                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-16-00063-CR



         ANTHONY JOHN LIBERTO, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



          On Appeal from the 13th District Court
                Navarro County, Texas
                Trial Court No. D34945




      Before Morriss, C.J., Moseley and Burgess, JJ.
      Memorandum Opinion by Chief Justice Morriss
                                      MEMORANDUM OPINION
         In a bench trial involving scant evidence on key elements of proof, Anthony John Liberto

was convicted in Navarro County1 of theft of property valued at between $1,500.00 and

$20,000.00.2 While there is no question that Liberto removed an air conditioning unit and

compressor, a stove, and a dishwasher from a residence he had occupied but that had been

purchased by Louis Edwin Hash, Jr., the question on appeal is whether legally sufficient evidence

supports the trial court’s necessary findings that the items of property Liberto removed from the

premises were owned by Hash and that they were valued at or above $1,500.00. We affirm the

judgment of the trial court because, based on legal precedent, we find that (1) legally sufficient

evidence supports a finding that the air conditioning unit and compressor were fixtures and thus

owned by Hash and (2) legally sufficient evidence supports a finding that the air conditioning unit

and compressor were valued at or above $1,500.00.

         Liberto’s mother, Silvia Ellis, had previously lived in the residence in question until her

poor health required her to be placed in a nursing home. The property was owned by James Ellis.

Liberto became the sole occupant of the residence after Silvia left, but Ellis failed to pay the

mortgage on the residence, and foreclosure ensued. Liberto received a notice of eviction on

December 26, 2012, but ignored it.


1
 Originally appealed to the Tenth Court of Appeals in Waco, this case was transferred to this Court by the Texas
Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001 (West 2013). We
follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3.
2
 After Liberto’s conviction, the trial court sentenced him to thirteen months’ confinement in state jail and ordered him
to pay $1,325.00 in restitution. See Act of May 9, 2011, 82d Leg., R.S., ch. 120, § 1, 2011 Tex. Gen. Laws 608, 609,
amended by Act of May 31, 2015, 84th Leg., R.S., ch. 1251, § 10, 2015 Tex. Gen. Laws 4209, 4214 (codified at TEX.
PENAL CODE § 31.03).

                                                           2
            On January 8, 2013, Hash purchased the residence “as is,” sight unseen, at an online

auction. Hash drove around the property and noticed that it was occupied. On January 10, Hash

posted a notice to vacate on the front door and, armed with a video camera, had a discussion with

Liberto about leaving the property.               Later, Hash moved in, but discovered that the stove,

dishwasher, HVAC air conditioning unit, and outdoor compressor for the air conditioning unit had

been removed from the residence.

            As a result of Hash’s report to police about the missing items, local police found the

dishwasher, air conditioning unit, and compressor at neighbor Paul Hooper’s residence. Hooper

testified that he purchased the dishwasher from Liberto for $300.003 and later discovered the air

conditioning unit hidden in his storage shed. According to Hooper, Liberto had taken the items

from the residence because “he felt like he had spent his money . . . to buy [the items] himself to

put [them] in that home that wasn’t his.”

            During a visit to the neighborhood, Mark Wyle testified that he witnessed Liberto loading

items into a trailer. Because he had just purchased a new camera, Wyle photographed Liberto,

documenting the removal of the items from the house with the assistance of his friend, James Elton

Johnson.

            At trial, Liberto took the position that all of the items that he took from the residence

belonged to him. He testified that he paid for the dishwasher and the stove, which were not

attached to the residence, and that he had also paid for the air conditioning unit and compressor.

He introduced a receipt demonstrating that “Discount Svc Maint.” paid $1,183.84 for the


3
    During cross-examination, Hooper testified that he paid $300.00 for the dishwasher and a washer and dryer.
                                                           3
compressor and HVAC air conditioning unit, which was shipped to the residence in 2007. Liberto

further testified that he had an “International Mobile Air Conditioning License” and that “Discount

Svc Maint.” was his company.

       Liberto testified that the air conditioner was not attached to the residence or the air ducts.

