                                                                                   ACCEPTED
                                                                               03-15-00127-CR
                                                                                       5548015
                                                                    THIRD COURT OF APPEALS
                                                                               AUSTIN, TEXAS
                                                                           6/4/2015 2:14:26 PM
                                                                             JEFFREY D. KYLE
                                                                                        CLERK

               IN THE COURT OF APPEALS
                                                              FILED IN
                 FOR THE THIRD DISTRICT                3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
                                                       6/4/2015 2:14:26 PM
                      AT AUSTIN, TEXAS                   JEFFREY D. KYLE
                                                               Clerk




AARON JOSEPH HOES,                 §    CAUSE NO. 03-15-00127-CR
                Appellant          §     Trial COURT No. 01167
V.                                §
THE STATE OF TEXAS,               §
                Appellee          §

                       BRIEF OF APPELLANT
Appealed from the 33rd Judicial District Court, Blanco County, Texas
                   Honorable Alan Garrett, presiding
                                              Law Office of Alice E. Price
                                                      408 South Liveoak
                                                 Lampasas, Texas 76550
                                                  Tel/Fax 512-556-4777
                                                State Bar No. 00786177
                                               apgregg50@hotmail.com
                                                  Attorney for Appellant


            APPELLANT HEREBY WAIVES ORAL ARGUMENT


                                                                           1
                             TABLE OF CONTENTS

                                                         Page

Table of Contents                                          2

Index of Authorities                                       3

Identity of Parties and Counsel                            4

Statement of the Case                                      5

Issue Presented                                            6

 The evidence is insufficient to support
Mr. Hoe’s conviction for theft of property (a tractor)
valued between $1500 dollars, but less
$20,000 dollars, because there is no evidence that
the tractor was worth the statutory amount of
 <$1500 but > $20,000.

Statement of Facts                                         6

Summary of the Argument                                    7

Argument                                                   8

Standard of Review                                         12

Prayer                                                     14

Certificate of Service and                                 15
of Compliance with Rule 9


                                                                2
                         Index of Authorities


Authorities Page                                                     Page
                   Court cases United States Supreme

Jackson v. Virginia
     443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 550 (1979)       12

                 Texas Court of Criminal Appeals cases

Drost v. State
(App. 8 Dist. 2001) 47 S.W.3d 41.                                     8
Sandone v. State
 394 S.W.3d 788, 791 (Tex.App.-Fort Worth 2013, no pet.)              10
Brooks v. State
323 S.W. 3d 893 (Tex.Crim.App.2010)                                   12
Jones v. State
(App. 14 Dist.1991) 814 S.W. 2d 801                                   10
Uyamadu v. State
359 S.W.3d 753,759(Tex.App.-Houston [14th Dist.] 2011, pet. ref'd)    9
Houston v. State
(App.13 Dist. 1982) 636 S.W. 2d 7, remanded 640 S.W.2d 605, on
remand 652 S.W.2d 472.                                                11
 Johnson v. State                                                     14
23 S.W.3d 1 (Tex. Crim. App. 2000)

                                Statutes

TEX. PENAL CODE ANN. §31.03(a) (e) (4) (F) (West 2012)               5,6,7

TEX. PENAL CODE ANN. §31.03(a) (West 2012)                           10


                                                                           3
                      IN THE COURT OF APPEALS
                       FOR THE THIRD DISTRICT
                          AT AUSTIN, TEXAS

AARON JOSEPH HOES,                    §
Appellant                             §
                                      §    CAUSE No. 03-15-00127-CR
V.                                    §    TRIAL COURT NO. 01167
THE STATE OF TEXAS,                   §
Appellee                              §

                 IDENTITY OF PARTIES AND COUNSEL

TO THE HONORABLE COURT OF APPEALS:

    COMES NOW AARON JOSEPH HOES, the Appellant herein, and
would show the court interested parties herein are as follows:

     AARON JOSEPH HOES, appellant, c/o/ Garza East Unit 4304
Highway 202 Beeville, TX 78102-8981

     Thomas Felps, trial attorney
For appellant, P O Box 442 Johnson City, Texas 78636

    Alice Price, appellate attorney for appellant, 408 South Liveoak
Lampasas, Texas 76550

     Sonny McAfee, Burnet County District Attorney, and

     Gary Bunyard, Assistant District Attorney, Burnet, Texas



                                                                       4
                       IN THE COURT OF APPEALS
                        FOR THE THIRD DISTRICT
                           AT AUSTIN, TEXAS


AARON JOSEPH HOES,                      §
Appellant                               §
                                        §     CAUSE No. 03-15-00127-CR
V.                                      §     TRIAL COURT NO. 01167
THE STATE OF TEXAS,                     §
Appellee                                §

                        STATEMENT OF THE CASE

A jury in the 33rd Judicial District Court in and for Blanco County,

Texas, convicted Aaron Joseph Hoes for theft of property more than

$1500, but less than $20,000. (CR I, 96) and see TEX. PENAL CODE

ANN. § 31.03 (a) (e)(4)(A) (West 2012) The same jury then assessed

punishment of five (5) years confinement in the Texas Department of

Criminal Justice – Institutional Division and a $1,000 fine. (CR 1,103).

