In the Matter of D.L., No. 12-06-00431-CV (Tex. App. 7/31/2007)

• Decision Date: 31 July 2007
• Docket Number: No. 12-06-00431-CV.,12-06-00431-CV.
• Parties: IN THE MATTER OF D.L., A JUVENILE
• Court: Texas Court of Appeals

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IN THE MATTER OF D.L., A JUVENILE

No. 12-06-00431-CV.

Court of Appeals of Texas, Twelfth District, Tyler.

Opinion delivered July 31, 2007.

Appeal from the County Court at Law #3 Smith County, Texas.

Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.

MEMORANDUM OPINION

JAMES T. WORTHEN, Chief Justice.

D.L., a juvenile, appeals from a juvenile court order committing him to the Texas Youth Commission.In one issue, D.L. complains that the evidence is factually insufficient to support the jury verdict finding the allegations against him to be true.We affirm.

BACKGROUND

Kenneth Carrell is a coach and teacher at John Tyler High School.He also supervises and manages the athletic department's information technology equipment including computers, servers, and camcorders.Part of the inventory he maintained in a locked storage room included two Sony mini-DVD camcorders.The camcorders were "top of the line" with special lenses of French manufacture, according to Carrell, as well as a number of input and output ports that were useful to him in his duties.The camcorders also had remote sensors that linked them to a tripod remote, which allowed them to be used together and synchronized to provide a wide angle as well as a tight angle view of the same sequence of events.One of Carrell's duties was to make recordings of the school's athletes to provide to college recruiters.Because of the flexible array of outputs available on the camcorders, Carrell used these devices to edit the final recordings to be sent out in support of the school's athletes.

Around the beginning of May 2006, Carrell noticed that the camcorders were missing from the locked storage room.A large number of students had been in an adjoining classroom immediately before for the screening of a movie.D.L. was one of the students present that day.Carrell engaged in some informal investigation in an attempt to recover the camcorders and eventually turned the matter over to the police affiliated with the school.D.L. was identified as a suspect, and juvenile proceedings were begun against him alleging that he stole the camcorders and that they were worth more than $1,500.D.L. did not admit the allegations, and an adjudication hearing was held.The jury found the allegations to be true, and the trial court ordered that D.L. be committed to Texas Youth Commission.This appeal followed.

SUFFICIENCY OF THE EVIDENCE

D.L. contends that the evidence is factually insufficient to support the decision of the jury.Specifically, he contends that the evidence does not show that the value of the stolen camcorders was equal to or greater than $1,500.

Standard of Review and Applicable Law

Even though appeals of juvenile cases are generally treated as civil matters, adjudications of delinquency are statutorily based on the criminal standard of proof, and we review the sufficiency of the evidence as we would in a criminal case.SeeTex. Fam. Code Ann. § 54.03(f)(Vernon 2006);In re C.M.G., 180 S.W.3d 836, 838(Tex. App.-Texarkana2005, pet. denied);In re J.D.P., 85 S.W.3d 420, 422(Tex. App.-Fort Worth 2002, no pet.).In criminal cases, we review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury's verdict to the extent that the verdict is clearly wrong and manifestly unjust.SeeWatson v. State, 204 S.W.3d 404, 414-15, 417(Tex. Crim. App.2006).In doing so, we must first assume that the evidence is legally sufficient under the Jackson v. Virginia¹ standard.SeeClewis v. State, 922 S.W.2d 126, 134(Tex. Crim. App.1996).We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact.SeeSantellan v. State, 939 S.W.2d 155, 164(Tex. Crim. App.1997).

Our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness's testimony.Wesbrook v. State, 29 S.W.3d 103, 111-12(Tex. Crim. App.2000).When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury's determination, even if probative evidence exists that supports the verdict.SeeClewis, 922 S.W.2d at 133.But our evaluation should not substantially intrude upon the jury's role as the judge of the weight and credibility of witness testimony.SeeSantellan, 939 S.W.2d at 164.

As alleged in the petition, the State was required to prove that D.L. did, knowingly or intentionally, appropriate property with a value of more than $1,500 without the effective consent of the owner and with the intent to deprive the owner of the property.TEX. PENAL CODE ANN. § 31.03 (a), (b)(1), (e)(4)(A).

Analysis

The State may prove the value of stolen property by showing the fair market value of the property at the time and place of the offense, or, if that cannot be ascertained, by showing the cost of replacing the property within a reasonable time after the theft.Tex. Penal Code Ann. § 31.08(a)(1), (2)(Vernon 2006).D.L. argues that the State did not prove that the value of the stolen camcorders was more than $1,500 because there was no testimony about the fair market value of the camcorders and the replacement cost was less than $1,500.

From the evidence, the relevant data points regarding the value of these camcorders are as follows:

1) $1,500 to 1,600 — original purchase price, four or five years prior to the theft

2) $2,998 — replacement cost for new camcorders with the same features as those stolen

3) $1,600 — replacement cost of the camcorders actually purchased including tax and accessories

Fair market value is "the dollar amount the property would sell for in cash, given a reasonable time for selling it."SeeSimmons v. State, 109 S.W.3d 469, 473(Tex. Crim. App.2003).There was no testimony about the fair market value of the stolen camcorders.The original purchase price can be an approximation of the fair market value if the item has been purchased recently.SeeNitcholas v. State, 524 S.W.2d 689, 690-91(Tex. Crim. App.1975);Anderson v. State, 871 S.W.2d 900, 903(Tex. App.-Houston[1st Dist.]1994, no writ).However, as D.L. notes, these camcorders had not been purchased recently.

In cases where the fair market value cannot be ascertained,²section 31.08(a)(2) provides that the cost of replacing the property a reasonable time after the theft is the measure of value.There were two prices offered as a replacement cost.Carrell testified that exact replacements of the stolen camcorders cost $1,499 each, for a total of $2,998.Carrell also testified that he purchased inferior camcorders, without all of the features he needed, along with accessories to give the functionality he required, and that the total cost was $1,600.

As D.L. points out, there are arithmetic computations that can bring the second amount, $1,600, under the $1,500 threshold.Specifically, D.L. argues that accessories purchased with the camcorders, as well as the sales tax paid, should not be included.There is a basis for this argument.For example, the replacement value of a compact disc player does not include the cost of installation and "other intangibles necessary to compete replacement,"Drost v. State, 47 S.W.3d 41, 46(...