Moff v. State

• Decision Date: 07 April 2004
• Docket Number: No. 1343-03.,1343-03.
• Citation: 131 S.W.3d 485
• Parties: George MOFF, Appellant, v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

131 S.W.3d 485

George MOFF, Appellant, v. The STATE of Texas.

No. 1343-03.

Court of Criminal Appeals of Texas.

April 7, 2004.

Cliff Gordon, Corpus Christi, for appellant.

Douglas K. Norman, Assistant District Attorney, Corpus Christi, Matthew Paul, State's Attorney, Austin, for State.

OPINION

COCHRAN, J., delivered the opinion for a unanimous Court.

A jury found appellant guilty of theft by a public servant of property that was valued between $500 and $1,500. On appeal, he challenged the sufficiency of the evidence to prove: 1) unlawful appropriation; 2) fair market value of at least $500; and 3) his status as a public servant at the time of the unlawful appropriation. The court of appeals found that the evidence was legally sufficient to show appellant unlawfully appropriated property and that he did so before he resigned as a public servant, but it also held that appellant waived any issue concerning the sufficiency of evidence to prove value.¹ Appellant claims that the court of appeals violated his due process rights by affirming his conviction without addressing the legal sufficiency of the evidence supporting the value of the property at the time of the offense. We agree, and therefore we remand this case to the court of appeals to review the sufficiency of that evidence.

I.

In 1981, the Nueces County Appraisal District was formed, and its board appointed appellant as its chief appraiser. As chief, appellant had authority to purchase and possess property for the district. In December 1999, after eighteen years of service, appellant resigned. Before he left, he paid the district $1,100 in cash for "tools and supplies" that belonged to the district but had "gotten commingled" with his own.

In March 2000, his successor, Ollie Grant, began to inventory the appraisal district property. Mr. Grant discovered that some district property was missing. Appellant called Mr. Grant in April, and the two arranged to meet at a Chili's Restaurant. According to Mr. Grant, appellant "knew something was up." When they met at the restaurant, appellant gave Mr. Grant a Nikon camera, a battery charger, a power washer, and a saw and drill set—all of which, appellant said, belonged to the appraisal district. Mr. Grant asked appellant about a missing computer, but appellant said he "didn't have a computer." The next day, however, appellant called Mr. Grant and admitted that he did, in fact, have a district computer, and he asked how much it would cost him to keep it.

Because of appellant's actions and the discovery that more property purchased by the district was missing, the Nueces County District Attorney's Office began a formal investigation. Texas Ranger Roberto Garza, Jr. assisted in that investigation.

In June 2000, appellant's attorney returned additional items that belonged to the district, but which had been in appellant's possession, as well as an "inventory of appraisal district property received" listing those items, including the computer. Many of these items had never been seen at, or used by, the district and were not the type of items the district would purchase or could use.

Appellant was indicted for the third degree felony of theft by a public servant of property valued between $1,500 and $20,000. At trial, the State's theory was that appellant had stolen the items at the time he purchased them. The State—over hearsay and "failure to lay a predicate" objections—relied on Ranger Garza's testimony concerning the purchase price of those items (as reflected in the district's business record written receipts) to prove the value of the property stolen.

At the close of evidence, appellant filed a motion for directed verdict alleging, in part, that the State failed to prove any value—even of the items for which the district had purchase-price receipts. The defensive theory was that appellant, as chief of the district, had the right to buy this property and the right to possess it while he was chief,² so its purchase price was irrelevant. The trial court denied this motion. The jury convicted appellant of the lesser included state jail felony of theft by a public servant of property valued between $500 and $1,500. The trial court assessed punishment at one year incarceration, suspended, and a $4,000 fine.

Appellant argued on appeal that the State failed to prove, beyond a reasonable doubt, that the fair market value of the property at the time of the offense was at least $500.³ He asserted that Ranger Garza's testimony about the purchase price of a handful of the purloined items was "no evidence" of value because Garza:

1) was not the owner of the property (so his testimony of the purchase price could not be presumed to refer to fair market value);

2) was not a qualified non-owner witness (because he was not an expert on the fair market or replacement value of these specific items); and

3) provided no evidence of value after appellant purchased the items (because he did not testify to any depreciated value).

