Sullivan v. State

TEAGUE, Judge,

dissenting.

I first caution the reader of the majority opinion that there is much dicta therein regarding a “non-owner” of personal property testifying to the property’s value. I caution the reader because there is no evidence in this record going to any “non-owner” testifying to the value of the secondhand rifle that was stolen from its lawful owner, David Lindsey. The only evidence that goes to the value of the rifle came from Lindsey and no one else. Of course, Lindsey could have testified to the value of the property even though he was not qualified as an expert on what the fair market value of the property was. Davila v. State, 547 S.W.2d 606 (Tex.Cr.App.1977). In Johnson v. State, 676 S.W.2d 416 (Tex.Cr.App.1984), this Court also held: “We believe that where the owner of property testifies that a short time before the wrongful appropriation occurred he paid a certain sum of money in United States currency for the property, this is sufficient to make a prima facie case of the fair market value of the item unlawfully taken.” Unfortunately for the State, Lindsey had not purchased the rifle “a short time” before it was stolen, nor did he ever testify to the fair market value of the rifle at the time and place where it was stolen, nor was he ever qualified to do so.

The issue that is before this Court is whether the State proved all that it had alleged in the indictment in this cause. In pertinent part, the indictment alleges that Howard Dean Sullivan, hereinafter referred to as the appellant, “heretofore on or about September 20, 1982, did unlawfully, knowingly and intentionally appropriate property, other than real property, to-wit: one 30-30 lever action rifle of the value of more than two hundred dollars and less than ten thousand dollars by exercising control over said property without the effective consent of David Lindsey, the owner of the property, and with intent to deprive said owner of said property.” The State had the burden to establish, inter alia, that the rifle had a value of more than $200. The jury was so instructed and was also instructed that if it had a reasonable doubt “as to whether the 30-30 lever action rifle in question is of value ... you must give the benefit of such doubt to the Defendant and you cannot convict the Defendant of a felony theft, and in such event you will then consider whether the Defendant is guilty of misdemeanor theft,” and was further instructed that if it found beyond a reasonable doubt that the appellant had unlawfully appropriated the rifle but it found that the rifle had a value of more than $20 but less than $200 it could find the appellant guilty of misdemeanor theft. The jury found the appellant guilty of the offense of felony theft, “as alleged in ... the indictment.” The appellant’s trial occurred in June, 1983. The Texarkana Court of Appeals affirmed in an unpublished opinion, rejecting the appellant’s contention that the evidence was insufficient to establish that the fair market value of the rifle was more than $200. Sullivan v. State, No. 6-83-091-CR. In affirming the conviction, the court of appeals stated the following: “David Lindsey testified he purchased his gun, was familiar with its value, and in his opinion its market value at the time of the theft was $500.” In light of the record, this factual statement is deceptive.

Lindsey testified that on September 28, 1982 he reported that his residence had been burglarized. Among other things, a used 30-30 Winchester rifle, which he had purchased from an unnamed individual in 1979, was taken by the burglar or burglars. The rifle was subsequently returned to him. Because the appellant’s trial counsel’s objection was sustained, Lindsey was not permitted to give “an idea about what *911 the value of this gun was” nor, because defense counsel’s objection was sustained, was he permitted to testify what he paid fo'r the rifle or what he would have sold the rifle for if a willing purchaser had come forth. Lindsey did testify, however, that he did not “have any idea what the price of the gun would have been about the time it was stolen,” but did testify that “I would say [that the market value of the gun] was $500. [To me] it’s worth Five Hundred Dollars ($500.00) at least ... That’s what I’d take for it.” Lindsey also testified that he arrived at the $500 figure because he had never considered selling the rifle. The appellant testified that he had possession of the rifle and another weapon only as security for a loan of $25 that he had made to another individual.

Our Penal Code provides, inter alia, that value of personal property is the fair market value of the property at the time and place of the offense, or, if the fair market value cannot be ascertained, then the cost of replacing the property within a reasonable time after the theft. V.T.C.A., Penal Code, Section 31.08(a)(1). Although given at least two opportunities, when the witness Murphy, who testified that he was a gun trader, and when the appellant himself testified, that he had “asked a few people what [the rifle and the other weapon] were worth,” the prosecuting attorney never attempted to obtain testimony from these persons what the fair market value of the rifle was at the time and place of the offense. This is prosecution ineptitude at its worst. There is simply no evidence in the record on appeal that might reflect or indicate what the fair market value of the rifle might have been at the time and place of the offense. Contrary to the majority opinion, Lindsey did not unequivocally testify that “the value of the gun [sic] was $500.00.” Neither Trammell v. State, 511 S.W.2d 951 (Tex.Cr.App.1974), nor Coronado v. State, 508 S.W.2d 373 (Tex.Cr.App.1974), upon which the majority opinion so heavily relies, will support its holding that “when the owner of the property is testifying as to the value of the property, he or she may testify as to his or her opinion or estimate of the value of the property in general and commonly understood terms.”

