Infante v. State

• Decision Date: 28 December 2012
• Docket Number: No. 01–11–00905–CR.,01–11–00905–CR.
• Citation: 404 S.W.3d 656
• Parties: Theresa Garcia INFANTE, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

404 S.W.3d 656

Theresa Garcia INFANTE, Appellant

v.The STATE of Texas, Appellee.

No. 01–11–00905–CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Dec. 28, 2012.

Robert Cruz, Houston, for Appellant.

Rachel Ann Palmer, Asst. Dist. Atty., Alan Curry, Chief Prosecutor, Appellate Div., Harris County Dist. Attorney's Office, for the State.

Panel consists of Justices KEYES, MASSENGALE and BROWN.

OPINION

HARVEY BROWN, Justice.

A jury convicted Theresa Garcia Infante of the felony offense of theft by a public servant of property with a value between $1,500 and $20,000 and sentenced her to two years' confinement, probated for two years. In three issues, Infante challenges the sufficiency of the evidence to prove the value of the stolen property, the trial court's admission of an out-of-court statement, and the trial court's failure to submit an accomplice witness instruction. We affirm.

Background

While employed by Harris County as a deputy constable, Infante worked a second job at a traffic control company. Infante's supervisor at the traffic control company was Billy Cable. Cable was arrested for theft of a golf cart, at which time he was in possession of a police radio. The police traced the radio back to Precinct 6 of the Harris County Constable's Office, where Infante was employed. Cable told the police that he had purchased the radio from Infante. The State charged Infante with stealing the radio—an offense heightened by the allegation that Infante obtained the radio through her role as a public servant. SeeTex. Penal Code Ann. § 31.03(a), (e)(4)(A), (f)(1). Infante testified that she had not sold any radio to Cable, but that she had lent Cable a radio; she asserted that the radio she lent Cable was similar to the one stolen from the Harris County Constable's Office, but it was actually a radio owned by her husband's employer.

The jury convicted Infante and sentenced her to two years' confinement, probated for two years. This appeal followed.

Legal Sufficiency of the Value Evidence

One element of the crime for which the jury convicted Infante is that the value of the stolen property was “$1,500 or more but less than $20,000.” SeeTex. Penal Code Ann. § 31.03(e)(4)(A). Infante challenges the legal and factual sufficiency of the evidence to prove this element, contending that the State offered no evidence of the stolen property's fair market value and instead improperly relied on evidence of the stolen property's replacement value.

A. Standard of review

We review the legal sufficiency of the evidence by considering all of the evidence in the light most favorable to the verdict to determine whether any rational fact-finder could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). Evidence is legally insufficient when the “only proper verdict” is acquittal. Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982). We give deference to the jury's responsibility to resolve conflicts in testimony, weigh evidence, and draw reasonable inferences from the facts. Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).

We review the factual sufficiency of the evidence under the same appellate standard of review as that for legal sufficiency. Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.Crim.App.2010).

B. Value evidence

The State presented testimony on the value of the stolen radio from Keith LeJeune, a manager in the radio network operations center at Harris County's radio shop. At the time of trial, LeJune had worked at Harris County's radio shop for two years; before that, he worked at Harris County's emergency management department, where he was involved in managing radios and communications for that department. LeJeune is certified in electronics and has been a licensed radio operator for more than ten years.

LeJeune was able to trace the stolen radio through its radio identification number—a number the radio shop programs into Harris County radios for tracking—and the radio shop's records. He testified that Harris County purchased the radio for $2,131.46 in 2000. Since that time, the radio's manufacturer has stopped producing the radio model that was stolen (the Motorola MTS 2000), replacing it with a new model (the XTS 5000). An XTS 5000 may be purchased without software and additional features for $1,700, but it will not operate without the necessary software. LeJeune testified that it would have cost Harris County approximately $4,000 to replace the MTS 2000 radio with an operating XTS 5000 radio in 2008, when the radio was stolen.

On cross-examination, LeJeune testified that the manufacturer no longer made parts for the MTS 2000 and that the radio shop cannibalized parts from other MTS 2000 radios to repair and replace parts on the MTS 2000 radios. He testified that the MTS 2000 had “a low value” and that he would not purchase one. Counsel for Infante repeatedly described the stolen radio as “obsolete,” and elicited testimony from LeJeune agreeing with that description of the radio.

