Opinion
NO. 02-15-00063-CR
03-17-2016
PAMELA DIANE MANGUM APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
TRIAL COURT NO. 55,165-C MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Pamela Diane Mangum appeals from her conviction of theft from an elderly individual of property valued at $1,500 or more but less than $20,000. We affirm.
I. BACKGROUND
A. THE OFFENSE
On Wednesday, June 12, 2013, Mangum saw Dale Carpenter Yarbrough at a grocery store and gave him her address and phone number, telling him that she was a widow and she would like to "go out and eat sometime." At the time, Yarbrough was approximately 80 years old and had been widowed for almost two years. Mangum was 54 years old. Apparently, when Yarbrough did not call Mangum, she called him and invited him to lunch on Sunday, June 16, 2013. The two had lunch that day and later drove to visit Mangum's parents. At some point, Mangum asked Yarbrough for an $800 loan to pay her rent. Yarbrough agreed to give her the money but explained he could not get it for her until the next Tuesday. When they returned to Yarbrough's house, where Mangum had left her car, she asked to use the bathroom, which was located next to his bedroom. Yarbrough waited in the den, and Mangum left his house soon thereafter. Yarbrough could not see the bathroom or his bedroom from the den. In his bedroom on top of a desk, Yarbrough had left a diamond ring that his late wife had given him in 1959 for their seventh wedding anniversary. He also had a metal box under his bed in which he kept $500.
It is unclear from the record whether Mangum left on Sunday or early Monday after staying on Yarbrough's couch Sunday night.
On Tuesday, June 18, 2013, Yarbrough discovered that his ring and the metal box, containing ten $50 bills, were missing from his bedroom. Yarbrough confronted Mangum about his missing property, and Mangum suggested that Yarbrough's housecleaner had knocked the ring off of the desk onto the floor while she was cleaning on Monday. After Yarbrough realized that Mangum should not have known that he kept the ring on the desk in his bedroom, he contacted the police and related that he believed Mangum had stolen his ring and his money. Corporal Jonathan Zellner checked local pawn shops for the ring and discovered that Mangum had pawned Yarbrough's ring for $225. Employees at the pawn shop were familiar with Mangum and confirmed that she had pawned Yarbrough's ring on Monday, June 17, 2013.
B. PRETRIAL AND TRIAL
A grand jury indicted Mangum with theft from an elderly individual of property valued at $1,500 or more but less than $20,000. See Tex. Penal Code Ann. §§ 22.04(c), 31.01(10), 31.03(a), (e)(4), (f) (West Supp. 2015). Before trial, Mangum filed a motion to conduct a voir dire examination of the State's expert witnesses outside the presence of the jury to "determine the preliminary question of the qualification of all expert witnesses . . . and to determine the underlying facts and data upon which their opinions are based." See Tex. R. Evid. 104(a), 705(b).
During the trial, the trial court held a hearing outside the jury's presence to determine the admissibility of the testimony of a jeweler, Kenneth Bond, who would opine as to the value of Yarbrough's ring. Bond stated at the hearing that he had been a jeweler for 36 years and owned a jewelry business. His business sold new jewelry, and he frequently performed appraisals on jewelry. Bond testified that the value of the ring was "around $2,600." He stated that he arrived at this number based on the value of the gold and diamonds in the ring:
We weighed the piece to find out basically how much gold was in there and then measured the diamonds to determine the size. You can't get an exact weight, but diamonds being cut the way they are today, you can go by the dimensions of the stones to give a good evaluation of the size of the stones.On cross-examination, Bond explained that by weighing the gold in the ring, he was able to determine "the market value of the retail price of gold," which totaled $512. He further stated that the diamonds in the ring had a "retail value" of $2,090, which he determined by pricing them based on the diamonds' color, clarity, and size. These prices resulted in what the ring "would generally go for in a fair market," i.e., its fair market value. This fair market price also equated to the replacement cost—"If you came in with the intention of having a ring like that made or to buy that particular ring, in my opinion, that's what it would cost to replace that ring."