Appeal was subsequently perfected from that verdict and sentence. (CR

1, 145).




                                                                           5
                            ISSUE PRESENTED


The evidence is insufficient to support Mr. Hoe’s conviction for theft of

property (a tractor) valued between $1500 dollars, but less than

$20,000 dollars, (CR I, 96) and see TEX. PENAL CODE ANN. § 31.03 (a)

(e) (4) (A) (West 2012) because there is no evidence that the tractor

was worth the statutory amount of <$1500 but > $20,000.


                          STATEMENT OF FACTS

Background

     On April 5, 2014, Deputy Curtis Klimple wrote up a police report at

the Blanco Law enforcement concerning the apparent theft of a tractor

(Massey –Ferguson model 245) belonging to Earl Sultemeier, and last

seen at the Sultemeier ranch located in Blanco county Texas.. The

report was made by his son-n-law Bob Humphries. The tractor was

taken sometime between April 2nd and April 5th, 2015. On about July

5th of 2014, a deputy, Troy Mayes had occasion to pull over a Mr.

Aaron Hoes for a traffic violation. During that traffic stop, it was

                                                                            6
determined that the tractor Mr. Hoe’s was carrying on an attached

trailer, was the tractor reported stolen by Mr. Humphries on behalf of

Mr. Sultemeier. Mr. Hoes was then arrested and taken into custody and

charged with the theft of the tractor.



                     SUMMARY OF THE ARGUMENT

The state did not provide evidence that the Massey Ferguson tractor

was indeed valued at the amount of $1500, but less than $20,000

dollars. (CR I, 96) and see TEX. PENAL CODE ANN. § 31.03 (a) (e) (4) (A)

(West 2012). The owner did not testify as to its value, and the non-

owner who did testify offered an opinion but it was not based on any

substantive information such as comparable tractors, local tractor

sales, fair market value of the tractor, or replacement cost of the

tractor. Thus, an essential element for a state jail felony theft was not

proven.




                                                                            7
                               ARGUMENT

For purposes of crimes against property, the evidence is legally

insufficient to prove value if there was no evidence presented from

which a reasonable fact finder could find fair market value beyond a

reasonable doubt; or if it is shown that fair market value cannot be

ascertained, if there was no evidence from which the fact finder could

find replacement value beyond a reasonable doubt. Drost v. State

(App. 8 Dist. 2001) 47 S.W.3d 41.

     In this instance there is no basis for the determination of the

value of the tractor. Testimony is not given by the owner, it is given by

the son-n-law who has had access to the tractor, but nothing else. We

do not hear any evidence that shows the condition of the tractor, or if it

even works.

Herein is the relevant testimony from the trial:

Q… This Massey Ferguson tractor that was talking about,

What model again was it?

A… It's a 245, an MF 245. Erwin's brother had purchased

                                                                            8
     it in 1979. It was a '79 model.

Q… What's the value of a tractor like that these days?

A …Roughly 7500.

Q …This is a silly question. The law makes me ask this.

    The value of that tractor, it's worth more than $1,500?

A… Correct.

Q….. But it's worth less than $20,000?

A… Correct (RR 2 p.77)



Here during this testimony, there was no reference to a purchase price,

or what fair market value is for this tractor. The question states, “What

is the value of a tractor like that these days? Answer is roughly 7500.”

Based on what? Mr. Humphries is not the owner of this tractor. An

owner may testify as to his opinion of his property's value. Sandone v.

State, 394 S.W.3d 788, 791 (Tex.App.-Fort Worth 2013, no pet.); see

also Uyamadu v. State, 359 S.W.3d 753, 759 (Tex.App.-Houston [14th



                                                                            9
Dist.] 2011, pet. ref'd) (stating that an owner may testify either in terms

of purchase price or replacement cost).

Again, Mr. Humphries is not the owner, and is not qualified as a tractor

salesman, or anyone who would have particular knowledge of any

specific piece of farm equipment.

