                                   NO. 12-15-00160-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                      TYLER, TEXAS

BRADLEY GRAHAM,                                   §      APPEAL FROM THE 217TH
APPELLANT

V.                                                §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                          §      ANGELINA COUNTY, TEXAS

                                   MEMORANDUM OPINION
       Bradley Gene Graham appeals from his conviction for felony theft. In three issues,
Appellant challenges the sufficiency of the evidence, the trial court’s decision to proceed with
trial in his absence, and the effectiveness of his trial counsel. We affirm.


                                           BACKGROUND
       The State charged Appellant with felony theft. The indictment alleged that Appellant
unlawfully appropriated the axles and tongue from a mobile home without Richard Pike’s
effective consent and with the intent to deprive Pike thereof. The indictment alleged that the
stolen property’s value totaled $1,500 or more but less than $20,000. Appellant pleaded “not
guilty.”
       At trial, Pike testified that he had not resided on the property for several years. One day,
Pike learned of suspicious activity on the property. He and a sheriff’s deputy went to the
property, and he discovered that his storage shed was in “shambles” and almost every metal item
had been removed from the property. The axles and tongue from his mobile home were among
the missing items. Pike also noticed a worn foot path that led from his property to a neighboring
property owned by Appellant’s family.
        Sergeant Charles Lawrence of the Angelina County Sheriff’s Department testified that,
while patrolling the area in which Pike’s property was located, he saw a truck hauling the axles
and tongue from a mobile home. Investigator Donald Carroll, also with the Angelina County
Sheriff’s Department, later located the truck at a scrap yard.                Lawrence and Carroll both
identified Appellant as the driver of the truck. Pike testified that the truck contained the axles
and tongue from his mobile home, some shotgun shells from the shed, and a few other items. He
explained that the axles and tongue had been attached to the mobile home. He denied giving
anyone permission to take items from his property.
        In a written statement to Sergeant Mike Jones of the Angelina County Sheriff’s
Department, Appellant admitted entering Pike’s shed and looking inside the mobile home. He
stated that his cousin, Tommy Graham, told him that he could haul off scrap metal on his
property. He then walked next door to Pike’s property. Appellant admitted taking the axles and
tongue to sell at the scrap yard. He claimed that the axles and tongue were not attached to the
mobile home when he took them. He knew he should not have taken these items, but he told
Jones that he thought they were abandoned. Pike testified that the electricity and water had been
turned off and he had not been to the property in about a month, but that the property was not
abandoned.
        The jury found Appellant guilty of felony theft. The trial court found the indictment’s
two felony enhancement paragraphs to be “true” and sentenced Appellant to imprisonment for
eighteen years.1


                                     SUFFICIENCY OF THE EVIDENCE
        In his first issue, Appellant contends the evidence is insufficient to support his conviction
because the State failed to prove the stolen property’s fair market value or replacement value.
Standard of Review
        When reviewing the sufficiency of the evidence, we determine whether, considering all
the evidence in the light most favorable to the verdict, the jury was rationally justified in finding
guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.

        1
          Although the charged offense is a state jail felony, Appellant was punished for a second degree felony
because he has two prior convictions for offenses other than state jail felonies. See TEX. PENAL CODE ANN.
§§ 12.33(a) (West 2011), 12.425(b) (West Supp. 2015).


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Id. We give deference to the jury’s responsibility to fairly resolve evidentiary conflicts, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the accused’s guilt. Id.
Facts
        At trial, Pike testified that the value of the tongue and axles had to be greater than $1,500.
He testified that these items were over thirty years old and bore some rust, but were functional.
On cross-examination, he agreed that the items’ value could easily be $1,000, but he believed
they were worth more. He disagreed that the value could be as low as $500, and he testified that
he had not shopped for new items. On redirect examination, he stated that he would have had the
property appraised had he known value would be an issue. However, Pike remained firm that the
property’s value totaled at least $1,500. Appellant subsequently moved for a directed verdict on
the grounds that the State failed to produce sufficient evidence of value. The trial court denied
the motion.
Analysis
        A person commits an offense if he unlawfully appropriates property with intent to
deprive the owner of the property. TEX. PENAL CODE ANN. § 31.03(a) (West Supp. 2015). The
value of property is (1) its fair market value at the time and place of the offense, or (2) if the fair
market value cannot be ascertained, the cost of replacing the property within a reasonable time
after the theft. Id. § 31.08(a). A property owner is competent to testify as to the value of his
own property. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986). The owner also
may testify as to his opinion or estimate of value in general and commonly understood terms. Id.
at 909. Such testimony constitutes an offer of the witness’s best knowledge of the property’s
value and is sufficient evidence for the trier of fact to make a determination as to value based on
the witness’s credibility. Id. This is true even without a specific statement as to “market value”
or “replacement value.” Id. If the defendant wishes to rebut the owner’s opinion evidence, he
must offer controverting evidence as to the property’s value. Id.
        The jury heard Pike opine, as the owner of the stolen property, that the mobile home
axles and tongue were worth at least $1,500. The record does not indicate that Appellant
provided evidence to controvert Pike’s opinion as to value. Merely rebutting Pike’s opinion on
cross-examination is insufficient. See id. Absent controverting evidence, Pike’s testimony alone



