                                  NO. 12-15-00167-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

SIDNEY C. LYNCH,                                 §       APPEAL FROM THE 7TH
APPELLANT

V.                                               §       JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §       SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Sidney C. Lynch appeals his conviction for theft. In two issues, he challenges the
sufficiency of the evidence to support his conviction and the trial court’s inclusion of a
presumption instruction in the jury charge. We affirm.


                                          BACKGROUND
       The State charged Appellant with theft of a truck belonging to Debra Graham, to which
he pleaded “not guilty.” Graham and her husband, James Everhardt, testified that they owned a
2002 Dodge truck. Graham testified that she was the truck’s registered owner. One day, Bryon
Bragg contacted them about borrowing the truck. Everhardt and Graham agreed to loan the truck
to Bragg. Everhardt believed that Bragg needed the truck to help his roommate, Stephen Pardue,
pick up tires for Pardue’s car. Bragg testified that he allowed Pardue to borrow the truck.
       Pardue testified that he borrowed the truck to visit his daughter, but he stopped to visit his
friend, Jessica. When he prepared to leave Jessica’s house, the truck would not start. He
testified that Everhardt told him to leave the truck there. Jacob Mayne, who was also visiting
Jessica, testified that the truck was “sputtering” when Pardue arrived and that Pardue wanted to
get rid of the truck. Mayne told Pardue that Samuel Jones could help him repair, sell, or replace
the truck. Mayne then contacted Jones by telephone.
       Jones testified that he and Appellant are coworkers at “The Farm,” a salvage business.
He explained that they purchase vehicles and sell the parts to salvage yards. He testified that
Mayne contacted him about the truck and said he wanted to sell it. Mayne and Appellant then
discussed a purchase price. Kelly Sonntag, Jessica’s neighbor, testified that he saw two men
retrieve the truck, but that Appellant was not one of them. According to Jones, however, he and
Appellant retrieved the truck. Jones testified that he later paid Mayne for the purchase with
money from Appellant.
       Laurie Atkins testified that she was present when Appellant took the truck. Appellant
told Atkins that he needed someone with a valid driver’s license to sign a release. She spoke to
Mayne on the telephone, who said to sign the release. When she signed her name, she noticed
that the document said “bill of sale.” She expressed concern about signing a bill of sale, but
Appellant told her not to worry about it. Atkins contacted Everhardt when she later learned that
the truck had been stolen.
       Detective Larry Swinford of the Smith County Sheriff’s Department testified that he went
to The Farm to investigate, but could not locate the truck. He spoke with Appellant, who
admitted purchasing the truck and obtaining a record of the purchase. He initially told Swinford
that the truck had been demolished and the pieces sold to a business in Longview. When
Swinford told Appellant that he would check the Longview business’s records, Appellant
changed his story and said he knew nothing about what happened to the truck.
       Graham and Everhardt both testified that the truck was never located. Everhardt testified
that he and Graham purchased the truck for $4,800. Graham testified that she purchased the
truck for $5,300 about a year before the theft and that the truck was running and in very good
condition when Bragg borrowed it. She submitted a claim to her insurance provider and received
just under $4,000 for the loss. In Graham’s opinion, the truck was worth over $5,000. Swinford
testified that, based on the truck’s vehicle identification number, its trade-in value ranged from
$2,500 to $6,000.




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        The jury found Appellant “guilty” of theft of property in an amount more than $1,500 but
less than $20,000. Appellant pleaded “true” to an enhancement allegation, and the jury assessed
punishment of imprisonment for ten years.1


                                           LEGAL SUFFICIENCY
        In his first issue, Appellant contends the evidence is legally insufficient to support his
conviction because of conflicting evidence regarding value and identity of the perpetrator.
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.
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.
Value
        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 or
her own property. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986). The owner
may offer an 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. When the State seeks to establish the value of property through the
testimony of someone other than the owner, the nonowner must be qualified regarding

        1
           Although the charged offense is a state jail felony, Appellant was punished for a third degree felony
because he has a prior conviction that contains an affirmative deadly weapon finding. See TEX. CODE CRIM. PROC.
ANN. art. 42.12 § 3g(a)(2) (West Supp. 2015); see also TEX. PENAL CODE ANN. § 12.35(c)(2)(B) (West Supp.2015).