And then from there once I notated what the size of the stones were and knew what the weight of the ring was, I could go to one of the websites for one of the suppliers that we use, and they have a listing of diamonds for that particular size, that particular quality, and it's a simple valuation from there.
After the voir dire examination, Mangum's counsel stated that he had no further questions for Bond and was ready for the jury to return. Soon after Bond's testimony before the jury began, Mangum's counsel objected to Bond testifying as to the ring's value because Bond "is not an expert in the sale of used jewelry and fair market value of used jewelry. He's using a replacement cost as well, which is not the proper standard." The trial court overruled the objection and granted Mangum's counsel's request for "a running objection on these matters." Bond then testified that he had been a jeweler for 35 years and routinely valued jewelry. He explained how he would value an item such as Yarbrough's ring:
[W]e've been in business long enough that you know what the prices are for the particular materials, the materials being the gold and the diamonds in this case. You know how to measure stones, measure diamonds, measure precious . . . gemstones. You know how to determine the sizes due to dimensions. In this case, so to speak, we knew what the ring weighed. We know what the retail market is for gold and for diamonds, and that's how we came up with the valuation.Based on this procedure, Bond determined that "the fair market value or the replacement cost of this - - in diamonds was $2,090, and the ring itself to be $512." Bonds stated this was what it would cost "if you walked in and asked me to rebuild this ring," which was its fair market value. In short, the fair market value of the ring equated to its replacement value.
The jury found Mangum guilty of theft as alleged in the indictment, and the trial court sentenced her to five years' confinement. See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (West Supp. 2015).
C. POST-TRIAL
Mangum filed a motion for new trial, arguing that there was "no evidence of the market value of the ring in question because its expert valued the ring as to replacement cost" and there was no evidence that the ring's fair market value could not be calculated. The motion was deemed denied by operation of law. See Tex. R. App. P. 21.8(c). On appeal, Mangum argues that the trial court erred by admitting Bond's testimony because he calculated the ring's replacement value, not its fair market value, in the absence of any evidence that the ring's fair market value could not be calculated. She also argues that the evidence was insufficient to support the jury's finding that the value of the stolen property was $1,500 or more but less than $20,000.
II. ADMISSION OF EVIDENCE VERSUS SUFFICIENCY OF EVIDENCE
Mangum's points on appeal raise two distinct arguments: error in the admission of Bond's testimony regarding the ring's value and the insufficiency of the evidence to support the jury's implicit finding of the ring's market value as required by the substantive law. Mangum briefs these points together and requests an acquittal or, alternatively, a new trial. See Moff v. State, 131 S.W.3d 485, 489, 492 (Tex. Crim. App. 2004) ("Sometimes a claim of trial court evidentiary error and a claim of insufficient evidence overlap so much that it is hard to separate them. . . . Appellant, like those before him, improperly sought to have his evidentiary question incorporated into his sufficiency question."). It is important, however, to recognize the differences in these points, especially in theft cases, because each comes with a different standard of review, scope of review, and ultimate relief. See id. at 490; 43B George E. Dix & John M. Schmolesky, Texas Practice Series: Criminal Practice & Procedure § 56:144 (3d ed. 2011).
A. ADMISSION OF EVIDENCE
Regarding Mangum's point that the trial court erred by admitting Bond's valuation testimony, Mangum was required to preserve her specific objection in the trial court. See Moff, 131 S.W.3d at 488 ("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 [stolen] items."); Brown v. State, 640 S.W.2d 275, 279 (Tex. Crim. App. [Panel Op.] 1982) ("[I]f the manner of proving 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."); 43B Dix & Schmolesky, supra, at § 56:144 ("A defendant who fails to object to testimony as failing to address directly market value is not entitled to assert on appeal error in admitting that testimony.") If Mangum raised in the trial court the same admission argument she raises on appeal, we would review the trial court's admission for an abuse of discretion. See Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011).
