Casares v. State

712 S.W.2d 818, 1986 Tex. App. LEXIS 7719
CourtCourt of Appeals of Texas
DecidedJune 12, 1986
Docket01-85-0829-CR
StatusPublished
Cited by27 cases

This text of 712 S.W.2d 818 (Casares v. State) 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
Casares v. State, 712 S.W.2d 818, 1986 Tex. App. LEXIS 7719 (Tex. Ct. App. 1986).

Opinions

OPINION

DUGGAN, Justice.

A jury found appellant guilty of the offense of theft of a motor vehicle of a value of over $750 and under $20,000, found the enhancement paragraph of the indictment to be true, and assessed punishment at [819]*819eight years confinement and a $1,000 fine. He asserts three grounds of error on appeal.

Appellant urges in his first ground of error that the trial court committed reversible error by failing to allow defense counsel to fully cross-examine the State’s witnesses, thereby violating his constitutional right to confrontation of witnesses against him.

A 1973 Chevrolet Suburban truck owned by Victor Boulas was taken for repairs to Molina’s Radiator Shop, owned by Ladiasla-do Molina. Later, Molina reported the truck to police as stolen on May 17, 1985. On May 19, 1985, appellant, a former employee of Molina, was arrested in Galveston after wrecking the truck.

Although appellant had worked for Molina until the day of the theft, and had earlier gone with him to pick up the truck from Boulas for the repairs, he presented an alibi defense in which he testified that he had borrowed the truck from a person named Mark, who had picked him up when he was hitchhiking. He testified that he was visiting his ex-wife and son in Lufkin on the day of the theft, and that he got there also by hitchhiking.

The indictment charging appellant with theft of a motor vehicle alleged in pertinent part that the truck had a value of over $750 and under $20,000; accordingly, the actual value of the truck at the time of the theft was an essential element of the State’s case.

Appellant argues that his attorney was prevented from cross-examining one State’s witness, Molina, about the vehicle’s value and from fully cross-examining Bou-las, the truck’s owner, regarding the vehicle’s value. Appellant’s attorney elicited on cross-examination of Molina that the truck was extensively rusted, and might require as much as $300 worth of repairs for rust damage. Appellant’s attorney, Mr. Occie Tate, later asked:

Q: MR. TATE: Mr. Molina, how much money would you pay for Mr. Boulas’ truck?
MS. HERASIMCHUK [the prosecutor]: Object to that. Totally irrelevant.
THE COURT: Sustained.
Q: Mr. Molina, you work on cars all the time, right?
A: Yeah, but—
Q: You know a good car and a bad car, right?
A: Yes.
Q: You know if a car is worth much money or little money, right?
A: Yeah.
Q: Boulas’ truck, is it worth much money or little money?
MS. HERASIMCHUK: I have to object to—
THE COURT: Sustained.
A: Well—
THE COURT: Just a second.
MR. TATE: I am attempting to establish what the value of the truck was. In view of the language problem, I think that’s the only way I can get him to answer the question. If he knows what the value of the truck is from his experience in the industry, I think that—
MS. HERASIMCHUK: This is argument to the jury.
MR. TATE: He is competent to testify about this.
THE COURT: That’s sustained.
MR. TATE: He works on cars. He doesn’t buy them and sell them.

Appellant contends that the trial court committed reversible error by refusing to let him cross-examine Molina as to the fair market value of the truck after this exchange.

Appellant also contests the court’s decision to cut off cross-examination of Boulas, the truck’s owner, when appellant attempted to elicit from the witness the basis for his personal evaluation of the vehicle’s market value. Direct examination by the prosecutor was as follows:

Q [MS. HERASIMCHUK]: Do you know the approximate value of that truck?
A [MR. BOULAS]: Value for me? How about $3000.
[820]*820Q: How do you know it was worth $3000?
A: What I spend on her. I put new engine, new transmission, new tires, therefore me want $3000.
Q: Had anyone offered to buy your truck?
A: Yes ma’am.
A: When was it someone offered to buy your truck?
A: In May.
Q: How much did they offer to pay? A: $3,000.
Q: Were you going to sell the truck to that person?
A: Yes Ma’am. We made the deal already.
Q: Is that $3,000 then, is that a value over $750?
A: Yes ma’am.
Q: And is it under $20,000?
A: Yes ma’am.

On cross-examination, appellant’s attorney sought to explore the basis for Boulas’ statement of value.

Q: Did you buy that truck when it was new?
A: No. I bought it from my brother in 1975? [sic]
Q: How much did you pay for the truck in 1975?
A: I don’t know. How much I pay is my problem, not the problem of anybody. Maybe him give me free.
Q: Did he give it to you free?
A: It is between me and my brother. Anybody need not know. I buy it from him.
Q: You have to answer the question. How much did you pay him for it? A: 45 hundred.
Q: And that was 10 years ago?
A: Yeah.
Q: When you testified, Mr. Boulas, as to the value of this truck being $3,000, that is not necessarily the market value of that truck?
MS. HERASIMCHUK: The owner of a piece of property may testify to its value. THE COURT: Sustained.

In summary, the testimony as to the physical condition of the truck showed that thé 12 to 13-year-old vehicle was, according to repairman Molina, extremely rusty (“falling apart” from rust); that a Galveston police officer testified there was “considerable damage” to the truck, which may have been done either before or during the Galveston accident resulting in appellant’s arrest; and that the vehicle was at least partially hand-painted (“it wasn’t factory-baked”). As to the market value, the owner, Boulas, testified to having paid $4,500 for the 1973 vehicle in 1975, and to having received an offer ten years later, in May 1985, the same month as the theft, from a buyer to purchase the truck for $3,000, for which he “made the deal already.”

The State had the burden of proof as to market value of the truck. The only evidence in the record showing the vehicle’s market value to be in excess of $750, such as to make the primary offense a third-degree felony rather than a misdemeanor, was the subjective opinion testimony of the vehicle’s owner, Mr. Boulas.

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Bluebook (online)
712 S.W.2d 818, 1986 Tex. App. LEXIS 7719, Counsel Stack Legal Research, https://law.counselstack.com/opinion/casares-v-state-texapp-1986.