                                                                                  ACCEPTED
                                                                              03-15-00127-CR
                                                                                      5646314
                                                                   THIRD COURT OF APPEALS
                 N O . 03-15-00127-CR                                         AUSTIN, TEXAS
                                                                         6/11/2015 4:42:28 PM
                                                                            JEFFREY D. KYLE
                                                                                       CLERK
          I N T H E C O U R T O F APPEALS

     O F T H E T H I R D D I S T R I C T OF TEXAS             FILED IN
                                                       3rd COURT OF APPEALS
                                                           AUSTIN, TEXAS
                                                       6/11/2015 4:42:28 PM
             A A R O N JOSEPH HOES,                      JEFFREY D. KYLE
           Appellant                                           Clerk


                                V.



             T H E STATE O F TEXAS
           Appellee



       Appeal i n Cause N o . CR01167 i n the
33rd Judicial District Court o f Blanco County, Texas




                Brief     For        Appellee


    OFFICE O F D I S T R I C T A T T O R N E Y
    33^^ and 424'^ J U D I C I A L D I S T R I C T S
    Wiley B. McAfee, District Attorney
    P. O. Box 725, Llano, Texas 78643
    Telephone        Telecopier
    (325) 247-5755      (325) 247-5274
     g.bunyard@co.llano.tx.us

    By: Gary W . Bunyard
       Assistant District Attorney
       State Bar N o . 03353500
       A T T O R N E Y F O R APPELLEE

                        June 11, 2015

                Oval Argument Waived
                                Identity Of The Parties


Trial Court

   Honorable J. Allan Garrett
   33rd Judicial District
   Burnet County Courthouse Annex (North)
   1701 East Polk St., Suite 74
   Burnet, T X 78611




State/Appellee

   Perry Thomas                                  (Trial Counsel)
   First Assistant District Attorney
   P. O . Box 725
   Llano, Texas 78643
   (325) 247-5755
   State Bar N o . 19849120

  Anthony J. Dodson                              (Trial Counsel)
  Assistant District Attorney
  P. O. Box 725
  Llano, Texas 78643
  (325) 247-5755
  State Bar N o . 05927200



  Gary W . Bunyard                               (Appellate Counsel)
  Assistant District Attorney
  P. O. Box 725
  Llano, Texas 78643
  (325) 247-5755
  State Bar N o . 03353500
  g.bunyard@co.llano.tx.us

                                          ii
Appellant

  Thomas M . Felps                            (Trial Counsel)
  Attorney at Law
  P.O. Box 442
  Johnson City, T X 78636
  (830) 868-7106
  State Bar N o . 06889700



  Alice E. Price                              (Appellate Counsel)
  Attorney at Law
  408 South Liveoak
  Lampasas, T X 76550
  (512) 556-4777
  State Bar N o . 00786177
  apgregg50@hotmail.com




  Aaron Joseph Hoes                           (Appellant)
  T D C J #01987824
  SID #06270672
  Garza East/Chasefield Wilderness U n i t
  4304 Highway 202
  Beeville,TX 78102-8981




                                        iii
                                Table   Of        Contents

                                                                          Page

Index o f Authorities                                                            VI



Statement o f the Case                                                            1

Statement on Oral Argument,                                                       1

Response to Issues Presented                                                     2

Statement o f the Facts                                                          3

Summary o f the Argument - Response to Issue N o . 1                              6

   l.a.   Bobby Humphrey had sufficient use and contact w i t h
          the tractor to be able to render an opinion as to value.

   l.b.   Bobby Humphrey had a greater right o f possession to the
          tractor than that o f Appellant and as such would be an
          owner o f the tractor.

   I.e.   A rational j u r y could have found beyond a reasonable doubt
          that the value o f the tractor was $1,500 or more but less
          than $20,000 based on the testimony o f Bobby Humphrey.

Argument on Response to Issue N o . 1

   1.1    Standard o f Review                                                     8

   1.2    Applicable Facts                                                        9

   1.3    Discussion and Conclusion                                              11




                                             iv
Prayer for Relief.