                                                    3
is sufficient to prove value. See id. at 908-09. Accordingly, as sole judge of the weight and
credibility of the witnesses’ testimony, the jury was entitled to accept Pike’s testimony valuing
the stolen property at $1,500. See Brooks, 323 S.W.3d at 899; see also Hooper, 214 S.W.3d at
13. Viewing the evidence in the light most favorable to the jury’s verdict, we conclude that the
jury could find, beyond a reasonable doubt, that Appellant committed felony theft of $1,500 or
more but less than $20,000. See Brooks, 323 S.W.3d at 899; see also TEX. PENAL CODE ANN.
§§ 1.03(a), 31.08(a).2 Because the evidence is legally sufficient, we overrule Appellant’s first
issue.


                                   APPELLANT’S ABSENCE FROM TRIAL
         In his second issue, Appellant complains that the trial court erroneously proceeded with
trial in his absence. He contends that, in his motion for new trial, he furnished the trial court
with affidavits establishing that he had car trouble and contacted his attorney. He argues that he
did not voluntarily absent himself from trial and that he was harmed by counsel’s failure to either
inform the trial court of the reason for his absence or request a continuance.
Standard of Review and Applicable Law
         In a felony prosecution, the defendant must be personally present at trial. TEX. CODE
CRIM. PROC. ANN. art. 33.03 (West 2006). However, a trial may proceed to its conclusion when
the defendant voluntarily absents himself (1) after pleading to the indictment or information, or
(2) after the jury has been selected when trial is before a jury. Id. When the record shows that
the defendant was present at the commencement or other portion of trial, it shall be presumed
that, in the absence of contrary evidence, he was present during the entire trial. Id. We employ
an abuse of discretion standard when evaluating a trial court’s decision to proceed with trial in
the defendant’s absence. See Moore v. State, 670 S.W.2d 259, 261 (Tex. Crim. App. 1984). “In
most instances, the validity of a trial court’s decision that a defendant’s absence was voluntary
will have to be determined in hindsight.” Id.
Facts
         During the guilt phase of trial, a lunch recess was taken at approximately 12:17 p.m., and
the trial court instructed the parties, in Appellant’s presence, to return at 1:30 p.m.                           At

         2
          On the date of the offense, theft was a state jail felony when the value alleged was $1,500 or more but less
than $20,000. See Act of May 29, 2011, 82nd Leg., R.S., ch. 1234 § 21, 2011 Tex. Gen. Laws 3301, 3310
(amended 2015) (current version at TEX. PENAL CODE ANN. § 31.03(e)(4)(A) (West Supp. 2015)).


                                                          4
approximately 1:43 p.m., Appellant had not returned to the courtroom and defense counsel
admitted having no knowledge of Appellant’s whereabouts. The bailiff called Appellant’s name
in the hallway three times with no response. The trial court chose to proceed, given that
Appellant “voluntarily absented himself” from trial. Appellant did not return to court that day.
After finding Appellant guilty, one juror asked the trial court about Appellant’s absence. The
juror commented that while being absent did not help Appellant, his absence did not affect the
jury’s decision.
       The following day, Appellant failed to appear in court for the punishment phase of trial.
The trial court sentenced him to imprisonment for eighteen years. In his motion for new trial and
attached affidavits, Appellant stated that his car battery died while he was at home for lunch and
that he contacted his attorney’s office. In an affidavit, Appellant stated that he had no telephone
or additional transportation. When his neighbor returned home, Appellant used the neighbor’s
telephone to contact defense counsel, who told Appellant that he would request a continuance.
In her own affidavit, Appellant’s wife confirmed Appellant’s version of events.
Analysis
       Appellant was present when the trial court recessed the proceedings for lunch and
announced when proceedings would resume. Defense counsel expressly stated that he had no
idea about Appellant’s location, and the record does not indicate that Appellant tried to contact
the trial court. Based on the facts before it at the time of its ruling, the trial court could
reasonably conclude that Appellant voluntarily absented himself from trial. See Moore, 670
S.W.2d at 261.
       When ruling on Appellant’s motion for new trial, the trial court was the sole judge of the
weight and credibility of the evidence, including Appellant’s attached affidavits. See Odelugo v.
State, 443 S.W.3d 131, 137 (Tex. Crim. App. 2014). Accordingly, the trial court was entitled to
rely on defense counsel’s representation at trial that he was unaware of Appellant’s whereabouts
and to reject Appellant’s evidence to the contrary. See id. The trial court was also entitled to
reject Appellant’s contention that he had no other transportation, particularly absent evidence
demonstrating that Appellant attempted to obtain other means of transportation. Under these
circumstances, we conclude that the trial court did not abuse its discretion by finding that
Appellant had voluntarily absented himself from trial. See Moore, 670 S.W.2d at 261; see also
TEX. CODE CRIM. PROC. ANN. art. 33.03. We overrule Appellant’s second issue.



