




02-12-033-CR





















COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO. 02-12-00033-CR
 
 



Gloria
  Sandone
 
 
 
v.
 
 
 
The
  State of Texas


§
 
§
 
§
 
§
 
§


From County Criminal
  Court No. 5
 
of
  Denton County (CR-2010-05127-E)
 
January
  17, 2013
 
Opinion
  by Chief Justice Livingston
 
(p)



 
JUDGMENT
 
          This
court has considered the record on appeal in this case and holds that there was
no error in the trial court’s judgment.  It is ordered that the judgment of the
trial court is affirmed.
 
SECOND DISTRICT COURT OF APPEALS 




 
 
 
 
By_________________________________
   
Chief Justice Terrie Livingston
 
 
 














COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
 



 
 
 
NO. 02-12-00033-CR
 
 



Gloria Sandone


 


APPELLANT




 
V.
 




The State of Texas


 


STATE



 
 
----------
FROM County
Criminal Court No. 5 OF Denton COUNTY
----------
OPINION
----------
          In
two issues, appellant Gloria Sandone appeals her Class B misdemeanor conviction
for theft of property valued at $50 or more but less than $500.[1] 
We affirm.
Background Facts[2]
          One
afternoon in June 2010, Eric Butler, who is a loss prevention supervisor for
J.C. Penney, was working in a Lewisville store when he saw appellant in the
men’s clothing area.  Appellant had several pairs of pants draped across her
arm, and according to Butler, she “selected a tie very quickly without looking
at the price.”  Appellant then selected three more ties, looked around, and
concealed the four ties in a bag that already contained clothing.  Butler
watched appellant walk to a cash register and make two piles of clothing.  One
pile contained the clothing from the bag (four pairs of pants and the four ties
that Butler saw appellant take), and the other pile contained the clothing that
appellant had draped on her arm.  At the register, appellant exchanged the
clothes from the bag (as if she had already purchased them) for the clothes
that she had draped on her arm.  Butler eventually saw appellant leave the
store, identified himself as a loss prevention officer, asked her to reenter
the store, and told her about what he had seen.  When appellant denied Butler’s
allegation that she had committed theft, Butler called the police.
          Lewisville
Police Department Officer Chang Chi arrived at the store’s loss prevention
office and asked appellant what had happened.  Appellant said that she had
previously bought some dress clothes for her son and that she had taken those clothes
into the store to exchange them for other clothes.  Officer Chi looked at the
pants that appellant claimed to have brought in the store, and he noticed that
they were different sizes.  For example, one pair of the pants had a thirty-eight-inch
waist, while another pair had a thirty-two-inch waist.  Officer Chi believed
that the pants’ size discrepancies were inconsistent with appellant’s claim to
have bought them for her son.  Appellant told Officer Chi that the receipt for
the pants was with her son in Houston.  She also asked Officer Chi if he could
give her a ticket instead of taking her to jail.  After completing his
investigation, Officer Chi arrested appellant for stealing the ties.[3]
          The
State charged appellant with theft.  The charging instrument alleged that she had
unlawfully appropriated “neckties, of the value of $50 or more but less than
$500 from Eric Butler, the owner thereof, with intent to deprive the owner of
the property.”  Appellant pled not guilty.  At trial, she testified that she
had bought four pairs of pants and four ties for her son from a woman at a
motel, that she took those clothes into the store, and that she told someone
that she wanted to exchange them before she did so.  Appellant denied taking
ties and concealing them in her bag.  She testified that she had falsely told
Officer Chi that her son had a receipt because it was “easier at the time than
saying . . . that [she] bought them from somebody in the motel.”
          After
listening to the evidence and the parties’ arguments, the jury convicted
appellant.  In accordance with an agreement between the parties, the trial
court assessed her punishment at 160 days’ confinement but suspended the
imposition of that sentence and placed her on community supervision.  Appellant
brought this appeal.  
Butler’s
Testimony Concerning Value
          In
her first issue, appellant argues that the trial court erred by allowing Butler
to testify about the value of the ties because Butler was not qualified to do
