      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-15-00127-CR



                                Aaron Joseph Hoes, Appellant

                                                v.

                                  The State of Texas, Appellee


    FROM THE DISTRICT COURT OF BLANCO COUNTY, 33RD JUDICIAL DISTRICT
        NO. CR 01167, HONORABLE J. ALLAN GARRETT, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Aaron Joseph Hoes was charged with theft for unlawfully appropriating a tractor

with the intent to deprive the owner of the property. See Tex. Penal Code § 31.03(a), (b) (setting

out elements of offense of theft). Further, the indictment alleged that the value of the property

was between $1,500 and $20,000. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01,

sec. 31.03(e)(4)(A), 1993 Tex. Gen. Laws 3586, 3637-38 (providing that offense is state-jail felony

if value of property is between $1,500 and $20,000) (amended 1995, 1997, 2001, 2003, 2007,

2009, 2011, 2015) (current version at Tex. Penal Code § 31.03(e)(4)(A) (specifying that offense

is state-jail felony if value of property is more than $2,500 but less than $30,000)). After the

indictment was issued, the State filed a notice of its intent to enhance the potential punishment

range by proving that Hoes had previously been convicted of the following two state-jail felonies:

possessing methamphetamine and possessing or transporting certain chemicals with the intent to

manufacture a controlled substance. See Tex. Health & Safety Code §§ 481.102(6) (specifying
that methamphetamine is part of penalty group 1), .115 (criminalizing possession of substance found

in penalty group 1), .124 (prohibiting possession or transportation of certain chemicals); see also

Tex. Penal Code § 12.425(a) (enhancing permissible punishment range for state-jail felony to that

of third-degree felony if “the defendant has previously been finally convicted of two state jail

felonies”). At the end of the guilt or innocence phase of the trial, the jury found Hoes guilty of the

charged offense. Following the jury’s verdict, Hoes entered a plea of true to the enhancement

allegations at the start of the punishment phase of the trial. At the conclusion of the punishment

phase, the jury recommended that Hoes be incarcerated for five years. See Tex. Penal Code § 12.34

(setting out permissible punishment range for third-degree felony). The district court rendered

its judgment of conviction in accordance with the jury’s verdicts. In one issue on appeal,

Hoes challenges the sufficiency of the evidence supporting his conviction. We will affirm the

district court’s judgment of conviction.


                    GOVERNING LAW AND STANDARD OF REVIEW

               Under a legal-sufficiency standard of review, appellate courts view the evidence in

the light most favorable to the verdict and 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 (1979). When performing this review, an appellate court must bear in mind that

it is the factfinder’s duty to weigh the evidence, to resolve conflicts in the testimony, and to

make reasonable inferences “from basic facts to ultimate facts.” Id.; see also Tex. Code Crim. Proc.

art. 36.13 (explaining that “jury is the exclusive judge of the facts”). Moreover, appellate courts

must “determine whether the necessary inferences are reasonable based upon the combined and


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cumulative force of all the evidence when viewed in the light most favorable to the verdict.” Hooper

v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007). Furthermore, appellate courts presume that

conflicting inferences were resolved in favor of the conviction and defer to that resolution. Clayton

v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In addition, courts must bear in mind that

“direct and circumstantial evidence are treated equally” and that “[c]ircumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor” and “can be sufficient” on its

own “to establish guilt.” Kiffe v. State, 361 S.W.3d 104, 108 (Tex. App.—Houston [1st Dist.] 2011,

pet. ref’d). The evidence is legally insufficient if “the record contains no evidence, or merely a

‘modicum’ of evidence, probative of an element of the offense” or if “the evidence conclusively

establishes reasonable doubt.” Id. at 107 (quoting Jackson, 443 U.S. at 320).

                Under the relevant provisions of the Penal Code at issue, “[a] person commits

an offense if he unlawfully appropriates property with intent to deprive the owner of property.”

Tex. Penal Code § 31.03(a). An “‘[o]wner’” in this context means a person who “has title to the

property, possession of the property, whether lawful or not, or a greater right to possession of the

property than the actor,” id. § 1.07(a)(35)(A), and “‘[p]ossession’” is defined as “actual care,

custody, control, or management,” id. § 1.07(a)(39). In addition, during the time relevant to this

appeal, the Penal Code provided that theft is a state-jail felony if the value of the property is between

$1,500 and $20,000. See Act of May 29, 1993, 73d Leg., R.S., ch. 900, § 1.01, sec. 31.03(e)(4)(A),

1993 Tex. Gen. Laws 3586, 3637-38 (amended 1995, 1997, 2001, 2003, 2007, 2009, 2011, 2015).

Further, the value of stolen property is assessed by using “the fair market value of the property or

service at the time and place of the offense” or “if the fair market value of the property cannot



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be ascertained, the cost of replacing the property within a reasonable time after the theft.” Tex. Penal

Code § 31.08(a).

                For purposes of evaluating the value of property that has been allegedly stolen, fair-

market value means the amount of money that “the property would sell for in cash” if the owner was

given a reasonable amount of time to sell it. See Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim.

App. 1991); see also Valdez v. State, 116 S.W.3d 94, 98 (Tex. App.—Houston [14th Dist.] 2002,

pet. ref’d) (expressing fair-market value as “‘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’” (quoting Keeton, 803 S.W.2d at 306 (Clinton, J., concurring))).

