Opinion
No. 05-01-00146-CR
Opinion issued June 23, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F00-52302-JI. AFFIRMED
Before Chief Justice THOMAS AND Justices WHITTINGTON and O'NEILL.
OPINION
Troy Lee Wyatt appeals his conviction for theft of property valued between $100,000 and $200,000. After finding him guilty, the jury assessed punishment, enhanced by two prior felony convictions, at twenty-five years' imprisonment. In two points of error, appellant contends the evidence is legally and factually insufficient to support his conviction. We affirm. Walter Barton was traveling through Dallas in his 18-wheel truck loaded with furniture when he stopped at a convenience store and left the truck's engine running. As he exited he store, Barton saw his truck traveling down the road. Barton alerted the police, who found the truck within minutes and arrested the driver, David Lydell Davidson. The passenger, identified as appellant, fled but was found hiding under a nearby truck and was also arrested. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to prove that he had the "requisite intent to appropriate property from the owner without his consent." Specifically, appellant contends he was picked up by Davidson after Davidson stole the truck and he was an unwitting passenger. When reviewing challenges to the legal and factual sufficiency of the evidence, we apply well-known standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). The jury is the sole judge of the weight and credibility of the witnesses and may believe all, none, or part of any witness's testimony. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property. Tex. Penal Code Ann. § 31.03(a), (e)(6) (Vernon 2003). "Appropriate" means to acquire or otherwise exercise control over personal property. See id. § 31.01(4)(B). "Deprive" means to permanently withhold property from the owner. See id. § 31.01(2)(A). Flight, though not dispositive, can be considered by the trier of fact as an indication of guilt. See Amunson v. State, 928 S.W.2d 601, 604 (Tex.App.-San Antonio 1996, pet. ref'd) (citing Alba v. State, 905 S.W.2d 581, 586 (Tex.Crim.App. 1995)); see also Louis v. State, 61 S.W.3d 593, 597 (Tex.App.-Amarillo 2001, pet. ref'd) (because evidence of flight is evidence of consciousness of guilt, it is relevant to issue of mens rea). At trial, the evidence showed Barton reported to the police that two scruffy-looking white men had stolen his truck. Within minutes, officers found and stopped the truck as it was traveling towards an interstate heading away from the convenience store. The truck was occupied by Davidson and appellant, two scruffy-looking white men. As a truck driver, Davidson had experience driving eighteen-wheel trucks and previously had been convicted of stealing a similar truck. When police stopped the truck, appellant jumped from the truck as it was slowing down and hid. In contrast, Davidson testified he had Barton's permission to take the truck so that he could buy drugs for Barton. Davidson said he had known Barton for several months before the day in question, but Davidson and appellant did not know each other before appellant got in the truck. Appellant testified he got in the truck because he thought Davidson might hire him to load or unload the truck. After Davidson asked appellant if he knew where to buy marijuana, appellant continued riding in the truck in spite of the fact Davidson was traveling in a direction opposite from the one in which appellant wanted to go. When police stopped the truck, appellant fled the scene because he thought there was an outstanding warrant for his arrest for an unpaid ticket. Appellant testified he neither appropriated the truck nor helped Davidson steal the truck. In addition to his and Davidson's testimony, appellant also relies on contradictory evidence regarding the police report and whether Barton could see who took the truck. The police report noted that Barton gave his consent to Davidson to use the truck. However, the officer who initially responded to Barton's call, Ernest Fierro, testified the notation was an error and should have stated that Barton did not give his consent. And while Barton testified he could not see the cab's occupants because the truck was already driving away from him, Officer Fierro testified Barton told him two scruffy-looking white men took his truck. The jury had before it evidence that (1) Barton's truck was stolen by two men, (2) police found the truck within minutes, (3) appellant was a passenger, and (4) appellant fled but was found hiding nearby. This evidence, viewed in a light most favorable to the verdict, is legally sufficient to support appellant's conviction. Furthermore, the jury was the fact finder in this case and, as such, was entitled to accept or reject any or all of the evidence presented by either side. While appellant argues Barton was not a credible witness, such a determination was in the province of the jury, which apparently believed Barton and Officer Fierro over appellant and Davidson. After a neutral review of all the evidence, both for and against the finding, we conclude the proof of guilt was not so obviously weak as to undermine confidence in the jury's determination, and the proof of guilt was not greatly outweighed by contrary proof. We conclude the evidence was factually sufficient. We overrule the first and second points of error. In his third point, appellant argues the evidence is factually insufficient to prove the value of the stolen property exceeded $100,000. Specifically, he states that while Barton could testify as to the fair market value of the furniture, he could not testify as to the fair market value of the truck's tractor and trailer. Because Barton's employer leased the truck from Bright National Leasing (Bright), appellant contends Barton did not own the truck. As a nonowner, Barton did not always operate this particular truck and did not have personal knowledge of the truck's worth. Appellant also argues that the information about the truck's value that Barton received from an unnamed person at Bright was not in written form and was hearsay. An "owner" is a person who has a greater right to possession of the property than the actor. See Tex. Penal Code Ann. § 1.07(35)(A) (Vernon 2003). Barton testified he worked for GLC Furniture Warehouse as a truck driver, and, on the day of the theft, his duty was to transport new furniture to Houston in the leased truck that GLC provided to him. Thus, Barton had a greater right of possession to the truck and its contents than appellant. The only controverting evidence is Davidson's testimony that Barton gave Davidson his consent to take the truck. However, the jury was free to believe Barton's testimony that he did not relinquish possession of the truck to Davidson and disbelieve Davidson's testimony to the contrary. Thus, we conclude Barton was the "owner" of the truck. An owner is competent to testify as to the value of his own property, and when he testifies, we presume he is testifying to an estimation of the fair market value. See Sullivan v. State, 701 S.W.2d 905, 908, 909 (Tex.Crim.App. 1986). Here, Barton ascertained the truck's value from "Dale," an agent who worked for Bright. Dale told Barton the values of the truck's tractor and trailer were approximately $50,000 and $21,000, respectively. Barton testified the total value of the truck, trailer, and furniture exceeded $100,000. Appellant did not object to this testimony and presented no controverting evidence about the value of the stolen property. See Morales v. State, 2 S.W.3d 487, 487 (Tex.App.-Texarkana 1999, pet. ref'd) (stating that if defendant wishes to rebut owner's opinion evidence, he must do more than just impeach owner's credibility on cross-examination; he must offer controverting evidence of value of property). That this evidence was not in written form, such as an invoice, is irrelevant because documentary evidence is not required to prove value. See id. at 489 (holding it was unnecessary for State to introduce documentary evidence of value; owner's testimony was sufficient). Moreover, it is irrelevant whether Dale's statements on value to Barton constituted inadmissible hearsay because appellant made no hearsay objection to Barton's testimony at trial and therefore waived any error in the trial court's admission of such evidence. See Tex.R.App.P. 33.1(a)(1). We conclude the State presented factually sufficient evidence of value. We overrule the third point. We affirm the trial court's judgment.
Barton testified GLC's warehouse manager told him the furniture was valued at approximately $41,000.