C. Sufficiency of value evidence

Under the Penal Code's “Theft” chapter, the value of property is “(1) the fair market value of the property ... at the time and place of the offense; or (2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the theft.” Tex. Penal Code Ann. § 31.08(a)(1), (2). The jury charge likewise defined “value” as “the fair market value of the property ... at the time and place of the offense, or if the fair market value of the property cannot be ascertained,the cost of replacing the property within a reasonable time after the theft.” Fair market value is “the amount the property would sell for in cash, giving a reasonable time for selling it.” Keeton v. State, 803 S.W.2d 304, 305 (Tex.Crim.App.1991) (emphasis omitted); see Smiles v. State, 298 S.W.3d 716, 719 (Tex.App.-Houston [14th Dist.] 2009, no pet.).

The determinative issue here is whether the radio's fair market value was unascertainable, such that the State could rely on evidence of the radio's replacement cost under section 31.08(a)(2) of the Penal Code. SeeTex. Penal Code Ann. § 31.08(a) (defining “value” as the fair market value of the property at the time and place of the theft or, “if the fair market value of the property cannot be ascertained,” the cost of replacing the property within a reasonable time after the theft). We hold that, under the circumstances of this case, the evidence was sufficient to allow the jury to determine that the fair market value of the radio was not ascertainable and to rely on evidence of the radio's replacement cost.

LeJeune testified that the 2000 model was no longer being manufactured, it was difficult to repair because its parts likewise were no longer available and therefore repairs required locating and taking parts from another radio of the same model, it was “hard to get,” it had depreciated in value before it was stolen, it was “obsolete,” and its value was “low” but he could not state an amount for its value. He also testified that he “wouldn't buy one.” More importantly, LeJeune unequivocally testified that he was “not able to determine the fair market value of the MTS 2000 because it's been outdated.” The jury, therefore, could have reasonably concluded that this evidence demonstrated that the 2000 model's fair market value in 2008 could not be ascertained; they therefore could rely on evidence of its replacement cost.

Ascertainment of market value presupposes an existing, established market. See Yazdani–Beioky v. Tremont Tower Condo. Ass'n, Inc., No. 01–10–00107–CV, 2011 WL 1434837, at *5 (Tex.App.-Houston [1st Dist.] Apr. 14, 2011, no pet.) (observing that the determination of what willing buyer would pay willing seller presupposes existing, established market) (citing Wendlandt v. Wendlandt, 596 S.W.2d 323, 325 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ). “For example, the Texas Supreme Court has recognized, as a matter of common knowledge, ‘that used household goods, clothing and personal effects have no market value in the ordinary meaning of that term.’ ” Id. (quoting Crisp v. Sec. Nat'l Ins. Co., 369 S.W.2d 326, 328 (Tex.1963)). While such items may appear on eBay or other resale markets from time to time, these sales may not be sufficiently frequent or similar to allow ascertainment of an item's market value.

LeJeune did not concede the existence of an open market for the MTS 2000 or the value afforded to that model in such a market. Counsel for Infante asked LeJeune if he would be surprised to learn that “you can find stuff like that on E-bay for 124 bucks?” LeJeune responded that he would not be surprised and had “seen them there before like that.” Infante's counsel's assertion embedded within his question is not evidence; nor is LeJeune's agreement evidence of the value of the MTS 2000 in 2008. Not only were this question and answer vague, they were not limited to the time of the theft.

The State's evidence of the cost to replace the radio is legally and factually sufficient to support the jury's verdict. Under these circumstances, we hold that the value evidence was sufficient to support the jury's verdict.

We overrule Infante's first issue.

Hearsay and Right of Confrontation

Infante's second issue challenges the trial court's admission of certain testimony from LeJeune about the recovered radio. LeJeune testified that he gave the recovered radio to a technician who pulled the serial number off the radio via the programming cable. With the serial number, LeJeune was able to generate certain information about the stolen radio and its post-theft use from the radio shop's database. Infante complains that LeJeune could not testify to or rely on the radio's serial number because LeJeune did not obtain the...