The fair-market value of property can be proven, among other ways, through the testimony of an

owner’s opinion of the value of the property, through expert testimony from a non-owner, or through

evidence of the retail price or sale price. Keeton, 803 S.W.2d at 305; Ray v. State, 106 S.W.3d 299,

301 (Tex. App.—Houston [1st Dist.] 2003, no pet.). “When the owner of the property is testifying

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

property in general and commonly understood terms.” Ray, 106 S.W.3d at 301; see also Jones

v. State, 814 S.W.2d 801, 803 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (stating that “[f]air

market value must be established if the testimony concerning value is given by someone other than

the owner”). In addition, an owner may testify regarding the purchase price or replacement cost

and is presumed to be testifying regarding an assessment of the fair-market value. See Sullivan

v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986); see also Cox v. State, No. 03-97-00015-CR,

1998 WL 29881, at *3 (Tex. App.—Austin Jan. 29, 1998, pet. ref’d) (not designated for publication)

(explaining that “[a]n owner of property may testify to his or her opinion as to the value of property,

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without any testimony relative to market value, since an owner who testifies as to value of property

is presumed to be testifying as to market value”). Moreover, to rebut an owner’s opinion regarding

the value of the stolen property, the defendant “must offer controverting evidence as to the value of

the property.” Sullivan, 701 S.W.2d at 909; see Valdez, 116 S.W.3d at 99.


                                           DISCUSSION

               In a single issue on appeal, Hoes contends that the evidence is legally insufficient to

support his conviction “because there is no evidence that the tractor was worth” between $1,500

and $20,000. When presenting this issue on appeal, Hoes urges that Erwin Sultemeir, who was the

owner of the property alleged in the indictment, did not testify regarding the value of the tractor.

Further, although Hoes acknowledges that Sultemeir’s son-in-law, Bobby Humphrey, did discuss

the value of the tractor, Hoes contends that Humphrey was not the owner of the tractor and,

therefore, could not provide opinion testimony regarding the fair-market value of the tractor.

Similarly, Hoes asserts that Humphrey “is not qualified as a tractor salesman, or anyone who would

have particular knowledge of any specific piece of farm equipment” and that Humphrey’s testimony

regarding the value of the tractor was not substantiated by any evidence. Finally, Hoes notes that

Humphrey did not mention the purchase price or specifically state that his estimate was for the fair-

market value of the tractor.

               As pointed out by Hoes, in Sultemeir’s testimony, he was unable to recall the model

number for the type of tractor that was stolen or the year that the tractor was manufactured, and he

did not provide any testimony regarding the value of the tractor. However, during the trial, the State

also called Humphrey to the stand, and he testified that he worked “side by side” with Sultemeir on


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Sultemeir’s ranch. In his testimony, Humphrey also explained that he personally used that tractor

extensively while working on the ranch. When describing the tractor, Humphrey stated that the

tractor was a 1979 “Massey Ferguson 245” tractor, that the current value of the tractor was

“[r]oughly [$]7500,” and that the value of the tractor was between $1,500 and $20,000. In addition,

Humphrey explained that he was the person who had most recently stored the tractor in a shed when

he finished using it and was the one who reported that the tractor had been stolen. Moreover, when

the State was questioning Humphrey, it repeatedly referred to the tractor as “your tractor,” and

Humphrey never disagreed with that characterization.

               After Humphrey finished testifying, the State called Officers Curtis Klimple and

Brad Doring to the stand. During his testimony, Officer Klimple explained that Humphrey drove

to the sheriff’s station to report the theft. Officer Doring testified in response to questions posed by

the State that he recovered a tractor that belonged to Humphrey and that Humphrey later recovered

“his” tractor and took it home.

               In light of the evidence summarized above as well as the reasonable inferences

that could be made from that evidence, the jury could have reasonably determined that although

Humphrey was not named as the owner in the indictment, he was an owner of the tractor in that

he exercised “actual care, custody, control, or management” over the tractor and, therefore,

had possession of the property or in that Humphrey had “a greater right to possession of the

property than” Hoes did. See Tex. Penal Code § 1.07(a)(35)(A), (a)(39). Moreover, based on that

determination and in the absence of any evidence rebutting Humphrey’s testimony regarding the

value of the tractor, the jury could also have reasonably concluded that Humphrey’s testimony

established that the fair-market value of the tractor was between $1,500 and $20,000. Sandone

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v. State, 394 S.W.3d 788, 792 (Tex. App.—Fort Worth 2013, no pet.) (noting that “the State is

not required to prove that an owner of property is qualified based on knowledge of the value of the

property before the owner may give testimony about value”). This seems particularly true in this

case where Hoes himself provided testimony as to the market value of the tractor. In particular,

although Hoes denied stealing the tractor, he testified that he bought the tractor from someone

for $4,000.

                 For these reasons, we must conclude that the evidence presented at trial is legally

sufficient to establish that the fair-market value of the tractor was between $1,500 and $20,000.

Accordingly, we overrule Hoes’s issue on appeal.


                                           CONCLUSION

                 Having overruled Hoes’s sole issue on appeal, we affirm the district court’s judgment

of conviction.




                                               David Puryear, Justice

Before Justices Puryear, Goodwin, and Bourland

Affirmed

Filed: July 22, 2016

Do Not Publish




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