Opinion
No. 05-06-01399-CR
Opinion issued March 26, 2007.
DO NOT PUBLISH. Tex. R. App. P. 47.
Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-50144-KT.
AFFIRMED.
OPINION
Kevin Daryl Rice appeals a jury conviction for theft of property between $20,000 and $100,000, enhanced with two prior convictions. Appellant pleaded not guilty before a jury to the primary offense. After a jury found appellant guilty, appellant pleaded true to the allegations in each enhancement paragraph. The same jury, after hearing punishment evidence, assessed appellant's punishment at twenty-five years in the Institutional Division of the Texas Department of Corrections. On appeal, appellant raises two issues. Appellant claims the evidence was legally insufficient in two ways: it lacked the requisite proof to show intent and value as required by section 31.08(a)(1) of the Texas Penal Code. See Tex. Pen. Code Ann. § 31.08(a)(1) (Vernon 2003). Concluding the evidence is legally sufficient, we affirm.
The State had made a plea bargain offer to appellant. Before beginning voir dire examination, the trial court admonished appellant and informed him of the full range of punishment and that the State's plea bargain was to drop one paragraph and offer him fourteen years. Appellant declined the offer.
Background
Appellant was charged by indictment with unlawfully appropriating one "truck tractor," one trailer, and 83 household appliances of the value of at least $20,000 but less than $100,000 without the effective consent of the owner Cody Lopez and with the intent to deprive the owner of the property. Appellant worked as a truck driver for the complainant. At trial, the complainant, Cody Lopez, testified the property in question was discovered missing in the afternoon of March 2, 2005. Initially, neither Lopez nor his partner believed the property was stolen. Lopez did not notify the police for a couple of days. On March 5, 2005, Lopez and his partner saw appellant in the truck at a truck stop. After appellant was arrested, appellant told the police where the trailer was. The property had been missing a little over two days. Lopez testified the tractor's value was $25,000 and the trailer's value was $12,000. Lopez testified appellant had his consent to pick up "the load" and to drive the truck. Lopez let his drivers go to Houston for "one day," but delivering a load takes more than a day.Law
Section 31.03(a) of the penal code requires the State to prove the defendant intended to deprive the owner of the property. "Deprive" means "to withhold property from the owner permanently or for so extended a period of time that a major portion of the value or enjoyment of the property is lost to the owner." Tex. Pen. Code Ann. § 31.01(2) (A), (B) and (C) (Vernon Supp. 2006). The State must prove each element of the charged offense. Tex. Pen. Code Ann. § 2.01 (Vernon 2003).Standard of Appellate Review
The standard of review for legal sufficiency of the evidence is well-established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005). The fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). We must defer to the fact finder's decisions about the weight and credibility of evidence. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). Considering only the evidence in support of the guilty verdict, the evidence shows the following. Appellant was a truck driver employed by Cody Lopez, owner of North Texas Reliant Transportation (NTRT). Appellant had been employed for about three months at the time of the offense. During appellant's employment, Lopez had not had any difficulties with him. Appellant's duties included transporting products from manufacturers to retail stores. On March 2, 2005, at about 4:00 a. m. Lopez and Rojas went to the "yard" to work on a truck. Normally, they would not have been at the "yard" that early. As Lopez and Rojas pulled up, they saw appellant "loading up" to go to Houston. Appellant had his bags with him. Lopez remarked to Rojas that appellant seemed a little startled to see them that early. Appellant was scheduled to drive a "load" of household appliances from Dallas to Houston. He had four drop-off points in Houston. Drivers for NTRT usually make that run about four or five times a week. A driver's normal procedure is to pick up a trailer load and do the appropriate paperwork. Security then checks the load before the driver leaves. The afternoon of March 2, 2005, after learning the "run" had not been completed, Lopez spoke to all four clients in Houston. He also contacted appellant's wife and mother and tried, unsuccessfully, to talk to appellant's friends to determine his whereabouts. Lopez was concerned that appellant had been kidnapped or otherwise become a crime victim. Appellant had a credit card for fuel. Lopez kept the credit card active to try to locate appellant based on use of the card. Lopez contacted the Department of Transportation, and various truck weigh stations and