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

              No. 06-10-00055-CR
        ______________________________


            JOHN BOZEMAN, Appellant

                          V.

         THE STATE OF TEXAS, Appellee




   On Appeal from the 349th Judicial District Court
               Houston County, Texas
             Trial Court No. 08CR-042




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                                 OPINION

           John Bozeman was indicted for the theft1 of nine pieces of jewelry from Cathy Hobson.

After a bench trial, Bozeman was found guilty and was sentenced to eighteen months‘

imprisonment in the Texas Department of Criminal Justice–State Jail Division. 2 On appeal,

Bozeman claims that (1) the judgment is not supported by constitutionally sufficient evidence; and

(2) the judgment is not supported by appropriate evidence of the value of the items alleged to have

been stolen. We affirm the judgment of the trial court.

I.         BACKGROUND

           Bozeman and Hobson went to school together and have known each other most of their

lives. In July 2006, when Hobson was preparing to move from a small house to a larger house

next door, Bozeman offered the use of his truck and trailer to assist in the move. The moving

process commenced on Monday, July 17.3 Hobson testified that on that date, Bozeman moved

both of her jewelry boxes from the smaller house to the upstairs bedroom of the larger house.

Bozeman was aware of the location of the jewelry boxes because Hobson directed him to place




1
    TEX. PENAL CODE ANN. § 31.03 (Vernon Supp. 2010).
2
 Originally appealed to the Twelfth Court of Appeals, 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 (Vernon 2005). We are
unaware of any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant
issue. See TEX. R. APP. P. 41.3.
3
 Others helped with the move; Hobson hired Consuelo Venezuela and Christopher Lopez to help pack. Bozeman
testified that Donald Davis accompanied him to Hobson‘s house to assist with the move.

                                                        2
them in a drawer next to her bed. At that time, there was nothing missing from either of the

jewelry boxes.4

           On the second day of the move, Tuesday, July 18, Bozeman asked Hobson to take her son

to a babysitter, as Bozeman could not get any work done with the child underfoot. Hobson agreed

and took her son to a friend‘s house a few blocks away. Hobson returned approximately

forty-five minutes later, only to find that Bozeman was gone. Baffled by his disappearance,

Hobson called Bozeman on his cell phone only to be told that he was at Lowe‘s in Palestine

purchasing a lawn mower for his father.5

           When Hobson‘s husband arrived home from work on the evening of July 18, Hobson

showed him what had been accomplished at their prospective new home. When Hobson noticed

that an antique music box and an antique adding machine6 were both missing, she immediately

went upstairs to check her jewelry boxes. Hobson discovered that some of her jewelry was

missing and filed a report with the local police that same evening. Hobson never questioned

Bozeman about the missing items of jewelry, as she suspected he was responsible for their

disappearance.

           Approximately three weeks later, when Hobson learned Bozeman was having work done

on one of his rings at Charles Dickens‘ jewelry store in Palestine, she paid a visit to Dickens.

4
    Bozeman claims that he never saw a jewelry box while assisting with the move.
5
    According to Bozeman, Hobson was aware of his appointment with the manager at Lowe‘s on July 18.
6
    Bozeman was not charged with the theft of these items.

                                                             3
After having been presented with a copy of the police report, Dickens agreed to show Hobson

several items of jewelry Bozeman brought to the store. Hobson identified nine of those items of

jewelry as belonging to her. At trial, Dickens testified that Bozeman brought those nine items of

jewelry into his store on July 19, 2006, the day after Hobson‘s jewelry was reported missing.

Bozeman denies any involvement in the disappearance of Hobson‘s jewelry; the jewelry boxes

were dusted for fingerprints, but no discernible prints were obtained.

II.    The Evidence Is Legally Sufficient to Support the Finding of Unlawful Appropriation

       In his first point of error, Bozeman generally claims the evidence is legally insufficient to

support the trial court‘s verdict. In reviewing the legal sufficiency of the evidence, we review all

the evidence in the light most favorable to the jury‘s verdict to determine whether any rational jury

could have found the essential elements of the charged offense. Brooks v. State, 323 S.W.3d 893,

902 n.19 (Tex. Crim. App. 2010) (4-1-4 decision) (citing Jackson v. Virginia, 443 U.S. 307, 319

(1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.––Texarkana 2010, pet. ref‘d) (citing

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency

review focuses on the quality of the evidence presented.          Brooks, 323 S.W.3d at 917–18

(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while giving deference to the responsibility of the jury ―to fairly resolve conflicts in

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate




                                                 4
facts.‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at

318–19).

