Aaron Joseph Hoes v. State

Opinion

ACCEPTED

03-15-00127-CR

5646314

THIRD COURT OF APPEALS

N O . 03-15-00127-CR AUSTIN, TEXAS 6/11/2015 4:42:28 PM

JEFFREY D. KYLE

CLERK

I N T H E C O U R T O F APPEALS

O F T H E T H I R D D I S T R I C T OF TEXAS FILED IN 3rd COURT OF APPEALS

AUSTIN, TEXAS

6/11/2015 4:42:28 PM

A A R O N JOSEPH HOES, JEFFREY D. KYLE Appellant Clerk

V.

T H E STATE O F TEXAS

Appellee

Appeal i n Cause N o . CR01167 i n the 33rd Judicial District Court o f Blanco County, Texas

Brief For Appellee

OFFICE O F D I S T R I C T A T T O R N E Y 33^^ and 424'^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O. Box 725, Llano, Texas 78643 Telephone Telecopier (325) 247-5755 (325) 247-5274 g.bunyard@co.llano.tx.us

By: Gary W . Bunyard Assistant District Attorney State Bar N o . 03353500 A T T O R N E Y F O R APPELLEE

June 11, 2015

Oval Argument Waived

Identity Of The Parties

Trial Court

Honorable J. Allan Garrett 33rd Judicial District Burnet County Courthouse Annex (North)

1701 East Polk St., Suite 74 Burnet, T X 78611

State/Appellee

Perry Thomas (Trial Counsel)

First Assistant District Attorney P. O . Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 19849120

Anthony J. Dodson (Trial Counsel)

Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 05927200

Gary W . Bunyard (Appellate Counsel)

Assistant District Attorney P. O. Box 725 Llano, Texas 78643 (325) 247-5755 State Bar N o . 03353500 g.bunyard@co.llano.tx.us

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Appellant

Thomas M . Felps (Trial Counsel)

Attorney at Law P.O. Box 442 Johnson City, T X 78636 (830) 868-7106 State Bar N o . 06889700

Alice E. Price (Appellate Counsel)

Attorney at Law 408 South Liveoak Lampasas, T X 76550 (512) 556-4777 State Bar N o . 00786177 apgregg50@hotmail.com

Aaron Joseph Hoes (Appellant)

T D C J #01987824 SID #06270672 Garza East/Chasefield Wilderness U n i t 4304 Highway 202 Beeville,TX 78102-8981

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Table Of Contents Page

Index o f Authorities VI

Statement o f the Case 1 Statement on Oral Argument, 1 Response to Issues Presented 2 Statement o f the Facts 3 Summary o f the Argument - Response to Issue N o . 1 6

l.a. Bobby Humphrey had sufficient use and contact w i t h the tractor to be able to render an opinion as to value.

l.b. Bobby Humphrey had a greater right o f possession to the tractor than that o f Appellant and as such would be an owner o f the tractor.

I.e. A rational j u r y could have found beyond a reasonable doubt that the value o f the tractor was $1,500 or more but less than $20,000 based on the testimony o f Bobby Humphrey.

Argument on Response to Issue N o . 1 1.1 Standard o f Review 8 1.2 Applicable Facts 9 1.3 Discussion and Conclusion 11

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Prayer for Relief. Certificate o f Word Count Certificate o f Service

Index Of Authorities

Case Law Page Brooks V. State, 323 S.W.3d 893 (Tex. C r i m . App. 2010) 8

Brown v. State, 333 S.W.3d 606 (Tex. App.—

Dallas 2009, no pet.) 8

Griffith V. State, 976 S.W.2d 686 (Tex. App.--

Tyler 1997, pet. ref d) 9 Hooper v. State, 214 S.W.3d 9 (Tex. C r i m . App. 2007) 8 Jackson V. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L . Ed. 2d 560 (1979)) 8 Keeton v. State, 803 S.W.2d 304 (Tex. C r i m . App. 1991) 8 Penagraph v. State, 623 S.W.2d 341 (Tex. C r i m . App. 1981) 9 Sharp V. State, 707 S.W.2d 611 (Tex. C r i m . App. 1986) 9 Constitutions None Cited.

