                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-12-00548-CR


WILLIAM EUGENE MOORE                                                APPELLANT

                                         V.

THE STATE OF TEXAS                                                        STATE


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     FROM COUNTY CRIMINAL COURT NO. 10 OF TARRANT COUNTY

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                        MEMORANDUM OPINION1

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                                   I. INTRODUCTION

      Appellant William Eugene Moore appeals his conviction for Class B

misdemeanor theft of property valued at $50 or more but less than $500. See

Tex. Penal Code Ann. § 31.03(a), (e)(2)(A)(i) (West Supp. 2013). After the jury

found Moore guilty, the trial court sentenced him to thirty days’ imprisonment and



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       See Tex. R. App. P. 47.4.
a $300 fine, suspended the sentence, and placed Moore on community

supervision for twelve months. In two issues, Moore contends that the trial court

abused its discretion by admitting a video of his interview with Keller police and

that the evidence is insufficient to support the jury’s verdict. We will affirm.

                    II. FACTUAL AND PROCEDURAL BACKGROUND

      Moore worked for Grand Homes, a construction company building homes

in a subdivision in Keller, Texas.      Jose Mejia worked as a contractor for K.

Hovnanian, a construction company building homes in the same community.

Mejia cleaned construction sites for K. Hovnanian.

      While cleaning a K. Hovnanian home, Mejia saw Moore loading building

materials from a neighboring K. Hovnanian home onto his vehicle.                   Mejia

approached Moore and asked if he worked for K. Hovnanian. Mejia told Moore

to wait for the K. Hovnanian builder, Brandon Tatta, to arrive and verify that

Moore had permission to take the materials from the home.                  Another K.

Hovnanian worker called Tatta to alert him to the situation while a third worker

took pictures of the scene with his phone. Tatta immediately called the police

and walked to Mejia’s location because K. Hovnanian had a recurring problem

with theft in the area. Moore left the scene before Tatta arrived. When police

arrived, Tatta gave Officer James Intia the photos of the scene and listed the

missing building materials.

      Officer Intia later identified the vehicle in the photos as belonging to Moore

and questioned him about the incident.         Moore told Officer Intia that he had


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permission to take the building materials. Moore also spoke to Keller Police

Detective Matthew Moore in a videotaped interview. In the interview, Moore

maintained that while he did take the building materials, he had mistakenly

believed that Grand Homes owned the construction site and the building

materials at the site. Moore denied ever speaking to Mejia. Detective Moore

showed Moore the photos of the scene depicting Moore and Mejia at the

construction site. After seeing the photos, Moore admitted that he had spoken to

Mejia at the scene but said that Mejia had spoken to him in Spanish, which

Moore does not understand.

          III. NO ABUSE OF DISCRETION IN ADMISSION OF VIDEO EVIDENCE

      In his first issue, Moore contends that the trial court abused its discretion

by admitting as State’s Exhibit 1 the video recording of Moore’s interview with

Detective Moore.

                              A. Standard of Review

      This court reviews the trial court’s decision to admit evidence under an

abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101–02 (Tex.

Crim. App. 1996), cert. denied, 520 U.S. 1200 (1997); Montgomery v. State, 810

S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh’g). As long as the trial

court’s ruling falls within the zone of reasonable disagreement, we will affirm its

decision. Moses v. State, 105 S.W.3d 622, 627 (Tex. Crim. App. 2003). The

mere fact that a trial court may decide a matter within its discretionary authority in

a different manner than an appellate court would in a similar circumstance does


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not demonstrate that an abuse of discretion has occurred. Manning v. State, 114

S.W.3d 922, 926 (Tex. Crim. App. 2003).

                              B. Videotape Evidence

      Moore argues that because he admitted taking the materials and relied on

the mistake of fact defense at trial, the videotaped statement of him admitting

taking the materials was needlessly cumulative and its probative value was

substantially outweighed by its effect on the efficiency of the trial.

      Rule 403 provides that “[a]lthough relevant, evidence may be excluded if

its probative value is substantially outweighed . . . by considerations of undue

delay, or needless presentation of cumulative evidence.”          Tex. R. Evid. 403.

Once a defendant objects to video evidence based on cumulativeness, the trial

court must balance the probativeness of the evidence against any tendency the

evidence has to prolong the trial to the defendant’s detriment. See Ladd v. State,

3 S.W.3d 547, 569 (Tex. Crim. App. 1999) (citing Alvarado v. State, 912 S.W.2d

199, 213 (Tex. Crim. App. 1995) (plurality op.)), cert. denied, 529 U.S. 1070

(2000).   The concern for needless presentation of cumulative evidence and

undue delay involves the efficiency of the judicial process rather than the threat

of inaccurate decisions. See Gigliobianco v. State, 210 S.W.3d 637, 641 (Tex.

Crim. App. 2006).

      At trial, the State presented photographic evidence and Mejia’s testimony

showing that Moore stopped at the scene in his vehicle and spoke to Mejia.

Mejia testified that he spoke to Moore in English, asked him if he worked for K.


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Hovnanian, and told him to wait for the builder to arrive.2 In Moore’s videotaped

statement, Moore repeatedly denied ever talking to Mejia and claimed that the

photos taken at the scene only show him passing through the subdivision. Later

in the video, Moore contradicted these statements when he admitted to stopping

his vehicle and talking to Mejia.       Moore also maintained throughout the

remainder of the video that he did not understand Mejia and that Mejia spoke to

him only in Spanish.