truck stops looking for appellant. Lopez and Rojas also went to several truck stops searching for appellant. Lopez waited a couple of days before he reported the missing load and driver to the police. On March 5, 2005, Lopez and Rojas went to a Pilot truck stop off Interstate 20. The missing truck had distinctive markings. Lopez and Rojas saw the truck parked in a parking slot at the Pilot truck stop. They also saw appellant and another "guy" walking around the truck with a broom. When Lopez and Rojas began to approach appellant, appellant "jumped in the truck and took off." Lopez and Rojas followed the truck and called the police. Dallas police officer Russell Underwood was working patrol on March 5, 2005, when he received a call from dispatch about the complainant following a truck. Underwood followed the truck for about three or four minutes before turning on his red lights and siren. The truck stopped. There were two people in the truck. Appellant was driving. The other person was released at the scene. Appellant was ordered out of the truck at gunpoint. Other officers from the cargo theft unit soon arrived. Appellant was arrested for possession of stolen property. Dallas police officer Debra Taylor read appellant his rights. Appellant told Taylor he did not want to speak to her; he wanted to speak with the owners. Appellant was cooperative. Taylor allowed him to speak to the owners. Appellant explained to Lopez he had sold the appliances and had discarded the trailer behind a movie theater. Taylor overheard a part of the conversation. She recognized the place appellant said he left the trailer as being a location where trailers are routinely dropped off. The police told the owners to wait at the scene of the arrest and they would go check to see if the trailer was there. The police went to that location and found an empty trailer. The truck and trailer were released to the owners.Appeal
In two issues on appeal, appellant contends the evidence is legally insufficient to support his conviction because the evidence failed to prove either his intent to permanently withhold the property from Lopez or the property's value. Appellant argues it would "take years" of withholding the truck to meet the requisite degree of proof of intent. More specifically, appellant argues his intent was not established because Lopez was not certain the property had been stolen and he did not report the missing property to the police for a couple of days. Appellant contends that because he had consent to take possession of the property and left the trailer at a place where it could easily be found, this "negat[ed] the proposition that he intended to deprive the owner of the property to any great extent of time." Appellant argues the case of Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App. 1981) is distinguishable.Analysis
Intent
Under the indictment and the court's charge, the jury was authorized to convict appellant of third-degree felony theft if the jury concluded beyond a reasonable doubt appellant unlawfully appropriated property worth $20,000 or more and less than $100,000, with intent to deprive Lopez of the property. See Tex. Pen. Code Ann. § 31.03(a), (e)(5) (Vernon Supp. 2006). Intent to deprive can be inferred from the circumstances, including the words, actions, or conduct of the defendant. Griffin, 614 S.W.2d at 159. The fact finder may infer intent from any facts that tend to prove its existence, including the method of committing the crime. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). Appellant lawfully came into possession of the truck, trailer, and household appliances by virtue of his employment with NTRT. However, after obtaining possession he unlawfully disposed of the property, left the trailer at a place unknown to its owner, and when he saw Lopez and Rojas on March 5, 2005, three days after disposing of the property, he tried to flee in the truck. See Rowland v. State, 744 S.W.2d 610, 613 (Tex.Crim.App. 1988) (failure to return borrowed truck or give an explanation to the owner is circumstantial evidence of intent to deprive). When the police recovered the trailer, it was empty. Lopez discovered the appliances had been stolen and not delivered to the respective clients. Appellant told Lopez he had sold the appliances and discarded the trailer behind a movie theater. Those circumstances give rise to a reasonable inference appellant intended to permanently deprive Lopez of the truck, trailer, and household appliances. Appellant's argument that the length of time he withheld the property was significant is without merit. The controlling factor is intent, not length of deprivation. See Winkley v. State, 123 S.W.3d 707, 713 (Tex.App.-Austin 2003, no pet.) (intent is determinative, not length of deprivation because no duty to show actual deprivation). The evidence presented is legally sufficient to allow the jury to have reasonably concluded, as it did, that appellant had the requisite intent to permanently deprive Lopez of the truck, trailer, and household appliances. Appellant's issue number one is without merit; therefore, we resolve it against appellant.Value
