Shawn Henry v. State ( 2006 )

Opinion issued December 14, 2006

In The

Court of Appeals

For The  

First District of Texas

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NO. 01-06-00229-CR

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SHAWN HENRY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 179th District Court

Harris County, Texas

Trial Court Cause No. 1039981

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MEMORANDUM OPINION

Appellant, Shawn Henry, pleaded not guilty to the offense of felony theft of a motor vehicle, a Center Point Energy truck, valued at over $20,000 and less than $100,000. A jury rejected appellant's necessity defense, found him guilty, also rejected his request for community supervision, and assessed his punishment at six years' confinement in prison. In his sole issue on appeal, appellant contends that the State did not prove ownership or the value of the truck beyond a reasonable doubt and, therefore, that the trial court abused its discretion by denying appellant's motion for directed verdict. We affirm.

Background

Shortly after dark on a September evening, Alvin Warren, a Center Point Energy cable splicer, was working below street level with another Center Point Energy worker. Warren had left the lights of his Center Point Energy truck flashing and the motor running to power a generator on the truck that supplied electrical light and aeration for the underground repair work that he and his coworker were performing that evening.

When Warren's underground light went out suddenly, he climbed up the manhole-access ladder to return to street level, where he saw his truck at the corner of Pease and Smith streets. He then saw the truck being driven at high speed down Smith Street, but in the wrong direction and against the flow of traffic.

Appellant acknowledged that he had taken the truck. Observers on other Houston streets described appellant's driving as high speed and erratic. He nearly collided with a group of pedestrians at an intersection and collided with another vehicle. Several police-officer witnesses who were in the area of the Harris County criminal courts testified that appellant eventually crashed the truck into a light pole at the corner of San Jacinto and Franklin streets after attempting a left-hand turn from the right lane of traffic. The impact of the crash threw the generator and several pieces of equipment off the truck. The truck was only six months old, but was beyond repair after the collision. Though he agreed that he took the truck, appellant claimed that he was being pursued by men who had guns and would attack and kill him, and that he drove to the courthouse area to get help from the sheriff's department. An officer at the scene testified that appellant admitted that he had consumed cocaine.

Standard of Review

A challenge to a ruling on a motion for instructed verdict presents a challenge to the legal sufficiency of the evidence. See Madden v. State, 799 S.W.2d 683, 686 (Tex. Crim. App. 1990); Garcia v. State, 17 S.W.3d 1, 4 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd). In reviewing a legal sufficiency challenge, we view the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-319, 99 S. Ct. 2781, 2788-89 (1979). We do not reweigh the evidence when we address a legal sufficiency challenge. See King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000); Fite v. State, 60 S.W.3d 314, 317 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd). If any evidence establishes guilt beyond a reasonable doubt, and if the fact finder believes that evidence, then this Court may not reverse the fact finder's judgment on legal insufficiency grounds. Gaines v. State, 874 S.W.2d 733, 735 (Tex. App.--Houston [1st Dist.] 1994, no pet.).

A person commits third-degree felony theft by unlawfully appropriating property, worth $20,000 or more and less than $100,000, with intent to deprive the owner of the property. Tex. Pen. Code Ann. § 31.03(a), (e)(5) (Vernon Supp. 2006); see Ray v. State, 106 S.W.3d 299, 301 (Tex. App.--Houston [1st Dist.] 2003, no pet.).

Challenge to Ownership Element of Theft

Appellant acknowledges that Warren testified that the value of the Center Point Energy truck was between $40,000 and $50,000. Appellant focuses instead on the "owner" element of the offense of theft and the indictment, which accused appellant of "acquiring and exercising control over property, namely a motor vehicle, owned by Alvin Warren . . . (emphasis added)." Appellant argues that the actual owner of the truck was Center Point Energy Company, and that Warren's statement that the value of the ruined truck was between $40,000 and $50,000 was hearsay. Appellant further contends that Warren's statement neither established that he had personal knowledge of the value of the truck, nor met the requirements of section 31.08(a) of the Penal Code, which defines "value," for purposes of the theft statute, as either of the following:

(1) the fair market value of the property . . . at the time and place of the offense; or

(2) if the fair market value of the property cannot be ascertained, the cost of replacing the property within a reasonable time after the theft.

Tex. Pen. Code Ann. § 31.08(a) (Vernon 2003); see Ray, 106 S.W.3d at 301 (quoting same).

The theft statute does not define "fair market value," but case law describes these terms as the amount the property would sell for in cash, given a reasonable time for selling it. Ray, 106 S.W.3d at 301 (citing Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991)). Fair market value may be established by evidence of the retail price or sale price, by an owner's opinion testimony of value, or an expert's opinion of value. Ray, 106 S.W.3d at 301 (citing Keeton, 803 S.W.2d at 305). Though appellant contends that Center Point Energy, and not Warren, was the owner of the demolished truck, the court's charge to the jury properly instructed that a person may qualify as the "owner" of property if the person has "possession of the property . . . or a greater right to possession of the property than the actor." See Tex. Pen. Code Ann. § 1.07(35(A) (Vernon Supp. 2006). Warren identified the demolished truck as his truck, Number 2824, and stated that the truck was "assigned" to him. See id. Moreover, appellant acknowledged, under cross-examination, that Warren had "a greater right of possession of that truck than [appellant]." Accordingly, the evidence is legally sufficient to establish that Warren had possession of the truck, a greater right to possess the truck than appellant, and, therefore, establishes that Warren was the owner of the truck, as stated in the indictment, for purposes of the theft statute. See id.

A person who qualifies as the owner of property may testify as to the value of the property by stating his opinion or his estimate concerning value using general and commonly understood terms. See Ray, 106 S.W.3d at 301 (citing Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986)). In a theft prosecution, an owner who attests to a value of stolen property is presumed to be stating an estimated fair market value, in accordance with section 31.08(a) of the Penal Code. See Sullivan, 701 S.W.2d at 909. In addition to stating the value as over $20,000, specifically, between $40,000 and $50,000, Warren stated that the truck was new, had been purchased just six months earlier, and was damaged beyond repair.

We hold that the evidence is legally sufficient to establish that the truck appellant demolished was worth over $20,000, but less than $100,000, and that the trial court properly overruled appellant's motion for directed verdict.

We overrule appellant's sole issue.

Conclusion

We affirm the judgment of the trial court.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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