      Moore argues that because evidence other than the video showed that he

admitted to taking the building materials—albeit based on the mistaken belief that

they belonged to Grand Homes—the video of his admission was needlessly

cumulative. But the video showed more than Moore’s admission that he took the

materials; it included statements by Moore contradicting himself and conflicting

with other evidence presented at trial. Based on those statements, the jury could

have determined that Moore did not mistakenly believe that he could remove the

materials from the home but instead took the materials knowing that they

belonged to K. Hovnanian. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim.

App. 2000) (noting that making false statements to cover up crime is evidence

indicating a consciousness of guilt and is admissible to prove commission of

offense); Alvarado, 912 S.W.2d at 213. Thus, we conclude that the trial court

      2
       Officer Intia, Detective Moore, and Tatta testified at trial that although
Mejia does not speak English fluently, he spoke to each of them in English and
they each understood him. Additionally, Mejia testified at trial that he does speak
some English and that he told Moore in English “to wait for the builder.”


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acted within its discretion by determining that the probative value of the

videotape was not greatly outweighed by needless presentation of cumulative

evidence or by its effect on the trial’s efficiency. See Green, 934 S.W.2d at 101–

02; Montgomery, 810 S.W.2d at 391. We overrule Moore’s first issue.

             IV. EVIDENCE IS SUFFICIENT TO PROVE PROPERTY VALUE

      In his second issue, Moore argues that the evidence is insufficient to show

that the value of the building materials was $50 or more to support his class B

misdemeanor theft conviction. See Tex. Penal Code Ann. § 31.03(e)(2)(A)(i).

                              A. Standard of Review

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether 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, 319, 99 S. Ct. 2781, 2789 (1979); Winfrey v. State, 393 S.W.3d 763, 768

(Tex. Crim. App. 2013).

      This standard gives full play to the responsibility of the trier of fact to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct.

at 2789; Blackman v. State, 350 S.W.3d 588, 595 (Tex. Crim. App. 2011).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey, 393

S.W.3d at 768. Thus, when performing an evidentiary sufficiency review, we


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may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Temple, 390 S.W.3d at 360.

                        B. Sufficiency of the Evidence

      To obtain Moore’s conviction for Class B misdemeanor theft, the State had

to prove that Moore unlawfully appropriated property valued at $50 or more but

less than $500 with the intent to deprive the owner of the property. See Tex.

Penal Code Ann. § 31.03(a), (e)(2)(A)(i). Value is generally the fair market value

of the property at the time and place of the offense. Id. § 31.08(a)(1) (West

2011).   An owner’s testimony opinion may prove fair market value of the

property. Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); see

Sullivan v. State, 701 S.W.2d 905, 908–09 (Tex. Crim. App. 1986) (distinguishing

the requirements for admissibility of testimony concerning value from a non-

owner of property as opposed to an owner); see also Tex. Penal Code Ann. §

1.07(a)(35)(A) (West Supp. 2013) (defining an owner of property as a person

who has “title to the property, possession of the property, whether lawful or not,


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or a greater right to possession of the property than the actor”). When the owner

of the property testifies as to the value of the property, he may testify as to his or

her opinion or estimate of the value of the property in general and commonly

understood terms. See Sandone v. State, 394 S.W.3d 788, 792 (Tex. App.—Fort

Worth 2013, no pet.) (citing Sullivan, 701 S.W.2d at 908–09). Testimony of this

nature is an offer of the witness’s best knowledge of the value of his property.

See Sullivan, 701 S.W.2d at 908–09. This is true even in the absence of a

specific statement as to “market value” or “replacement value.” Id.

      In the instant case, Tatta, the owner of the stolen building materials,

testified that he “speculat[ed]” that the value of the missing building materials was

estimated at $200.      Tatta could not identify from the photos depicting the

materials in Moore’s vehicle the number of materials in the vehicle or the cost of

each item in the vehicle. But he did state that there was “zero doubt in [his]

mind” that the total value of the materials was more than $50. Additionally, when

the State provided Tatta with a list of the items taken from the construction site,

Tatta added up the value of the items on the list and stated that the value of the

stolen items was $208.33.

      It is the duty of the jury to resolve any conflicts in the evidence. See, e.g.,

Keeton, 803 S.W.2d at 306 (presenting factfinder with two values to choose

between in determining fair market value). Here, Tatta provided the jury with his

estimation as to the value of his stolen property and the jury determined that the

value of the property was more than $50 and less than $500. A reviewing court


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should not second guess that determination. Jackson, at 319, 99 S. Ct. at 2789;

Winfrey, 393 S.W.3d at 768. Viewing the evidence in the light most favorable to

the prosecution, we hold that the evidence is sufficient to support the jury’s

verdict for Class B misdemeanor theft. See Tex. Penal Code Ann. § 31.03(a),

(e)(2)(A)(i). We overrule Moore’s second issue.

                                V. CONCLUSION

      Having overruled each of Moore’s two issues, we affirm the trial court’s

judgment.




                                                  /s/ Sue Walker
                                                  SUE WALKER
                                                  JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 27, 2014




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