3 juveniles pour gasoline into a dumpster outside a Wal-Mart, ignite the gasoline, and blow up the dumpster ($1,200 value). They video tape the entire act and then post it on their My Space webpage. We've charged them with Criminal Mischief, but my section chief is looking for a felony charge.

Any ideas? Thanks!

For a thread discussing similar questions, see here.

What if you charge them under Sec. 71.02 for engaging in organized criminal activity to commit deadly conduct. I think you would have to somehow transform the MySpace video that they got from their escapade into the "profits" of the crime. That would appear to get you to a third degree felony, if you can make it fit the facts. Criminal mischief is not listed under the organized crime statute.

Otherwise, I think that you are probably stuck with criminal mischief. Maybe there should be an felony offense for setting fire to anything on Wal-Mart property.

What is the penalty for burning trash w/o a permit? Just a reminder of how limited our arson statute is.

I actually had to research this once for an illegal burning case (motion to quash was filed) and still had the sections (you have to look at the Texas Administrative Code, the Health and Safety Code, and the Water Code, which is where these penalties are listed):

7.177. VIOLATIONS OF CLEAN AIR ACT. (a) A person
commits an offense[0] if the person intentionally or knowingly, with
respect to the person's conduct, violates:
(1) Section 382.0518(a), Health and Safety Code;
(2) Section 382.054, Health and Safety Code;
(3) Section 382.056(a), Health and Safety Code;
(4) Section 382.058(a), Health and Safety Code; or
(5) an order, permit, or exemption issued or a rule
adopted under Chapter 382, Health and Safety Code.
(b) An offense[0] under this section is punishable for an
individual under Section 7.187(1)(B) or Section 7.187(2)(C) or
both.
(c) An offense[0] under this section is punishable for a person
other than an individual under Section 7.187(1)(C).

Added by Acts 1997, 75th Leg., ch. 1072, � 2, eff. Sept. 1, 1997.

� 7.187. PENALTIES. A person convicted of an offense[0]
under this subchapter is punishable by:
(1) a fine, as imposed under the section creating the
offense[0], of:
(A) not more than $1,000;
(B) not less than $1,000 or more than $50,000;
(C) not less than $1,000 or more than $100,000;
(D) not less than $1,000 or more than $250,000;
(E) not less than $2,000 or more than $500,000;
(F) not less than $5,000 or more than $1,000,000;
(G) not less than $10,000 or more than
$1,500,000; or
(H) not more than twice the amount of the
required fee;
(2) confinement for a period, as imposed by the
section creating the offense[0], not to exceed:
(A) 30 days;
(B) 90 days;
(C) 180 days;
(D) one year;
(E) two years;
(F) five years;
(G) 10 years;
(H) 15 years;
(I) 20 years; or
(J) 30 years; or
(3) both fine and confinement, as imposed by the
section creating the offense[0].

Added by Acts 1997, 75th Leg., ch. 1072, � 2, eff. Sept. 1, 1997.

They:
1) started a fire
2) with intent to damage
3) any structure on open space land

Open space land= (per 28.01) real property that is undeveloped for the purpose of human habitation.

Habitation (29.01) in this chapter deals with overnight stays.
Structure is not defined, so you revert to the dictionary meaning which the dumpster obviously meets.

Which element is lacking?

The way they use the word "structure" in the definition of habitation and building was what was bugging me. Could a dumpster be a building because it is a structure with a use? See Tex. Penal Code Sec. 28.01(2). It seems more like personal property than a builing or structure to me.