Juan Ismael Sanchez v. State , 2017 Tex. App. LEXIS 3828 ( 2017 )

Opinion issued April 27, 2017
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00862-CR
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JUAN ISMAEL SANCHEZ, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 180th District Court
Harris County, Texas
Trial Court Case No. 1465625
O P I N I O N
Juan Ismael Sanchez appeals from his conviction for the theft of a motor
vehicle, contending that the State did not introduce sufficient proof of the vehicle’s
value. We conclude that the proof is sufficient and affirm his conviction.
Background
Sanchez was indicted for the theft of a neighbor’s 2000 Volkswagen Bug. See
TEX. PENAL CODE § 31.03. After a trial during which the defense rested without
calling witnesses, the jury found Sanchez guilty of the offense, which was a state jail
felony due the value of the car. Sanchez subsequently pleaded true to enhancement
allegations concerning prior felony convictions, one for burglary and another for
indecency with a child. The trial court then assessed Sanchez’s punishment at 12
years’ confinement.
Sufficiency of the Evidence Regarding Fair Market Value
The offense for which Sanchez was tried and convicted, theft of property
valued between $1,500 or more but less than $20,000, was a state jail felony. See
Act of June 17, 2011, 82nd Leg., R.S., ch. 1234, § 21, 2011 Tex. Gen. Laws 3311
(amended 2015) (current version at TEX. PENAL CODE § 31.03(e)(4)(A)). On appeal,
Sanchez contends that the State did not introduce sufficient proof of the Volkswagen
Bug’s value. The State produced evidence of the vehicle’s value from the owner and
from the investigating police officer.
A. Standard of review and applicable law
We apply the standard for sufficiency of the evidence articulated in Jackson
v. Virginia, 443 U.S. 307 (1979). Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim.
App. 2011); Pena v. State, 441 S.W.3d 635, 640 (Tex. App.—Houston [1st Dist.]
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2014, pet. ref’d). Under this standard, we consider all the proof in the light most
favorable to the verdict and determine whether, based on the proof and any
reasonable inferences the proof permits, a rational juror could have found the
essential elements of the crime beyond a reasonable doubt. Gear, 340 S.W.3d at 746.
We cannot substitute our judgment for that of the jury by reevaluating the weight or
credibility of the evidence; we defer to the jury’s resolution of conflicts in the proof,
weighing of the testimony, and drawing of reasonable inferences from basic facts to
ultimate facts. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).
In part, the theft statute classifies offenses into different categories of
misdemeanors and felonies based on the value of the property stolen. “Value” under
the theft statute is “fair market value” at the time and place of the offense, if the
property has an ascertainable fair market value. TEX. PENAL CODE § 31.08(a)(1).
“Fair market value” is not defined by the statute; the courts have construed the term
to mean the amount the property would sell for in cash, given a reasonable time for
the sale. Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); Infante v.
State, 404 S.W.3d 656, 661 (Tex. App.—Houston [1st Dist.] 2012, no pet.). There
is no one particular method of proving fair market value. Keeton, 803 S.W.2d at 305;
Robalin v. State, 224 S.W.3d 470, 475 (Tex. App.—Houston [1st Dist.] 2007, no
pet.). Methods of proof include an owner’s valuation and a non-owner expert’s
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opinion. Keeton, 803 S.W.2d at 305; Ray v. State, 106 S.W.3d 299, 301 (Tex. App.—
Houston [1st Dist.] 2003, no pet.).
The State tried to prove the value of the stolen car through the testimony of
its owner. An owner need not be an expert to opine on the value of her own property.
Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986); Anderson v. State,
871 S.W.2d 900, 903 (Tex. App.—Houston [1st Dist.] 1994, no pet.). Nor is she
required to explicitly state her opinion in terms of its market value. Sullivan, 701
S.W.2d at 908–09. Instead, it generally is presumed that a property owner’s
valuation testimony concerns fair market value. Sullivan, 701 S.W.2d at 909;
Sanders v. State, 814 S.W.2d 784, 785–86 (Tex. App.—Houston [1st Dist.] 1991,
no pet.). Thus, an owner may testify in general and commonly understood language
about her property’s value, and this testimony is sufficient proof for a jury to
determine the property’s value based on the owner’s credibility. Sullivan, 701
S.W.2d at 909; Ray, 106 S.W.3d at 301–02. For example, an owner’s testimony
about the property’s replacement cost may reasonably be understood as an opinion
about its fair market value. Sullivan, 701 S.W.2d at 909; Trammell v. State, 511
S.W.2d 951, 954 (Tex. Crim. App. 1974). Similarly, an owner may testify in terms
of the property’s purchase price, provided that she purchased it recently enough
relative to its theft to permit a reasonable juror to draw a conclusion about its value
at the time of the offense. Johnson v. State, 676 S.W.2d 416, 418 (Tex. Crim. App.
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1984); Anderson, 871 S.W.2d at 903. In order to rebut an owner’s testimony about
her property’s fair market value, a defendant must do more than impeach the owner’s
credibility; the defendant must introduce controverting proof of the property’s fair
market value. Sullivan, 701 S.W.2d at 909; Sanders, 814 S.W.2d at 787.
The State also tried to prove the value of the stolen car through the testimony
of the police officer who investigated its theft. A qualified expert—someone with
knowledge, skill, experience, training, or education—may express an opinion
concerning property’s fair market value. TEX. R. EVID. 702; Sullivan, 701 S.W.2d at
908–09; Sandone v. State, 394 S.W.3d 788, 791–92 (Tex. App.—Fort Worth 2013,
no pet.). An expert need not personally inspect the stolen property to opine on its
value. Thomas v. State, 621 S.W.2d 158, 160 (Tex. Crim. App. 1980); McCrory v.
State, 627 S.W.2d 762, 762 (Tex. App.—Houston [1st Dist.] 1981, no pet.). He is
qualified to offer a valuation if he is acquainted with the fair market value of property
of the same character. Collier v. State, 474 S.W.2d 240, 241 (Tex. Crim. App. 1971);
Foster v. State, 661 S.W.2d 205, 209 (Tex. App.—Houston [1st Dist.] 1983, pet.
ref’d). The expert does not need to make a precise calculation of the property’s value;
a general valuation suffices if it is made in terms of the property’s fair market value.
Thomas, 621 S.W.2d at 160. Thus, an expert may offer an opinion consisting of a
range of values based on the values of similar products in a similar condition.
Zitterich v. State, 502 S.W.2d 144, 145 (Tex. Crim. App. 1973); see McNiel v. State,
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757 S.W.2d 129, 132 (Tex. App.—Houston [1st Dist.] 1988, no pet.). He likewise
may base his opinion about a motor vehicle’s fair market value on his review of the
Kelley Blue Book or similar sources. See Cooper v. State, 537 S.W.2d 940, 943 (Tex.
Crim. App. 1976); Esparza v. State, 367 S.W.2d 861, 862 (Tex. Crim. App. 1963).
Some challenges to property valuation require an objection during trial to
preserve the issue for appeal while others do not. If the defendant did not object to
the method of proving the property’s value at trial, he may not complain about the
method of valuation on appeal. See Moff v. State, 131 S.W.3d 485, 490–91 (Tex.
Crim. App. 2004); Turner v. State, 486 S.W.2d 797, 799 (Tex. Crim. App. 1972).
The same is true of objections to a witness’s qualifications to opine on fair market
value; these objections must be made in the trial court to be raised on appeal. See
Moff, 131 S.W.3d at 490; McCrory, 627 S.W.2d at 763. But a defendant convicted
of theft may challenge the evidentiary sufficiency of the stolen property’s fair market
value on appeal regardless of whether he objected to the proof at trial. See Moff, 131
S.W.3d at 488–89. Unpreserved objections concerning the competency or
admissibility of particular proof cannot be raised in the guise of a challenge to its
sufficiency. See id. at 490–92.
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B. The State introduced sufficient proof that the car had a value of at least
$1,500 when Sanchez stole it.
The evidence of the Bug’s fair market value leaves something to be desired.
Nonetheless, we conclude that the proof of its value was sufficient to permit a
rational juror to conclude it was worth at least $1,500.
