Zitterich v. State, 46892
| Decision Date | 12 December 1973 |
| Docket Number | No. 46892,46892 |
| Citation | 502 S.W.2d 144 |
| Parties | Michael Howard ZITTERICH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
James A. Attaway, Jr., Mesquite, for appellant.
Henry Wade, Dist. Atty., John H. Hagler, Asst. Dist. Atty., Dallas, Jim D. Vollers, State's Atty. and Buddy Stevens, Asst. State's Atty., Austin, for the State.
The conviction is for theft of property of the value of over $5.00 and under $50.00; the punishment, nine months in jail and a fine of $201.00.
Appellant raises four grounds of error.
Grounds of error number one and two relate to the sufficiency of the proof of the value of the property.
A state's witness testified that he was a sales representative for a tire company and had been around the tire business all his life. He stated that the fair market value of tires and wheels, of the same kind and condition as those stolen, was $18.00 to $23.00 each. He stated that the value was definitely more than $5.00, and that he would not ask a price as high as $50.00 We hold this proof sufficient. See Smith v. State, Tex.Cr.App., 468 S.W.2d 824; and Senters v. State, 163 Tex.Cr.R. 423, 291 S.W.2d 739.
Grounds of error number one and two are overruled.
In ground of error number three appellant contends the trial court erred in failing to charge that two witnesses were accomplice witnesses as a matter of law.
The witness Linda Beshear testified that on August 11, 1971, appellant and three unnamed companions came to her apartment. She and another witness, Gail Worsham, left the apartment with the four arrivals. As they were leaving, one of the young men suggested stealing some nearby motorcycle parts. Gail Worsham instructed them not to do so because she knew the owner. As they continued toward their car, appellant told the witness that he did not think she and Miss Worsham could push two tires out of the bed of a nearby pickup truck. The girls then did so. The witness Beshear testified she did so on a 'dare'. The young men then picked up the tires and placed them in their car. The girls, being afraid that someone might see them while the young men were taking the tires, returned to the apartment.
Nevertheless, appellant asked them if they still wanted to ride in the car, and they agreed to go. They drove to a '7-11' store with the tires in the back seat, and subsequently returned to the apartment.
Some four hours later, appellant returned to the apartment with a different companion. The tires were in the car. The witness Beshear, the companion, and the appellant drove to a filling station where appellant sold the tires.
The witness Worsham testified to substantially the same facts. She further testified that,...
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...fact question for the jury. See and compare Carrillo v. State, supra; Ward v. State, 520 S.W.2d 395 (Tex.Cr.App.1975); Zitterich v. State, 502 S.W.2d 144 (Tex.Cr.App.1973). In view of the court's instruction and the jury's verdict, we may consider the testimony of Miller in corroboration of......
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