Certificate o f Word Count

Certificate o f Service
                                Index   Of        Authorities


Case Law                                                        Page

Brooks V. State, 323 S.W.3d 893 (Tex. C r i m . App. 2010)             8

Brown v. State, 333 S.W.3d 606 (Tex. App.—
   Dallas 2009, no pet.)                                               8

Griffith V. State, 976 S.W.2d 686 (Tex. App.--

    Tyler 1997, pet. ref d)                                            9

Hooper v. State, 214 S.W.3d 9 (Tex. C r i m . App. 2007)               8

Jackson V. Virginia, 443 U.S. 307, 99 S. Ct. 2781,

    61 L . Ed. 2d 560 (1979))                                          8

Keeton v. State, 803 S.W.2d 304 (Tex. C r i m . App. 1991)             8

Penagraph v. State, 623 S.W.2d 341 (Tex. C r i m . App. 1981)          9

Sharp V. State, 707 S.W.2d 611 (Tex. C r i m . App. 1986)              9

Constitutions

None Cited.


Statutes/Rules

Tex. Penal Code Sec. 1.07 (a)(35)                                      9




                                             vi
                        statement         Of TIte      Case

   Appellant has adequately described the Statement o f the Case.




                       Statement      on Oral       Argument

   The undersigned waives Oral Argument. Appellant has waived Oral Argument

and the undersigned does not believe that Oral Argument w i l l be beneficial for this

case for the reason that the issues are straight forward and lack any novel or complex

nuances. Should the Court believe that Oral Argument w i l l assist the Court i n any

way, the undersigned w i l l gladly accommodate the Court.




                                          1
                      R e s p o n s e To I s s u e s      Presented

Response T o Issue 1:

   1 .a.   Bobby Humphrey had sufficient use and contact w i t h the tractor

           to be able to render an opinion as to value.

   1 .b.   Bobby Humphrey had a greater right of possession to the tractor

           than that o f Appellant and as such would be an owner o f the

           tractor.

   I.e.    A rational j u r y could have found beyond a reasonable doubt that

           the value of the tractor was $1,500 or more but less than $20,000

           based on the testimony of Bobby Humphrey .




                                             2
                        statement         Of The        Facts

   Appellant has not fully described the facts o f this case under the requirements o f

Texas Rules o f Appellate Procedure 38.1 (g).




   I n April 2013 M r . E r w i n Sultemeier was the owner o f a 1979 Massey Ferguson

Model 245 tractor.    RR Vol. 2 Pages 75, 77, 119 - 120. M r . Sultemeier's son-in-

law, Bobby Humphrey, helped M r . Sultemeier i n performing tasks on the

Sultemeier farm and ranch.      RR Vol. 2 Pages 74 - 75.        O n April 3, 2013, M r .

Humphrey last used the tractor and then stored the tractor by the barn by the old

house. RR Vol. 2 Page 75. O n April 5,2013, M r . Humphrey observed the gate at

the road to the old house to be open when it should not have been and heavy ruts

in the road. RR V o l . 2 Page 76.   Checking the property further, M r . Humphrey

discovered that the tractor and a lowboy trailer to be missing. RR Vol. 2 Pages 76 -

77. M r . Humphrey, who had personally operated the tractor at the Sultemeier farm

and ranch for many years, testified at Appellant's trial that the tractor was w o r t h

approximately $7,500. RR V o l . 2 Pages 75, 77.    M r . Humphrey further testified

that the value o f M r . Sultemeier's tractor was more than $1,500 but was less than

$20,000. RR Vol. 2 Pages 77 - 78.



                                          3
   I n July 2013 Hays County Sheriffs Deputy Troy Mayes conducted a traffic stop

o f a heavy duty pickup being driven by Appellant pulling a trailer w i t h a tractor on

the trailer. RR Vol. 2 Pages 91 - 93. The passenger o f the pickup was identified as

Laurie Chase.    RR Vol. 2 Page 93.      Further investigation showed that the V I N

number on the tractor i n Appellant's possession matched the V I N number o f the

tractor stolen from M r . Sultemeier.   RR Vol. 2 Page 97. When questioned about

the tractor, Appellant told Deputy Mayes that Appellant had purchased the tractor

and produced a Bill o f Sale. RR Vol. 2 Page 96.




   D u r i n g the investigation Hays County Detective Brad Doring arrived. A t that

time Detective Doring was part o f a multicounty auto theft task force. RR Vol. 2

Page 102. Detective Doring inspected the tractor and found it odd that there were

no stickers on the tractor, that the tractor was too clean for its age, and it appeared

that the tractor was recently painted i n a "homemade" fashion.       RR Vol. 2 Pages

103 - 104. Detective Doring noticed that the Bill o f Sale presented by Appellant was

dated January 2, 2013, which was a date prior to the date that the tractor was stolen

from M r . Sultemeier. RR Vol. 2 Page 114 - 115. Detective Doring was unable to

locate the seller named on the Bill o f Sale. RR Vol. 2 Page 113 - 114.      Detective

Doring testified that he was personally familiar w i t h the handwriting o f both

                                           4
Appellant and his passenger, Ms. Chase.       RR Vol. 2 Pages 116 - 117.   I t was the

opinion o f Detective Doring that Ms. Chase was the author o f the Bill o f Sale. RR

Vol. 2 Page 117.




