Sullivan v. State
| Decision Date | 08 January 1986 |
| Docket Number | No. 667-84,667-84 |
| Citation | 701 S.W.2d 905 |
| Parties | Howard Dean SULLIVAN, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
John A. Buckley, Jr., Galveston, for appellant.
Louis Raffaelli, Dist. Atty., David W. Malaby, Jr., Asst. Dist. Atty., Texarkana, Robert Huttash, State's Atty., Cathleen R. Riedel, Asst. State's Atty., Austin, for the State.
Before the court en banc.
OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
Appellant was convicted of two counts of theft over $200.00. Punishment was assessed at four years' on each count, probated. The Texarkana Court of Appeals affirmed appellant's conviction in an unpublished opinion. Sullivan v. State, No. 6-83-091-CR, delivered April 10, 1984 (Tex.App.--Texarkana 1984). In its opinion the court relied on the rule that an owner of personal property may testify to the property's market value even though he does not qualify as an expert. We granted appellant's petition for discretionary review to examine that rule as applied to this case and specifically the Court of Appeals' holding that the testimony of the owner was sufficient to prove the market value of the stolen property, a gun.
The second count of the indictment alleged that appellant:
"did unlawfully, knowingly and intentionally appropriate property, other than real property, to-wit: one 30-30 lever action rifle of the value of more than two hundred dollars and less than ten thousand dollars by exercising control over said property without the effective consent of David Lindsey, the owner of the property, and with intent to deprive said owner of said property."
V.T.C.A., Penal Code, Section 31.08(a) in pertinent part defines value in theft prosecutions as follows:
"(a) Subject to the additional criteria of Subsections (b) and (c) of this section, value under this chapter is:
(1) the fair market value of the property or service 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.
At trial the owner of the gun, David Lindsey, testified that a 30-30 Winchester rifle and a Model 1100, Remington automatic shotgun were stolen from his home. When the prosecutor asked Lindsey to state the value of the 30-30, the following occurred:
After further direct examination and cross-examination, a short recess was taken. Thereafter the witness was called back to the stand by the State. Then the following occurred:
On cross-examination the following exchange then took place:
At this point, appellant's attorney objected to this statement stating, "The value has to be between a willing seller and a willing buyer." The judge overruled the objection. Following the judge's ruling, appellant's attorney continued with the following:
At the close of the State's case the appellant moved for a directed verdict because the State had failed to produce evidence as to the value of the gun other than the owner's opinion. Appellant's motion was denied. At the conclusion of the guilt innocence phase of the trial, appellant requested that the court instruct the jury.
"That if the fair market value of the property at the time and place of the offense cannot be reasonably ascertained the property is deemed to have a value of more than Twenty Dollars ($20) but less than Two Hundred Dollars (200)."
The court refused this instruction.
Appellant argues in his petition that Lindsey testified only as to the price he would ask if selling his gun, not the actual market value. Therefore there was no testimony as to the market value of the gun and his motion for directed verdict should have been granted or in the alternative the judge should have given his requested charge to the jury.
Appellant's argument raises an important consideration with regard to the proof of market value in theft cases: what standard constitutes a valid measure of "value" sufficient to establish jurisdiction in theft cases. V.T.C.A., Penal Code, Section 31.03. Appellant urges that value must be established either as the fair market value of the property at the time and place of its taking, or the purchase price of the property paid by the owner. The State has no apparent quarrel with this standard and only urges this Court to accept the proposition that the owner clearly testified as to the fair market value of the weapon in question.
It has long been the rule in this State that the owner of property is competent to testify as to the value of his own property. Brown v. State, 640 S.W.2d 275 (Tex.Cr.App.1982); Davila v. State, 547 S.W.2d 606 (Tex.Cr.App.1977); Trammell v. State, 511 S.W.2d 951 (Tex.Cr.App.1974); Nitcholas v. State, 524 S.W.2d 689 (Tex.Cr.App.1975); Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974). This rule applies both in criminal theft cases and in cases which involve only civil issues. Barstow v. Jackson, 429 S.W.2d 536 (Tex.1968).
Prior to the enactment of Section 31.08 of our present penal code, there were no statutory standards for determining the value of stolen property. The case law, however, shows that this Court had traditionally utilized fair market value, or alternatively replacement cost as a means of establishing value. Turner v. State, 486 S.W.2d 797 (Tex.Cr.App.1972); De La O v. State, 373 S.W.2d 501 (Tex.Cr.App.1963); Senters v. State, 163 Tex.Cr.R. 423, 291 S.W.2d 739 (1956). The effect of enacting Section 31.08 was to codify a standard for establishing value which had become law in our jurisdiction by virtue of stare decisis. See also, V.T.C.A., Penal Code, Section 31.08, Practice Commentary. For this reason, case law decided prior to the implementation of the present penal code is relevant and persuasive authority on this subject.
It is settled that when the State seeks to establish the value of an item of property through the testimony of a non-owner the witness must first be qualified as having personal knowledge of the value of the property. Furthermore, to establish sufficient evidence of value the State must elicit testimony as to the fair market value of the property in question. See McCormick and Ray, Texas Law of Evidence, Section 1422 (1980); Davila v. State, supra; Trammell v. State, supra; Turner v. State, supra; Nitcholas v. State, supra.
We have held, however, that while fair market value must be established if the testimony concerning value is given by someone other than the owner, the owner is competent to testify as to value though he is not qualified as an expert on the value of the property. Davila v. State, supra. Indeed, in the case of Israel v. State, 158 Tex.Cr.R. 574, 258 S.W.2d 82 (1953), we held the owner's testimony that "to the best of my knowledge the car was valued at $575.00," was sufficient evidence to establish value. In the case of Turner v. State, supra, this Court held the evidence was sufficient to establish value when the owner testified that the property in question "was worth" a given amount and that they "would not take less than" a given amount for the property. Turner v. State, supra, at 799. See also, Nitcholas v. State, at 691.
Additionally, this Court has implicitly approved 1 the resolution of this issue which appears in Houston v....
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...value, even though the owner may not use the specific terms “market value,” “replacement value,” or “purchase price.” Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). Trade-in value can be, and often is, based on a different standard than cash value, and can therefore be insuf......
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...value, even though the owner may not use the specific terms “market value,” “replacement value,” or “purchase price.” Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). Trade-in value can be, and often is, based on a different standard than cash value, and can therefore be insuf......
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Evidence
...value, even though the owner may not use the specific terms “market value,” “replacement value,” or “purchase price.” Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). Trade-in value can be, and often is, based on a different standard than cash value, and can therefore be insuf......
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Evidence
...value, even though the owner may not use the specific terms “market value,” “replacement value,” or “purchase price.” Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). Trade-in value can be, and often is, based on a different standard than cash value, and can therefore be insuf......