Roy D. Day Jr. v. State

Opinion

NO. 07-00-0128-CR

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL A

SEPTEMBER 28, 2001

______________________________

ROY DAY, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

_________________________________

FROM THE 154TH DISTRICT COURT OF LAMB COUNTY;

NO. 3196; HONORABLE JACK D. YOUNG, JUDGE

_______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.

Upon a plea of not guilty, appellant Roy Day was convicted by a jury of theft by check and punishment was assessed at 180 days confinement in the Lamb County Jail. By a sole point of error, appellant contends the evidence is legally insufficient to support his conviction. Based upon the rationale expressed herein, we affirm.

On March 28, 1995, appellant purchased farm implement parts for a tandem disk from Thompson Implement, Inc. and also incurred installation charges. Appellant made his purchase by check in the amount of $263.54. The check was twice presented to Thompson Implement's bank, and on April 24, 1995, the check was returned with a notation indicating appellant did not have sufficient funds. On August 1, 1995, Thompson Implement notified appellant by letter that his account was being turned over to its lawyer for collection. A demand letter was sent to appellant by Thompson Implement's lawyer, but no response or payment was made. Resultantly, the dishonored check was forwarded to the Lamb County Attorney who notified appellant on October 12, 1995, that failure to resolve the matter might result in his arrest. A reminder was mailed to appellant by the County Attorney on November 1, 1995. Appellant was charged and convicted of theft by check of property valued at $20 or more, but less than $500.

Appellant's sole contention on appeal is that the evidence is legally insufficient to support his conviction because the State failed to prove the value of the stolen property pursuant to section 31.08 of the Texas Code of Criminal Procedure. We disagree. In conducting a legal sufficiency review, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 157 (Tex.Cr.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570, 573 (Tex.Cr.App. 2000). It is a fundamental rule of criminal law that one cannot be convicted of a crime unless it is shown beyond a reasonable doubt that the defendant committed each element of the alleged offense. U.S. Const. amend. XIV; Tex. Code Crim. Proc. Ann. art. 38.03 (Vernon Supp. 2001); Tex. Pen. Code Ann. § 2.01 (Vernon 1994). As an appellate court, we may not sit as a thirteenth juror, but must uphold the jury's verdict unless it is irrational or unsupported by more than a mere modicum of evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Cr.App. 1988).

Appellant contends the State failed to prove the value of the property he allegedly stole. Value is the fair market value of the property at the time and place of the offense. Tex. Pen. Code Ann. § 31.08 (Vernon 1994). To establish value, the State must prove the fair market value of the property in question. Sullivan v. State, 701 S.W.2d 905, 908 (Tex.Cr.App. 1986). "Fair market value" is the amount of money the property in question would sell for in cash, given a reasonable time for selling it. Keeton v. State, 774 S.W.2d 716, 717 (Tex.App.-El Paso 1989), aff'd, 803 S.W.2d 304 (Tex.Cr.App. 1991). An owner is competent to testify to the value of property in general and commonly understood terms. Johnson v. State, 676 S.W.2d 416, 418 (Tex.Cr.App. 1984); Morales v. State, 2 S.W.3d 487, 488 (Tex.App.-Texarkana 1999, pet. ref'd), citing Sullivan. When an owner testifies, it is presumed that he is testifying to an estimate of the fair market value and if the defendant wishes to rebut the owner's testimony, he must offer controverting proof of the value of the property. Sullivan, 701 S.W.2d at 909.

Mike Perry, who was manager and part owner of Thompson Implement at the time of the incident, testified that on March 28, 1995, appellant purchased parts for a tandem disk and had the service department install some of the parts. The State introduced appellant's check into evidence without objection. Perry testified that the amount of the check was $263.54. He also testified regarding an itemized invoice listing a breakdown of costs for the parts and labor purchased. This exhibit was also introduced without objection. Appellant did not offer any testimony or introduce any evidence to rebut Perry's testimony of the value of the property. Considering that Perry was in the business of selling farm implements, his testimony and the exhibits established the value of the stolen property for purposes of the value statute. We conclude the evidence was legally sufficient to prove the value element of theft by check. Appellant's sole contention is overruled.

Accordingly, the judgment of the trial court is affirmed.

Don H. Reavis

Justice

Do not publish.

the defendant so moved. Id. §74.351(b).

          As previously mentioned, the pivotal question before us is whether the 120-day period begins anew each time a health care liability claim is non-suited then re-filed. Every opinion we found that addressed this specific question said no. Medical Hosp. of Buna, Tex., Inc. v. Wheatley, No. 09-08-0183-CV, 2009 Tex. App. Lexis 2769 at *17 (Tex. App.–Beaumont April 23, 2009, no pet. h.); Runcie v. Foley, 274 S.W.3d 232, 235-36 (Tex. App.–Houston [1^st Dist.] 2008, no pet.); Daughtery v. Schiessler, 229 S.W.3d 773, 775 (Tex. App.–Eastland 2007, no pet.); Empowerment Options, Inc. v. Easley, No. 09-06-0148-CV, 2006 Tex. App. Lexis 9696 at *11-12 (Tex. App.–Beaumont November 9, 2006, pet. denied);Mokkala v. Mead, 178 S.W.3d 66, 71 (Tex. App.–Houston [14^th Dist.] 2005, pet. denied). Instead, they hold that the time period begins when the claim is first filed and continues to run even if a non-suit is taken. See Mokkala v. Mead, 178 S.W.3d at 71. More importantly, White cites us to no cases considering the same question and holding otherwise. We see no reason to deviate from the unanimous stance taken in Wheatley, Runcie, Daughtery, Mokkala, and Easely and overrule White’s contention that the period began anew. To hold otherwise would be to ignore the plain wording of §74.351(a) selected by the legislature.

