cut the locks 

and removed the barrier, Appellant contends in subpoint 2A that the evidence is 

nevertheless insufficient to show that he caused any damage to the barrier pipes

or to the pins that held them because no witness testified to having ―actual 

knowledge as to who or what caused the damage.‖

The jury, however, as trier of fact, was entitled to draw reasonable 

inferences from the evidence and under the appropriate standard of review, we 

will uphold those inferences if they are supported by the evidence viewed in the 

light most favorable to the verdict. See Hooper v. State, 214 S.W.3d 9, 13 (Tex. 

Crim. App. 2007). We look at events occurring before, during, and after the 

commission of the offense and may rely on actions of the defendant which show 

an understanding and common design to do the prohibited act. Id. (citing 

Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985), cert. denied, 476 

U.S. 1101 (1986)). Circumstantial evidence is as probative as direct evidence in 

establishing the guilt of an actor, and circumstantial evidence alone can be 

sufficient to establish guilt. Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. 

Crim. App. 2004)). It is enough if the jury‘s conclusion is warranted by the 

combined and cumulative force of all the incriminating circumstances. Johnson 

v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993), cert. denied, 511 U.S. 

1047 (1994).
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Petty testified that on January 31, 2009, before the barrier pipes were 

installed, Appellant threatened to tear them down. Karl Towle testified that as he 

and other EC members were physically installing the barrier on February 6, 2009, 

Appellant, appearing ―fairly upset,‖ drove up, and threatened to knock down ―any

pipes installed on the road.‖

Ray Walker, a resident of Bar VK and member of the EC, testified that he 

was among those who put up the barrier and to whom Appellant threatened to

take it down. Walker further testified that early on the morning of February 8, 

2009, two days after the barrier was installed, Appellant telephoned him wanting 

him to unlock the posts so that Appellant could access the lake. Walker replied 

that he would need to get dressed but that he would ―absolutely come down 

there and let [Appellant] in.‖ The airline that Walker worked for called during their 

conversation, and Appellant told him to go ahead and take the call. Walker 

promised to call Appellant right back and when he did within fifteen minutes, 

Appellant‘s wife told Walker that Appellant was down at the pipes going to the 

lake. Walker called Petty.

The locks were found cut, one PVC pipe had been snapped off and broken

from its socket with a hole punched through it, and pieces of the barrier were 

scattered in the ditch.

Appellant admitted to Petty and to law enforcement personnel that he cut 

the locks. He further admitted to Petty that after cutting the locks, he removed 

the posts and threw them to the side, but he denied damaging the pipes.
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On February 11, 2009, after new locks and at least one new pin had been 

purchased and the barrier pipes re-installed, Walker was in his front yard when 

he saw Appellant drive a car down to the barrier. He watched as Appellant 

exited the car and bent over near one of the barrier posts. Appellant moved his 

arms in a way that made Walker think he was using bolt cutters to cut the locks. 

This time, sheriff‘s deputies were called to investigate.

The new locks had been cut, the pipes had been removed, the pins were 

missing, the steel loops which anchored the posts to the metal sleeve were 

folded over, and the wall of one sleeve was bent.

Texas Ranger Tracy Murphree testified that upon his review of the 

investigation, he concluded that the pipes were damaged at the same time the 

locks were cut.

Based on the evidence in the record—including evidence that Appellant 

had been a longstanding and vocal opponent of the barrier—showing that the

barrier was twice found taken down and damaged almost as soon as it was

installed and close in time to instances in which Appellant threatened to take the 

barrier down, and that he was seen close to it moving in a manner that looked 

like he was using bolt cutters on it, we hold that the jury was able to reasonably 

infer that Appellant damaged all the property, not just the locks. Further, the jury 

was free to weigh the evidence and reach a credibility determination that 

Appellant had lied when he denied knowing what caused the damage. Viewed in 

the appropriate light, the evidence supports reasonable inferences that in turn 
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support the verdict. Therefore, we hold that the evidence is sufficient and we 

overrule Appellant‘s subpoint 2A.

