                                   NO. 07-12-0129-CR
                                   NO. 07-12-0130-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                OCTOBER 12, 2012
                          _____________________________

                                     JERRY CURTIS,

                                                                  Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                          _____________________________

                 FROM THE COUNTY COURT OF GARZA COUNTY;

           NOS. 10851 & 10871; HONORABLE LEE NORMAN, PRESIDING
                       _____________________________

                                     Opinion
                          _____________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Jerry Curtis appeals two convictions, one for burglary of a vehicle and the other

for attempted theft in an amount of $500 or more but less than $1500. Six issues are

asserted before us.    They concern whether 1) the trial court erred in denying his

challenges for cause levied against venire members, 2) the offense of attempted theft

was barred by double jeopardy, 3) the evidence was insufficient to prove the value of

the property involved in the attempted theft, 4) the trial court erred by allowing evidence
of the replacement value of the battery, 5) the trial court erred in finding his statement to

police to be admissible, and 6) the trial court erred in submitting an enhancement

charge to the jury because he never entered a plea to the enhancement allegation. We

sustain issues one and three.

       Sufficiency of the Evidence

       We first consider the contention that the evidence was insufficient to prove that

the property involved in the attempted theft had a value of $500 to $1500. In accusing

appellant of attempted theft, the State alleged in its information that the batteries

appellant tried to steal from the school bus had a value of $500 to $1500. Effort was

made to prove the allegation at trial via the testimony of the school district‟s

transportation director. He was asked how much it would cost to replace the three

batteries appellant allegedly tried to steal. His response consisted of his reference to

an estimate obtained from a battery supply company. That estimate, which exceeded

$500, reflected the cost of new batteries plus a “core charge” if old batteries were

unavailable for exchange. No other evidence of value was proffered by anyone, and the

State argues that what it did proffer was enough to prove its allegation. We disagree.

       The value of the property involved in the theft dictates the classification of the

offense. For instance, if the value of the property is less than $50, then the crime is a

class C misdemeanor. TEX. PENAL CODE ANN. § 31.03(e)(1)(a) (West Supp. 2012).

Stealing property having a “value of . . . $500 or more but less than $1,500” is a class A

misdemeanor. Id. § 31.03(e)(3).

       The concept of “value” can mean many things. For purposes of the theft statute,

the legislature has defined it as “the fair market value of the property . . . at the time and


                                              2
place of the offense.” Id. § 31.08(a)(1) (West 2011). Yet, “if the fair market value of the

property cannot be ascertained, [then value means] the cost of replacing the property

within a reasonable time after the theft.”       Id. § 31.08(a)(2).   So, while value can

represent fair market value or replacement value, evidence of the latter is pertinent only

when the former cannot be ascertained.

         Next, our Court of Criminal Appeals recognized long ago that the term fair market

value is not statutorily defined. Simmons v. State, 109 S.W.3d 469, 473 (Tex. Crim.

App. 2003). So, it opted to construe the term to mean “. . . the dollar amount the

property would sell for in cash, given a reasonable time for selling it” or, in other words,

“. . . „the price the property will bring when offered for sale by one who desires to sell,

but is not obliged to sell, and is bought by one who desires to buy, but is under no

necessity of buying.‟” Id., quoting Keeton v. State, 803 S.W.2d 304 (Tex. Crim. App.

1991).

         Here, the State did not proffer, nor did we find, any evidence of what the three

used batteries would sell for in cash given a reasonable time for selling them. Instead,

we only have evidence of what it would cost to replace the item. But, the latter is of no

evidentiary weight since nothing appears of record suggesting that the fair market value

of the batteries was unascertainable. In other words, the State could not substitute

replacement value for market value without first showing that the latter could not be

determined. Because it did not do that, testimony regarding the batteries‟ replacement

value constituted no evidence of value for purposes of proving that appellant committed

the theft of which he was accused. And, because it did not, there is no evidence of




                                             3
record proving that the value of the property was $500, $1500, or anything between

those two amounts. So, the State failed to prove all the elements of the crime at issue.

         Challenges for Cause

         Next, appellant contends that the trial court erred in refusing to remove over

twenty members of the jury venire for cause. This is because each of those members

evinced an inability to consider the full range of punishment, peremptory challenges

were used to strike several of those venire members, additional peremptory challenges

were denied appellant, and a number of the venire members in question sat on the jury

that convicted him. We agree.

         As this court stated in Weaver v. State, 355 S.W.3d 911 (Tex. App.–Amarillo

2011, pet. ref‟d), a “defendant is entitled to jurors who can „consider‟ the entire range of

punishment.” Id. at 913, quoting Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App.