so and because his testimony was based on hearsay.  When a prosecutor asked
Butler about the value of the ties that Butler saw appellant take, appellant
objected on the basis that Butler was not qualified to render an opinion on
value.  Appellant’s counsel contended, “[W]hile [Butler] may constitute a
special owner for purposes of care, custody, control and permission, he is not
an owner such that [he] can testify to value.”  The State contended that Butler
had knowledge of the value of the ties because he had looked at their price tags,
but appellant argued that the price tags were hearsay.  The State then argued
that as the owner of the ties and as a result of his position at the store,
Butler could testify about their value.  The trial court overruled appellant’s
objection to Butler’s testimony about value, and Butler testified that each of
the four ties was valued at $30.  Also, over appellant’s hearsay objection, the
trial court admitted State’s Exhibit One, which stated that the four ties were
collectively valued at $120.
          We
review a trial court’s decision to admit evidence under an abuse of discretion
standard.  Lozano v. State, 359 S.W.3d 790, 817 (Tex. App.—Fort Worth
2012, pet. ref’d).  The trial court does not abuse its discretion by admitting
evidence unless its determination lies outside the zone of reasonable
disagreement.  Id.; see also Davila v. State, 547 S.W.2d 606, 610
(Tex. Crim. App. 1977) (applying the abuse of discretion standard to a trial
court’s admission of a witness’s testimony about the value of a truck).
          To
obtain appellant’s conviction for Class B misdemeanor theft, the State was
required to prove that she unlawfully appropriated property that was valued at
$50 or more but less than $500 with the intent to deprive the owner of the
property.  Tex. Penal Code Ann. § 31.03(a), (e)(2)(A)(i).  The owner of
property is 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) (West Supp. 2012).  Value,
for the purpose of classifying a theft offense, is generally the fair market
value of the property at the time and place of the offense.  Id. § 31.08(a)(1)
(West 2011).
          Fair
market value may be proved by, among other means, testimony of the owner’s
opinion of the value of the property.  Keeton v. State, 803 S.W.2d 304,
305 (Tex. Crim. App. 1991).  In Sullivan v. State, the court of criminal
appeals distinguished the requirements for admissibility of testimony
concerning value from a non-owner of property as opposed to an owner, stating
in part,
          It has long been the rule in this State that
the owner of property is competent to testify as to the value of his own
property.  This rule applies both in criminal theft cases and in cases which
involve only civil issues. 
          . . . .
          It is settled that when the State seeks to
establish the value of an item of property through the testimony of a
non-owner the witness must first be qualified as having personal knowledge of
the value of the property.  Furthermore, to establish sufficient evidence
of value the State must elicit testimony as to the fair market value of the
property in question.
          We have held, however, that while fair market
value must be established if the testimony concerning value is given by someone
other than the owner, the owner is competent to testify as to value though
he is not qualified as an expert on the value of the property. . . .
          . . . .
          Thus, there seems to be two corollaries to the
rule regarding proof of value.  When the proof of value is given by a
non-owner, the non-owner must be qualified as to his knowledge of the value of
the property and must give testimony explicitly as to the fair market value
or replacement value of the property.
          However, when the owner of the property is testifying
as to the value of the property, he or she may testify as to his or her opinion
or estimate of the value of the property in general and commonly understood
terms.  Testimony of this nature is an offer of the witness’ best knowledge of
the value of his property.
701
S.W.2d 905, 908–09 (Tex. Crim. App. 1986) (emphasis added) (citations omitted);
see Holz v. State, 320 S.W.3d 344, 350 (Tex. Crim. App. 2010) (“Sullivan
affirmed that fair market value should be used to establish the value of
property stolen in theft cases, and held that an owner’s testimony was
sufficient to prove fair market value.”).  Various courts of appeals have
applied the rationale expressed in Sullivan to hold 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.  See
