The opinion
ACCEPTED
03-15-00127-CR
5646314
THIRD COURT OF APPEALS
N O . 03-15-00127-CR AUSTIN, TEXAS
6/11/2015 4:42:28 PM
JEFFREY D. KYLE
CLERK
I N T H E C O U R T O F APPEALS
O F T H E T H I R D D I S T R I C T OF TEXAS FILED IN
3rd COURT OF APPEALS
AUSTIN, TEXAS
6/11/2015 4:42:28 PM
A A R O N JOSEPH HOES, JEFFREY D. KYLE
Appellant Clerk
V.
T H E STATE O F TEXAS
Appellee
Appeal i n Cause N o . CR01167 i n the
33rd Judicial District Court o f Blanco County, Texas
Brief For Appellee
OFFICE O F D I S T R I C T A T T O R N E Y
33^^ and 424'^ J U D I C I A L D I S T R I C T S
Wiley B. McAfee, District Attorney
P. O. Box 725, Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
g.bunyard@co.llano.tx.us
By: Gary W . Bunyard
Assistant District Attorney
State Bar N o . 03353500
A T T O R N E Y F O R APPELLEE
June 11, 2015
Oval Argument Waived
Identity Of The Parties
Trial Court
Honorable J. Allan Garrett
33rd Judicial District
Burnet County Courthouse Annex (North)
1701 East Polk St., Suite 74
Burnet, T X 78611
State/Appellee
Perry Thomas (Trial Counsel)
First Assistant District Attorney
P. O . Box 725
Llano, Texas 78643
(325) 247-5755
State Bar N o . 19849120
Anthony J. Dodson (Trial Counsel)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar N o . 05927200
Gary W . Bunyard (Appellate Counsel)
Assistant District Attorney
P. O. Box 725
Llano, Texas 78643
(325) 247-5755
State Bar N o . 03353500
g.bunyard@co.llano.tx.us
ii
Appellant
Thomas M . Felps (Trial Counsel)
Attorney at Law
P.O. Box 442
Johnson City, T X 78636
(830) 868-7106
State Bar N o . 06889700
Alice E. Price (Appellate Counsel)
Attorney at Law
408 South Liveoak
Lampasas, T X 76550
(512) 556-4777
State Bar N o . 00786177
apgregg50@hotmail.com
Aaron Joseph Hoes (Appellant)
T D C J #01987824
SID #06270672
Garza East/Chasefield Wilderness U n i t
4304 Highway 202
Beeville,TX 78102-8981
iii
Table Of Contents
Page
Index o f Authorities VI
Statement o f the Case 1
Statement on Oral Argument, 1
Response to Issues Presented 2
Statement o f the Facts 3
Summary o f the Argument - Response to Issue N o . 1 6
l.a. Bobby Humphrey had sufficient use and contact w i t h
the tractor to be able to render an opinion as to value.
l.b. Bobby Humphrey had a greater right o f possession to the
tractor than that o f Appellant and as such would be an
owner o f the tractor.
I.e. A rational j u r y could have found beyond a reasonable doubt
that the value o f the tractor was $1,500 or more but less
than $20,000 based on the testimony o f Bobby Humphrey.
Argument on Response to Issue N o . 1
1.1 Standard o f Review 8
1.2 Applicable Facts 9
1.3 Discussion and Conclusion 11
iv
Prayer for Relief.
Certificate o f Word Count
Certificate o f Service
Index Of Authorities
Case Law Page
Brooks V. State, 323 S.W.3d 893 (Tex. C r i m . App. 2010) 8
Brown v. State, 333 S.W.3d 606 (Tex. App.—
Dallas 2009, no pet.) 8
Griffith V. State, 976 S.W.2d 686 (Tex. App.--
Tyler 1997, pet. ref d) 9
Hooper v. State, 214 S.W.3d 9 (Tex. C r i m . App. 2007) 8
Jackson V. Virginia, 443 U.S. 307, 99 S. Ct. 2781,
61 L . Ed. 2d 560 (1979)) 8
Keeton v. State, 803 S.W.2d 304 (Tex. C r i m . App. 1991) 8
Penagraph v. State, 623 S.W.2d 341 (Tex. C r i m . App. 1981) 9
Sharp V. State, 707 S.W.2d 611 (Tex. C r i m . App. 1986) 9
Constitutions
None Cited.