The evidence is sufficient to show that the pecuniary loss was as alleged.

In subpoint 2B, Appellant takes issue with the jury‘s determination that 

Appellant caused at least fifty dollars worth of damage. The amount of pecuniary 

loss in a case of criminal mischief causing property damage is the cost of 

repairing or restoring the damaged property within a reasonable time after the 

damage occurs. Tex. Penal Code Ann. § 28.06(b) (West 2011); Milo, 748 

S.W.2d at 617.

Towle testified that after the barrier was damaged the first time, he and 

other members of the EC had to buy two new locks and at least one pin to hold 

the pipes in the metal sleeve. He further testified that when the barrier was 

damaged the second time, they had to purchase a new PVC pipe, a new cap, 

new reflective tape, and two new locks with six keys for the EC members and the 

airport manager; that two new cross pins had to be constructed; and that one of 

the members had to prepare and paint the new PVC pipe. He produced receipts 

which were admitted in evidence. The cost to replace the first two padlocks 

damaged totaled $15.94 before sales tax. The cost of replacing the locks the 

second time, sales tax again excluded, was $15.32. The keys cost $4.74, the 

PVC cap cost $7.35, the PVC pipe cost $8.50, the pins cost $4.68, and the 

reflective tape cost $8.99. We calculate that these items before sales tax totaled 

$65.52. On top of that, Towle testified that the sales tax on these items was 
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8.25%. Viewed in the light most favorable to the verdict, the evidence is 

sufficient to support the jury‘s finding beyond a reasonable doubt that the 

pecuniary loss was greater than fifty dollars. Accordingly, we overrule subpoint 

2B.

Vaughn Gary Petty’s Name on the State’s Witness List

In Appellant‘s third and final point he complains that the State listed Petty‘s 

name on the witness list as Gary Petty instead of his full legal name, Vaughn 

Gary Petty, and that he was unfairly surprised when Petty was sworn in and 

testified. At any stage of trial, the State should disclose the names of all 

witnesses it intends to call. Young v. State, 547 S.W.2d 23, 27 (Tex. Crim. App. 

1977). It is within the trial court‘s discretion to decide to allow a witness not on 

the State‘s witness list to testify. Martinez v. State, 867 S.W.2d 30, 39 (Tex. 

Crim. App. 1993), cert. denied, 512 U.S. 1246 (1994); Lemasurier v. State, 91 

S.W.3d 897, 900 (Tex. App.––Fort Worth 2002, pet. ref‘d). Among the factors a 

reviewing court considers in determining whether there has been an abuse of 

discretion are: (1) a showing of bad faith on the part of the prosecutor in failing to 

disclose the witness‘s name before trial; and (2) whether the defendant could 

have reasonably anticipated that the witness would testify, although his or her 

name was not included on the witness list. Lemasurier, 91 S.W.3d at 900–01 

(citing Nobles v. State, 843 S.W.2d 503, 514–15 (Tex. Crim. App. 1992); Stoker

v. State, 788 S.W.2d 1, 15 (Tex. Crim. App. 1989), cert. denied, 498 U.S. 951 

(1990)).
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The State, in its indictment, alleged the owner of the damaged property as 

Vaughn Petty. The record indicates that three days after Appellant made his 

request for discovery and well in advance of trial, the State provided a witness list 

identifying a witness as ―Vaughn Gary Petty,‖ followed by ―Gary‖ in parenthesis. 

The State apparently provided a second list to Appellant just prior to jury 

selection that listed ―Gary Petty‖ as the first witness. We hold that on the record 

before us, Petty‘s name was on the witness list provided to Appellant and that 

Appellant reasonably could have anticipated that Petty would testify. We 

overrule Appellant‘s third point.

Conclusion

Having overruled all of Appellant‘s points, we affirm the trial court‘s 

judgment.

LEE GABRIEL

JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: August 4, 2011