                                 NO. 12-13-00183-CR

                         IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

GREGORY FRANKLIN RAGAN,                         §      APPEAL FROM THE 4TH
APPELLANT

V.                                              §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                        §      RUSK COUNTY, TEXAS

                                 MEMORANDUM OPINION
       Gregory Franklin Ragan appeals his conviction for theft of property. He raises three
issues on appeal relating to the sufficiency of the evidence, improper jury argument, and charge
error. We modify the judgment and remand for a new punishment hearing.


                                         BACKGROUND
       A Rusk County grand jury indicted Appellant for the third degree felony of theft of
property valued at $20,000 or more but less than $100,000. A jury found Appellant guilty and
assessed punishment at ten years of imprisonment. This appeal followed.


                            LEGAL SUFFICIENCY OF THE EVIDENCE

       In his first issue, Appellant contends that the evidence is legally insufficient to support
his conviction because the State did not prove that the property alleged in the indictment had a
value of $20,000 or more. The State argues that the evidence is sufficient because the cost of
replacing the stolen property was more than $20,000.
Standard of Review

         The Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing
court should apply in determining whether the evidence is sufficient to support each element of a
criminal offense. Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010); see also
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). We
view the evidence in the light most favorable to the verdict and determine whether any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id.,
443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323 S.W.3d at 899. We defer to the trier of fact’s
responsibility to resolve conflicts in testimony, weigh evidence, and draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. On appeal, we
determine whether the necessary inferences made by the trier of fact are reasonable, based on the
cumulative force of all of the evidence. Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.
2011).
         We measure evidentiary sufficiency as defined by a hypothetically correct jury charge.
Id.; Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury
charge accurately sets out the law, is authorized by the indictment, does not unnecessarily
increase the state’s burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the appellant was tried. Id.
         As charged in the indictment, the State was required to show that Appellant, with the
intent to deprive, unlawfully appropriated, by acquiring or exercising control over, three electric
transformers with the value of $20,000 or more but less than $100,0000, without the effective
consent of the owner, James Thompson. See TEX. PENAL CODE ANN. § 31.03(a), (e)(5) (West
Supp. 2013). Because Appellant contests only the value element of the State’s evidence, we
limit our review to this issue.
Applicable Law

         “Value” is defined in the penal code as “(1) the fair market value of the property or
service at the time and place of the offense; or (2) if the fair market value of the property cannot
be ascertained, the cost of replacing the property within a reasonable time after the theft.” Id.
§31.08(a) (West 2011). Fair market value is the amount the property would sell for in cash,
given a reasonable time for selling it. Simmons v. State, 109 S.W.3d 469, 473 (Tex. Crim. App.
2003) (citing Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991)). Value may be


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proved in a variety of ways. See id. When an owner testifies about the value of the appropriated
property, the courts presume that the owner’s testimony is an estimate of the property’s value.
Smiles v. State, 298 S.W.3d 716, 720 (Tex. App.—Houston [14th Dist.] 2009, no pet.). As a
result, the owner may testify as to the fair market value either in terms of purchase price or the
cost to him of replacing the stolen property. Id. at 719. The value of property rendered
worthless or damaged, while potentially relevant to a criminal mischief prosecution, is not the
appropriate calculation in determining fair market value in a theft prosecution. See id.
The Evidence
        The State called two witnesses during the guilt-innocence phase of trial—the arresting
officer, Johnny Edwards, and the victim, James Thompson. Officer Edwards testified that
around the time period in which Appellant was arrested, Rusk County was experiencing a “major
problem with . . . oil field theft.” Older transformers with a copper core were the primary target
of the thefts.
        On the night of December 18, 2012, in an effort to “catch who was getting the
transformers,” Edwards conducted surveillance at one of the oil fields and heard a car “pull up,”
“ma[k]e a quick stop and then t[ake] off.” After the car left, Edwards testified, he heard voices
and “snipping sounds like somebody cutting metal.” As Edwards called for backup, he saw a
blue light turn on and off and a pole-like object going through the air reaching into power lines.
Although it was dark, Edwards could see “at least two forms”—one person was crawling up on
something and the other was shining the light into the power lines.
        Afraid that someone was about to be electrocuted, Edwards turned on his light and
identified himself. Edwards placed the man on the transformer platform under arrest, and
eventually Appellant came forward and was also arrested. Edwards then photographed the
scene. He explained that the fencing around the transformer platform had been cut, and that the
transformers had been disconnected, but not yet removed from the platform.
        James Thompson testified that the three transformers on the oil lease are used to power
oil production. When the transformers “go down,” Thompson explained, production on the lease
stops. The State asked Thompson, “[W]hat is your opinion as to the value of those transformers
of that bank and the cost of what you were out as a result of what happened on December 18,
2012?” Thompson replied, “Well, my boss . . . figured about $20,000 for all of the loss of




                                                 3
production, all the labor, everything.” But when asked about the cost of the transformers alone,
Thompson testified that the combined value of the three transformers was $10,000.
       There is no evidence that the fair market value of the three transformers could not be
ascertained. See TEX. PENAL CODE ANN. § 31.08(a)(2). Although the evidence showed that
disconnecting the three transformers caused an economic loss of $20,000 or more, this is not the
appropriate calculation for a theft prosecution. See Simmons, 109 S.W.3d at 473; Keeton, 803
S.W.2d at 305; Smiles, 298 S.W.3d at 720. The owner’s testimony established that the value of
the three transformers was less than $20,000.                   We conclude that the evidence is legally
insufficient to support Appellant’s conviction for theft of property greater than $20,000 but less
than $100,000. See Brooks, 323 S.W.3d at 912. Accordingly, we sustain Appellant’s first issue.
Having sustained Appellant’s first issue, we need not address Appellant’s second issue as it
relates to the State’s closing argument.1 See TEX. R. APP. P. 47.1.