         Legal sufficiency of the evidence is measured by the elements of the offense as defined by

a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997).7 The hypothetically correct jury charge ―sets out the law, is authorized by the indictment,

does not unnecessarily increase the State‘s burden of proof or unnecessarily restrict the State‘s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.‖ Id. This standard ensures that a judgment of acquittal is reserved for those situations in

which there is an actual failure in the State‘s proof of the crime, rather than a mere error in the jury

charge submitted. Id. This standard also applies to bench trials. Id.

         A.       Appropriation of Property

         The first issue is determined by an analysis of the evidence to determine if it is sufficient to

justify finding that Bozeman appropriated the property. Bozeman points to his own testimony,

which accounts for his acquisition of the jewelry in question from sources other than Hobson.

First, Bozeman maintains that he purchased two of the items of jewelry at a pawn shop in Crockett.

The record is not clear as to which two items Bozeman claims were so purchased. John Smock,

the owner of the pawn shop in Crockett, testified that he has known Bozeman for fifteen years and

that Bozeman has purchased several pieces of jewelry from Smock over the years, similar to the


7
 Even though this was not a jury trial, we nevertheless employ this analysis to determine the legal sufficiency of the
evidence. Malik, 953 S.W.2d at 240 (the Malik test applies to nonjury or bench trials).

                                                          5
rings depicted in State‘s exhibit seventeen (a photograph of the nine items of jewelry located in

Dickens‘ jewelry store). Next, Bozeman testified that the coin he is accused of stealing from

Hobson (actually a .5-ounce coin, rather than a 5-ounce coin) was given to him by his father,

Charles Bozeman. Charles testified that he purchased a 2000 Liberty gold coin for Bozeman in

March 2001. Bozeman testified that the wedding band (otherwise not identified) was given to

him by his father as well when his father outgrew it.

       Bozeman contends that the remaining five items of jewelry he was convicted of stealing

from Hobson were items he purchased from a man by the name of Dennis Denby. Bozeman

maintains that Denby sold the items for Otis Johnson, who needed the money to pay his electric

bill. Denby testified that in early August 2006, he introduced Bozeman to a man that had some

jewelry to sell. Denby took the man (identified by Bozeman as Johnson) to Bozeman, who

purchased the jewelry. Bozeman introduced a sales receipt at trial for these five items, dated

August 7, 2006. According to Bozeman, Denby signed the receipt ―Dennis Denby sold for Otis

Johnson‖ on the date of the transaction. Denby testified that Bozeman approached him a few

days after the sale and asked him to sign the receipt.

       Bozeman maintains on appeal that the weakness of the State‘s evidence, in conjunction

with the evidence accounting for Bozeman‘s legal acquisition of the jewelry, can lead only to the

conclusion that the evidence failed to establish Bozeman‘s guilt beyond a reasonable doubt. He

complains that the State‘s evidence is largely circumstantial and that it failed to eliminate any other



                                                  6
reasonable alternative, such as the sale of the jewelry to Bozeman by a third party.8 The lack of

direct evidence is not dispositive of the issue of Bozeman‘s guilt. Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial evidence alone

can be sufficient to establish guilt. Hooper, 214 S.W.3d at 13. Further, the standard of review

on appeal is the same for both direct and circumstantial evidence cases. Guevara v. State, 152

S.W.3d 45, 49 (Tex. Crim. App. 2004).

        As a reviewing court, it is our job to view 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 offense beyond a reasonable doubt. Further, we defer to the finder of fact to resolve conflicts

in the evidence and to determine the credibility of that evidence. Here, the trial court was free to

believe Hobson‘s testimony and to discount the testimony of Bozeman and Denby. Given the fact

that Dickens testified that Bozeman brought all nine pieces of jewelry into his store on July 19, and

the receipt for the sale of five items of jewelry shown to have been purchased by Bozeman was

signed on August 7, it appears that this is exactly what the trial court did. In viewing the evidence

in the light most favorable to the trial court‘s verdict, a rational fact-finder could have found that

Bozeman unlawfully appropriated jewelry belonging to Hobson.




