Roy D. Day Jr. v. State

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
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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.
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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.
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