Criminal Mischief in Texas Penal Code §28.03
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Texas Bar verified. Reggie London (Texas Bar No. 24043514) and Njeri London (Texas Bar No. 24043266) are the co-founding partners of L and L Law Group, PLLC — based at 5899 Preston Rd, Suite 101 in Frisco, Texas (Collin County), with many 5-star Google reviews, and available 24/7 for criminal defense consultations.
The §28.03 elements and penalty matrix
The state must prove:
- Defendant intentionally or knowingly
- Damaged or destroyed tangible property of another
- Without effective consent of owner
Penalty by damage value:
| Damage | Class |
|---|---|
| Under $100 | Class C misdemeanor |
| $100-$749 | Class B misdemeanor |
| $750-$2,499 | Class A misdemeanor |
| $2,500-$29,999 | State jail felony |
| $30,000-$149,999 | 3rd degree felony |
| $150,000-$299,999 | 2nd degree felony |
| $300,000+ | 1st degree felony |
Special enhancements: Class A misdemeanor minimum if damage to a habitation by firearm or explosive; state jail felony if damage to school or place of worship; various others.
Common scenarios and defenses
Common scenarios:
- Vandalism/graffiti: Spray painting, etching, marking property
- Domestic disputes: Damage to spouse's property during arguments
- Vehicle damage: Keying cars, slashing tires, breaking windows
- Property line disputes: Damage to neighbor's property
- Tenant damage: Damage to landlord's property beyond normal wear
Defenses:
Lack of intent. Accidental damage doesn't support criminal mischief. The state must prove intentional or knowing damage.
Owner consent. Where property owner consented to the conduct, no offense.
Right to property. Where defendant had ownership or possessory interest, the elements may fail.
Value contests. Damage valuation can move cases between tiers. Defense expert appraisal sometimes pulls cases lower.
Identity issues. Surveillance, witnesses, fingerprints — all subject to scrutiny.
Civil dispute. Some damage cases are better characterized as civil property disputes than criminal matters.
Have a Texas legal question?
Call L and L Law Group for a free, confidential consultation. We handle criminal defense across Collin, Dallas, Denton, and Tarrant counties.
Call (972) 370-5060In our practice defending Texas criminal cases, we have represented clients in Collin, Dallas, Denton, and Tarrant County criminal courts on the full Texas Penal Code and Health & Safety Code spectrum. Reggie's prosecutor background in Dallas County means we know the State's evidentiary playbook; Njeri's trial-trained motion practice anchors the suppression-driven defense work.
Frequently Asked Questions
How is damage value calculated?
Texas Penal Code §28.06 sets valuation. Generally, fair market value of damage at time of offense, OR cost of repair or restoration. Where property was destroyed, the property value applies. Where partially damaged, the diminution in value or cost to repair applies, whichever is less.
What about graffiti specifically?
Graffiti on others' property is criminal mischief. Penal Code §28.08 also creates a separate "graffiti" offense for marks on tangible property without effective consent — with its own penalty scale based on damage. Cases sometimes charge both.
Can I be charged for damaging shared property in a divorce?
Possibly. Property "of another" includes property in which any other person has an interest. Damaging shared marital property, even if you have ownership share, can support criminal mischief charges. Defense focuses on intent and possession context.
What if I damaged my own property by mistake?
Self-property damage is not criminal mischief. The "of another" element requires the property to belong to or be partially owned by someone else. Pure self-property damage is your own loss, not criminal.
Can civil restitution prevent criminal charges?
Sometimes, in lower-value cases. Where the defendant restitutes damage before charges file, prosecutors sometimes decline to file. Active civil litigation between parties may also delay or affect criminal charging decisions. Once charges file, restitution is part of plea negotiation rather than declination.