In issue two, appellant argues the evidence was legally insufficient to prove beyond a reasonable doubt the value of the property as required by section 31.08(a)(1); therefore, the offense proved was only a misdemeanor under section 31.08(c). See Tex. Pen. Code Ann. § 31.08(c) (Vernon 2003). Appellant points to Lopez's testimony that the tractor's value was "about $25,000" and the trailer's value about "$12,000" and to Lopez's testimony that on May 3, 2005, his company was billed for $37,035 for the stolen appliances. The invoice "from KSMI and the Electrolux Home Products" was admitted into evidence without objection. The total value of the property taken was $74,035. The level of the offense of theft is determined by the value of the stolen property. See Tex. Pen. Code Ann. § 31.03(e) (Vernon Supp. 2006). The 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. Tex. Pen. Code Ann. § 31.08(a) (Vernon 2003). "Fair market value" is not statutorily defined. However, case law has defined it as the amount the property would sell for in cash, given a reasonable time for selling it. Simmons v. State, 109 S.W.3d 469, 473 (Tex.Crim.App. 2003). Case law also permits an owner to testify to a property's value by giving his or her opinion or estimate of its value. Valdez v. State, 116 S.W.3d 94, 98 (Tex.App.-Houston [14th Dist.] 2002, pet. ref'd). Case law further provides that an owner's opinion of value in a theft case is presumed to be an estimated fair market value as defined in section 31.08(a) of the penal code. See Valdez v. State, 116 S.W.3d at 98 (stating an owner may testify to either purchase price or replacement cost and is presumed to be testifying to an estimation of the fair market value). Appellant argues the State proved neither fair market value nor replacement cost for lack of proof as to time and place. Appellant contends the evidence is legally insufficient as to value because the State did not prove the place of the value, sales price does not necessarily prove value, there was no evidence of the age of the property, and the replacement cost of $74,035 is insufficient because it was not first shown the fair market value could not be determined. Appellant cites Sweeney v. State, 633 S.W.2d 354, 355-56 (Tex.App.-Houston [14th Dist.] 1982, pet. ref'd) for the proposition that evidence of the purchase price does not prove the value at the time of the offense. In Sweeney, "the only evidence of the value of the television" in question was that the complainant "[f]inanced it and it cost me seven hundred." There was no evidence of the age or condition of the television or the terms under which it was financed. Appellant contends because the State's proof utterly failed on value, the trial court should be ordered to re-sentence appellant for a class A misdemeanor. Appellant also cites Sullivan v. State, 701 S.W.2d 905 (Tex.Crim.App. 1986) relying on Justice Teague's dissent, and dismissing the majority's opinion in Sullivan as "freely engag[ing] in dicta." The State responds that appellant's argument about time and place is misplaced. The State cites Keeton v. State, 803 S.W.2d 304, 305 (Tex.Crim.App. 1991) in support of the proposition that the time and place aspect of value under section 31.08(a)(1) does not restrict the proof of value to the specific day or place of the offense, but other places can be used to show value as well. In dealing with the "time and place" aspect of value under section 31.08(a)(1), the court of criminal appeals in Keeton stated:The definition of value in § 31.08(a)(1) is a codification of the standard long established by case law. . . . Methods of proving fair market value have varied from showing retail price or sale price, see Speights v. State, 499 S.W.2d 119 (Tex.Cr.App. 1973), to admitting testimony of an owner's opinion of value, to a non-owner's "expert" opinion of value. See Sullivan, supra. No one method has ever been held to be exclusive. Use of various methods to show fair market value is certainly due to the necessity for flexibility because of the various circumstances of theft that arise."Keeton, 803 S.W.2d at 305 (citations omitted). Significantly, the court's opinion in Keeton makes clear the following: there is no one exclusive method of proving value; flexibility of proof is necessitated by the various circumstances of thefts; the place can be "the more general locale in which the offense occurred, i.e., the price that the property would sell for in the county of the offense[;]" a defendant is free to rebut any presumptions of fair market value the State may introduce, and when conflicting evidence is presented, the trier of fact must decide which value represents the fair market value of an item. Keeton, 803 S.W.2d at 305.