Keeton v. State

803 S.W.2d 304, 1991 Tex. Crim. App. LEXIS 22, 1991 WL 11998

• Court: Court of Criminal Appeals of Texas
• Decided: February 6, 1991
• Docket: 1167-89
• Status: Published

Opinions

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

OVERSTREET, Judge.

After a trial before the court, appellant was convicted of theft of property of the value of $750.00 or more but less than $20,000.00. The court found the enhancement paragraph to be true and assessed punishment at confinement for twenty years. The court of appeals affirmed the conviction. Keeton v. State, 774 S.W.2d 716 (Tex.App.—El Paso 1989). We granted appellant’s petition for discretionary review to determine whether the evidence concerning the fair market value of the items taken was sufficient to prove the value alleged in the indictment.

The evidence showed that appellant took two boxed Smith-Corona typewriters from the Montgomery Ward store in North Town Mall in Dallas without paying for them. Valeta Gart, the manager of the store, testified that buyers in Chicago for Montgomery Ward determined that $479.99 was a fair market price for each typewriter, making the total value for the two that appellant took over the alleged minimum of $750.00. The parties stipulated that on the day appellant took the typewriters, the typewriters were on sale for $359.99 each at this Montgomery Ward store. The total value for the two typewriters selling at this price is under the $750.00 level required for a felony and would make the offense a Class A misdemeanor.

The court of appeals held that these facts presented conflicting evidence of value and the trial court, as trier of fact, could choose which value it believed represented fair market value. The trial court obviously chose to rely upon the higher price.

Appellant relies upon V.T.C.A. Penal Code, § 31.08(a)(1), which defines value as “the fair market value of the property or service at the time and place of the offense.” Appellant argues that this means value is only the selling price of the property on the day of the offense at the particular store from which the property was taken.

The interpretation of “fair market value” and the interpretation of “time and place of the offense” do not support appellant’s contention. First, while fair market value is not statutorily defined, it has long been stated as the amount the property would sell for in cash, giving a reasonable time for selling it. Senters v. State, 163 Tex.Crim. 423, 291 S.W.2d 739 (1956). This definition supports the idea that a sale price may be, but is not necessarily determinative of the fair market value because of the “reasonable time” criteria. A sale may be of such short duration that it may not be a “reasonable time” within which to sell an item. In fact, the sale price might be ridiculously low simply to attract customers to the store and sell the item immediately and not within a reasonable time. Therefore, while the sale price may be some evidence of fair market value, it is certainly not the only evidence, given the reasonable time criteria of fair market value.

Next, we address appellant’s contention that the “time and place” aspect of value under § 31.08(a)(1) limits proof of value to the day of the offense and the particular store from which the property was taken. The definition of value in § 31.08(a)(1) is a codification of the standard long established by case law. Cunningham v. State, 90 Tex.Crim. 500, 236 S.W. 89 (1921); Childress v. State, 92 Tex. Crim. 215, 241 S.W. 1029 (1922); Larkin v. State, 157 Tex.Crim. 284, 248 S.W.2d 134 (1952); V.T.C.A. Penal Code, § 31.08, Practice Commentary; see also Sullivan v. State, 701 S.W.2d 905 (Tex.Cr.App.1986). Methods of proving fair market value have varied from showing retail price or sale price, see Speights v. State, 499 S.W.2d 119 (Tex.Cr.App.1973), to admitting testimony of an owner’s opinion of value, to a non-owner’s, “expert” opinion of value. See Sullivan, supra. No one method has ever been held to be exclusive. Use of various methods to show fair market value is certainly due to the necessity for flexibility because of the various circumstances of theft that arise.

In terms of proving fair market value at the place of the offense, the place of the offense has been the actual location of the theft, i.e., the price at the particular store from which an item was stolen, Speights, as well as the more general locale in which the offense occurred, i.e., the price that the property would sell for in the county of the offense. Saddler v. State, 20 Tex.App. 195 (1886); Clark v. State, 23 Tex.App. 612, 5 S.W. 178 (1887); Lamb v. State, 133 Tex. , 108 S.W.2d 1112 (1937); Darty v. State, 149 Tex.Crim. 256, 193 S.W.2d 195 (1946); Larkin, supra. Most of these cases involved theft of property from a private owner who had originally bought the property, in contrast to theft of property taken directly from a store such as Montgomery Ward. Clark, supra, (an overcoat); Darty, supra, (a leather belt); Lamb, supra, (a harness and saws). But, these cases do not suggest that just because the owner is a store as opposed to an individual private owner, the price asked at other places in the county of the offense cannot be used to determine fair market value. They are simply different ways of proving the value in the market place.

In the instant case, appellant would have us restrict the fair market value to the price set at Montgomery Ward on the day of the offense. While this is certainly one method of proving fair market value, it is not the only one. 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 county. Likewise, the State may present evidence showing the price charged at other stores, and argue that the sale price was low and did not reflect fair market value in the county. The trier of fact is presented with differing values shown from different sources or “markets” from which it must decide which value represents the fair market value of the item.

Appellant also contends that there was no conflicting evidence of value because Gart testified only that the buyers set the “book price” of $479.99 and that Gart did not testify that that was the fair market value. Therefore, fair market value being the “amount of money the property in question would sell for in cash, giving a reasonable time for selling it,” Senters, supra, the sale price was the only evidence of a cash price.

The court of appeals was correct in stating that two conflicting values were presented. Gart testified that the store’s buyers determined that $479.99 was a fair market price for the typewriter and that that was the price for which the typewriter would be sold. She admitted that she did not know at what price other stores sold the typewriter. The parties also stipulated that the typewriters were on sale for $359.99 the day of the offense. This evidence shows that the usual selling price at Montgomery Ward was $479.99 and the sale price that day was $359.99. The trier of fact was presented with two values to decide between in determining the fair market value. The court chose the normal retail price, not the lower sale price.

In the instant case, the trier of fact was presented with two values of the typewriters at the time and place of the offense. The trier of fact resolved this conflict in favor of the higher value. The court of appeals correctly found the evidence sufficient to support the conviction.

The judgment of the court of appeals affirming the conviction is affirmed.

TEAGUE, J., concurs in result.