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Click here for the full text of this decision FACTS:David Lockwood applied for water service from the city of Red Oak in January 2004 for his home. The city cut off his water service in April for nonpayment. Tony Stone, an employee of the city’s Public Works Department, received a work order the following January to investigate a possible leak at Christy Pogue’s house, which was next door to Lockwood’s. Stone found that someone had bypassed the meter at Pogue’s house and tapped into the city water supply with a water hose, which was the source of the leak. The other end of this water hose was connected to a faucet at Lockwood’s house. Stone removed both water meters from the respective premises. On cross-examination, he explained that Lockwood’s home received water via the hose, which had been used to bypass the meter at Pogue’s house. Although it is not entirely clear from the record, wrote the court, it appeared that the water for Pogue’s house was not cut off until the hose was found running from her meter to Lockwood’s house. Stone testified that the angle stops for the water meters at both houses had been cut in an apparent effort to bypass the water meters. Public Works Director Charles Bertrand testified that the “ears” on both meters, through which “barrel locks” had been placed to prevent access to city water, had been broken as well. A Red Oak police officer who investigated the next day confirmed that the hose ran to Lockwood’s house and that both houses were receiving city water without paying for it. A code enforcement officer similarly testified that both houses were receiving city water but had bypassed the normal system. Another public works employee returned to Lockwood’s house three months later and found that there was a leak around the meter box. Although Stone had removed the water meter, a length of pipe had been inserted to connect the water service line for Lockwood’s house to the city water line without a meter. A jury convicted Lockwood of criminal mischief by damaging a city water meter and assessed his punishment at 270 days of confinement and a $1,000 fine. HOLDING:Affirmed. Lockwood contended in his first issue that legally and factually insufficient evidence proved that he damaged a water meter or received the economic benefit of a public water supply. Texas Penal Code �28.03(c) states: “For the purposes of this section, it shall be presumed that a person who is receiving the economic benefit of public communications, public water, gas, or power supply, has knowingly tampered with the tangible property of the owner if the communication or supply has been: “(1) diverted from passing through a metering device; or “(2) prevented from being correctly registered by a metering device; or “(3) activated by any device installed to obtain public communications, public water, gas, or power supply without a metering device.” The state did not allege that Lockwood tampered with the water meter. Rather, the state alleged that he “damaged or destroyed” the water meter. Thus, the statutory presumption of subsection (c) did not apply, and a hypothetically correct charge would not have instructed the jury on this presumption. In addition, although the state alleged that Lockwood caused pecuniary loss of less than $1,500, the statute under which he was charged required that the state show “impairment or interruption of any public water supply . . . regardless of the amount of the pecuniary loss,” and a hypothetically correct charge would not have required the jury to make a finding regarding any pecuniary loss. Lockwood also alleged that insufficient evidence supported a finding that he was the person who damaged the water meter. Examining several items of circumstantial evidence, the court held that the evidence, when viewed in the light most favorable to the verdict, was such that a rational juror could have found beyond a reasonable doubt that Lockwood is the person who damaged the water meter. Lockwood contended in his second point that the court abused its discretion by charging the jury on the statutory presumption provided by �28.03(c), because the state failed to prove that he received the economic benefit of a public water supply and because the court failed to instruct the jury that the state had to prove the facts giving rise to the presumption beyond a reasonable doubt. Lockwood, however, did not object to the charge at trial, the court noted, so he could not obtain reversal unless the error caused him egregious harm. Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right or vitally affects a defensive theory, the court stated. The testimony of several witnesses regarding the hose running from Pogue’s damaged water meter to Lockwood’s house constituted overwhelming evidence that Lockwood was “receiving the economic benefit of public water supply.” Therefore, the court held that he did not suffer egregious harm because of the error in the court’s charge. OPINION:Reyna, J.; Vance and Reyna, JJ. CONCURRENCE:Gray, C.J., concurred without a written opinion.

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