   Appellant took the stand i n the defense case-in-chief. Appellant denied that he

was guilty o f the offense charged. RR Vol. 2 Page 128. Appellant testified that he

purchased the tractor o f f o f Craigslist sometime i n March/April 2013 for $4,000.

RRVol.2Page 133.




                                          5
                     Summary       Of The Argument            on
                         R e s p o n s e to i s s u e No. 1

   l.a.   Bobby Humphrey had sufficient use and contact with the

          tractor to be able to render an opinion as to value.

   l.b.   Bobby Humphrey had a greater right of possession to the

          tractor than that of Appellant and as such would be an

          owner of the tractor.

   I.e.   A rational jury could have found beyond a reasonable

          doubt that the value of the tractor was $1,500 or more but

          less than $20,000 based on the testimony of Bobby

          Humphrey.



   Appellant complains that there is no evidence that the tractor was w o r t h $1,500

or more but less than $20,000 and as such there is insufficient evidence to support

the State Jail Felony offense o f Theft.   I n particular. Appellant complains that a

"non-owner" o f property can not testify about the value o f property owned by

another unless the basis for the opinion o f the "non-owner" has been established.

However, there was evidence related to valuation o f the property from a witness

who had substantial, long term use o f the property and who had actual care, custody,

                                           6
and control over the property prior to it being stolen. The evidence described was

not challenged or impeached to any degree. Being the ultimate trier o f fact, the j u r y

could rationally fmd beyond a reasonable doubt that the value o f the property stolen

was $1,500 or more but less than $20,000.




                                            7
                   Argument      On R e s p o n s e to Issue    No. 1

1,1      Standard ofReview

      I n evaluating legal sufficiency o f the evidence, reviewing courts look at all

evidence i n the light most favorable to the verdict to determine whether any rational

fact-finder could have found guilt beyond a reasonable doubt.       Brooks v. State, 323

S.W.3d 893, 912 (Tex. C r i m . App. 2010) {ciimg Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 61 L . Ed. 2d 560 (1979)); Brown v. State, 333 S.W.3d 606, 608

(Tex. App.—Dallas 2009, no pet.).




      Legal sufficiency is examined under the direction o f the Brooks opinion, while

giving deference to the responsibility o f the j u r y "to fairly resolve conflicts i n

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

to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. C r i m . App. 2007) (citing

Jackson, 443 U.S. at 318-19).




      Fair market value o f property may be proven i n a variety o f ways, including the

opinion o f the owner and the opinion o f a non-owner expert opinion.          Keeton v.

State, 803 S.W.2d 304 (Tex. C r i m . App. 1991).



                                            8
   "Owner" is defined as a person who (A) has title to the property, possession o f

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

than the actor; or (B) is a holder i n due course o f a negotiable instrument. Tex.

Penal Code Sec. 1.07 (a)(35).




   I n addition, when it comes to witness credibility and the weight to be given a

witness's testimony, the j u r y is the exclusive judge. Penagraph v. State, 623 S.W.2d

341, 343 (Tex. C r i m . App. 1981). The j u r y may believe all, some, or none o f any

witness's testimony.      Sharp v. State, 707 S.W.2d 611, 614 (Tex. C r i m . App. 1986).

The j u r y may use common sense and apply common knowledge, observation, and

experience gained i n the ordinary affairs o f life when giving effect to the inferences

that may reasonably be drawn from the evidence.         Griffith v. State, 976 S.W.2d 686,

690 (Tex. App.--Tyler 1997, pet. ref d).




1.2     Applicable Facts

      I n this case, Bobby Humphrey is the son-in-law o f E r w i n Sultemeier, the owner

o f the stolen tractor.   RR Vol. 2 Pages 74 - 75, 77, 119 - 120. Bobby Humphrey

was familiar w i t h the history o f the tractor beginning from when M r . Sultemeier's

                                             9
brother bought the tractor new i n 1979.          RR Vol. 2 Page 77.   Bobby Humphrey

personally used the tractor on a regular basis for many years.         RR V o l . 2 Page 75.