          Tolling and Relation-back

          White next argues that the non-suit tolled the running of the 120-day deadline. She arrived at this conclusion by analogizing the period to a statute of limitations. So too did she invoke principles which involve equitable tolling and the relation-back doctrine and assert that they also render timely her expert’s report. We disagree for several reasons.

          First, in Packard v. Miller, No. 07-06-0454-CV, 2007 Tex. App. Lexis 4513 (Tex. App.–Amarillo May 31, 2007, pet. denied), we refused to extend the statutory deadline applicable to tendering expert reports through the use of equitable principles. Id. at *6. To paraphrase Packard, it is not within our province to adopt an equitable extension to the clear requirements of the statute. Id. To apply equitable tolling here would be to violate what we said in Packard.

          Second, we acknowledge that some have compared §74.351(a) to a statute of limitations. But we do not see how this helps White. While it may be that initiating a suit tolls the running of limitations, e.g., Sheldon Indep. School Dist. v. M. L. Hudson Elec. Co., 567 S.W.2d 541, 543 (Tex. Civ. App.–Tyler 1978 , no writ), it does not remain tolled once the suit is dismissed. Rather, the relevant time period is calculated from the time the claim accrued until suit is re-filed. Clary Corp. v. Smith, 949 S.W.2d 452, 459 (Tex. App.–Fort Worth 1997, writ denied). So, by following White’s analogy, one would have to conclude that the time period that started with the filing of her first suit never stopped, despite the voluntary dismissal.

          Third, while the relation-back doctrine can be used as a means of asserting an untimely cause of action, it applies to situations wherein a litigant amends his petition to assert the untimely claim and the latter arises from the same transaction or occurrence underlying the timely claims. Brewster Columbia Med. Ctr. of McKinney Subsidiary, L.P., 269 S.W.3d 314, 318 (Tex. App.–Dallas 2008, no pet.) (stating that an amendment or supplement to a pleading relates back as long as the amended or supplemented claim is not based on new, distinct, or different transactions). Additionally, White cites us to no cases extending this theory to the initiation of subsequent lawsuits, as opposed to the mere amendment or supplementation of pleadings in a suit that already is pending.

          Adding a New Claim

          Finally, White posits that the 120-day period which began when she filed her first suit did not encompass the new claim asserted in her second action. We again disagree.

          White first sued Baylor because its “pharmacy, nurses, nurses aides and other staff . . . failed to administered medications” to her husband (Warren) “as prescribed.” So too did she describe her claim as those persons giving Warren a drug that “was neither prescribed nor . . . beneficial to” him. Via the petition in her second suit, she again sued Baylor alone for the conduct of the same actors. However, she changed her allegations by stating that the hospital’s “staff dispensed and administered . . . a drug that was neither prescribed nor beneficial to . . . Warren . . . .” (Emphasis added). In other words, she now complained not only of the staff administering inappropriate drugs but also dispensing them. We see this as a distinction without a difference. Both concepts encompass the same actors and the same purportedly underlying cause of Warren’s death, i.e. his ingestion of a particular drug given him by hospital employees. And, while the pharmacy may have “dispensed” the drug while the nursing staff “administered” it, the sequence of events remained the same as that described in and underlying the claim in her first suit. Indeed, White admitted as much when she argued that the allegations in the second proceeding “relate-back” to those in the first; simply put, both concern the same transaction, occurrence, or operative facts.

          In short, what we have before us is simply the same old wine being poured into a new skin. The new skin does not change the character of the wine. Nor does now invoking the word “dispense” differentiate the substance of her second suit from that of her first. So, the 120-day period did not start anew by adding that word into her live pleading filed in the second suit. See Medical Hosp. of Buna, Tex., Inc. v Wheatley, 2009 Tex. App. Lexis 2769 at *8 (stating that a plaintiff cannot use artful pleading to avoid the deadline); Care Center, Ltd. v. Sutton, No. 09-07-469-CV, 2008 Tex. App. Lexis 2743 at *15 (Tex. App.–Beaumont April 17, 2008, pet. filed) (holding that because the old claims were broad enough to encompass the new ones, the 120-period did not renew itself); Toro v. Alaniz, No. 04-06-0814-CV, 2007 Tex. App. Lexis 3119 at *3-4 (Tex. App.–San Antonio April 25, 2007, no pet.) (stating that the time line for expert reports begins when the lawsuit is filed and cannot be extended by filing an additional claim in an amended petition based on the same assertion alleged in the original petition).

          Having rejected each of White’s issues and arguments, we affirm the final order dismissing her lawsuit.

                                                                           Brian Quinn

                                                                          Chief Justice