An abuse occurs if the trial court acts outside the zone of reasonable disagreement; but, it is presumed that relevant evidence is admissible. See id.; Kirk v. State, 421 S.W.3d 772, 782 (Tex. App.—Fort Worth 2014, pet. ref'd). If the trial court abused its discretion by admitting the valuation testimony over Mangum's objection, she would be entitled to a new trial if we held the error harmful. See Miles v. State, 918 S.W.2d 511, 512 (Tex. Crim. App. 1996); Thomas v. State, 753 S.W.2d 688, 695 (Tex. Crim. App. 1988); Tex. R. App. P. 44.2.
B. SUFFICIENCY OF EVIDENCE
Mangum's second point is similar to her first, but is substantively different: the State introduced insufficient evidence allowing the jury to find market value as required by the substantive law. In other words, she contends that there is no evidence that in any manner tends to prove the value of the ring. Such a complaint, which implicates due process concerns, does not have to be preserved in the trial court to ensure our review. See Moff, 131 S.W.3d at 488-89; see also Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim. App. 2010).
In our review of the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). This review, however, considers the testimony regarding value even if upon proper objection that testimony should have been excluded. See Moff, 131 S.W.3d at 492. Thus, the evidence—including Bond's valuation testimony—viewed in the light most favorable to the State must allow a rational jury to find beyond a reasonable doubt that the property Mangum stole had a value of between $1,500 and $20,000 at the time of the offense. See id. If we determine that all of the admitted evidence was insufficient to support the jury's implicit valuation finding, we must reverse the judgment. See, e.g., Benavidez v. State, 323 S.W.3d 179, 181 n.13 (Tex. Crim. App. 2010); Holcomb v. State, 445 S.W.3d 767, 783-84 (Tex. App.—Houston [1st Dist.] 2014, pet. ref'd) (op. on reh'g).
III. APPLICATION
A. ELEMENTS OF THEFT AS ALLEGED
As alleged in the indictment and charged to the jury, the State was required to prove that Mangum unlawfully appropriated property from an elderly individual, with the intent to deprive the owner of the property, which was worth $1,500 or more but less than $20,000. See Tex. Penal Code Ann. § 31.03(a), (e)(4)(A), (f)(3). To prove the value of the property, the State must offer evidence either of (1) "the fair market value of the property . . . at the time and place of the offense" or (2) "the cost of replacing the property within a reasonable time after the theft" if the fair market value "cannot be ascertained." Id. § 31.08(a) (West Supp. 2015). Accordingly, any evidence of the cost of replacing the property is relevant to valuation only if the fair market value cannot be determined. See Curtis v. State, 385 S.W.3d 636, 638 (Tex. App.—Amarillo 2012, no pet.). Fair market value, although not defined by statute, has been defined by appellate courts as the amount the property would sell for in cash if offered for sale by a willing seller to a willing buyer, given a reasonable time for selling it. See Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); see also id. at 306-07 (Clinton, J., concurring); Lieber v. State, No. 04-14-00818-CR, 2015 WL 9581536, at *3 (Tex. App.—San Antonio Dec. 30, 2015, pet. filed); Valdez v. State, 116 S.W.3d 94, 98 (Tex. App.—Houston [14th Dist.] 2002, pet. ref'd).