Statutes/Rules
Tex. Penal Code Sec. 1.07 (a)(35) 9
vi
statement Of TIte Case
Appellant has adequately described the Statement o f the Case.
Statement on Oral Argument
The undersigned waives Oral Argument. Appellant has waived Oral Argument
and the undersigned does not believe that Oral Argument w i l l be beneficial for this
case for the reason that the issues are straight forward and lack any novel or complex
nuances. Should the Court believe that Oral Argument w i l l assist the Court i n any
way, the undersigned w i l l gladly accommodate the Court.
1
R e s p o n s e To I s s u e s Presented
Response T o Issue 1:
1 .a. Bobby Humphrey had sufficient use and contact w i t h the tractor
to be able to render an opinion as to value.
1 .b. Bobby Humphrey had a greater right of possession to the tractor
than that o f Appellant and as such would be an owner o f the
tractor.
I.e. A rational j u r y could have found beyond a reasonable doubt that
the value of the tractor was $1,500 or more but less than $20,000
based on the testimony of Bobby Humphrey .
2
statement Of The Facts
Appellant has not fully described the facts o f this case under the requirements o f
Texas Rules o f Appellate Procedure 38.1 (g).
I n April 2013 M r . E r w i n Sultemeier was the owner o f a 1979 Massey Ferguson
Model 245 tractor. RR Vol. 2 Pages 75, 77, 119 - 120. M r . Sultemeier's son-in-
law, Bobby Humphrey, helped M r . Sultemeier i n performing tasks on the
Sultemeier farm and ranch. RR Vol. 2 Pages 74 - 75. O n April 3, 2013, M r .
Humphrey last used the tractor and then stored the tractor by the barn by the old
house. RR Vol. 2 Page 75. O n April 5,2013, M r . Humphrey observed the gate at
the road to the old house to be open when it should not have been and heavy ruts
in the road. RR V o l . 2 Page 76. Checking the property further, M r . Humphrey
discovered that the tractor and a lowboy trailer to be missing. RR Vol. 2 Pages 76 -
77. M r . Humphrey, who had personally operated the tractor at the Sultemeier farm
and ranch for many years, testified at Appellant's trial that the tractor was w o r t h
approximately $7,500. RR V o l . 2 Pages 75, 77. M r . Humphrey further testified
that the value o f M r . Sultemeier's tractor was more than $1,500 but was less than
$20,000. RR Vol. 2 Pages 77 - 78.
3
I n July 2013 Hays County Sheriffs Deputy Troy Mayes conducted a traffic stop
o f a heavy duty pickup being driven by Appellant pulling a trailer w i t h a tractor on
the trailer. RR Vol. 2 Pages 91 - 93. The passenger o f the pickup was identified as
Laurie Chase. RR Vol. 2 Page 93. Further investigation showed that the V I N
number on the tractor i n Appellant's possession matched the V I N number o f the
tractor stolen from M r . Sultemeier. RR Vol. 2 Page 97. When questioned about
the tractor, Appellant told Deputy Mayes that Appellant had purchased the tractor
and produced a Bill o f Sale. RR Vol. 2 Page 96.
D u r i n g the investigation Hays County Detective Brad Doring arrived. A t that
time Detective Doring was part o f a multicounty auto theft task force. RR Vol. 2
Page 102. Detective Doring inspected the tractor and found it odd that there were
no stickers on the tractor, that the tractor was too clean for its age, and it appeared
that the tractor was recently painted i n a "homemade" fashion. RR Vol. 2 Pages
103 - 104. Detective Doring noticed that the Bill o f Sale presented by Appellant was
dated January 2, 2013, which was a date prior to the date that the tractor was stolen
from M r . Sultemeier. RR Vol. 2 Page 114 - 115. Detective Doring was unable to
locate the seller named on the Bill o f Sale. RR Vol. 2 Page 113 - 114. Detective
Doring testified that he was personally familiar w i t h the handwriting o f both
4
Appellant and his passenger, Ms. Chase. RR Vol. 2 Pages 116 - 117. I t was the
opinion o f Detective Doring that Ms. Chase was the author o f the Bill o f Sale. RR
Vol. 2 Page 117.