Statutes/Rules Tex. Penal Code Sec. 1.07 (a)(35) 9

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statement Of TIte Case Appellant has adequately described the Statement o f the Case.

Statement on Oral Argument The undersigned waives Oral Argument. Appellant has waived Oral Argument and the undersigned does not believe that Oral Argument w i l l be beneficial for this case for the reason that the issues are straight forward and lack any novel or complex nuances. Should the Court believe that Oral Argument w i l l assist the Court i n any way, the undersigned w i l l gladly accommodate the Court.

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R e s p o n s e To I s s u e s Presented Response T o Issue 1:

1 .a. Bobby Humphrey had sufficient use and contact w i t h the tractor to be able to render an opinion as to value.

1 .b. Bobby Humphrey had a greater right of possession to the tractor than that o f Appellant and as such would be an owner o f the tractor.

I.e. A rational j u r y could have found beyond a reasonable doubt that the value of the tractor was $1,500 or more but less than $20,000 based on the testimony of Bobby Humphrey .

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statement Of The Facts Appellant has not fully described the facts o f this case under the requirements o f Texas Rules o f Appellate Procedure 38.1 (g).

I n April 2013 M r . E r w i n Sultemeier was the owner o f a 1979 Massey Ferguson Model 245 tractor. RR Vol. 2 Pages 75, 77, 119 - 120. M r . Sultemeier's son-in- law, Bobby Humphrey, helped M r . Sultemeier i n performing tasks on the Sultemeier farm and ranch. RR Vol. 2 Pages 74 - 75. O n April 3, 2013, M r . Humphrey last used the tractor and then stored the tractor by the barn by the old house. RR Vol. 2 Page 75. O n April 5,2013, M r . Humphrey observed the gate at the road to the old house to be open when it should not have been and heavy ruts in the road. RR V o l . 2 Page 76. Checking the property further, M r . Humphrey discovered that the tractor and a lowboy trailer to be missing. RR Vol. 2 Pages 76 - 77. M r . Humphrey, who had personally operated the tractor at the Sultemeier farm and ranch for many years, testified at Appellant's trial that the tractor was w o r t h approximately $7,500. RR V o l . 2 Pages 75, 77. M r . Humphrey further testified that the value o f M r . Sultemeier's tractor was more than $1,500 but was less than $20,000. RR Vol. 2 Pages 77 - 78.

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I n July 2013 Hays County Sheriffs Deputy Troy Mayes conducted a traffic stop o f a heavy duty pickup being driven by Appellant pulling a trailer w i t h a tractor on the trailer. RR Vol. 2 Pages 91 - 93. The passenger o f the pickup was identified as Laurie Chase. RR Vol. 2 Page 93. Further investigation showed that the V I N number on the tractor i n Appellant's possession matched the V I N number o f the tractor stolen from M r . Sultemeier. RR Vol. 2 Page 97. When questioned about the tractor, Appellant told Deputy Mayes that Appellant had purchased the tractor and produced a Bill o f Sale. RR Vol. 2 Page 96.

D u r i n g the investigation Hays County Detective Brad Doring arrived. A t that time Detective Doring was part o f a multicounty auto theft task force. RR Vol. 2 Page 102. Detective Doring inspected the tractor and found it odd that there were no stickers on the tractor, that the tractor was too clean for its age, and it appeared that the tractor was recently painted i n a "homemade" fashion. RR Vol. 2 Pages 103 - 104. Detective Doring noticed that the Bill o f Sale presented by Appellant was dated January 2, 2013, which was a date prior to the date that the tractor was stolen from M r . Sultemeier. RR Vol. 2 Page 114 - 115. Detective Doring was unable to locate the seller named on the Bill o f Sale. RR Vol. 2 Page 113 - 114. Detective Doring testified that he was personally familiar w i t h the handwriting o f both

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Appellant and his passenger, Ms. Chase. RR Vol. 2 Pages 116 - 117. I t was the opinion o f Detective Doring that Ms. Chase was the author o f the Bill o f Sale. RR Vol. 2 Page 117.