B. SUFFICIENCY OF VALUATION EVIDENCE
Mangum asserts that the evidence was insufficient to show that the ring had a fair market value of between $1,500 and $20,000 at the time of the offense. She does not attack any other offense element. Further, she does not assert that the value of the money taken from Yarbrough was less than $500. See Selgas v. Henderson Cty. Appraisal Dist., Nos. 12-10-00021-CV, 12-10-00050-CV, 2011 WL 5593138, at *6 (Tex. App.—Tyler Nov. 16, 2011, pet. denied) (mem. op.) ("The face value of currency in circulation is prima facie evidence of its value."), cert. denied, 133 S. Ct. 280 (2012); cf. Simmons v. State, 109 S.W.3d 469, 475 (Tex. Crim. App. 2003) ("[W]e hold that the face amount of a check is presumptive evidence of its value."). Thus, the evidence need only show that the ring's value was at least $1,000 to support the conviction. See Tex. Penal Code Ann. § 31.09 (West 2011) (in theft prosecutions, allowing aggregation of amounts obtained "pursuant to one scheme or continuing course of conduct" in determining the grade of the offense).
The jury was charged that the ring's value was "the fair market value of the property at the time and place of the offense." Bond testified that the ring's "fair market value or the replacement cost" was $2,602: $2,090 for the diamonds in the ring and $512 for the gold. Bond believed that the fair market value of the ring equated to its replacement value. The employee of the pawn shop who bought Yarbrough's ring from Mangum testified that he would determine the fair market value of the ring at the time it was pawned—what he would sell it for—using the same procedure that Bond used. We conclude that the evidence was sufficient for a reasonable jury to find that the value of the stolen property, including the $500, was at least $1,500 at the time and place of the offense. See Keeton, 803 S.W.2d at 305-06; Brown, 640 S.W.2d at 279; Senters v. State, 291 S.W.2d 739, 740-41 (Tex. Crim. App. 1956); Newton v. State, No. 01-05-00441-CR, 2007 WL 274244, at *3-4 (Tex. App.—Houston [1st Dist.] Feb. 1, 2007, no pet.) (mem. op., not designated for publication); Jimenez v. State, 67 S.W.3d 493, 506 (Tex. App.—Corpus Christi 2002, pet. ref'd); Drost v. State, 47 S.W.3d 41, 44-45 (Tex. App.—El Paso 2001, pet. ref'd); cf. Jaco v. State, 646 S.W.2d 278, 280-81 (Tex. App.—Dallas 1983, no pet.) (holding valuation evidence insufficient because testimony was mere "reputation" evidence that ring contained a diamond). We overrule point two.
The picture of the ring admitted to the jury showed that it had seven round-cut diamonds.
Mangum argues in the alternative that if replacement cost is the appropriate valuation measurement, the State failed to offer evidence of that cost "within a reasonable time after the theft." Tex. Penal Code Ann. § 31.08(a)(2). Mangum does not contend that the evidence was insufficient to establish the ring's fair market value "at the time and place of the offense." Id. § 31.08(a)(1).
C. ADMISSIBILITY OF BOND'S TESTIMONY
At trial, Mangum objected that Bond could not testify as to the ring's value because he was "not an expert in the sale of used jewelry and fair market value of used jewelry. He's using a replacement cost as well, which is not the proper standard." In other words, Mangum objected to Bond's qualifications to testify as an expert on valuation and to the relevance of Bond's testimony. See generally Vela v. State, 209 S.W.3d 128, 131 (Tex. Crim. App. 2006) (explaining three separate inquiries to be met before expert testimony may be admitted over objection: qualification, reliability, and relevance). On appeal, Mangum again attacks Bond's qualifications to testify as to the value of a used ring because he lacked a background in used jewelry and the relevance of his testimony because it was based on replacement value. Mangum's trial objection preserved these questions for our review. Cf. Shaw v. State, 329 S.W.3d 645, 656 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) ("Although there was no objection on the record to [the expert's] qualifications, it may be apparent from the context that appellant objected on this ground because those were the type of questions both parties asked [the expert during voir dire examination].").
Mangum does not challenge on appeal—and did not attack at trial—the third inquiry for admissibility of expert testimony: the reliability of the bases for the opinion. See Vela, 209 S.W.3d at 133-35; see also Tex. R. Evid. 705(c).
