York v. State

Decision Date17 December 1986
Docket NumberNo. 2-85-199-CR,2-85-199-CR
Citation721 S.W.2d 605
PartiesLonnie Cleo YORK, Appellant, v. The STATE of Texas, State.
CourtTexas Court of Appeals

Richard S. Podgorski, Denton, for appellant.

Jerry Cobb, Dist. Atty., and Jim Crouch, Asst. Dist. Atty., Denton, for State.

Before the court en banc.

OPINION ON MOTION FOR REHEARING

FARRIS, Justice.

Appellant appeals his conviction by a jury for the felony offense of theft over the value of $750.00, but less than $20,000.00. See TEX.PENAL CODE ANN. sec. 31.03(e)(4)(A) (Vernon Supp.1986). The jury assessed punishment at four years confinement in the Texas Department of Corrections and a fine of $1,000.00, with a recommendation that both penitentiary confinement and fine be probated.

We reverse and acquit.

On February 4, 1985, appellant was stopped by a police officer for a traffic violation. Upon observing copper tubing in the back of appellant's pickup truck, the officer arrested appellant for theft. Investigation of nearby construction sites by another officer revealed several houses under construction where the copper tubing had been pulled out. The officer also discovered footprints similar to appellant's at the construction sites leading to the houses where tubing was removed. Appellant was charged by indictment for the felony offense of theft of property valued over $750.00, but less than $20,000.00.

At trial, the project manager of the construction sites testified that copper tubing had been removed from six houses under construction. He further testified that, in his estimation, the replacement value for the copper tubing was $350.00 to $400.00 for each of the six houses. Appellant, testifying on his own behalf, claimed he found the copper tubing and assumed it to be scrap. In his estimation, he picked up about 200 pounds of scrap copper tubing, valued at $.60 per pound.

In his sole point of error, appellant contends that the State's evidence was insufficient to prove beyond a reasonable doubt that the value of the copper tubing alleged to have been stolen by appellant had a value over $750.00, but less than $20,000.00.

In reviewing the sufficiency of the evidence in either a direct or circumstantial evidence case, we must view the evidence in the light most favorable to the prosecution and consider whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson v. State, 672 S.W.2d 801, 803 (Tex.Crim.App.1984); Houston v. State, 663 S.W.2d 455, 456 (Tex.Crim.App.1984); Wilson v. State, 654 S.W.2d 465, 471 (Tex.Crim.App.1983) (opinion on reh'g).

In the instant case, the indictment charged that appellant "did then and there intentionally appropriate, by acquiring and otherwise exercising control over, property, to-wit: copper tubing of the value of $750 or more, but less than $20,000 from the owner...." Simply stated, appellant is charged with theft of copper tubing of the value in excess of $750.00 and the burden is on the State to prove that the value of the property allegedly stolen was in excess of that minimum amount.

Article 31.08 of the Texas Penal Code defines "value" as the fair market value of the property at the time and place of the offense or, if the fair market value cannot be ascertained, the cost of replacing the property within a reasonable time after the theft. See TEX.PENAL CODE ANN. art. 31.08(a) (Vernon 1974).

Our initial determination, therefore, is whether the fair market value of the copper tubing, at the time and place of the offense, can be ascertained.

The only evidence put forth by the State as to value of the copper tubing was as to replacement of the copper back in the houses. This is noted by the following discourse, which took place at trial:

[PROSECUTOR]: Now, then, let me ask you this, what was the cost of the--approximate cost of the replacement of the plumbing for each of these houses?

[APPELLANT'S ATTORNEY]: Judge, again I object to that. Mr. York is charged with theft of copper tubing, not theft of plumbing, there is a difference.

THE COURT: Yes. Confine it to the allegation.

[PROSECUTOR]: All right. In regard to the copper tubing in that location, and the fashion that the copper tubing was in the ground, in the foundation, what was the approximate cost for the replacement of the copper tubing in the condition that it was in when it was removed from the house?

[PROJECT MANAGER]: It's approximately $350 to $400 a house to have the copper put back in.

The State asserts that the project manager's testimony regarding replacement cost of the copper was the correct method of determining the value of the property allegedly stolen. We disagree with the State's summation of the testimony.