8
 In Geesa v. State, 820 S.W.2d 154, 159 (Tex. Crim. App. 1991), overruled on other grounds by Paulson v. State, 28
S.W.3d 570 (Tex. Crim. App. 2000), the Texas Court of Criminal Appeals expressly disavowed the ―reasonable
hypothesis analytical construct‖ for legal sufficiency reviews.

                                                        7
       B.      Effective Consent

       The indictment states, in pertinent part, that John Bozeman:

       [O]n or about July 18, 2006 and before presentment of this Indictment, in said
       County and State, did then and there: unlawfully appropriate, by acquiring or
       otherwise exercising control over, property, to-wit: Men‘s Yellow/gold 3 stone
       wedding band, small yellow solitaire ring, Men‘s nugget solitaire ring, 3.7mm
       wedding band, Ladies 3 stone with sapphire accent ring, lady‘s 2 tone engagement
       ring, w/3 stones, Yellow gold coin ring w/3 stones, 5oz gold eagle coin, Gold watch
       chain and faub [sic], of the value of $1,500 or more but less than $20,000, from
       Cathy Hobson, the owner thereof, without the effective consent of the owner,
       namely, by deception, and with intent to deprive the owner of the property.

       Due process requires that the State prove, beyond a reasonable doubt, every element of the

crime charged. Jackson, 443 U.S. 313. Bozeman contends that because the indictment alleged

only one means of committing theft—by deception—the State was required to prove that

particular means. Bozeman argues that because there is no evidence of deception, the evidence is

legally insufficient to sustain his conviction. The State maintains that it proved theft by deception

as alleged in the indictment. Even though neither party argues the effect of applying the

hypothetically correct jury charge analysis to the facts, we must do so in determining the

sufficiency of the evidence. Malik, 953 S.W.2d at 240.

       A person commits the offense of theft if he or she unlawfully appropriates property with

intent to deprive the owner of property. TEX. PENAL CODE ANN. § 31.03. The gravamen of the

offense is the unlawful acquisitive conduct. To constitute an offense, the appropriation must be

accompanied by the specific intent to deprive the owner of the property. Appropriation is



                                                 8
unlawful based on the circumstances surrounding the conduct—that the actor knew it to be without

the owner‘s effective consent. Mills v. State, 722 S.W.2d 411, 415 (Tex. Crim. App. 1986).

       Consent means ―assent in fact whether express or apparent.‖ TEX. PENAL CODE ANN.

§ 1.07(a)(11) (Vernon Supp. 2010). In the classical theft case, the proof from the owner is that he

or she did not consent to the accused‘s taking the property; Hobson testified that she never

consented to Bozeman taking her property. But Bozeman argues that evidence is not sufficient,

and the State must also prove that Bozeman acted with deception. If property is taken by

deception, even if taken with the owner‘s consent, that deception renders the owner‘s consent

ineffective. Typically, this occurs in a contractual matter where one party consents to the other

receiving the property, but alleges that consent was gained by false promises and the like. See

TEX. PENAL CODE ANN. § 31.01(1)(A) (Vernon Supp. 2010).

       We must determine if proof of deception is an alternative method of a manner and means of

committing an element of an offense of theft; if the indictment alleges only one manner or means

in the indictment, it is ―the law‖ for purposes of the hypothetically correct charge. Gollihar v.

State, 46 S.W.3d 243, 255 (Tex. Crim. App. 2001) (citing Curry v. State, 30 S.W.3d 394, 405 (Tex.

Crim. App. 2000)). Elements of the offense means:      (A) the forbidden conduct; (B) the required

culpability; (C) any required result; and (D) the negation of an exception to the offense. TEX.

PENAL CODE ANN. § 1.07(a)(22) (Vernon Supp. 2010).

       With this in mind, we examine the elements of the offense and the alternatives of theft.