                                               ATTEMPTED THEFT
       In his third issue, Appellant contends that the trial court erred in denying his request to
include the lesser included offense of “attempted theft” in the jury charge. The State contends
that Appellant did not properly preserve error and was not entitled to an attempted theft
instruction.
Standard of Review
       Upon the defendant’s request, a trial court must include a lesser included offense
instruction in the charge if the offense is a lesser included offense and there is some evidence
that, if the defendant is guilty, he is guilty only of the lesser offense. Guzman v. State, 188
S.W.3d 185, 188 (Tex. Crim. App. 2006); Williams v. State, 314 S.W.3d 45, 49 (Tex. App.—
Tyler 2010, pet. ref’d). Here, Appellant requested that the lesser included offense of “attempted
theft” be included in the charge.
       Our first duty in analyzing Appellant’s jury charge issue is to determine whether error
exists. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). If error exists, we then
analyze for harm. Id.




       1
           The parties agreed that if this court sustained Appellant’s first issue, his second issue would be moot.


                                                           4
Applicable Law
       A person commits criminal attempt if, “with specific intent to commit an offense, he does
an act amounting to more than mere preparation that tends but fails to effect the commission of
the offense intended.” TEX. PENAL CODE ANN. § 15.01 (West 2011). A person commits the
offense of theft if he unlawfully appropriates property with intent to deprive the owner of
property. See TEX. PENAL CODE ANN. § 31.03(a). “Appropriate” means “[1] to bring about a
transfer or purported transfer of title to or other nonpossessory interest in property, whether to
the actor or another; or [2] to acquire or otherwise exercise control over property other than real
property.” TEX. PENAL CODE ANN. § 31.01(4) (West Supp. 2013). The act of carrying away or
removing property is not an element of statutory theft. Hawkins v. State, 214 S.W.3d 668, 670
(Tex. App.—Waco 2007, no pet.)
Discussion
       Appellant contends that the charge should have included an instruction on “attempted
theft” because the arresting officer testified that Appellant did not “steal” anything. Although
Officer Edwards testified that he stopped Appellant and his codefendant before they “st[ole]” the
transformers (or before the crime was “complete”), he confirmed on redirect that he was
speaking in terms of the transformers being “taken off.”         By the time Appellant and his
codefendant were arrested, production on the oil lease had stopped because the transformers had
been disconnected. When Appellant and his codefendant disconnected the transformers, they
exercised control over the property, which is consistent with the penal code’s definition for
“appropriate.” See TEX. PENAL CODE ANN. § 31.01(4)(A). There is no evidence that if Appellant
was guilty, he was guilty only of “attempted theft.” See Guzman, 188 S.W.3d at 188. Appellant
did not “fail to effect the commission” of theft in this case because asportation is not an element
of that offense. See TEX. PENAL CODE ANN. §§ 15.01, 31.01(4), 31.03(a); Hawkins, 214 S.W.3d
at 670. It was not error for the trial court to deny an instruction on “attempted theft.” See Ngo,
175 S.W.3d at 743. Accordingly, we overrule Appellant’s third issue.


                                          DISPOSITION
       We sustained Appellant’s first issue because the State failed to prove the value of the
appropriated property was more than $20,000 but less than $100,000. But the State’s evidence
did prove the essential elements of the offense of theft in the amount of $1,500 or more but less



                                                5
than $20,000. Thus, we modify the judgment to reflect a conviction of theft in the amount of
$1,500 or more but less than $20,000, and remand the case to the trial court for a new
punishment hearing.          See Bowen v. State, 374 S.W.3d 427, 432 (Tex. Crim. App. 2012)
(appellate court may reform conviction to reflect lesser included offense).


                                                                 SAM GRIFFITH
                                                                     Justice



Opinion delivered December 20, 2013.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                              (DO NOT PUBLISH)




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                                  COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        DECEMBER 20, 2013


                                         NO. 12-13-00183-CR


                                GREGORY FRANKLIN RAGAN,
                                         Appellant
                                            V.
                                   THE STATE OF TEXAS,
                                         Appellee


                                  Appeal from the 4th District Court
                         of Rusk County, Texas (Tr.Ct.No. CR13-052-1)

                       THIS CAUSE came to be heard on the appellate record and the briefs filed
herein, and the same being considered, because it is the opinion of this court that there was error
in the judgment of the court below, it is ORDERED, ADJUDGED and DECREED by this court
that the judgment be modified to reflect a conviction of theft in the amount of $1,500 or more
but less than $20,000, and the cause be remanded to the trial court for a new punishment
hearing; and that this decision be certified to the court below for observance.
                       Sam Griffith, Justice.
                       Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
