Bullock, Henry Richard Jr. A/K/A Imari Abybakari

479 S.W.3d 422, 2015 Tex. App. LEXIS 10744
CourtCourt of Appeals of Texas
DecidedOctober 20, 2015
DocketPD-1453-15
StatusPublished
Cited by4 cases

This text of 479 S.W.3d 422 (Bullock, Henry Richard Jr. A/K/A Imari Abybakari) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bullock, Henry Richard Jr. A/K/A Imari Abybakari, 479 S.W.3d 422, 2015 Tex. App. LEXIS 10744 (Tex. Ct. App. 2015).

Opinions

SUBSTITUTE MAJORITY OPINION

William J. Boyce, Justice

We withdraw the memorandum opinion issued in this case on July 9, 2015, and we issue this substitute majority opinion. We deny appellant’s motion for rehearing. We deny as moot appellant’s motion for rehearing en banc.1

A jury found appellant guilty of theft of a truck valued, at $20,000 or more but less than $100,000, a third-degree felony. See Tex. Penal Code Ann. § 31.03(a), (e)(5) (Vernon Supp. 2014). The jury found two enhancement allegations true and assessed punishment- at thirty years’ confinement. Appellant challenges his conviction in three issues, contending that (1) the evidence is legally insufficient to prove the value of the truck; (2) he suffered egregious harm from the trial court’s failure to define “value” in the jury charge; and (3) the trial court erred by refusing to charge the jury on the lesser-ineluded offense of attempted theft. We affirm.

I. Sufficiency of the Evidence of Value

In his first issue, appellant- contends the evidence is legally insufficient to prove beyond a reasonable doubt that the fair market value of the truck at the time of the offense was $20,000 or more but less than $100,000. We hold that the’ evidence is legally sufficient.

A. Standards for Legal Sufficiency arid Proof of Value

“In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that ’ evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt.” Whatley v. State, 445 S.W.3d 159, 166 (Tex.Crim.App. 2014) (quotation omitted); see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). In reviewing historical facts that support conflicting inferences, we must presume that the jury resolved any conflicts in the State’s favor, and we must defer to that resolution. Whatley, 445 S.W.3d at 166. “[A]n inference is a conclusion reached by considering other facts and deducing a log[425]*425ical consequence from them.” Id. (alteration in original) (quotation omitted).

ín a theft case, the State has the burden to prove the property’s value through evidence of either “(1) its fair market value at the time and place of the offense, or (2) the cost of replacing it within a reasonable time after the theft if fair market value could not be ascertained.” Smiles v. State, 298 S.W.3d 716, 719 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (citing Tex. Penal Code Ann. § 31.08). “Fair market value is the amount of money that the property would sell for in .cash, given a reasonable time for .selling it.” Id. When an owner of the property testifies about value, we “presume that an owner’s testimony regarding the value of property is an estimation of the property’s fair market value.” Id. An owner may testify about fair market value “in terms of purchase price or the cost to him of replacing the stolen property.” Id. “Because such testimony is an offer of the owner’s best knowledge of the value of his property, it is legally sufficient evidence for the trier of fact to make a determination as to value based on the owner’s credibility as a witness.” Id. “If a defendant wishes to rebut the owner’s opinion evidence as to value he must do more than merely impeach the witness’s credibility during cross-examination; he must actually offer controverting evidence as to the value of the stolen item.” Id

B. Evidence at Trial

Boy Martinez testified that he was an assistant manager at Cort Furniture Rental, and he was making a delivery with the company’s leased delivery truck. It was a big, twenty-six-foot box truck with eighteen-wheeler tires and air brakes. It was a “pretty heavy” truck that held about 25,000 pounds. While Martinez was in the back of the truck, appellant got in the cab, turned on the truck, and revved, the engine by pushing on the gas pedal. The truck did not go forward because the air brake was on, so Martinez went to the cab of the truck and confronted. appellant. Appellant’s hands were on the steering wheel, and appellant was pushing the gas and the brake pedals. Appellant jumped out of the truck and ran away. After a chase, Martinez subdued appellant.

Martinez testified about the truck’s value:

Q. And how much is the truck worth?
A. We have it in the statement from the — because my company leases one from Penske, and the value of the truck is $83,000.
Q. Okay.
A. Without saying, like, the merchandise, you know.
Q. That was only the value of the vehicle itself?
A. Just the vehicle.
Q. Right. And how did you — how do you know the value of the vehicle?
A. Well, that day they asked me what was, the value of the vehicle since I’m kind of familiar and been working there for many years. Every time they give us — every five years they give us new trucks and they let us know the value of the trucks so we. can take care of, you know, the vehicles. It’s part of our tools.
[[Image here]]
- Q. . Mr. Martinez, we’re calling you back to the stand just very briefly. When we were talking about the value of the vehicle, how do you know that information?
■ A. • The information was provided from Penske Rental Trucks because we lease — well, the company . leases the trucks from Penske Company.
[426]*426Q. And so you have personal knowledge of the value of the vehicle?
A. Yes, sir. They send us an e-mail and with 'the price — well, the value of that truck right here (indicating).
Q. And that’s an e-mail from who?
A. From Penske, I think, managers from there, they sent it to us.
Q. And Cort doesn’t own the truck. You guys rent the truck?
A. This is just a lease truck.
Q. It’s a lease?
A. A lease truck. •

Appellant represented himself at trial with standby counsel. On cross-examination, although appellant testified that he did not agree the value of the truck was over $20,000 and under $100,000, he testified, “No, I don’t know what the truck was valued at.”

C. Sufficient Evidence of Value

Appellant concedes that Martinez is an owner of the truck for purposes of this appeal, and generally, an owner’s testimony about the property’s value is sufficient to sustain a conviction.

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Cite This Page — Counsel Stack

Bluebook (online)
479 S.W.3d 422, 2015 Tex. App. LEXIS 10744, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bullock-henry-richard-jr-aka-imari-abybakari-texapp-2015.