                                                9
       The hypothetically correct jury charge requires the following elements and statutory

alternatives in the indictment that must be proved:

       (1)     ―A person‖—Bozeman—31.03(a)
       (2)     appropriated property—31.03(b) (the act of appropriation)
               definitions of appropriate:
               a.       not applicable 31.01(4)(A) or
               b.       acquired or otherwise exercised control over property other than real
               property
               (in this case, the described jewelry)
       (3)     Unlawfully (the character of appropriation)
               a.       without the owner‘s effective consent—31.03(b)(1)
               b.       not applicable—31.03(b)(2) (stolen property)
               c.       not applicable—31.03(b)(3) (property in custody of law enforcement)
       (4)     With intent to deprive the owner of the property (required culpability).

       ―Deprive‖ is defined as:

       A.      to withhold property from the owner permanently or for so extended a period of
               time that a major portion of the value of the property is lost to the
               owner—31.01(2)(A)
       B.      not applicable—31.01(2)(B)
       C.      not applicable—31.01(2)(C)

       Direct evidence or evidence from which logical inferences may be found was presented on

each required element of the offense as follows:

       (1)     Bozeman—a person
       (2)     appropriated the described jewelry by acquiring or exercising control of it
               (forbidden conduct)
       (3)     Without Hobson‘s effective consent—a circumstance surrounding the conduct and
               making the appropriation unlawful
       (4)     With intent to deprive—to withhold the jewelry so that the value was lost to the
               owner (required culpability).




                                                10
          The State is required to prove beyond a reasonable doubt that the appropriation of the

property was unlawful, which may be accomplished by evidence in one of three ways:

(1) without the effective consent of the owner; (2) property is stolen and the actor appropriates it

knowing it was stolen; or (3) property was in the custody of law enforcement . . . . TEX. PENAL

CODE ANN. § 31.03(b)(1)–(3). These are the alternative methods of proving the appropriation is

unlawful. Since the State alleged only that the unlawful character of the appropriation was that it

was accomplished ―without the owner‘s effective consent,‖ that is the alternative means the State

must prove.

          The evidence showed that Hobson did not consent to Bozeman taking the property.

―Consent‖ means assent in fact, whether real or apparent. TEX. PENAL CODE ANN. § 1.07(a)(11).

If the evidence shows the owner did not give any form of consent, that necessarily is evidence that

the owner did not give ―effective consent.‖ ―Appropriation of property‖ is ―without the owner‘s

effective consent‖ if either (1) it is without his or her ―assent in fact‖ or (2) his or her ―assent in

fact‖ is rendered ineffective by one or more of the circumstances listed at Texas Penal Code

Section 31.01(4), including ―deception.‖ Thomas v. State, 753 S.W.2d 688, 692 (Tex. Crim. App.

1988).9


9
 Before the introduction of the hypothetically correct jury charge doctrine, courts considered these questions under the
surplusage theory. Generally, the question was whether the indictment gave proper notice of the offense. In this
area, Thomas held that in a common theft case (no assent), it was proper to merely plead lack of effective consent. In
such an instance, consent depends entirely on the owner‘s state of mind. But when the State relies on a defendant‘s
act or omission to negate consent, the indictment must allege which of the statutory negatives vitiated consent. Geter
v. State, 779 S.W.2d 403, 407 (Tex. Crim. App. 1989).

                                                          11
         Section 31.01(3) sets out several instances of events (including the actor‘s deception) that

demonstrate consent is not effective. So if a victim gave some form of consent, the defendant‘s

deception may be used to show that the consent given was not effective. The statutory alternative

element the State must prove is that the appropriation was without effective consent. Acting with

deception is not an alternative manner of committing theft, but is one way in which to prove that

the consent given was not effective. See Milton v. State, 652 S.W.2d 958, 959 (Tex. Crim. App.

1983) (―The method or means by which a defendant unlawfully appropriates property is not an

element of the offense of theft under § 31.03, supra, and it need not be included in the paragraph

applying the law to the facts.‖); Harmon v. State, 889 S.W.2d 521, 524 (Tex. App.—Houston

[14th Dist.] 1994, pet. ref‘d).

         ―When relevant at all in a prosecution for theft, however, ‗deception‘ goes to

‗circumstances surrounding the conduct‘ of the accused, in that deception operates to render

otherwise apparent consent ‗ineffective.‘ Sec. 31.01(4)(A) . . . . But the deception is not of itself

‗forbidden conduct‘ under Sec. 31.03, supra.‖ Mills, 722 S.W.2d at 415;10 see Skillern v. State,

890 S.W.2d 849, 871 (Tex. App.—Austin 1994, pet. ref‘d).

         The evidence was sufficient to prove that the appropriation of the jewelry was without the

owner‘s effective consent.


