Larry Glen Erwin v. State ( 2019 )

IN THE
TENTH COURT OF APPEALS
No. 10-18-00205-CR
LARRY GLEN ERWIN,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court at Law No. 2
McLennan County, Texas
Trial Court No. 2017-1236-CR2
MEMORANDUM OPINION
Larry Glen Erwin was convicted of Theft, a Class A misdemeanor, and sentenced
to 180 days in jail with a $4,000 fine. See TEX. PENAL CODE ANN. § 31.03(a), (e)(3). Because
the evidence is sufficient to support the conviction, we affirm the trial court’s judgment.
Nicole Reisner loaned cattle panels and t-posts to her friends, Tommy and Deanna
White. The Whites lived on property owned by Erwin and stored the cattle panels and t-
posts on Erwin’s property. When the Whites became delinquent in their rent to Erwin,
Erwin took the cattle panels and t-posts to satisfy some past-due rent. When Reisner
asked for the return of her property, Erwin refused. Reisner initiated a theft complaint.
In his sole issue, Erwin complains the evidence is insufficient to support his
conviction because the State did not prove fair market value of the cattle panels and t-
posts.
The Court of Criminal Appeals has expressed our standard of review of a
sufficiency issue as follows:
When addressing a challenge to the sufficiency of the evidence, we
consider whether, after viewing all of the evidence in the light most
favorable to the verdict, 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, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State,
514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
appellate court to defer "to the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
319. We may not re-weigh the evidence or substitute our judgment for that
of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
2007). The court conducting a sufficiency review must not engage in a
"divide and conquer" strategy but must consider the cumulative force of all
the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
about the meaning of facts or evidence, juries are permitted to draw any
reasonable inferences from the facts so long as each inference is supported
by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
resolved any conflicting inferences from the evidence in favor of the verdict,
and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
Crim. App. 2012). This is because the jurors are the exclusive judges of the
facts, the credibility of the witnesses, and the weight to be given to the
testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
Direct evidence and circumstantial evidence are equally probative, and
circumstantial evidence alone may be sufficient to uphold a conviction so
long as the cumulative force of all the incriminating circumstances is
sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
Erwin v. State Page 2
(Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
We measure whether the evidence presented at trial was sufficient
to support a conviction by comparing it to "the elements of the offense as
defined by the hypothetically correct jury charge for the case." Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
correct jury charge is one that "accurately sets out the law, is authorized by
the indictment, does not unnecessarily increase the State's burden of proof
or unnecessarily restrict the State's theories of liability, and adequately
describes the particular offense for which the defendant was tried." Id.; see
also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
as authorized by the indictment" includes the statutory elements of the
offense and those elements as modified by the indictment. Daugherty, 387
S.W.3d at 665.
Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).
A person commits the Class A misdemeanor offense of theft if the person
unlawfully appropriates property with intent to deprive the owner of property and the
value of the property stolen is $750 or more but less than $2,500. TEX. PENAL CODE ANN.
§ 31.03(a), (e)(3). When the proof of value is given by a non-owner, the non-owner must
be qualified as to his knowledge of the value of the property and must give testimony
explicitly as to the fair market value or replacement value of the property. Sullivan v.
State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). Fair market value means the amount
the property would sell for in cash, given a reasonable time for selling it. Keeton v. State,
803 S.W.2d 304, 305 (Tex. Crim. App. 1991).
However, when the owner of the property testifies as to the value of the property,
the owner may testify as to his opinion or estimate of the value of the property in general
and in commonly understood terms. Sullivan, 701 S.W.2d at 909. Testimony of this nature
Erwin v. State Page 3
is an offer of the witness' best knowledge of the value of the property. Id. Such testimony
will constitute sufficient evidence for the trier of fact to decide value based on the witness'
credibility. Id. This is true even in the absence of a specific statement as to "market value"
or "replacement value." Id. Further, when an owner testifies, there is a presumption that
the owner is testifying to an estimation of the fair market value. Id.; Trammell v. State, 511
S.W.2d 951, 954 (Tex. Crim. App. 1974). The owner may reasonably be understood to be
testifying as to the fair market value of the property either in terms of the purchase price
or the cost to him of replacing the stolen property. Sullivan, 701 S.W.2d at 909.
Reisner testified that to determine the value of the t-posts and the cattle panels
taken from her, she looked at prices on-line for new t-posts and cattle panels. She
estimated that the panels cost $100 to $125 each. When asked what she paid for the t-
posts, she estimated that “back then” they ran $3 to $6 each, depending on the height.
Erwin contends Reisner’s testimony was not credible because she had no
documentation as to what she had paid for the t-posts and cattle panels and because she
based her testimony on the cost of new t-posts and cattle panels. However, as the owner,
Reisner was not required to provide documentation and was permitted to testify as to
replacement cost.
Reisner testified that she loaned 19 cattle panels and at least 30 t-posts to White.
Based on her testimony, the jury could reasonably determine that the value of the panels
was at least $1,900 and the value of the t-posts was at least $90. Combined, the value of
the property appropriated was $1990, which is well within the jurisdictional amount
necessary to support the conviction. See TEX. PENAL CODE ANN. 31.03(e)(3).
Erwin v. State Page 4
Accordingly, after viewing all of the evidence in the light most favorable to the
verdict, any rational trier of fact could have found the essential element of value beyond
a reasonable doubt, and thus, the evidence was sufficient to support Erwin’s conviction.
Erwin’s sole issue is overruled, and the trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed October 30, 2019
Do not publish
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