Fernandez v. State, No. 08-10-00153-CR, 2011 WL 1849541, at *2 (Tex.
App.—El Paso May 11, 2011, no pet.) (not designated for publication); Morales
v. State, 2 S.W.3d 487, 488 (Tex. App.—Texarkana 1999, pet. ref’d); Jones
v. State, 814 S.W.2d 801, 803 (Tex. App.—Houston [14th Dist.] 1991, no
pet.) (“It has long been the rule in this State that the owner of property is
competent to testify as to the value of his own property.”).
          Based
on this authority, we must conclude that the trial court did not abuse its
discretion by overruling appellant’s first objection that Butler was not
properly qualified to testify as an expert on value.  Concerning his position
at J.C. Penney, Butler testified, “I’m in charge of all of the safety in the
store.  All the apprehensions, all the internal investigations. . . . 
I’m in charge of my staff. . . .  So I have to make sure all the
apprehensions are up to par.”  As J.C. Penney’s loss prevention supervisor,
Butler had a greater right to possession of the ties than appellant, and that
made him the ties’ owner, just as the State pled in its charging instrument.  See
Tex. Penal Code Ann. § 1.07(a)(35)(A); Castle v. State,
718 S.W.2d 86, 88 (Tex. App.—Fort Worth 1986, no pet.) (“[E]vidence that Bunche
was an employee of J.C. Penney is sufficient to show a greater right of
possession in her than in appellant and to establish her as special owner of
the property.”).  Because Butler was the owner of the ties, he could offer an
opinion on their value without the State’s presentation of evidence that he was
qualified on the basis of knowledge as an expert.  See Holz, 320 S.W.3d at
350; Sullivan, 701 S.W.2d at 908–09.
          Appellant
argues that Butler was not competent to testify about value because he was not
the “true owner” of the ties but instead was only the “special owner” of them. 
A “special owner” is someone, like Butler, who has custody or control of
property belonging to another person.  Garza v. State, 344 S.W.3d 409,
412–13 (Tex. Crim. App. 2011) (explaining that penal code section
1.07(a)(35)(A)’s definition of “owner” eliminates distinctions between general
and special owners); Byrd v. State, 336 S.W.3d 242, 252 (Tex. Crim. App.
2011).  Contrary to appellant’s argument, we have found several cases in which
courts held that special owners of property are competent to testify to value
under the standard applied to owners in Sullivan.  See Garza, 344
S.W.3d at 414 (“As a proper special owner, [an employee of a business] was
competent to attest to the value of the stolen property . . . .”); Proctor
v. State, No. 14-96-00895-CR, 1998 WL 470355, at *1 (Tex. App.—Houston
[14th Dist.] Aug. 13, 1998, no pet.) (not designated for publication) (holding
that a motorcycle owner’s brother, who had care, custody, and control of the
motorcycle, was competent under Sullivan to testify about the value of
the motorcycle); Dodson v. State, No. 04-96-00427-CR, 1997 WL 136500, at
*3–4 (Tex. App.—San Antonio Mar. 26, 1997, no pet.) (not designated for
publication) (concluding that the manager of a Wal-Mart store qualified as an
owner of the property at issue and that the manager’s testimony was therefore
admissible under Sullivan to establish value); Jones v. State,
814 S.W.2d 801, 803–04 (Tex. App.—Houston [14th Dist.] 1991, no pet.) (holding
that a project manager at a construction site was competent under Sullivan
to testify about the value of mullions that had been stolen from the site
because the project manager qualified as an owner of the mullions).  Appellant
has not directed us to any cases in which a court held that a special owner was
not qualified to testify about the value of property under the standard for
owners expressed in Sullivan, and we have found none.
          Appellant
also argues that “any information [Butler] possessed [about value] would have
necessarily been based on unreliable hearsay.”  In a brief hearing outside of
the presence of the jury about the admissibility of Butler’s testimony, the
State represented that Butler had “inspected the items that were taken” and had
“looked at the price tags.”  Appellant objected on the basis that the price
tags were hearsay.  We cannot conclude that the trial court abused its
discretion by overruling this objection because Texas courts, including the
court of criminal appeals, have consistently held that hearsay evidence is
admissible when proving value in a theft case.  See, e.g., Gonzales
v. State, 478 S.W.2d 522, 524 (Tex. Crim. App. 1972) (“This court has
consistently held that hearsay evidence is admissible as proof of market value.”);
