Davis Jr., John Andrew v. State

Affirmed and Memorandum Opinion filed January 26, 2006

Affirmed and Memorandum Opinion filed January 26, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00610-CR

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JOHN ANDREW DAVIS, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 185th District Court

Harris County, Texas

Trial Court Cause No. 968,824

M E M O R A N D U M   O P I N I O N

A jury convicted appellant John Andrew Davis, Jr. of theft, sentenced him to six years= confinement, and assessed a fine of $1,000.  In two issues, appellant challenges the legal sufficiency of the evidence (1) to sustain a conviction for any offense and (2) to sustain a conviction for a third degree felony rather than a state jail felony.  We affirm.

                                                  Background

In August 2003, appellant called Richard Parker, a salesman at an automobile dealership near downtown Houston, to inquire about a used 1996 Mercedes convertible the dealership had for sale for $27,500. Soon thereafter, appellant came in to look at the vehicle and asked if he could take the car to a mechanic.  The dealership owner granted appellant permission to take the car, and appellant returned the next day with a list of repairs. Appellant negotiated the sales price with Parker and the owner, and they agreed on $22,000 for the car Aas is@ and $24,500 if the dealership made the repairs.  Though this price agreement was reached, appellant did not agree to buy the car that day.

Appellant returned on a Friday about a week later and asked to take the car for the weekend.  His niece, for whom he was considering purchasing the vehicle, was flying into Houston, and appellant wanted her to drive it that weekend.  Parker allowed appellant to take the car over the weekend provided that he return it on Monday.  However, appellant did not return the car.  Parker called appellant several times that Monday, left a voicemail message, and called him every day for the next ten to twenty days.  Parker never reached appellant, and appellant never returned Parker=s calls or otherwise explained his failure to return the car.

The dealership=s general manager, Bill Driskill, contacted the police, who advised him to send appellant a demand letter.  The demand letter was returned as unclaimed, and the dealership ultimately reported the vehicle stolen.  Later that fall, at least several weeks after appellant failed to return the vehicle, Driskill finally reached appellant, and he and Parker had a telephone conversation with appellant.  Appellant admitted he still had the car but claimed he had sent a friend to the dealership with a cashier=s check for $20,000.  When Driskell and Parker asked if he could produce a receipt, appellant responded that he would, but he never did.  After an investigation, the dealership found no evidence of receiving such a check, which would nevertheless have been insufficient to complete a complex transaction such as the sale of a car.  Several months later, after the police became involved, appellant hired an attorney who sent the dealership a letter demanding that it honor their oral sales agreement and sell him the car for $22,000, which had been deposited into the attorney=s trust account.  The dealership refused.

Appellant was charged with felony theft and convicted.  This appeal followed.  In two issues, appellant challenges the legal sufficiency of the evidence to support his conviction.

                                           Standard of Review

In evaluating a legal‑sufficiency claim attacking a jury=s finding of guilt, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000).  We do not ask whether we believe the evidence at trial established guilt beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318B19 (1979).  Rather, we determine only whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000). In our review, we accord great deference A>to the responsibility of the trier of fact [to fairly] resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.=@  Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996) (quoting Jackson, 443 U.S. at 319).  We presume that any conflicting inferences from the evidence were resolved by the jury in favor of the prosecution, and we defer to that resolution.  Id. at 133 n.13.

                                                      Analysis

Under the Texas Penal Code, a person commits the offense of theft Aif he unlawfully appropriates property with intent to deprive the owner of property.@  Tex. Penal Code Ann. ' 31.03(a) (Vernon Supp. 2005).  This intent to deprive must exist at the time the property is taken.  Flores v. State, 888 S.W.2d 187, 191 (Tex. App.CHouston [1st Dist.] 1994, pet. ref=d). In his first issue, appellant asserts the evidence is legally insufficient to sustain a conviction for any offense because there is no evidence he intended to steal the car when he took it and because Athe State=s evidence fell short on . . . ownership and value.@

Intent to deprive can be inferred from the circumstances, including the words, actions, or conduct of the defendant.  See Winkley v. State, 123 S.W.3d 707, 713 (Tex. App.CAustin 2003, no pet.); Flores, 888 S.W.2d at 191.  The jury heard evidence that appellant failed to return the car as promised, failed to contact the dealership to explain his actions, and failed to return or answer calls.  Appellant also lied about delivering a cashier=s check to pay for the car.  This constitutes legally sufficient evidence of appellant=s intent to steal the car at the time of taking.  See Rowland v. State, 744 S.W.2d 610, 613 (Tex. Crim. App. 1988) (holding that failure to return borrowed truck as promised and never contacting owner with an explanation is circumstantial evidence of intent to deprive); Amado v. State, 983 S.W.2d 330, 333 (Tex. App.CHouston [1st Dist.] 1998, pet. ref=d) (AThe intent to deprive may be inferred from the failure to return the property.@); Nielsen v. State, 836 S.W.2d 245, 248 (Tex. App.CTexarkana 1992, pet. ref=d) (finding sufficient evidence of intent to deprive, including keeping rental car longer than rental period without contacting rental company to explain or pay rental charges and inability to be reached at address given).

