Morris v. State, 35819

• Decision Date: 29 May 1963
• Docket Number: No. 35819,35819
• Citation: 368 S.W.2d 615
• Parties: James Ernest MORRIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 615

368 S.W.2d 615

James Ernest MORRIS, Appellant, v.The STATE of Texas, Appellee.

No. 35819.

Court of Criminal Appeals of Texas.

May 29, 1963.

Rehearing Denied June 29, 1963.

Addison Bradford, Jr., Fowler Roberts, Dallas, for appellant.

Henry Wade, Dist. Atty., Frank Watts, John Rogers and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

WOODLEY, Presiding Judge.

The offense is felony theft; the punishment, 4 years.

Trial was before a jury on a plea of not guilty.The case was submitted to the jury as one of circumstantial evidence.

The sufficiency of the evidence to sustain the conviction is questioned.

The indictment alleged the theft of an automobile of the value of over $50.00 from Patricia LaRoe in Dallas County, on or about June 25, 1962.

Patricia LaRoe testified that on said date she owned a 1957 Pontiac convertible automobile, the 1962 license plates on it being numbered NT-1061; that on the evening of June 25, 1962, the automobile was parked in a garage at the apartment in Dallas where she lived; that later in the evening she went to the garage and her car was not there and she notified the police.

Texas Highway Patrolmen McWhorter and Benson saw the appellant in Electra, Texas, about 10 o'clock A.M. on June 28, 1962, at which time he was driving a 1957 Pontiac convertible, LicenseNo. NT-1061.There were no hubcaps on the convertible.

The appellant told the officers that he got the car in Dallas and that he had traded or pawned the hubcaps for gasoline at a service station in Electra.He directed the officers to a service station where hubcaps which he had pawned or traded were recovered and taken to Wichita Falls by the officers.

Patricia LaRoe further testified that on June 28, 1962, she was informed that her car had been recovered and she went to Vernon, Texas, where she found it stored.She testified that the spare tire, the jack and fender skirts were missing and there were no hubcaps on the car; that she was told to pick up her hubcaps at the Texas Highway Patrol Department in Wichita Falls, which she did.

The owner testified that the automobile was taken without her consent and that she had never seen the appellant before the day of the trial.

As to the value of the 1957 Pontiac convertible, the owner testified:

'Q.And do you know what the approximate fair market value of that car was on that date in Dallas County, Texas?

'A.I was told around $1,000.00.

'Q.About $1,000.00.Is that over the value of $50.00?

'A.Yes, it is.'

There was no objection to the introduction of such testimony and the sufficiency of the evidence or the probative value of the testimony relating to value was not questioned in the trial court.

Appellant here contends that there is a complete absence of any competent evidence of the value of the automobile, and that under authority of Price v. State, 165 Tex.Cr.R. 326, 308 S.W.2d 47, andPerales v. State, 165 Tex.Cr.R. 638, 310 S.W.2d 335, the evidence is insufficient to sustain this conviction.The contention of the appellant in this regard is that the testimony of the owner of the car as to value is 'the rankest form of hearsay' and is 'no evidence'.

In Price v. State and Perales v. State, supra, the state made no effort to prove that the value of the automobile alleged to have been stolen was $50.00 or over, and the evidence was held insufficient to sustain conviction for felony theft.

We have held that evidence which is hearsay may in some instances be used to prove value.Esparza v. State, Tex.Cr.App., 367 S.W.2d 861;Holmes v. State, 126 Tex.Cr.R. 587, 72 S.W.2d 1092;Brown v. State, 71 Tex.Cr.R. 353, 162 S.W. 339;1 Wharton Criminal Evidence12th Ed. 620, Sec. 276.

We overrule the contention that the testimony above quoted was without probative value because it was 'the rankest form of hearsay' and not hearsay such as from a book, price list or catalogue.

If the appellant was not satisfied as to the source of the witness' information as to value he had the opportunity to go into the matter at the trial.

In Pigg v. State, 162 Tex.Cr.R. 521, 287 S.W.2d 673, the owner testified that he'hoped' his automobile had a reasonable value of over $50.He also testified that he paid...