Instead, he testified that the outdoor compressor was still bolted to the shipping pallet and that the

air conditioning unit was located in the middle of the living room. Liberto testified that, to get the

air conditioner to work, he simply plugged it into an electrical outlet. Testifying on Liberto’s

behalf, Johnson said that he visited Liberto in the residence many times, that the air conditioning

unit was in the middle of the living room, and that it was not hooked up to the duct work. Johnson

also said that the stove had not been working for months and that they sold it to the scrap yard for

$6.00. He further testified that they did not cause damage to the residence in removing the

dishwasher or stove.

       Liberto’s and Johnson’s parts of the testimony were inconsistent with Hash’s testimony.

Hash testified that, although he did not go inside the residence on January 10, he walked outside

and found the outdoor compressor for the air conditioning unit. According to Hash, Liberto “said

. . . he had it replaced. In other words, inside and out” and that he had recently installed the air

conditioner himself. Hash testified, “I remember asking if the AC worked all right. And he said

it worked good.” The video corroborated Hash’s testimony. On the video recording, the

compressor appears to be hooked up and not on a shipping container. The video shows that Liberto

told Hash (1) that he recently installed the air conditioner after paying $1,600.00 for it, (2) that he

installed the “H coils” himself, (3) that he “put in the air handler . . . with electric,” and (4) that

                                                  4
“[t]he air conditioner work[ed] good.” When Liberto was interviewed by officer Michael Perry,

he said in a recorded statement, “I hooked up my air conditioning unit for [Silvia and James].”

       When the sufficiency of the evidence is challenged, we are to use the standard of review

stated in Jackson v. Virginia, that is, to ask not what we would decide based on the record before

us, but whether, when viewing the evidence in the light most favorable to the prosecution, any

rational fact-finder could have found as this fact-finder did, that the elements of the charged crime

have been proven beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim.

App. 2010) (plurality op.); Mechell v. State, 374 S.W.3d 454, 456–57 (Tex. App.—Waco 2011,

pet. ref’d); see Jackson v. Virginia, 443 U.S. 307, 319 (1979). The province of the fact-finder is

to judge witness credibility, and it may believe certain witnesses and disbelieve others. Chambers

v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991); Mechell, 374 S.W.3d at 456–57.

       We review the sufficiency of the evidence to prove the elements of the offense as defined

by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.

Crim. App. 1997); Jackson v. State, 399 S.W.3d 285, 290 (Tex. App.—Waco 2013, no pet.). The

State alleged that Liberto, on or about January 11, 2013, unlawfully appropriated “AN HVAC

UNIT AND COMPRESSOR, A DISHWASHER AND A STOVE, of the value of $1500 or more

but less than $20,000 from Louis Edwin Hash, Jr., the owner thereof,” without his effective consent

and with the intent to deprive Hash of the property.

       We now address each of Liberto’s two evidence-based arguments that the property

belonged to him and that the State failed to prove the value of the property.



                                                 5
(1)         Legally Sufficient Evidence Supports a Finding that the Air Conditioning Unit and
            Compressor Were Fixtures and thus Owned by Hash

            Liberto first argues that the dishwasher, stove, air conditioning unit, and compressor were

his personal property because they were not affixed to the realty. However, Hash’s testimony, the

videotape, and the audio recording of Perry’s interview all contained evidence that Liberto said he

had installed the air conditioner in the residence and that it “worked good.” Thus, the evidence

was legally sufficient for the trial court to conclude that, at a minimum, the air conditioning unit

and compressor were attached to the residence as fixtures when Hash purchased it January 8 and

that these items belonged to Hash.4

            While the evidence is conflicting and we might not make the same findings as the trial

court, our role is to determine whether legally sufficient evidence supports the finding that Hash,

not Liberto, owned the air conditioner and compressor. The video evidence and the reported

utterances from Liberto’s mouth constitute evidence that, if believed, establish that the air

conditioner and compressor had been installed as fixtures to the residence and that, thus, title to

those items passed to Hash when he purchased the residence.