Appellant argues the State failed to prove that he took the car from someone with a greater right of ownership.  The indictment alleged that Parker owned the stolen vehicle.  Appellant contends that because Parker ceased working for the dealership on August 30, 2003, Parker was not the owner at the time of the theft, which appellant contends was at some point later in time.  However, this argument fails because the evidence is sufficient to show that appellant intended to steal the car at the time he took it rather than weeks later when Parker left.

Appellant emphasizes that he eventually offered, through his attorney, to pay for the car.  However, the controlling factor is intent, not length of deprivation.  See Winkley, 123 S.W.3d at 713 (AAppellant=s intent is what is relevant rather than the actual length of deprivation, since there is no duty to show that an actual deprivation occurred.@); Menke v. State, 740 S.W.2d 861, 864 (Tex. App.CHouston [14th Dist.] 1987, pet. ref=d) (holding that A[e]ven if a taking later becomes temporary, the temporary nature of the taking does not automatically negate intent to deprive the owner permanently@).  Further, offering to pay for the car several months later after the police are involved does not negate an offense for the full value of the property.  See Newman v. State, 115 S.W.3d 118, 122 (Tex. App.CTexarkana 2003, no pet.) (ASubsequent replacement of all or part of the property or replacing the property with other similar property does not defeat prosecution for the full value of the original property.@); Menke, 740 S.W.2d at 864 (AMenke=s return of [part of the stolen money] at the time she learned that she was under investigation does not indicate that she lacked the necessary intent.@).

We conclude the evidence is legally sufficient to sustain a felony conviction for theft.  Accordingly, we overrule appellant=s first issue.

In his second issue, appellant complains the evidence is legally insufficient to sustain a conviction for a third degree felony rather than a state jail felony. Under the Penal Code, the value of the stolen property determines the level of the offense.  See Tex. Penal Code Ann. ' 31.03(e) (Vernon Supp. 2005).  Theft of property valued between $1,500 and $20,000 is a state jail felony whereas theft of property valued between $20,000 and $100,000 is a third degree felony.  See id. ' 31.03(e)(4), (5).  The Avalue@ of such property under the statute means fair market value, which is the amount the property would sell for in cash, given a reasonable time for selling it.  See id. ' 31.08(a) (Vernon 2003); Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); Valdez v. State, 116 S.W.3d 94, 98 (Tex. App.CHouston [14th Dist.] 2002, pet. ref=d).

When appellant took the car, it did not have the convertible hard top, which remained at the dealership.  Appellant argues that the value of the hard top was at least $3,000, which, if deducted from the sales price of $22,000, brings the value of the property below the $20,000 threshold for a third degree felony.  However, Driskill testified that the fair market value of the vehicle was not the sales price but approximately $25,000, which he based on the amount the dealership recovered on its insurance claim plus the deductible the dealership paid. The property=s owner is competent to testify to fair market value, and the amount received from an insurance claim is evidence of fair market value.  See Valdez, 116 S.W.3d at 98 (noting that Aan owner may testify either in terms of purchase price or replacement cost, and is presumed to be testifying to an estimation of the fair market value@); Jimenez v. State, 67 S.W.3d 493, 506 (Tex. App.CCorpus Christi 2002, pet. ref=d) (holding that evidence of amount paid on insurance claim is legally sufficient to prove value).  Driskill also testified that the hard top alone was worthless to the dealership and that the cost of purchasing such a hard top is between $3,000 and $8,000. Thus, assuming the jury determined the fair market value of the car was $25,000 and deducted $3,000 for the missing hard top, the net value of the car is still $22,000, well above the third degree felony cutoff.  See Keeton, 803 S.W.2d at 306 (stating that factfinder is entitled to choose between two conflicting values in determining fair market value); Valdez, 116 S.W.3d at 99 (A[W]here contradictory evidence is presented to the jury as to value, it is the duty of the jury to resolve any conflicts in the evidence.@).  This evidence is legally sufficient to support appellant=s conviction, and we overrule his second issue.

                                                   Conclusion

Having overruled both of appellant=s issues, we affirm the trial court=s judgment.

/s/      Margaret Garner Mirabal*

Senior Justice

Judgment rendered and Memorandum Opinion filed January 26, 2006.

Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Mirabal.

Do Not Publish C Tex. R. App. P. 47.2(b).

*Senior Justice Margaret Garner Mirabal sitting by assignment.