Lily v. State

• Citation: 789 S.W.2d 433
• Decision Date: 10 May 1990
• Docket Number: No. A14-89-00898-CR,A14-89-00898-CR
• Parties: Maurice Lee LILY, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Court of Appeals of Texas

Page 433

789 S.W.2d 433

Maurice Lee LILY, Appellant, v. The STATE of Texas, Appellee.

No. A14-89-00898-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

May 10, 1990.

Ken J. McLean, Houston, for appellant.

Timothy G. Taft, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION

JUNELL, Justice.

A jury convicted appellant of felony theft of the third degree and the court assessed punishment, enhanced by two prior felony convictions, at imprisonment for twenty-five years. Appellant brings two points of error alleging: (1) insufficient evidence to prove appellant appropriated stolen property; and (2) insufficient evidence to prove property stolen was of a value of at least the $750 minimum required by the statute for a conviction of third degree felony theft. We reverse and acquit.

The personal vehicle of a Houston police officer was stolen from the parking lot of the apartment complex where he lived. Later that day he found the truck abandoned and lacking its wheels and tires. He and a deputy sheriff made a sweep of the used auto parts businesses in the area. They spotted his wheels and tires at a shop known as "Hub Cap Tire & Wheel". The store manager, Mike Spence, gave the officer the standard form ¹ he used to obtain title to property of this nature. The form contains appellant's name and driver's license number. The store manager testified that he could not recall whether or not he checked to see if the picture on the driver's license presented to him matched the face of the seller. It is uncontroverted that the photograph on file with the State under that license number is that of appellant. Appellant testified that he was at Hub Cap Tire & Wheel on an occasion when another person who also was there gave $25 in exchange for the use of appellant's driver's license to make a sale to Spence. Appellant asserted he never saw or possessed the tires or wheels. When Spence was asked to identify the copy of the form upon which appellant signed his name, he could not be certain the copy was authentic. The judge then called a recess while a State investigator drove Spence back to his place of business to get the original form. When Spence returned to the courthouse, he was met in the hallway by appellant who grabbed the original form from Spence's hands, crumpled it up, ran into a nearby restroom and flushed it down the toilet.

In reviewing the sufficiency of the evidence to support a conviction we consider the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560; Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989) (reconfirming the Jackson standard of review). This standard is applied to both direct and circumstantial evidence cases. Chambers v. State, 711 S.W.2d 240, 245 (Tex.Crim.App.1986). It is not required that every fact point directly and independently to the guilt of the accused. The cumulative force of all the incriminating circumstances may be sufficient to support a guilty verdict. Harris v. State, 738 S.W.2d 207, 220 (Tex.Crim.App.1986) (op. on reh'g), cert. denied, 484 U.S. 872, 108 S.Ct. 207, 98 L.Ed.2d 159 (1987); see Ruben v. State, 645 S.W.2d 794, 796 (Tex.Crim.App.1983); Gonzales v. State, 681 S.W.2d 270, 273 (Tex.App.--San Antonio 1984, no pet.).

We first review appellant's second point of error in which appellant insists the value of the stolen property in question was less than the $750 required for sustaining a conviction of felony theft under TEX.PENAL CODE ANN. § 31.03(e)(4)(A), and that any value less than $750 would give rise only to a misdemeanor theft under the Penal Code. We agree.

Valuation of the property at above the threshold amount is an essential element of the offense which the State must prove. See Sowders v. State, 693 S.W.2d 448, 450 (Tex.Crim.App.1985). "Value", for purposes here, is adequately defined in the Penal Code, as (1) the fair market value of the property or service at the time 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) ². (Emphasis added.)

Whereas the complainant police officer testified his cost of the stolen property had been $897 and that same amount would be a fair replacement cost, he clearly admitted the tires and wheels would be worth less than that amount in their used condition. Another expert testified the stolen property would...