Bullock v. State
| Decision Date | 20 October 2015 |
| Docket Number | NO. 14–14–00304–CR,14–14–00304–CR |
| Citation | 479 S.W.3d 422 |
| Parties | Henry Richard Bullock, Jr., Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Nicolas R. Hughes, Houston, TX, for Appellant.
Melissa Hervey, Houston, TX, for State.
Panel consists of Chief Justice Frost and Justices Boyce and McCally
SUBSTITUTE MAJORITY OPINION
We withdraw the memorandum opinion issued in this case on July 9, 2015, and we issue this substitute majority opinion. We deny appellant's motion for rehearing. We deny as moot appellant's motion for rehearing en banc.1
A jury found appellant guilty of theft of a truck valued at $20,000 or more but less than $100,000, a third-degree felony. See Tex. Penal Code Ann. § 31.03(a), (e)(5) (Vernon Supp. 2014). The jury found two enhancement allegations true and assessed punishment at thirty years' confinement. Appellant challenges his conviction in three issues, contending that (1) the evidence is legally insufficient to prove the value of the truck; (2) he suffered egregious harm from the trial court's failure to define "value" in the jury charge; and (3) the trial court erred by refusing to charge the jury on the lesser-included offense of attempted theft. We affirm.
In his first issue, appellant contends the evidence is legally insufficient to prove beyond a reasonable doubt that the fair market value of the truck at the time of the offense was $20,000 or more but less than $100,000. We hold that the evidence is legally sufficient.
"In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt." Whatley v. State, 445 S.W.3d 159, 166 (Tex.Crim.App.2014) (quotation omitted); see also Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In reviewing historical facts that support conflicting inferences, we must presume that the jury resolved any conflicts in the State's favor, and we must defer to that resolution. Whatley, 445 S.W.3d at 166. "[A]n inference is a conclusion reached by considering other facts and deducing a logical consequence from them." Id. (alteration in original) (quotation omitted).
In a theft case, the State has the burden to prove the property's value through evidence of either "(1) its fair market value at the time and place of the offense, or (2) the cost of replacing it within a reasonable time after the theft if fair market value could not be ascertained." Smiles v. State, 298 S.W.3d 716, 719 (Tex.App.–Houston [14th Dist.] 2009, no pet.) (citing Tex. Penal Code Ann. § 31.08 ). "Fair market value is the amount of money that the property would sell for in cash, given a reasonable time for selling it." Id. When an owner of the property testifies about value, we "presume that an owner's testimony regarding the value of property is an estimation of the property's fair market value." Id. An owner may testify about fair market value "in terms of purchase price or the cost to him of replacing the stolen property." Id. "Because such testimony is an offer of the owner's best knowledge of the value of his property, it is legally sufficient evidence for the trier of fact to make a determination as to value based on the owner's credibility as a witness." Id. "If a defendant wishes to rebut the owner's opinion evidence as to value he must do more than merely impeach the witness's credibility during cross-examination; he must actually offer controverting evidence as to the value of the stolen item." Id.
Roy Martinez testified that he was an assistant manager at Cort Furniture Rental, and he was making a delivery with the company's leased delivery truck. It was a big, twenty-six-foot box truck with eighteen-wheeler tires and air brakes. It was a "pretty heavy" truck that held about 25,000 pounds. While Martinez was in the back of the truck, appellant got in the cab, turned on the truck, and revved the engine by pushing on the gas pedal. The truck did not go forward because the air brake was on, so Martinez went to the cab of the truck and confronted appellant. Appellant's hands were on the steering wheel, and appellant was pushing the gas and the brake pedals. Appellant jumped out of the truck and ran away. After a chase, Martinez subdued appellant.
Martinez testified about the truck's value:
Appellant represented himself at trial with standby counsel. On cross-examination, although appellant testified that he did not agree the value of the truck was over $20,000 and under $100,000, he testified, "No, I don't know what the truck was valued at."
Appellant concedes that Martinez is an owner of the truck for purposes of this appeal, and generally, an owner's testimony about the property's value is sufficient to sustain a conviction. Citing several cases from other states, appellant asks this court to depart from established Texas law by requiring additional evidence of the owner's familiarity with the property, such as its age, condition, or deterioration. We review appellant's authorities below.
In Sanchez v. Florida, the court of appeals recited the first prong of its "two-pronged test" for an owner's testimony to be sufficient evidence of value, which requires evidence of the owner's "personal knowledge of the characteristics of the stolen property, such as the quality, cost, and condition of the property." 101 So.3d 1283, 1286 (Fla.Dist.Ct.App.2012) (quotation omitted). In Florida, evidence of value is sufficient when there is evidence about "the condition, quality, age, or depreciation of the item," and the evidence is insufficient if "the value of the property is estimated and no other proof is presented." Id. at 1287 (quotations omitted). In Florida, "[t]he competence presumed of an owner is fragile." Id. at 1286.
As discussed above, Texas courts do not treat an owner's competence as fragile. For example, in the seminal Court of Criminal Appeals case Sullivan v. State, the court held that evidence was sufficient to prove the value of a gun when the owner "clearly testified that the value of the gun was $500.00." 701 S.W.2d 905, 909–10 (Tex.Crim.App.1986). The property owner in Sullivan initially testified that he had no idea what the gun was worth:
Id. at 907. After a short recess, the owner gave his opinion of the value of the gun:
Id. Finally, the owner testified that $500 was what he would "take for it," and:
Id. The Court of Criminal Appeals held that a property owner's "opinion or estimate" of the value is sufficient absent any "controverting evidence as to the value of the property." Id. at 909. In light of Sullivan, Florida case law is unpersuasive. See Campbell v. State, 426 S.W.3d 780, 785 (Tex.Crim.App.2014) () (citing Sullivan, 701 S.W.2d at 909 ).
Appellant also relies on New York and Colorado cases, but those cases have vastly different facts. In the New York case, the witness testifying about value was not the property owner—he was an expert witness. See People v. Medina, 111 A.D.2d 653, 490 N.Y.S.2d 491, 492 (N.Y.App.Div.1985). In the Colorado case, the court...
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