Appellant took the stand i n the defense case-in-chief. Appellant denied that he
was guilty o f the offense charged. RR Vol. 2 Page 128. Appellant testified that he
purchased the tractor o f f o f Craigslist sometime i n March/April 2013 for $4,000.
RRVol.2Page 133.
5
Summary Of The Argument on
R e s p o n s e to i s s u e No. 1
l.a. Bobby Humphrey had sufficient use and contact with the
tractor to be able to render an opinion as to value.
l.b. Bobby Humphrey had a greater right of possession to the
tractor than that of Appellant and as such would be an
owner of the tractor.
I.e. A rational jury could have found beyond a reasonable
doubt that the value of the tractor was $1,500 or more but
less than $20,000 based on the testimony of Bobby
Humphrey.
Appellant complains that there is no evidence that the tractor was w o r t h $1,500
or more but less than $20,000 and as such there is insufficient evidence to support
the State Jail Felony offense o f Theft. I n particular. Appellant complains that a
"non-owner" o f property can not testify about the value o f property owned by
another unless the basis for the opinion o f the "non-owner" has been established.
However, there was evidence related to valuation o f the property from a witness
who had substantial, long term use o f the property and who had actual care, custody,
6
and control over the property prior to it being stolen. The evidence described was
not challenged or impeached to any degree. Being the ultimate trier o f fact, the j u r y
could rationally fmd beyond a reasonable doubt that the value o f the property stolen
was $1,500 or more but less than $20,000.
7
Argument On R e s p o n s e to Issue No. 1
1,1 Standard ofReview
I n evaluating legal sufficiency o f the evidence, reviewing courts look at all
evidence i n the light most favorable to the verdict to determine whether any rational
fact-finder could have found guilt beyond a reasonable doubt. Brooks v. State, 323
S.W.3d 893, 912 (Tex. C r i m . App. 2010) {ciimg Jackson v. Virginia, 443 U.S. 307,
319, 99 S. Ct. 2781, 61 L . Ed. 2d 560 (1979)); Brown v. State, 333 S.W.3d 606, 608
(Tex. App.—Dallas 2009, no pet.).
Legal sufficiency is examined under the direction o f the Brooks opinion, while
giving deference to the responsibility o f the j u r y "to fairly resolve conflicts i n
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. C r i m . App. 2007) (citing
Jackson, 443 U.S. at 318-19).
Fair market value o f property may be proven i n a variety o f ways, including the
opinion o f the owner and the opinion o f a non-owner expert opinion. Keeton v.
State, 803 S.W.2d 304 (Tex. C r i m . App. 1991).
8
"Owner" is defined as a person who (A) has title to the property, possession o f
the property, whether lawful or not, or a greater right to possession o f the property
than the actor; or (B) is a holder i n due course o f a negotiable instrument. Tex.
Penal Code Sec. 1.07 (a)(35).
I n addition, when it comes to witness credibility and the weight to be given a
witness's testimony, the j u r y is the exclusive judge. Penagraph v. State, 623 S.W.2d
341, 343 (Tex. C r i m . App. 1981). The j u r y may believe all, some, or none o f any
witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. C r i m . App. 1986).
The j u r y may use common sense and apply common knowledge, observation, and
experience gained i n the ordinary affairs o f life when giving effect to the inferences
that may reasonably be drawn from the evidence. Griffith v. State, 976 S.W.2d 686,
690 (Tex. App.--Tyler 1997, pet. ref d).
1.2 Applicable Facts
I n this case, Bobby Humphrey is the son-in-law o f E r w i n Sultemeier, the owner
o f the stolen tractor. RR Vol. 2 Pages 74 - 75, 77, 119 - 120. Bobby Humphrey
was familiar w i t h the history o f the tractor beginning from when M r . Sultemeier's
9
brother bought the tractor new i n 1979. RR Vol. 2 Page 77. Bobby Humphrey
personally used the tractor on a regular basis for many years. RR V o l . 2 Page 75.