(2)         Legally Sufficient Evidence Supports a Finding that the Air Conditioning Unit and
            Compressor Were Valued at or above $1,500.00

            Liberto also questions the proof of the fair market value of these items. Under Section

31.08 of the Texas Penal Code, value is: “(1) the fair market value of the property . . . at the time

and place of the offense; or (2) if the fair market value of the property cannot be ascertained, the

cost of replacing the property within a reasonable time after the theft.” TEX. PENAL CODE ANN.


4
    For purposes of this analysis, we need only focus on the air conditioning unit and compressor.
                                                            6
§ 31.08(a) (West Supp. 2016). At trial, Hash testified that he did not attempt to reuse the recovered

items, but decided to replace them instead. Hash testified that it cost $7,000.00 to replace the air

conditioning unit.5 Detective Mark Nanny, without objection, testified that he did not research the

value of the air conditioning unit, but that the value for the outdoor compressor alone was “[$]1490

to almost $3,600 depending on the size.”

            Liberto argues that Hash’s and Nanny’s testimony established replacement value of the

outdoor compressor if purchased as new, not fair market value of the property, which should have

taken into account the age of the items. He further contends that, because the State did not

introduce evidence that the fair market value of the air conditioning unit and compressor could not

be ascertained, the trial court could not consider replacement value.

            “Fair market value” has been held to mean the amount the property would sell for in cash,

giving a reasonable time for selling it. Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App.

1991). The Texas Court of Criminal Appeals has written,

            When an owner testifies, the presumption must be . . . that the owner is testifying
            to an estimation of the fair market value. Certainly the owner may reasonably be
            understood to be testifying as to the fair market value of the property either in terms
            of the purchase price or the cost to him of replacing the stolen property.

Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). In other words, for purposes of

calculating fair market value of stolen property in a theft prosecution, “[a]n owner may testify

either in terms of purchase price or replacement cost, and is presumed to be testifying to an

estimation of fair market value.” Uyamadu v. State, 359 S.W.3d 753, 759 (Tex. App.—Houston



5
    Hash also testified that it cost $1,200.00 to replace the stove and $350.00 to replace the dishwasher.
                                                              7
[14th Dist.] 2011, pet. ref’d); Valdez v. State, 116 S.W.3d 94, 98 (Tex. App.—Houston [14th Dist.]

2002, pet. ref’d); see Drilling v. State, No. 10-01-00343-CR, 2005 WL 428850, at *3 (Tex. App.—

Waco Feb. 23, 2005, no pet.) (not designated for publication).6 Because Liberto did not object to

Hash’s or Nanny’s testimony regarding value, the trial court was free to consider that testimony in

making its determination of whether the “value” of the stolen items, as that term is defined by

Section 31.08, was $1,500.00 or more. See Moff v. State, 131 S.W.3d 485, 492 (Tex. Crim. App.

2004).

            “If the appellant wishes to rebut the owner’s opinion evidence he must . . . offer

controverting evidence as to the value of the property.” Sullivan, 701 S.W.2d at 909. Liberto

presented such controverting evidence. Pointing to the receipt that he introduced into evidence

showing that “Discount Svc Maint.” paid $1,183.84 for the air conditioning unit and compressor

in 2007, Liberto argues that the fair market value of these items in 2013 could not have been more

than $1,183.84. The serial numbers from the recovered air conditioning unit and compressor

matched the serial numbers on the invoice introduced into evidence by Liberto. Although Liberto

testified that he paid fair market value for the items, the items were purchased by Liberto’s

business, and, in light of Hash and Nanny’s testimony, the trial court could have disbelieved

Liberto or concluded that Liberto did not pay the full retail fair market price.7

            The question is whether, in light of all of the evidence, which we view in the light most

favorable to the conviction, the trial court could have found beyond a reasonable doubt that the


6
 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
7
    On video, Liberto told Hash that he had paid $1,600.00 for the air conditioning unit and compressor.
                                                            8
value of the air conditioning unit and compressor was $1,500.00 or more. See id. Based on the

evidence at trial, we answer the question in the affirmative. Accordingly, we conclude that legally

sufficient evidence supported Liberto’s conviction.

       We affirm the trial court’s judgment.



                                               Josh R. Morriss, III
                                               Chief Justice

Date Submitted:       October 26, 2016
Date Decided:         November 29, 2016

Do Not Publish




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