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knowledge of the property’s value and must testify explicitly as to fair market value or
replacement value. Id.
         The jury heard Detective Swinford testify that the truck’s value ranged from $2,500 to
$6,000. Everhardt, one of the truck’s owners, testified that the truck cost $4,800. The jury also
heard Graham, the truck’s registered owner, testify that she purchased the truck for $5,300, her
insurance provider paid just under $4,000 for the loss of the truck, and she believed the truck’s
value exceeded $5,000. These witnesses’ testimony supports the State’s allegations of theft in an
amount more than $1,500 but less than $20,000. See id. at 908-09. The jury was entitled to
choose which testimony to accept and the State was not required to prove an exact value. See
Hooper, 214 S.W.3d at 13; see also Sowders v. State, 693 S.W.2d 448, 450 (Tex. Crim. App.
1985) (State need only prove value of stolen property falls within the alleged value range).
Accordingly, the jury could reasonably conclude that the truck’s value was more than $1,500 but
less than $20,000, as alleged in the indictment. See Brooks, 323 S.W.3d at 899; see also
Hooper, 214 S.W.3d at 13.2
Identity
         The state must prove, beyond a reasonable doubt, that the accused is the person who
committed the crime charged. Smith v. State, 56 S.W.3d 739, 744 (Tex. App.—Houston [14th
Dist.] 2001, pet. ref’d). Identity may be proved through direct or circumstantial evidence and
inferences. Id. An appellate court gives great weight to a witness’s positive identification of a
defendant. See Haywood v. State, 507 S.W.2d 756, 758 (Tex. Crim. App. 1974).
         The jury heard conflicting evidence regarding the identity of the two men who hauled off
the truck. Sonntag testified that Appellant was not one of those two men. Jones and Atkins
testified that Appellant was one of the two men who hauled off the truck.                            Additionally,
Appellant told Detective Swinford he purchased the truck, and he gave conflicting stories as to
what happened to the truck. The State also admitted a copy of the bill of sale into evidence,
which identified Appellant as the “purchaser” of the truck. Any conflict in the testimony or
question of identity is to be resolved by the jury. Hicks v. State, 508 S.W.2d 400, 402 (Tex.
Crim. App. 1974). Accordingly, the jury was free to reject Sonntag’s testimony and accept the
testimony of other witnesses who identified Appellant as the perpetrator. See Hooper, 214

         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)).


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S.W.3d at 13; see also Hicks, 508 S.W.2d at 402; Haywood, 507 S.W.2d at 758. Viewing the
evidence in 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. §§ 31.03(a),
31.08(a). We overrule Appellant’s first issue.


                                                     JURY CHARGE
        In his second issue, Appellant challenges the trial court’s inclusion in the jury charge of
an instruction regarding the presumption of knowledge that property received has been
previously stolen enumerated in section 31.03(c)(6)(B) of the Texas Penal Code.3
Facts
        The State submitted a proposed jury instruction on the presumption found in section
31.03(c)(6)(B). Defense counsel stated that he expected the trial court to include the instruction
because it fell under section 31.03 and because the evidence included testimony throughout the
trial regarding the topics of presumption, title, bill of sale, and certificate of authority. He
expressed the belief that the presumption needed to be addressed in the charge, and he deferred
to the trial court’s decision on what to include in the charge. Without objection from the
defense, the trial court included the State’s requested instructions in its jury charge.
Analysis
        The record indicates that Appellant agreed to submit a charge that contained an
instruction on the section 31.03 presumption. Under the doctrine of invited error, a species of
estoppel, a party who affirmatively seeks action by the trial court, cannot later complain that the
action was erroneous. Prystash v. State, 3 S.W.3d 522, 531 (Tex. Crim. App. 1999). “The rule
of invited error in jury charges is one of long standing[.]” Id. Having agreed to submission of


        3   Section 31.03(c)(6)(B) states, in pertinent part, that

        an actor engaged in the business of obtaining abandoned or wrecked motor vehicles or parts of an
        abandoned or wrecked motor vehicle for resale, disposal, scrap, repair, rebuilding, demolition, or
        other form of salvage is presumed to know on receipt by the actor of stolen property that the
        property has been previously stolen from another if the actor knowingly or recklessly . . . fails on
        receipt of a motor vehicle to obtain a certificate of authority, sales receipt, or transfer document as
        required by Chapter 683, Transportation Code, or a certificate of title showing that the motor
        vehicle is not subject to a lien or that all recorded liens on the motor vehicle have been released[.]

TEX. PENAL CODE ANN. § 31.03(c)(6)(B) (West Supp. 2015).


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the instructions, Appellant cannot now complain that the trial court erred by submitting the
instruction to the jury. See id.; see also Landers v. State, No. 07–10–0130–CR, 2011 WL
1496154, at *2 (Tex. App.—Amarillo Apr. 19, 2011, pet. ref’d) (mem. op., not designated for
publication) (appellant acquiesed in trial court’s decision to disallow expert testimony and could
not complain on appeal about something to which he agreed).            Accordingly, we overrule
Appellant’s second issue.


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

                                                                 GREG NEELEY
                                                                    Justice

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




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             JUNE 30, 2016


                                         NO. 12-15-00167-CR


                                       SIDNEY C. LYNCH,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-0443-15)

                        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.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