10
  Judge Clinton, the author of the Mills opinion, later stated in a concurring opinion that a more precise statement is:
―[w]hen relevant at all in a prosecution for theft, however, ‗deception‘ goes to ‗nature of conduct‘ and operates to
render otherwise apparent consent ‗ineffective‘ . . . . But the deception is not in itself the ultimate ‗forbidden conduct‘
under Sec. 31.03, supra.‖ Cheney v. State, 755 S.W.2d 123, 131 (Tex. Crim. App. 1988) (Clinton, J., concurring).

                                                           12
       C.      Variance

       The State alleged that Bozeman took the property without the effective consent of the

owner, namely, by deception. The proof at trial was that Bozeman took the property without

Hobson‘s assent in fact. Because we have concluded that allegation is not a statutory alternative

element of the offense, we next turn to the question of whether that variance between what was

alleged and what was proven requires reversal of the conviction.           See Cada v. State, No.

PD-0754-10, 2011 WL 409002, at *5 (Tex. Crim. App. Feb. 9, 2011) (The Texas ―immaterial

variance‖ law as set out in Gollihar does not apply to the specific statutory elements of the offense

alleged.‖) (citing Smith v. State, 135 S.W.3d 259, 262 (Tex. App.—Texarkana 2004, no pet.).

       ―A variance between the wording of an indictment and the evidence presented at trial is

fatal only if ‗it is material and prejudices [the defendant‘s] substantial rights.‘‖ Gollihar, 46

S.W.3d at 257 (quoting United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000). If proof of

deception is not a required element of the offense of theft and is not a statutory alternative manner

or means of committing theft under the hypothetically correct jury charge, the variance is not

necessarily reversible error. In such event, we consider whether the variance in the indictment

and the evidence is a material variance. We measure the sufficiency of the evidence by the

hypothetically correct jury charge, which need not incorporate allegations that give rise to

immaterial variances. Gollihar, 46 S.W.3d at 256.




                                                 13
       ―The widely-accepted rule, regardless of whether viewing variance as a sufficiency of the

evidence problem or as a notice related problem, is that a variance that is not prejudicial to a

defendant‘s ‗substantial rights‘ is immaterial.‖ Id. at 246–47. In determining if the defendant‘s

substantial rights have been prejudiced, we must consider two questions:          (1) whether the

indictment, as written, informed the defendant of the charge against him or her sufficiently to

allow the defendant to prepare an adequate defense at trial, and (2) whether prosecution under the

deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for

the same crime. Id.; see In re S.C., 229 S.W.3d 837, 841 (Tex. App.—Texarkana 2007, pet.

denied); Brown v. State, 159 S.W.3d 703, 709 (Tex. App.—Texarkana 2004, pet. ref‘d).

       The record demonstrates that the indictment gave Bozeman adequate notice to allow him to

prepare his defense. This case was not tried on the theory that Bozeman was allowed to take the

property with Hobson‘s consent, obtained by his deceptive acts. Bozeman denied taking the

property. He testified that the jewelry taken to the pawn shop was not Hobson‘s, but that he

acquired the jewelry from another pawn shop, his father, and from Denby.                The record

affirmatively demonstrates that Bozeman did not attempt to argue that he ever had Hobson‘s

permission to take it. Bozeman does not argue that he was surprised or hampered in preparing a

defense, but merely argues the State presented no evidence of deception.

       Further, we find there is no risk that Bozeman could be prosecuted again for appropriating

the same property as that which was specifically described in the indictment. Gollihar, 46



                                                14
S.W.3d at 258. We find the variance between the pleading and the evidence presented to be an

immaterial variance and may be disregarded in applying the hypothetically correct jury charge to

the issue of evidence sufficiency. Id. at 257.

         We acknowledge that our sister court has held that when the indictment specifically alleged

that the consent was induced by deception, the State was required to prove ―that method of theft for

conviction.‖ Geick v. State, 321 S.W.3d 706, 710 (Tex. App.—Houston [14th Dist.] 2010, pet.

granted,     No.      PD-1734-10         (Tex.     Crim.      App.     Mar.      30,     2011),     available      at

http://www.ccc.courts.state.tx.us/opinions/pdfOpinionInfo2.asp2OpinionID=20825. For reasons

previously stated, we respectfully disagree that ―deception‖ is a ―method of theft‖ that must be

proved in this situation.

