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


                                   Brian Quinn
                                   Chief Justice
Publish.




      -----------------------
      [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.


      [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).



