Kevin Ray Hightower v. State

Opinion

Opinion issued April 1, 2004

In The

Court of Appeals

For The

First District of Texas

---

NO. 01-03-00363-CR

____________

KEVIN RAY HIGHTOWER, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 28842-272

---

MEMORANDUM OPINION

          A jury found appellant, Kevin Ray Hightower, guilty of the felony offense of aggregated theft of property with a value of $20,000 or more but less than $100,000, and the trial court assessed his punishment at confinement for 10 years. The trial court suspended the sentence, placed appellant on community supervision for 10 years, and ordered him to make restitution in the amount of $127,000. In four points of error, appellant contends that the evidence was legally and factually insufficient to support his conviction. We affirm.

Facts

          Texas Department of Public Safety Sergeant C. Ashley testified that his duties involved inspecting licensed automobile salvage yards by comparing a yard’s records against its inventory. When he went, on October 4, 2000, to investigate appellant’s business, Hightower Auto Salvage, located on Wixon Road in Bryan, appellant was not on the premises. However, Sergeant Ashley spoke with appellant’s father, Bill Hightower, who told Ashley that he worked for appellant. Ashley then informed appellant’s father that he was there to conduct an inventory of the premises and he asked for the yard’s business records. After appellant’s father told Ashley that the records were in appellant’s possession, Ashley then conducted an inventory of the premises.

          After Sergeant Ashley completed the inventory, appellant’s father told Ashley that some of Hightower Auto Salvage’s vehicles were stored at property he owned on Kurten Cemetery Road. Ashley told appellant’s father that Ashley needed to inspect the vehicles at this other property. After they arrived at the location, appellant’s father told Ashley that, although he owned some of the older model vehicles on the property, appellant owned most of the newer models. Appellant’s father did not tell Ashley that anyone else owned vehicles located on the property.

          When Sergeant Ashley inspected the premises, he found component parts from five stolen pickup trucks and Sports Utility Vehicles (SUVs) that were in various stages of being disassembled. Specifically, Ashley found (1) a frame from a 1995 Chevrolet pickup truck, which had been stolen in May 1998; (2) a cab, frame, bed, and two doors from a 1997 Chevrolet pickup truck, which had been stolen in April 1997; (3) a cab, frame, bed, and four tires from a second 1997 Chevrolet pickup truck, which had been stolen in January 1998; (4) a frame, tires, wheels, an engine, a transmission, a drive train, and a dashboard from a 1999 GMC Yukon, which had been stolen in November 1999; and (5) a 1999 Chevrolet Suburban in the early stages of disassembly, which had also been stolen in November 1999.

          After discovering the stolen pickup trucks and SUVs, Sergeant Ashley asked appellant’s father how these items came to be located on the property. Appellant’s father responded that he had purchased the frame from the 1995 Chevrolet pickup truck from Highway 6 Auto Salvage, an automobile salvage dealer. He also stated that he had purchased the frame from one of the 1997 Chevrolet pickup trucks from Gordon’s Truck Salvage, another automobile salvage dealer. Appellant’s father then stated that he had permitted “Jesse Grimaldo,” a man he had met at an automobile auction in Houston, to store the 1999 GMC Yukon, the 1999 Chevrolet Suburban, and the frame from one of the 1997 Chevrolet pickup trucks on the property. Ashley was unable to locate Jesse Grimaldo.

          In Sergeant Ashley’s opinion, the pickup trucks and SUVs had not been purchased for salvage. Ashley testified that, typically, salvaged automobiles are either wrecked, burned, or damaged in some way. Here, Ashley saw that the trucks and SUVs were not damaged. Moreover, in Ashley’s opinion, the pickup trucks and SUVs were being disassembled so that their parts could be installed in other trucks and SUVs, which would then be sold to the public.

          The following day, Sergeant Ashley returned to appellant’s business on Wixon Road and met with appellant and asked for his business records. Although appellant gave Ashley a stack of certificates of title, the stack did not contain certificates of title for any of the five stolen pickup trucks and SUVs. Ashley then asked appellant to produce his salvage inventory log so that Ashley could determine from whom appellant had purchased the component parts. Even though appellant was required by law to keep such a log, he told Ashley that he did not have one. Appellant then told Ashley that he, rather than his father, had purchased the frame of the 1995 Chevrolet pickup truck from Highway 6 Auto Salvage.

          Bill Knight, the owner of Highway 6 Auto Salvage, testified that he had never sold parts from the stolen 1995 Chevrolet pickup truck to appellant or appellant’s father. Also, Charles Glass, the manager of Gordon’s Truck Salvage, testified that, contrary to appellant’s father’s assertion, his business had never possessed any parts from one of the stolen 1997 Chevrolet pickup trucks.

          The owners of the stolen pickup trucks and SUV’s gave their opinions as to the fair market value of their vehicles. Brent Young testified that his 1995 Chevrolet pickup truck had a value of approximately $15,000 when it was stolen in May 1998. Bohn Hilliard testified that his 1997 Chevrolet pickup truck had a value of approximately $23,000 when it was stolen in April 1997. Sean Perkins testified that his 1997 Chevrolet pickup truck had a value of approximately $19,000 when it was stolen in January 1998. Dave Ward, an automobile dealer, testified that his 1999 GMC Yukon had a value of $33,000 and his 1999 Chevrolet Suburban had a value of $37,000 when both were stolen in November 1999. Ward further testified that, taking into account normal depreciation, on October 4, 2000, his Yukon would have had a value of $28,000 and his Suburban would have had a value of $32,000.