2010).     “Once a prospective juror admits his inability to consider the full range of

punishment . . . a sufficient foundation has been laid to support a challenge for cause.”

Id. At this point, either the opposing party or trial court may examine the individual to

verify the nature or extent of the panel member‟s position, but unless these inquiries

ameliorate the unequivocal nature of the prior response, the trial court must grant the

challenge. Cardenas v. State, 325 S.W.3d at 185. Finally, the trial court‟s decision on

the matter is reviewed under the standard of abused discretion. Gardner v. State, 306

S.W.3d 274, 295-96 (Tex. Crim. App. 2009).

         Here, appellant was charged with burglary of a motor vehicle and attempted theft

of property valued at $500 or more but no more than $1500.                The former was




                                             4
punishable as a class A misdemeanor, and the latter as a class B misdemeanor. 1 Next,

the punishment for committing a class A misdemeanor is 1) a fine not to exceed $4,000

or 2) confinement in jail for a term not to exceed one year or 3) both. TEX. PENAL CODE

ANN. § 12.21 (West 2011). The punishment for committing a class B misdemeanor can

be a fine not to exceed $2,000, confinement in jail for a term not to exceed 180 days, or

both.       Id. § 12.22 (West 2011).        Neither range, however, requires a mandatory

minimum.       So, it is conceivable that the least punishment that could be given for

committing either offense was a dollar fine, while the greatest for the burglary was a

$4,000 fine and a year in jail and for the attempted theft, a $2,000 fine and a 180-day

jail term.2

        While conducting its voir dire of the potential jurors, the State discussed the

range of punishment facing appellant. While doing so, it asked the entire venire if they

could “conceive of a fact pattern where you might offer the minimum in that range and

you could also conceive of the fact person [sic] where you‟d give him the maximum . . .”

and whether “everybody [could] consider the full range of punishment in this kind of

case, in a theft type of case . . . .” No member indicated that they could not. In

response to that questioning, appellant asked the entire panel whether they could

“consider” punishment of one dollar. To that, over twenty members stated “no,” and

neither the trial court nor the prosecutor undertook to clarify or otherwise question the


        1
          The punishment applicable to one’s attempt to commit a particular crime is one degree or
classification lower than the punishment applicable to the actual commission of the crime. TEX. PENAL
CODE ANN. § 15.01(d) (West 2011). Because theft of property having the value of $500 to $1500 inclusive
is a class A misdemeanor, attempted theft of like property is a class B misdemeanor.
        2
       The State informed appellant of its intent to enhance the burglary charge. Until it proved the
enhancement allegation, though, the punishment remained that described above.


                                                  5
individuals about their stance. Thereafter, appellant challenged each for cause, which

challenges the trial court denied.3 So too did the trial court deny appellant‟s request for

additional peremptory challenges so that he could assure that none of the venire

members in question were selected for the jury. Five of the six jurors ultimately seated

were those who unequivocally stated that they could not consider the minimal

punishment alluded to by appellant.

         Given the foregoing circumstances, and the fact that the potential range of

punishment included solely a fine of one dollar, the venire members who disclosed their

inability to consider the entire range of punishment were subject to removal for cause.

The trial court‟s decision to the contrary evinced an abuse of discretion and, therefore,

error.       Denying appellant additional peremptory challenges was also error.                    And,

appellant suffered harm from those errors because the jury trying him consisted of

venire members who should have been excluded. Cardenas v. State, 305 S.W.3d 773,

782 (Tex. App.–Fort Worth 2009), aff’d, 325 S.W.3d 179 (Tex. Crim. App. 2010)

(holding harmful error like that at bar).

         Disposing of the two issues above as we did, we need not address appellant‟s

remaining points.       Accordingly, we reverse that judgment convicting appellant of

attempted theft and render judgment acquitting him of the charge. We also reverse the



         3
         The trial court stated that it believed the question posed was whether $1 was “adequate
punishment.” However, the questions were, “[W]ould you consider a punishment of . . . $1?” or “Could
you consider punishment of a dollar?” In his original question, appellant also used the phrase “under any
circumstance.” A party may ask a juror if he could consider the minimum punishment in a case dealing
with a particular offense. Cardenas v. State, 325 S.W.3d 179, 184 (Tex. Crim. App. 2010) (stating that a
party may ask a juror if he could consider the minimum punishment in a murder case); accord Weaver v.
State, 355 S.W.3d 911, 913 (Tex. App.–Amarillo 2011, pet. ref‟d) (holding the same).


                                                   6
judgment convicting him of burglarizing a vehicle and remand that matter to the trial

court.



                                       Brian Quinn
                                       Chief Justice

Publish.




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