The State countered that appellant waived error regarding the State's method of proving value because he objected late and then backed off his objection by stating "I don't dispute that value can be established through—through a receipt[.]"⁴ The court of appeals held that appellant "waived"⁵ his claim that the evidence was legally insufficient to support the jury's finding of a fair market value between $500 and $1,500 at the time appellant misappropriated the items because he failed to properly object to the State's method of proving their value. It stated:

Appellant failed to properly object to the State's method of proving the value of the items unlawfully appropriated by appellant. The only objections made by appellant were for hearsay and lack of predicate. Even then, the objections came after the State had already established the values of four separate items. "If the manner of proving an item's value does not meet the accused's approval, it is incumbent upon him to voice his objection at the time of the introduction of the testimony." Brown v. State, 640 S.W.2d 275, 279 (Tex.Crim.App.1982); Garcia v. State, 787 S.W.2d 185, 185 (Tex.App.-Corpus Christi 1990, no. pet.). Error presented on appeal will not be considered if it varies from the specific objections made during trial. Garcia, 787 S.W.2d at 185. We find appellant's objections were insufficient to inform the trial court that appellant was complaining of the State's method of proving the value of the items. See Tex.R.App. P. 33.1. Appellant's second issue is overruled.⁶

Appellant argues that the court of appeals erred in relying on Brown—a case in which, he points out, this Court did evaluate the sufficiency of the evidence—to hold his sufficiency question waived. We granted review to consider this claim.⁷

II.

We have adopted the Jackson v. Virginia⁸ constitutional standard of review for assessing the legal sufficiency of evidence in a criminal case.⁹ Under that standard, "the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt."¹⁰ In applying the Jackson sufficiency review, an appellate court "must consider all evidence which the jury was permitted, whether rightly or wrongly, to consider."¹¹

If a defendant challenges the legal sufficiency of the evidence to support his conviction on direct appeal, the appellate court always has a duty to address that issue, regardless of whether it was raised in the trial court.¹² A defendant need not file a motion for directed verdict or a motion for new trial to preserve an appellate claim concerning the sufficiency of the evidence to prove his guilt. He need not object to the admission of evidence in the trial court to preserve this issue. He need not claim, in the trial court, that the method by which the State proved an element of the offense was deficient or defective. In short, a claim regarding sufficiency of the evidence need not be preserved for appellate review at the trial level, and it is not forfeited by the failure to do so.¹³

The Supreme Court in Burks v. United States held that because the "Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only `just' remedy available for a court finding legal insufficiency is a judgment of acquittal."¹⁴

On the other hand, when a defendant claims on appeal that the trial court erred in admitting or excluding evidence, he must have made a proper and specific objection at the time the evidence was offered or excluded to preserve his right of review of that evidentiary claim.¹⁵ Under our Texas Rules of Evidence, a party must make a timely objection at trial, and he must state the specific basis for the objection unless the particular ground is apparent from the context.¹⁶ Also, the complaining party must have obtained an adverse ruling from the trial judge, or objected to the judge's refusal to rule, to preserve error in the admission of the evidence. "In the event a portion of this evidence was erroneously admitted, the accused may complain on appeal of such error. If his complaint has merit and the error is reversible ... a new trial should be ordered."¹⁷

Sometimes a claim of trial court evidentiary error and a claim of insufficient evidence overlap so much that it is hard to separate them. For example, suppose that the identity of a bank robber is proven through the testimony of one and only one witness at trial. Suppose further that this witness' testimony is rank hearsay: "Little Nell told me that Simon was the bank robber." On appeal a defendant might raise a hearsay claim and a claim of sufficiency of the evidence to prove identity. He will have the right to have the hearsay question considered on its merits only if he objected properly at trial; he will have the right to have the question of the sufficiency...