For purposes of determining whether minimum jurisdictional amount

for felony theft has been met, fair market value of stolen property must

be established if testimony concerning value is given by someone other

than owner.  Jones v. State (App. 14 Dist. 1991) 814 S.W.2d 801. Fair

market “value” 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,

the cost of replacing the property within a reasonable time after the

theft.            Tex. Penal Code Ann. § 31.08(a). Appellant would

agree with both of these methods, but neither of these methods was

utilized. An opinion given by the owner’s son-n-law with no

collaborative information is all that is provided. Examples would be,



                                                                           10
“Have you seen any tractors for sale in this area and how much did they

cost? Or any references to eBay pricing or online tractor stores. Nothing

was given to substantiate the fair market value or the replacement

cost.

The owner cannot attest to the value or the model. See below

Q… Do you remember what model vehicle that is? What

model tractor that is?

A… No, I really don't. I can't tell you that.

Q… Do you recall what year it was manufactured?

A… No, I can't do that either.

Q …It's okay. I thank you for your honesty.

(RR2 p120)

For opinion of worth of property by someone other than owner,

prerequisite to admissibility under this section is knowledge of fair

market value.  Houston v. State (App. 13 Dist. 1982) 636 S.W.2d 7,

remanded 640 S.W.2d 605, on remand 652 S.W.2d 472. There is no

knowledge of fair market value presented in this case.

                                                                        11
                           Standard of Review

In a sufficiency review, a reviewing court examines the evidence in

the light most favorable to the verdict to determine whether any

rational fact-finder 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, 61 L. Ed. 2d 550 (1979); Brooks v. State, 323 S.W.3d

893 (Tex. Crim. App. 2010). The fact-finder is the exclusive judge of the

facts, the credibility of the witnesses, and of the weight to be given

testimony. Brooks, 323 S.W. 3d at 899. Any evidentiary inconsistencies

are resolved in favor of the judgment. Id.




Analysis

Viewing the evidence in this case in the light most favorable to the

verdict, a rational fact-finder could not have found beyond a reasonable



                                                                         12
doubt that the tractor was valued between the amount of $1500 and

$20,000. The owner did not testify to the tractor’s value. The son-n-law

testified to what it would “go for these days” as” $7500”, (RR 2 p 77)

but that was not based on anything substantive. Not the fair market

value, not replacement cost, or any information to verify the value of

the tractor. There was no testimony regarding the functioning of the

tractor or if it had any mechanical issues. Therefore, the State failed to

prove that the tractor was valued in the specified amount of $1500 to

20,000 dollars


Conclusion


The appellant in this case was not charged with ordinary theft but,

rather, with theft of property valued between $1500 and $20,000,

which rises to the level of a state jail felony. Evidence of that theft is

insufficient because there was no proof that the property (a tractor)

was in fact, valued at that amount. Absent that proof, the State failed

to prove an essential element of the offense charged. While the jury as

                                                                             13
the finder of fact is normally the sole judge of the weight and credibility

of the witness' testimony, an appellate court retains the authority to

disagree with the jury's determination "when the record clearly

indicates such a step is necessary to arrest the occurrence of a manifest

injustice." Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). In the

instant case, this court may prevent such manifest injustice by holding

that the evidence supporting Mr. Hoe’s conviction for theft of property

was insufficient.


                                    Prayer

WHEREFORE, Aaron JOSEPH HOES prays that this court reverse the

judgment of the trial court and render a judgement of acquittal in this

case or enter such other orders as it finds just and appropriate in

keeping with its findings herein.

                                               Law Office of Alice E. Price
                                                       408 South Liveoak
                                                 Lampasas, Texas 76550
                                                   Tel/Fax 512-556-4777



                                                                           14
                                               By: /s/ Alice E. Price
                                                   Alice E. Price
                                                 St Bar No. 00786177
                                                 Attorney for Appellant




             CERTIFICATE OF SERVICE AND OF
               COMPLIANCE WITH RULE 9

       This is to certify that on June 2, 2014, a true and correct copy of the
above and foregoing document was served on Sonny McAfee, District
Attorney, Burnet County. P O Box 725 Llano, TX 78643,
in accordance with the Texas Rules of Appellate Procedure,
and that the Brief of Appellant is in compliance with Rule 9 of the Texas
Rules of Appellate Procedure and that portion which must be included under
Rule 9.4(i)( 1) contains 12,461 words.




                                                 _/s/_Alice E. Price ______
                                                     Alice E. Price




                                                                              15