Ortiz v. State, 727 S.W.2d 37, 40 (Tex. App.—San Antonio 1987, pet. ref’d)
(“[T]he case before us involves hearsay testimony of price tags which was
admissible to prove value.”).
          For
all of these reasons, we hold that the trial court did not abuse its discretion
by admitting Butler’s testimony about the value of the ties, and we overrule
appellant’s first issue.
Officer
Chi’s Testimony Concerning His Conversation with Appellant
          In
her second issue, appellant argues that the trial court erred by allowing
Officer Chi to testify about his conversation with appellant on the date of her
arrest because the evidence did not establish that appellant received Miranda[4]
warnings or that Officer Chi followed article 38.22 of the code of criminal
procedure while questioning appellant.[5]  During the trial, the
State questioned Officer Chi about whether he had asked appellant any questions
upon meeting her in J.C. Penney’s loss prevention office.  Appellant objected
on the grounds that Officer Chi had not first issued appellant Miranda
warnings and that appellant’s verbal statements were not recorded.  The State
argued that Miranda warnings and the recording of appellant’s statements
were not required because appellant had not been subjected to a custodial
interrogation.  Outside of the jury’s presence, Officer Chi testified that
appellant was not arrested during the questioning but that she was not free to
leave.  The trial court overruled appellant’s objection. 
          After
the trial court overruled the objection, Officer Chi testified that on the date
of appellant’s arrest, she had told him that she had previously purchased dress
clothes for her son, who had recently graduated from law school in Houston, and
that her son had the receipt for the clothes.  Officer Chi also testified that
appellant had asked him if he could “just write her a ticket and let her go.”  But
before Officer Chi testified and before appellant objected, all of these
statements from appellant had already been introduced into evidence, without
objection, through Butler’s testimony.
          The
improper admission of evidence is harmless if the same or similar evidence is
admitted without objection at another point in the trial.  Estrada v. State,
313 S.W.3d 274, 302 n.29 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct.
905 (2011); Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)
(“An error in the admission of evidence is cured where the same evidence comes
in elsewhere without objection.”); Hill v. State, 303 S.W.3d 863, 876
(Tex. App.—Fort Worth 2009, pet. ref’d).  Thus, even if we were to conclude
that appellant was subjected to custodial interrogation from Officer Chi, that
he should have given her Miranda warnings, and that he failed to comply
with article 38.22 of the code of criminal procedure, we would be compelled to
determine beyond a reasonable doubt that appellant was not harmed by the
admission of Officer Chi’s testimony about appellant’s statements because
Butler testified to the same facts without objection.  See Tex. R. App.
P. 44.2(a); Hill, 303 S.W.3d at 876; see also Campbell v. State,
325 S.W.3d 223, 238–39 (Tex. App.—Fort Worth 2010, no pet.) (applying the
constitutional error harm standard of rule 44.2(a) to decide that there was no
harm from a violation of a defendant’s right to receive Miranda warnings
and declining to conduct a separate analysis of harm, relating to a violation
of article 38.22, under rule 44.2(b)’s nonconstitutional error standard).  We
overrule appellant’s second issue.
Conclusion
          Having
overruled both of appellant’s issues, we affirm the trial court’s judgment.
 
 
 
TERRIE LIVINGSTON
CHIEF JUSTICE
 
 
PANEL: 
LIVINGSTON,
C.J.; DAUPHINOT and GARDNER, JJ.
 
PUBLISH
 
DELIVERED:  January 17, 2013




[1]See Tex. Penal Code
Ann. § 31.03(a), (e)(2)(A)(i) (West Supp. 2012).


[2]At trial, the State and
appellant presented different versions of the facts.  We will first recite the
evidence elicited from the State’s witnesses, and we will summarize appellant’s
testimony later in the opinion.


[3]Officer Chi testified that
he did not have enough evidence to arrest appellant for theft of the pants that
were in the bag.


[4]See Miranda v. Arizona,
384 U.S. 436, 478–79, 86 S. Ct. 1602, 1630 (1966).


[5]See Tex. Code Crim.
Proc. Ann. art. 38.22, § 3(a) (West 2005) (setting forth requirements for
the admissibility of a defendant’s oral statement that is made during a
custodial interrogation, including that the statement must be electronically
recorded).