          Appellant’s father testified that, in June or July of 1999, Jesse Grimaldo brought the 1999 GMC Yukon, the 1999 Chevrolet Suburban, and the frame from one of the 1997 Chevrolet pickup trucks onto his property. He further testified that he did not tell Sergeant Ashley that he had purchased the frames from the 1995 Chevrolet pickup truck and from the second 1997 Chevrolet pickup truck and that he did not know how these frames came to be located on his property.

Sufficiency of the Evidence

          In his first, second, third, and fourth points of error, appellant argues that the evidence was legally and factually insufficient to support his conviction because the State failed to prove that (1) he appropriated five “whole” or “complete” stolen automobiles with (2) a value of $20,000 or more.

          We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. Id.

          We review the factual sufficiency of the evidence by examining all of the evidence neutrally and asking whether the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or whether the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).

          A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a) (Vernon Supp. 2004). Appropriation of property is unlawful if the property is stolen and the actor appropriates the property knowing that it was stolen by another. Id. § 31.03(b)(2) (Vernon Supp. 2004). When property is obtained pursuant to one scheme or a continuing course of conduct, whether from the same or several sources, the conduct may be considered as one theft, and the value amounts aggregated in determining the grade of the offense. Id. § 31.09 (Vernon 2003).

Evidence of Appropriation

          In regard to his legal sufficiency challenge on the element of appropriation, appellant argues that, although the State proved that he possessed parts from the stolen pickup trucks and SUVs, it failed to prove, as required by the indictment, that he ever appropriated a “whole” or “complete” 1999 Chevrolet Suburban, 1999 GMC Yukon, 1995 Chevrolet pickup truck, and two “whole” or “complete” 1997 Chevrolet pickup trucks.

          However, Sergeant Ashley testified that he saw that the stolen pickup trucks and SUVs were in various stages of being disassembled. In Ashley’s opinion, appellant ran a “chop shop,” and the pickup trucks and SUVs were being disassembled so that their parts could be installed in other trucks and SUVs, which would then be sold to the public. Appellant’s father also told Ashley that appellant owned most of the newer model vehicles located on the Kurten Cemetery Road property. Furthermore, appellant did not have certificates of title for any of the pickup trucks and SUVs, and he told Ashley that he did not have a salvage inventory log listing the persons from whom he had purchased component parts.

          Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant had appropriated, as alleged in the indictment, the stolen pickup trucks and SUVs and, in October 2000, was in the process of disassembling them and placing their parts in other pickup trucks and SUVs. Accordingly, we hold that the evidence was legally sufficient to support the jury’s finding that appellant unlawfully appropriated, as alleged in the indictment, five stolen pickup trucks and SUVs.

          In regard to his factual sufficiency challenge on the element of appropriation, appellant merely reiterates the same arguments advanced under his legal sufficiency challenge. However, as the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony, the jury was free to believe or disbelieve all or any part of Sergeant Ashley’s testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Our review of the record reveals that no other evidence outweighed Ashley’s testimony or otherwise demonstrated that the proof of guilt was so obviously weak as to undermine confidence in the jury’s determination. Accordingly, we hold that the evidence was factually sufficient to support the jury’s finding that appellant unlawfully appropriated, as alleged in the indictment, five stolen pickup trucks and SUVs.

Evidence of Value

          In regard to his legal sufficiency challenge on the element of value, appellant asserts that the State failed to prove that he appropriated property with a value of $20,000 or more because none of the owners of the stolen pickup trucks and SUVs could testify as to the “fair market value” of their vehicles on October 4, 2000.

          An owner of property unlawfully taken from him may testify about his opinion of the value of the property even though he may not be qualified to testify as an expert on the fair market value of the property. Anderson v. State, 871 S.W.2d 900, 903 (Tex. App.—Houston [1st Dist.] 1994, no pet.). Fair market value of property is determined at the time and place of the theft. Tex. Pen. Code Ann. § 31.08(a)(1) (Vernon 2003).

          Here, Dave Ward, an automobile dealer, testified that, taking into account normal depreciation, on October 4, 2000, his 1999 GMC Yukon would have had a value of $28,000 and his 1999 Chevrolet Suburban would have had a value of $32,000. Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant had appropriated property that had an aggregated value of $20,000 or more on October 4, 2000, and we hold that the evidence was legally sufficient to support such a finding.

          In regard to his factual sufficiency challenge on the element of value, appellant again merely reiterates the same arguments advanced under his legal sufficiency challenge. However, the jury was free to believe or disbelieve all or any part of Dave Ward’s testimony concerning the values of his Yukon and Suburban. McKinny, 76 S.W.3d 468-69. Our review of the record reveals that no other evidence outweighed Ward’s testimony or otherwise demonstrated that the proof of guilt was so obviously weak as to undermine confidence in the jury’s determination. Accordingly, we hold that the evidence was factually sufficient to support a finding that appellant appropriated property that had an aggregated value of $20,000 or more on October 4, 2000.

          We overrule appellant’s first, second, third, and fourth points of error.Conclusion

          We affirm the judgment of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.

Do not publish. Tex. R. App. P. 47.2(b).