                                                5
                                   INEFFECTIVE ASSISTANCE
       In his third issue, Appellant contends that trial counsel rendered ineffective assistance by
failing to request a continuance when he did not return to trial and by failing to request a jury
instruction on the lesser included offense of Class A misdemeanor theft.
Standard of Review and Applicable Law
       An appellant complaining of ineffective assistance must satisfy a two-pronged test. See
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); see also
Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Under the first prong, the appellant
must show that counsel’s performance was “deficient.” Strickland, 466 U.S. at 687, 104 S. Ct.
at 2064; Tong, 25 S.W.3d at 712. “This requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. The appellant must show that
“counsel’s representation fell below an objective standard of reasonableness.” Id. 466 U.S. at
688, 104 S. Ct. at 2064; Tong, 25 S.W.3d at 712. Absent evidence of counsel’s reasons for the
challenged conduct, we assume a strategic motivation if one can be imagined, and we will not
conclude that challenged conduct is deficient unless it was so outrageous that no competent
attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001).
       Under the second prong, an appellant must show that the “deficient performance
prejudiced the defense.” Strickland, 466 U.S. at 687, 104 S. Ct. at 2064; Tong, 25 S.W.3d at
712.   Prejudice requires a showing of “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 694, 104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694,
104 S. Ct. at 2068; Tong, 25 S.W.3d at 712. The appellant must establish both prongs by a
preponderance of the evidence or the ineffectiveness claim fails. Tong, 25 S.W.3d at 712.
       Review of trial counsel’s representation is highly deferential. Id. We indulge a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S. Ct. at 2065. The appellant bears the burden of
overcoming the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. Id.; Tong, 25 S.W.3d at 712. Any allegation of ineffectiveness



                                                6
must be firmly founded in the record, and the record must affirmatively demonstrate the alleged
ineffectiveness. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). The record on
direct appeal is rarely sufficiently developed to fairly evaluate a claim of ineffectiveness. Id. at
833.
Analysis
         As previously discussed, the trial court did not abuse its discretion by proceeding with
trial in Appellant’s absence. Given the trial court’s ruling and the law set forth by article 33.03,
defense counsel may have believed that it would not have been productive to request a
continuance. Defense counsel was not required to file a futile motion. See Mooney v. State, 817
S.W.2d 693, 698 (Tex. Crim. App. 1991). Additionally, trial counsel cannot be deemed deficient
for his failure to request a lesser included offense instruction because he could have been
pursuing an “all-or-nothing” strategy in hopes of an acquittal based on a jury finding that the
stolen property was not worth $1,500 or more. See Washington v. State, 417 S.W.3d 713, 726
(Tex. App.—Houston [14th Dist.] 2013, pet. ref’d); see also Shanklin v. State, 190 S.W.3d 154,
161 (Tex. App.—Houston [1st Dist.] 2005, pet. dism’d).
         Thus, we conclude that Appellant has failed to establish that counsel’s performance was
deficient, as required by the first prong of Strickland. See Strickland, 466 U.S. at 687, 104 S.
Ct. at 2064; see also Tong, 25 S.W.3d at 712. Appellant’s ineffectiveness claim fails. See Tong,
25 S.W.3d at 712. We overrule Appellant’s third issue.


                                                   DISPOSITION
         Having overruled Appellant’s three issues, we affirm the trial court’s judgment.

                                                                 BRIAN HOYLE
                                                                    Justice

Opinion delivered June 30, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 30, 2016


                                         NO. 12-15-00160-CR


                                       BRADLEY GRAHAM,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 217th District Court
                        of Angelina County, Texas (Tr.Ct.No. 2011-0160)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