III.     Sufficient Evidence Supports the Value of the Stolen Jewelry

         In his second point of error, Bozeman claims the value of the jewelry in question was not

supported by sufficient evidence. The indictment alleges the value of the jewelry to be ―$1,500 or

more but less than $20,000.‖ To prove the stolen property‘s value, the State offered Hobson‘s

testimony. The State alleged in the indictment that Hobson was the owner of the stolen property.

After testifying about how she acquired the jewelry, Hobson testified as follows:

                 Q.       And based on your experience, these nine items, or even these --
         let‘s say seven items, we‘ll exclude the gold coin with three stones, which doesn‘t
         exist, or the 5 ounce Eagle coin. Let‘s -- we‘re just looking at the other items?11

11
  Hobson explained in her testimony that the yellow gold coin ring described in the indictment as having three stones
does not have three stones; rather, it has three coins. Hobson further explained that the gold eagle coin described in
the indictment as weighing five ounces actually weighs a half ounce.

                                                         15
                  A.       Yes, sir.

                  Q.       Would the value of those item [sic] be less than 1,500 or more than
         1,500?

                  A.       More.

                Q.     Any particular item there that you would say it wouldn‘t even be
         worth a thousand on [sic] itself?

                  A.       The sapphire ring with the diamonds.

                  Q.       How much do you think it‘s worth?

                  A.       Minimum of about a thousand.

         The State also sought to establish the stolen jewelry‘s value through the testimony of

Charles Dickens, the owner of Dickens‘ Jewelry store in Palestine for the past thirty years:

                Q.      . . . . My understanding is that you‘ve been asked in the past to give
         opinions on the value of pieces of jewelry for court cases. Would that be true?

                  A.       Yes.

                 Q.      And let me ask you, looking at State‘s Exhibit 17,12 of those items
         that had been in your possession at one time, just a ballpark figure, all total, would
         the value of those items be less or more than $1,500?

                  A.       It would be more.

                Q.      And let me just exclude the gold coin from the list and also the ring
         with the gold coin attached to it. Have you looked at those two?

                  A.       Yes.

12
  Exhibit 17 is a photograph of the nine items of jewelry listed in the indictment that Bozeman delivered to Dickens‘
Jewelry store.

                                                         16
               Q.    Taking those two out, would your testimony remain the same that
       the value would be over $1,500?

               A.      Yes.

       ―[W]hen the State seeks to establish the value of an item of property through the testimony

of a non-owner[,] the witness must first be qualified as having personal knowledge of the value of

the property.‖ Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986). Yet, ―[i]t has

long been the rule in this State that the owner of property is competent to testify as to the [fair

market] value of his own property.‖ Id. Because such testimony is an offer of the owner‘s best

knowledge of the value of his or her property, it ―constitutes sufficient evidence for the trier of fact

to make a determination as to value based on the witness‘s credibility.‖ Jones v. State, 814

S.W.2d 801, 803 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (citing Sullivan, 701 S.W.2d at

909). Rebuttal of the owner‘s opinion evidence must be accomplished through the use of

cross-examination and the offer of controverting evidence as to the value of the property. Id.

       Here, Hobson was named as the owner in the indictment. Hobson offered testimony of

her best knowledge of the value of her property. Such evidence is legally sufficient, the trier of

fact having found Hobson‘s testimony to be credible. Further, Dickens was qualified as having

personal knowledge of the value of the property––the property was in Dickens‘ possession, and he

is well acquainted with the valuation of jewelry, having been in the jewelry business for thirty

years. Neither Hobson nor Dickens was cross-examined on the value of the jewelry, and no



                                                  17
controverting evidence as to its value was offered. We find the evidence of the value of the

jewelry in question to be legally sufficient. Bozeman‘s second point of error is overruled.

IV.    CONCLUSION

       We affirm the judgment of the trial court.




                                                    Jack Carter
                                                    Justice

Date Submitted:       February 11, 2011
Date Decided:         April 8, 2011

Publish




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