Around the time that the tractor was stolen Bobby Humphrey was i n fact exercising
care, custody, and control over the tractor i n that he used the tractor on a regular
basis and, i n this particular instance, stored the tractor i n a shed next to the old house
once he was finished w i t h the tractor for that day. RR V o l . 2 Pages 75, 77. I t was
Bobby Humphrey and his son who later discovered that the tractor was missing.
RR Vol. 2 Pages 7 6 - 7 7 .
A t trial Bobby Humphrey testified that i n his opinion the tractor was worth
$7,500. RR Vol. 2 Page 77. Additionally, Bobby Humphrey testified that the value
o f the tractor was more than $1,500 but less than $20,000. RR V o l . 2 Pages 77 - 78.
I n his defense, Appellant took the stand and testified that he bought the tractor
sometime i n March/April for $4,000 and presented a Bill o f Sale to Det. Doring that
contained the tractor's V I N number and was dated January 2, 2013. RR V o l . 2
Pages 114, 133.
10
Prior to deliberation, the trial court instructed the j u r y as to the definition o f the
word "value". CR Vol. 1 Pages 91 - 95. The trial court instructed the j u r y that:
'Value" means the fair market value o f the property at the time and place o f
the offense, or i f the fair market value o f the property cannot be ascertained,
the cost o f replacing the property w i t h i n a reasonable time after the theft.
Id.
The trial court also instructed the j u r y as to the definition o f the term "owner"
as follows:
"Owner" means a person who has title to the property, possession o f the
property, whether lawful or not, or a greater right to possession o f the
property than the defendant.
CRVol. lPages91-95.
IJ Discussion and Conclusion
The value opinion given by Bobby Humphrey was legally sufficient to justify the
verdict o f the jury. While not named as the owner o f the tractor i n the Indictment,
Bobby Humphrey met the definition o f "owner" i n that he had a greater right o f
possession to the tractor than that o f Appellant. Bobby Humphrey had substantial
knowledge o f the history and condition o f the tractor. Appellant's trial counsel
never objected to the qualifications o f Bobby Humphrey to give an opinion as to the
value o f the tractor nor did counsel make any attempt to cross-examine Bobby
11
Humphrey on how M r . Humphrey arrived at this opinion. N o t only did Bobby
Humphrey give an opinion as to a specific value but he also gave an opinion that the
value o f the tractor was greater than $1,500 but not as much as $20,000. The only
other testimony given as to value was the Appellant's o w n testimony, that he bought
the tractor for $4,000. There was no mention o f the issue o f value by Appellant's
trial counsel at closing arguments. A rational j u r y could very well conclude from
this evidence, beyond a reasonable doubt, using their common sense and application
o f common knowledge, observation, and experience gained i n the ordinary affairs
o f life, that the value o f the tractor, as the term "value" was defined i n the Court's
Charge, was $1,500 or more but less than $20,000.
I n as much as Appellant does not challenge on appeal any other issue the
judgment and sentence entered by the trial court should be affirmed.
12
Prayer For Relief
Wherefore, Appellee prays the Court deny the relief requested by Appellant and
affirm the judgment and sentence o f the trial court.
Respectfully submitted,
OFFICE O F D I S T R I C T A T T O R N E Y
33^^ and 424^^ J U D I C I A L D I S T R I C T S
Wiley B. McAfee, District Attorney
P. O . Box 725
Llano, Texas 78643
Telephone Telecopier
(325) 247-5755 (325) 247-5274
Assistant District Attorney
State Bar N o . 03353500
g.bunyard@co.llano.tx.us
A T T O R N E Y FOR APPELLEE
C E R T I F I C A T E OF WORD C O U N T
This is to certify that the pertinent portion o f this brief contains 1,778 words
printed i n Aldine401 B T 14 font.
unyara/
Assistant District Attorney
13
C E R T I F I C A T E OF SERVICE
This is to certify that a true copy o f the above and foregoing instrument, together
w i t h this proof o f service hereof, has been forwarded by EServe and by email on the
I f ^ day o f June 2015, to Ms. Alice E. Price, Attorney for Appellant, at
apgregg50@hotmail.com.
Assistant District Attorney
14