Around the time that the tractor was stolen Bobby Humphrey was i n fact exercising

care, custody, and control over the tractor i n that he used the tractor on a regular

basis and, i n this particular instance, stored the tractor i n a shed next to the old house

once he was finished w i t h the tractor for that day. RR V o l . 2 Pages 75, 77. I t was

Bobby Humphrey and his son who later discovered that the tractor was missing.

RR Vol. 2 Pages 7 6 - 7 7 .




   A t trial Bobby Humphrey testified that i n his opinion the tractor was worth

$7,500. RR Vol. 2 Page 77. Additionally, Bobby Humphrey testified that the value

o f the tractor was more than $1,500 but less than $20,000. RR V o l . 2 Pages 77 - 78.




   I n his defense, Appellant took the stand and testified that he bought the tractor

sometime i n March/April for $4,000 and presented a Bill o f Sale to Det. Doring that

contained the tractor's V I N number and was dated January 2, 2013.             RR V o l . 2

Pages 114, 133.




                                             10
      Prior to deliberation, the trial court instructed the j u r y as to the definition o f the

word "value". CR Vol. 1 Pages 91 - 95. The trial court instructed the j u r y that:

      'Value" means the fair market value o f the property at the time and place o f
      the offense, or i f the fair market value o f the property cannot be ascertained,
      the cost o f replacing the property w i t h i n a reasonable time after the theft.

Id.



      The trial court also instructed the j u r y as to the definition o f the term "owner"

as follows:

      "Owner" means a person who has title to the property, possession o f the
      property, whether lawful or not, or a greater right to possession o f the
      property than the defendant.

CRVol. lPages91-95.



IJ       Discussion and Conclusion

      The value opinion given by Bobby Humphrey was legally sufficient to justify the

verdict o f the jury. While not named as the owner o f the tractor i n the Indictment,

Bobby Humphrey met the definition o f "owner" i n that he had a greater right o f

possession to the tractor than that o f Appellant. Bobby Humphrey had substantial

knowledge o f the history and condition o f the tractor.            Appellant's trial counsel

never objected to the qualifications o f Bobby Humphrey to give an opinion as to the

value o f the tractor nor did counsel make any attempt to cross-examine Bobby

                                                11
Humphrey on how M r . Humphrey arrived at this opinion. N o t only did Bobby

Humphrey give an opinion as to a specific value but he also gave an opinion that the

value o f the tractor was greater than $1,500 but not as much as $20,000. The only

other testimony given as to value was the Appellant's o w n testimony, that he bought

the tractor for $4,000. There was no mention o f the issue o f value by Appellant's

trial counsel at closing arguments.   A rational j u r y could very well conclude from

this evidence, beyond a reasonable doubt, using their common sense and application

o f common knowledge, observation, and experience gained i n the ordinary affairs

o f life, that the value o f the tractor, as the term "value" was defined i n the Court's

Charge, was $1,500 or more but less than $20,000.

   I n as much as Appellant does not challenge on appeal any other issue the

judgment and sentence entered by the trial court should be affirmed.




                                           12
                               Prayer    For      Relief

   Wherefore, Appellee prays the Court deny the relief requested by Appellant and

affirm the judgment and sentence o f the trial court.

                                Respectfully submitted,

                                OFFICE O F D I S T R I C T A T T O R N E Y
                                33^^ and 424^^ J U D I C I A L D I S T R I C T S
                                Wiley B. McAfee, District Attorney
                                P. O . Box 725
                                Llano, Texas 78643
                                Telephone                      Telecopier
                                (325) 247-5755                (325) 247-5274




                                     Assistant District Attorney
                                     State Bar N o . 03353500
                                     g.bunyard@co.llano.tx.us
                                A T T O R N E Y FOR APPELLEE




                     C E R T I F I C A T E OF WORD C O U N T

   This is to certify that the pertinent portion o f this brief contains 1,778 words
printed i n Aldine401 B T 14 font.



                                           unyara/
                                Assistant District Attorney




                                          13
                          C E R T I F I C A T E OF SERVICE

      This is to certify that a true copy o f the above and foregoing instrument, together
w i t h this proof o f service hereof, has been forwarded by EServe and by email on the
I f ^ day o f June 2015, to Ms. Alice E. Price, Attorney for Appellant, at
apgregg50@hotmail.com.




                                  Assistant District Attorney




                                            14
