Donald Eugene Mims v. State ( 2014 )

IN THE
TENTH COURT OF APPEALS
No. 10-13-00153-CR
DONALD EUGENE MIMS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 85th District Court
Brazos County, Texas
Trial Court No. 10-03653-CRF-85
MEMORANDUM OPINION
Donald Mims was convicted of theft, a state jail felony and sentenced to 22
months in a state jail facility and a $2,500 fine. TEX. PENAL CODE ANN. § 31.03(a), (e)(4)
(West Supp. 2013). Because the trial court did not abuse its discretion in allowing
expert testimony regarding the replacement value of the property, the trial court’s
judgment is affirmed.
Mims was accused of stealing tires and rims from Robert Sauseda’s Chevy
Tahoe. The State alleged in the indictment that the value of the tires and rims was
$1,500 or more, but less than $20,000. In his sole issue, Mims contends the trial court
abused its discretion in allowing a state’s witness to testify about the replacement value
of the tires and rims rather than their fair market value.
We review a trial court's decision to admit or exclude evidence under an abuse of
discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010). The
trial court abuses its discretion only when the decision lies outside the zone of
reasonable disagreement. Id.
“Value,” as defined by the Penal Code, is “the fair market value of the property
or service at the time and place of the offense.” TEX. PENAL CODE ANN. § 31.08(a)(1)
(West 2011). “Fair market value” has been held to mean the amount the property
would sell for in cash, giving a reasonable time for selling it. Keeton v. State, 803 S.W.2d
304, 305 (Tex. Crim. App. 1991). But, if the fair market value of the property cannot be
ascertained, then “value” is the cost of replacing the property within a reasonable time
after the theft. TEX. PENAL CODE ANN. § 31.08(a)(2) (West 2011).
The State argues that the market value of the rims could not be ascertained; thus,
the State was permitted to present testimony of the replacement cost which, combined
with the tires, was approximately $2,700. Ascertainment of market value presupposes
an existing, established market. Infante v. State, 404 S.W.3d 656, 661 (Tex. App.—
Houston [1st Dist.] 2012, no pet.). The State’s expert testified that he could not identify
the specific brand of the rims because the caps were missing. Thus, he looked at similar
rims and offered an opinion as to the replacement value of those types of rims which
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was $1,663.96. The replacement value of the rims alone fell within the range of value
alleged by the State in its indictment. Because the rims could not be identified, there
was no market for the rims. Thus, market value could not be ascertained. The trial
court did not abuse its discretion in allowing testimony regarding the replacement
value of the rims.
The tires, on the other hand, were identifiable and fair market value could be
ascertained. Alternatively, even if the testimony of the replacement value should not
have been admitted, Mims was not harmed. See TEX. R. APP. P. 44.2(b). The expert
testified that a fair market value for a combination of both the tires and the rims was
between $1,800 and $2,000.1
Mims’s sole issue is overruled. We affirm the trial court’s judgment.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed June 26, 2014
Do not publish
[CR25]
1Furthermore, Sauseda, the victim, testified he had paid $2,000 for the rims and tires only a short period
of time before they were taken.
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