The stolen car was a 2000 Volkswagen Bug. Laura Loera, the Bug’s owner,
testified that she purchased it for $3,500. She further testified that State’s Exhibit 4,
which was a photograph of a similar make and model of her Bug fairly and
accurately depicted her vehicle at the time of the theft. The vehicle depicted in that
photograph appeared to be in good condition.
Sanchez argues that Loera’s testimony about the purchase price is insufficient
because she never said when she purchased the vehicle. We agree. As the stolen
Bug’s owner, Loera’s testimony that she purchased it for $3,500 could in some
circumstances suffice to allow a rational juror to assess its fair market value. See
Sullivan, 701 S.W.2d at 909. But Loera’s car was about a decade and a half old when
Sanchez stole it and Loera did not specify when she bought it or for how long she
had owned it before Sanchez stole it. Shorn of this temporal context, her purchase-
price testimony was not sufficient to support the jury’s finding that the Bug’s value
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was $1,500 or more but less than $20,000 at the time of the offense. See Johnson,
676 S.W.2d at 418; Anderson, 871 S.W.2d at 903.1
Deputy K. Reed testified that he has researched the value of cars on several
occasions. Relying on the Kelley Blue Book, he opined that the value of the Bug was
more than $1,500 and less than $20,000. On cross-examination, he conceded that he
never had seen the vehicle in question, which was not recovered after Sanchez stole
it, and therefore could not calculate its exact value or the amount by which it may
have depreciated. Sanchez argues that Reed’s testimony is insufficient because the
State did not establish Reed’s qualifications to opine on the Bug’s value. He further
argues that Reed did not explicitly opine on the car’s fair market value and
acknowledged that he could not take into account depreciation given that he never
saw the car. We disagree that Reed’s testimony was insufficient.
Though Reed’s testimony about his qualifications was threadbare—consisting
only of his representation that he had researched the value of cars several times
before—Sanchez did not object that Reed was unqualified and therefore has not
preserved any error concerning Reed’s qualifications. Having failed to challenge
1
Because we conclude that Loera’s purchase-price testimony lacks the necessary
temporal context, we need not consider whether a bare recitation of the purchase
price and date of purchase would suffice. See TEX. R. EVID. 701; Nat. Gas
Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150, 156–59 (Tex. 2012) (property
owner’s valuation must not be conclusory; owner “must provide the factual basis
on which his opinion rests”).
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Reed’s qualifications or the basis for his opinion of the car’s value in the trial court,
Sanchez cannot do so on appeal. See Moff, 131 S.W.3d at 490; McCrory, 627 S.W.2d
at 763. Moreover, while Sanchez is correct that the phrase “fair market value” is
absent from Reed’s testimony, Reed opined about the car’s value in cash based on
the Kelley Blue Book. This testimony suffices as proof of fair market value. See
Cooper, 537 S.W.2d at 943; Esparza, 367 S.W.2d at 862. Contrary to Sanchez’s
argument, the rule requiring a non-owner expert to explicitly testify about stolen
property’s fair market value does not require the witness to literally use the phrase
“fair market value” in his testimony. Cf. Nat. Gas Pipeline Co. of Am. v. Justiss, 397
S.W.3d 150, 161 (Tex. 2012) (property owner “need not use the phrase ‘market
value’ in describing his valuation”). Thus, we conclude that Reed’s testimony did
not run afoul of the rule that he explicitly testify about the car’s fair market value.
Finally, the fact that Reed had not seen Loera’s Bug and thus could not
comment on its depreciation is not fatal because a non-owner expert need not base
his valuation opinion on an inspection of the actual property stolen. Thomas, 621
S.W.2d at 160; McCrory, 627 S.W.2d at 762. And the State presented evidence that
Loera or her husband were regularly driving the vehicle. On this record, which does
not contain any proof contrary to Reed’s valuation, we hold that his testimony was
sufficient to permit a rational juror to find that the fair market value of Loera’s Bug
was $1,500 or more but less than $20,000.
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Conclusion
We affirm Sanchez’s judgment of conviction.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
Publish. TEX. R. APP. P. 47.2(b).
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