Appellant took the stand i n the defense case-in-chief. Appellant denied that he was guilty o f the offense charged. RR Vol. 2 Page 128. Appellant testified that he purchased the tractor o f f o f Craigslist sometime i n March/April 2013 for $4,000. RRVol.2Page 133.

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Summary Of The Argument on R e s p o n s e to i s s u e No. 1

l.a. Bobby Humphrey had sufficient use and contact with the tractor to be able to render an opinion as to value.

l.b. Bobby Humphrey had a greater right of possession to the tractor than that of Appellant and as such would be an owner of the tractor.

I.e. A rational jury could have found beyond a reasonable doubt that the value of the tractor was $1,500 or more but less than $20,000 based on the testimony of Bobby Humphrey.

Appellant complains that there is no evidence that the tractor was w o r t h $1,500 or more but less than $20,000 and as such there is insufficient evidence to support the State Jail Felony offense o f Theft. I n particular. Appellant complains that a "non-owner" o f property can not testify about the value o f property owned by another unless the basis for the opinion o f the "non-owner" has been established. However, there was evidence related to valuation o f the property from a witness who had substantial, long term use o f the property and who had actual care, custody,

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and control over the property prior to it being stolen. The evidence described was not challenged or impeached to any degree. Being the ultimate trier o f fact, the j u r y could rationally fmd beyond a reasonable doubt that the value o f the property stolen was $1,500 or more but less than $20,000.

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Argument On R e s p o n s e to Issue No. 1 1,1 Standard ofReview I n evaluating legal sufficiency o f the evidence, reviewing courts look at all evidence i n the light most favorable to the verdict to determine whether any rational fact-finder could have found guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. C r i m . App. 2010) {ciimg Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L . Ed. 2d 560 (1979)); Brown v. State, 333 S.W.3d 606, 608 (Tex. App.—Dallas 2009, no pet.).

Legal sufficiency is examined under the direction o f the Brooks opinion, while giving deference to the responsibility o f the j u r y "to fairly resolve conflicts i n testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. C r i m . App. 2007) (citing Jackson, 443 U.S. at 318-19).

Fair market value o f property may be proven i n a variety o f ways, including the opinion o f the owner and the opinion o f a non-owner expert opinion. Keeton v. State, 803 S.W.2d 304 (Tex. C r i m . App. 1991).

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"Owner" is defined as a person who (A) has title to the property, possession o f the property, whether lawful or not, or a greater right to possession o f the property than the actor; or (B) is a holder i n due course o f a negotiable instrument. Tex. Penal Code Sec. 1.07 (a)(35).

I n addition, when it comes to witness credibility and the weight to be given a witness's testimony, the j u r y is the exclusive judge. Penagraph v. State, 623 S.W.2d 341, 343 (Tex. C r i m . App. 1981). The j u r y may believe all, some, or none o f any witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. C r i m . App. 1986). The j u r y may use common sense and apply common knowledge, observation, and experience gained i n the ordinary affairs o f life when giving effect to the inferences that may reasonably be drawn from the evidence. Griffith v. State, 976 S.W.2d 686, 690 (Tex. App.--Tyler 1997, pet. ref d).

1.2 Applicable Facts I n this case, Bobby Humphrey is the son-in-law o f E r w i n Sultemeier, the owner o f the stolen tractor. RR Vol. 2 Pages 74 - 75, 77, 119 - 120. Bobby Humphrey was familiar w i t h the history o f the tractor beginning from when M r . Sultemeier's

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brother bought the tractor new i n 1979. RR Vol. 2 Page 77. Bobby Humphrey personally used the tractor on a regular basis for many years. RR V o l . 2 Page 75. Around the time that the tractor was stolen Bobby Humphrey was i n fact exercising care, custody, and control over the tractor i n that he used the tractor on a regular basis and, i n this particular instance, stored the tractor i n a shed next to the old house once he was finished w i t h the tractor for that day. RR V o l . 2 Pages 75, 77. I t was Bobby Humphrey and his son who later discovered that the tractor was missing. RR Vol. 2 Pages 7 6 - 7 7 .

