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Smith v. State

Court of Appeals of Texas, Tenth District, Waco
Jul 25, 2007
No. 10-06-00166-CR (Tex. App. Jul. 25, 2007)

Opinion

No. 10-06-00166-CR

Opinion delivered and filed July 25, 2007. DO NOT PUBLISH.

On Appeal from the County Court at Law Walker County, Texas, Trial Court No. 05-2201.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.


MEMORANDUM OPINION


Smith appeals her misdemeanor theft conviction. See TEX. PENAL CODE ANN. § 31.03(a), (e)(2) (Vernon Supp. 2006). We affirm. In Smith's one issue, she contends, "The trial court erred in denying Appellant the right to inquire into `profit margin' in her inquiry as to value of retail property appropriated." (Br. at 1); see TEX. PENAL CODE ANN. § 31.03(a), § 31.08 (Vernon 2003). "As a prerequisite to presenting a complaint for appellate review, the record must show that . . . the complaint was made to the trial court by a timely request, objection, or motion that . . . complied with the requirements of the Texas Rules of . . . Evidence. . . ." TEX. R. APP. P. 33.1(a). "Error may not be predicated upon a ruling which . . . excludes evidence unless . . . the substance of the evidence was made known to the court by offer, or was apparent from the context within which questions were asked." TEX. R. EVID. 103(a); see Batchelor v. State, No. 01-05-01043-CR, 2007 Tex. App. LEXIS 3010, at *4-*5 (Tex.App.-Houston [1st Dist.] Apr. 19, 2007, no pet.) (not designated for publication) (mem. op.); Aschbacher v. State, 61 S.W.3d 532, 538 (Tex.App.-San Antonio 2001, pet. ref'd). Smith complains of the trial court's sustaining the State's objection to the question: "Estimate, if you could for the jury, the — for lack of a better word — the profit margin. Is there a thirty percent profit margin?" (Br. at 4 (quoting I R.R. at 109).) Smith does not point to any offer of proof, and the substance of the evidence that Smith would have sought to offer was not apparent. Smith forfeits her issue. We overrule Smith's issue. Having overruled Smith's sole issue, we affirm. Affirmed

Had Smith preserved her complaint, moreover, we would hold that the trial court did not err. Smith complains of the trial court's sustaining the State's relevance objection. See TEX. R. EVID. 401-402. Smith cites Keeton v. Texas for the proposition, "A defendant is free to rebut a store price as representative of fair market value by showing that such retail or sale price was inflated by that store as evidenced by the price of the item at the same kind of stores in the general locale, whether that be the same town or the country." (Br. at 3-4 (quoting Keeton v. State, 803 S.W.2d 304, 306 (Tex.Crim.App. 1991)).) Evidence that the victim had a "profit margin" or "a thirty percent profit margin" does not tend to rebut that the victim's sales price was at fair market value.


Summaries of

Smith v. State

Court of Appeals of Texas, Tenth District, Waco
Jul 25, 2007
No. 10-06-00166-CR (Tex. App. Jul. 25, 2007)
Case details for

Smith v. State

Case Details

Full title:LATASHIA R. SMITH, Appellant, v. THE STATE OF TEXAS, Appellee

Court:Court of Appeals of Texas, Tenth District, Waco

Date published: Jul 25, 2007

Citations

No. 10-06-00166-CR (Tex. App. Jul. 25, 2007)