1. Qualification
An expert must have a sufficient background in the matter on which he is giving an opinion. Vela, 209 S.W.3d at 131; see Tex. R. Evid. 702; Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). An expert may be qualified by specialized education, practical experience, technical study, training, or a combination of these things. Wyatt v. State, 23 S.W.3d 18, 27 (Tex. Crim. App. 2000); see Tex. R. Evid. 702. "An expert witness's knowledge or experience about an issue must only exceed that of an average juror." Holmes v. State, 135 S.W.3d 178, 182 (Tex. App.—Waco 2004, no pet.).
We conclude that the trial court did not abuse its discretion by concluding that Bond was qualified to testify to the ring's value even though it was not a new ring. Bond had been a jeweler for 35 years, and he stated that a common and usual part of his job as a jeweler was to value or appraise jewelry for customers. Although Bond did not sell used jewelry, Bond stated that the fact that Yarbrough's ring was not new would not significantly affect its fair market value. Bond's background as a jeweler was sufficiently similar to the matter at issue to justify his testimony as an expert on jewelry valuation. Cf., e.g., Linder v. Valero Transmission Co., 736 S.W.2d 807, 811 (Tex. App.—Corpus Christi 1987, writ ref'd n.r.e.) ("When a witness gives testimony that he is acquainted with the market value of [real] property, he is prima facie qualified to testify concerning value as an expert."); Berlow v. Sheraton Dallas Corp., 629 S.W.2d 818, 823 (Tex. App.—Dallas 1982, writ ref'd n.r.e.) (holding witness qualified as an expert to opine in negligence suit as to value of lost jewelry because she had advanced degree in jewelry design, professionally designed and manufactured jewelry, and sold jewelry in many cities).
2. Relevance
Mangum's final argument is that Bond's testimony was not relevant to a fact in issue because he did not testify as to the ring's fair market value, which could have been ascertained. The determination of relevancy depends on whether the evidence sought to be admitted renders a fact in issue more or less probable. See Tex. R. Evid. 401, 702. Here, that fact is the value of Yarbrough's ring.
We disagree with Mangum's argument that "Bond did not testify as to fair market value." Bond stated that "the fair market value or the replacement cost" of the ring was $2,090. He further testified that this amount would be its value if the ring were to be insured. He equated the ring's fair market value to its replacement cost, but he further stated that the fair market value would be the price if someone "wanted to buy that particular ring." Fair market value is the amount the ring would sell for in cash. See Keeton, 803 S.W.2d at 305. Although Bond stated that his valuation was the "replacement" value of the ring, he also stated that his valuation figure equated to what the ring would sell for. Further, Bond stated that his valuation estimate would be the insurance-appraisal amount for the ring, which has been held sufficient to show fair market value. See Jimenez, 67 S.W.3d at 506. We conclude that the trial court did not abuse its discretion by admitting Bond's valuation testimony as relevant to the jury's determination of fair market value. See Washington v. State, 881 S.W.2d 187, 190 (Tex. App.—Houston [1st Dist.] 1994, no pet.). We overrule issue one.
Although some of Bond's testimony was proffered during the hearing to determine its admissibility and was not before the jury, we consider this evidence because it was properly considered by the trial court in making its threshold determination of admissibility. See Orsag v. State, 312 S.W.3d 105, 109 (Tex. App.—Houston [14th Dist.] 2010, pet. ref'd) ("Generally, the appellate court reviews the trial court's [evidentiary] ruling in light of what was before it at the time the ruling was made."). Indeed, Mangum does not argue that we may not consider the testimony adduced at the voir dire hearing in determining the admissibility of Bond's expert testimony.
IV. CONCLUSION
Because the evidence was sufficient to allow a reasonable fact-finder to conclude that the appropriated property's value was at least $1,500 and because the trial court did not abuse its discretion by admitting expert testimony regarding the ring's value, we affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: LIVINGSTON, C.J.; GABRIEL, J.; and CHARLES BLEIL (Senior Justice, Retired, Sitting by Assignment). DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: March 17, 2016