                                                                                                                ACCEPTED
                                                                                                            04-14-00818-CR
                                                                                                FOURTH COURT OF APPEALS
                                                                                                     SAN ANTONIO, TEXAS
                                                                                                      10/30/2015 8:50:23 AM
                                                                                                             KEITH HOTTLE
                                                                                                                     CLERK




                                                                                        FILED IN
                                                                                 4th COURT OF APPEALS
                                                                                  SAN ANTONIO, TEXAS
October 30, 2015
                                                                                 10/30/15 8:50:23 AM
                                                                                   KEITH E. HOTTLE
Hon. Keith Hottle, Clerk                                                                 Clerk
Fourth Court of Appeals
300 Dolorosa Ste 3200
San Antonio, Texas 78205-3037

       Re: Lieber v. State; No. 04-14-00818-CR

Dear Mr. Hottle:

Mr. Schulman, who appeared for the State at oral argument on October 13, 2015, reported that Justice
Martinez asked questions regarding whether expecting the defendant in a criminal case to introduce
evidence of the value of stolen property constituted a shifting of the burden of proof. Please advise the
members of the Court that the State does not believe the defendant is required to put on any evidence of
value, and that it remains the State’s burden to establish the value of the stolen items beyond a reasonable
doubt.

However, as was recently stated by the Fourteenth Court of Appeals in Bullock v. State,                  S.W.3d
     (Tex.App. - Houston [14th] No. 14-14-00304-CR; October 20, 2015):

       In a theft case, the State has the burden to prove the property’s value through evidence of
       either “(1) its fair market value at the time and place of the offense, or (2) the cost of
       replacing it within a reasonable time after the theft if fair market value could not be
       ascertained.” Smiles v. State, 298 S.W.3d 716, 719 (Tex.App.—Houston [14th Dist.] 2009,
       no pet.) (citing Tex. Penal Code Ann. § 31.08). “Fair market value is the amount of money
       that the property would sell for in cash, given a reasonable time for selling it.” Id. When an
       owner of the property testifies about value, we “presume that an owner’s testimony
       regarding the value of property is an estimation of the property’s fair market value.” Id. An
       owner may testify about fair market value “in terms of purchase price or the cost to him of
       replacing the stolen property.” Id. “Because such testimony is an offer of the owner’s best
       knowledge of the value of his property, it is legally sufficient evidence for the trier of fact
       to make a determination as to value based on the owner’s credibility as a witness.” Id. “If
       a defendant wishes to rebut the owner’s opinion evidence as to value he must do more than
       merely impeach the witness’s credibility during cross-examination; he must actually offer
       controverting evidence as to the value of the stolen item.” Id.

Bullock, slip op. at 3.
It is the State’s position that the defendant is entitled to introduce evidence controverting the evidence
produced by the State as to the value of the stolen property if he or she chooses to do so. The defendant is
never required, however, to introduce any evidence. The jury, of course, is free to accept either the
evidence introduced by the State or that introduced by the defendant.

In the instant case, Appellant chose to introduce what he perceived to be controverting evidence as to value.
The jury rejected that evidence, as it was free to do.

Please accept this letter as a supplemental post-submission letter brief.




Enclosures

cc: M. Patrick Maguire