Trammell v. State, supra, is not even in point. The owner of the property, apparently without objection, testified that she purchased the item that had been stolen from her from a business establishment for $89.95. On cross-examination by defense counsel, she testified without objection that “you couldn’t buy it anywhere for fifty.” Counsel also asked her what she would sell the item for, and she replied without objection: “$50.00.” This Court stated the following: “Though she never stated that the cash market value of the television set was $50.00 in clear and precise language, her testimony was obviously meant to convey that idea and must have been so understood by the jury and appellant.” (954).

The majority opinion interprets Coronado v. State, supra, in the following manner:

The owner of the property testified that he assessed the value of the tools at approximately one half of the purchase price. We held that this testimony, though in no way purported to be the ‘fair market value’ of the tools, was sufficient to allow a rational trier of fact to assess the value of the property.

The following, however, is actually what this Court stated and held:

Appellant next contends that there is insufficient evidence to show the value of the items taken as exceeding $50. The indictment charged the appellant with taking ‘one tool box and assorted tools;’ the proof showed taking of two toolboxes and assorted tools. Montemayor [the owner] valued the tools at the time of the offense at approximately one-half of the original purchase price, or a total value of over $300.

... The proof showed each toolbox to be worth $10 and that each contained at least $52.50 worth of wrenches. We therefore hold that the evidence is sufficient to support a conviction for felony theft, as alleged in the indictment.

How Coronado v. State, supra, supports the majority opinion’s above holding, much like the majority opinion’s heretofore un *912 heard of legal theory regarding “estimated fair market value”, escapes me.

In resolving the issue, based upon past cases of this Court, one must be careful, unlike the majority opinion does in this cause, to distinguish those cases where the proof was uncontested or uncontradicted and where the proof was contested or contradicted. Nevertheless, it is axiomatic that if the value of the property is contested the prosecution must come forth with admissible proof to establish the value of the property beyond a reasonable doubt.

It is also axiomatic that the value of property allegedly unlawfully taken not only determines the jurisdiction of the court but also the punishment that will be assessed in the event of conviction. In proving value of the property, when value of the property becomes an issue, the criterion or test is the reasonable cash or fair market value of the property at the time and place of the offense, but if the property has no cash market value, then replacement value governs. In Hodges v. State, 143 Tex.Cr.R. 573 , 160 S.W.2d 262 (1942), this Court expressly approved the following meaning of the term “fair market value”, which is not statutorily defined: “The term [fair] market value means the fair cash value of the property as between one who desires to purchase and one who desires to sell or the cash price for which the property is commonly sold, or the price fixed by buyer and seller in open market in the usual and ordinary course of lawful trade and competition. The market value is to be fixed at the time and place that the property was taken and delivered, if it was delivered.” In this instance, the trial judge gave the jury substantively the same instruction. Thus, in order to obtain fair market value, it is necessary to have an actual or hypothetical willing seller and buyer. 445 Webster’s Ninth New Collegiate Dictionary (1985). The terms or expressions “market value”, “cash market value”, “reasonable market value”, “fair market value”, or “fair cash market value” are substantially synonymous. Senters v. State, 163 Tex.Cr.R. 423 , 291 S.W.2d 739 (1956). Also see 536 Black’s Law Dictionary (Fifth Edition, 1979). Of course, market value is not to be determined from what an eager buyer or seller would be willing to pay or sell the property for, or what a seller who obtained it as an unredeemed pledge might be willing to take for it were he anxious or under necessity to sell. Again, “market value” means the amount the property in question would sell for in cash, given a reasonable time for selling it. Senters v. State, 163 Tex.Cr.R. 423 , 291 S.W.2d 739 (1956). 1

When the item of personal property is second hand, it is incumbent upon the prosecution to present evidence of what the fair market value of that second hand property might be, and such must come from a qualified witness, absent an objection, and this Court has so held. See Contreras v. State, 130 Tex.Cr.R. 100 , 92 S.W.2d 1030 (1936). Cf. Johnson v. State, supra, for the rule regarding newly purchased property that has been stolen within a short time after it was purchased.

In this instance, there is no testimony from any qualified witness to prove what the fair market value of Lindsey’s second hand rifle might have had at the time and place it was unlawfully taken. Thus, the allegata and the probata in this cause are in conflict. The majority opinion erroneously holds to the contrary. I dissent.

. My research to date does not reflect or indicate any such legal phrase as "estimated fair market value"; apparently, the majority opinion therefore believes there is a need among the bench and the bar of this State for a new legal phrase.