A t trial Bobby Humphrey testified that i n his opinion the tractor was worth $7,500. RR Vol. 2 Page 77. Additionally, Bobby Humphrey testified that the value o f the tractor was more than $1,500 but less than $20,000. RR V o l . 2 Pages 77 - 78.

I n his defense, Appellant took the stand and testified that he bought the tractor sometime i n March/April for $4,000 and presented a Bill o f Sale to Det. Doring that contained the tractor's V I N number and was dated January 2, 2013. RR V o l . 2 Pages 114, 133.

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Prior to deliberation, the trial court instructed the j u r y as to the definition o f the word "value". CR Vol. 1 Pages 91 - 95. The trial court instructed the j u r y that:

'Value" means the fair market value o f the property at the time and place o f the offense, or i f the fair market value o f the property cannot be ascertained, the cost o f replacing the property w i t h i n a reasonable time after the theft.

Id.

The trial court also instructed the j u r y as to the definition o f the term "owner"

as follows:

"Owner" means a person who has title to the property, possession o f the property, whether lawful or not, or a greater right to possession o f the property than the defendant.

CRVol. lPages91-95.

IJ Discussion and Conclusion The value opinion given by Bobby Humphrey was legally sufficient to justify the verdict o f the jury. While not named as the owner o f the tractor i n the Indictment, Bobby Humphrey met the definition o f "owner" i n that he had a greater right o f possession to the tractor than that o f Appellant. Bobby Humphrey had substantial knowledge o f the history and condition o f the tractor. Appellant's trial counsel never objected to the qualifications o f Bobby Humphrey to give an opinion as to the value o f the tractor nor did counsel make any attempt to cross-examine Bobby

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Humphrey on how M r . Humphrey arrived at this opinion. N o t only did Bobby Humphrey give an opinion as to a specific value but he also gave an opinion that the value o f the tractor was greater than $1,500 but not as much as $20,000. The only other testimony given as to value was the Appellant's o w n testimony, that he bought the tractor for $4,000. There was no mention o f the issue o f value by Appellant's trial counsel at closing arguments. A rational j u r y could very well conclude from this evidence, beyond a reasonable doubt, using their common sense and application o f common knowledge, observation, and experience gained i n the ordinary affairs o f life, that the value o f the tractor, as the term "value" was defined i n the Court's Charge, was $1,500 or more but less than $20,000.

I n as much as Appellant does not challenge on appeal any other issue the judgment and sentence entered by the trial court should be affirmed.

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Prayer For Relief Wherefore, Appellee prays the Court deny the relief requested by Appellant and affirm the judgment and sentence o f the trial court.

Respectfully submitted,

OFFICE O F D I S T R I C T A T T O R N E Y 33^^ and 424^^ J U D I C I A L D I S T R I C T S Wiley B. McAfee, District Attorney P. O . Box 725

Llano, Texas 78643

Telephone Telecopier (325) 247-5755 (325) 247-5274

Assistant District Attorney State Bar N o . 03353500

g.bunyard@co.llano.tx.us

A T T O R N E Y FOR APPELLEE

C E R T I F I C A T E OF WORD C O U N T

This is to certify that the pertinent portion o f this brief contains 1,778 words printed i n Aldine401 B T 14 font.

unyara/

Assistant District Attorney

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C E R T I F I C A T E OF SERVICE

This is to certify that a true copy o f the above and foregoing instrument, together w i t h this proof o f service hereof, has been forwarded by EServe and by email on the I f ^ day o f June 2015, to Ms. Alice E. Price, Attorney for Appellant, at apgregg50@hotmail.com.

Assistant District Attorney