The value of copper tubing is not the same as the cost of having copper tubing put back in the houses. The latter includes labor and other intangibles which would make the replacement cost greater than the cost of the copper tubing.

A conviction for theft of property cannot depend upon items not alleged in the indictment to have been stolen. Coronado v. State, 508 S.W.2d 373, 374 (Tex.Crim.App.1974); Ballinger v. State, 481 S.W.2d 421, 422 (Tex.Crim.App.1972). When the only evidence as to value includes the value of items not alleged to have been stolen, there is in effect no evidence to show that the value of the items involved was in excess of the minimum amount necessary to support the conviction. Martin v. State, 491 S.W.2d 421, 422 (Tex.Crim.App.1973); Ballinger, 481 S.W.2d at 422. In such a case, art. 31.08 provides that when the value cannot be reasonably ascertained, the property is deemed to have a value in excess of $200.00, but less than $750.00. See TEX.PENAL CODE ANN. art. 31.08(c) (Vernon Supp.1986).

The State also argues that if appellant was not satisfied with the manner of proving the value of the copper tubing, it was appellant's duty to object either after the State's question or after the witness's answer. The State claims that, even if the answer was too inclusive, appellant's failure to object a second time to the question constituted a waiver of objection as to the manner of proof.

Again, we disagree with the State's contention. As a general rule, counsel must object every time allegedly inadmissible evidence is offered. Hudson v. State, 675 S.W.2d 507, 511 (Tex.Crim.App.1984). However, the State's questioning in this area, although admissible, was irrelevant as to value necessary to determine the degree of offense. Since we have decided that the correct method of calculating "value" is the value of the copper tubing itself, and not the cost of replacing the tubing in the houses, the testimony of the project manager of the cost of replacing the installed tubing has no bearing on this issue. Appellant's failure to object to the State's rephrased question a second time does not cause appellant to acquiesce in the manner of proof.

Since the State did not present sufficient proof that the property taken had a value in excess of $750.00, we sustain appellant's point of error.

Because the conviction must be reversed for insufficiency of the evidence to support the finding of guilty, the cause is remanded to the trial court with an order to enter a judgment of acquittal. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978); Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).

Judgment reversed and appellant acquitted.

JOE SPURLOCK, II and HILL, JJ., join in this opinion.

KELTNER, J., files a concurring opinion in which HOPKINS, J., joins.

FENDER, C.J., files a dissenting opinion in which BURDOCK, J., joins.

KELTNER, Justice, concurring.

I concur with the result the majority reaches, but for reasons not expressed in the majority's opinion.

The only issue before us on appeal is the sufficiency of the evidence on the issue of the value of the stolen property. York was indicted with theft of copper tubing of a value of $750 or more, but less than $20,000. TEX.PENAL CODE ANN. sec. 31.03 (Vernon Supp.1986). As a result, he was charged with a third degree felony.

York was stopped early on the morning of February 4, 1985 by a patrol officer for a traffic violation. York could produce no driver's license or any other means of identification. As a result, he was detained and, after receiving Miranda warnings, questioned about his activities in the area. York admitted that he had picked up scraps from a nearby construction site. He allowed the officer to view the contents of his pickup truck which was loaded with copper coils and straight copper tubing sections.

Another officer was called to the scene and investigated the nearby area. The area consisted of construction sites for new homes. The officer's investigation was aided by a new blanket of snow, and as a result, he discovered a set of fresh tire tracks and footprints to four construction sites. Copper tubing material had been pulled from the foundations of each of the four construction sites. This copper tubing was laid in the foundation as part of the plumbing system of the houses.

At trial, two police officers were asked how much copper tubing was in York's truck. Neither officer could give an answer.

The construction supervisor of the homes from which the tubing was missing, testified that the copper plumbing was missing from six of the new home foundations. The supervisor also testified that the City of Carrollton and F.H.A. codes prohibited any cuts or splices in the copper plumbing in the foundation of a house. As a result, the copper tubing remaining below the concrete line must be completely removed and replaced with new, unspliced copper tubing. The supervisor further testified that the copper tubing in the foundations prior to the theft would have passed the code inspections. However, after the cutting of the tubing during the theft, the copper tubing would fail the code inspections. The...

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