                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-18-00205-CR

LARRY GLEN ERWIN,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                       From the County Court at Law No. 2
                            McLennan County, Texas
                          Trial Court No. 2017-1236-CR2


                           MEMORANDUM OPINION

       Larry Glen Erwin was convicted of Theft, a Class A misdemeanor, and sentenced

to 180 days in jail with a $4,000 fine. See TEX. PENAL CODE ANN. § 31.03(a), (e)(3). Because

the evidence is sufficient to support the conviction, we affirm the trial court’s judgment.

       Nicole Reisner loaned cattle panels and t-posts to her friends, Tommy and Deanna

White. The Whites lived on property owned by Erwin and stored the cattle panels and t-

posts on Erwin’s property. When the Whites became delinquent in their rent to Erwin,

Erwin took the cattle panels and t-posts to satisfy some past-due rent. When Reisner
asked for the return of her property, Erwin refused. Reisner initiated a theft complaint.

         In his sole issue, Erwin complains the evidence is insufficient to support his

conviction because the State did not prove fair market value of the cattle panels and t-

posts.

         The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

                 When addressing a challenge to the sufficiency of the evidence, we
         consider whether, after viewing all of the evidence in the light most
         favorable to the verdict, any rational trier of fact could have found the
         essential elements of the crime beyond a reasonable doubt. Jackson v.
         Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v. State,
         514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires the
         appellate court to defer "to the responsibility of the trier of fact fairly to
         resolve conflicts in the testimony, to weigh the evidence, and to draw
         reasonable inferences from basic facts to ultimate facts." Jackson, 443 U.S. at
         319. We may not re-weigh the evidence or substitute our judgment for that
         of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
         2007). The court conducting a sufficiency review must not engage in a
         "divide and conquer" strategy but must consider the cumulative force of all
         the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
         about the meaning of facts or evidence, juries are permitted to draw any
         reasonable inferences from the facts so long as each inference is supported
         by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
         Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
         S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
         resolved any conflicting inferences from the evidence in favor of the verdict,
         and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
         Crim. App. 2012). This is because the jurors are the exclusive judges of the
         facts, the credibility of the witnesses, and the weight to be given to the
         testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
         Direct evidence and circumstantial evidence are equally probative, and
         circumstantial evidence alone may be sufficient to uphold a conviction so
         long as the cumulative force of all the incriminating circumstances is
         sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809


Erwin v. State                                                                                   Page 2
        (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.

               We measure whether the evidence presented at trial was sufficient
        to support a conviction by comparing it to "the elements of the offense as
        defined by the hypothetically correct jury charge for the case." Malik v.
        State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
        correct jury charge is one that "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 defendant was tried." Id.; see
        also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
        as authorized by the indictment" includes the statutory elements of the
        offense and those elements as modified by the indictment. Daugherty, 387
        S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018).

        A person commits the Class A misdemeanor offense of theft if the person

unlawfully appropriates property with intent to deprive the owner of property and the

value of the property stolen is $750 or more but less than $2,500. TEX. PENAL CODE ANN.

§ 31.03(a), (e)(3). 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. Sullivan v.

State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986). Fair market value means the amount

the property would sell for in cash, given a reasonable time for selling it. Keeton v. State,

803 S.W.2d 304, 305 (Tex. Crim. App. 1991).

        However, when the owner of the property testifies as to the value of the property,

the owner may testify as to his opinion or estimate of the value of the property in general

and in commonly understood terms. Sullivan, 701 S.W.2d at 909. Testimony of this nature



Erwin v. State                                                                           Page 3
is an offer of the witness' best knowledge of the value of the property. Id. Such testimony

will constitute sufficient evidence for the trier of fact to decide value based on the witness'

credibility. Id. This is true even in the absence of a specific statement as to "market value"

or "replacement value." Id. Further, when an owner testifies, there is a presumption that

the owner is testifying to an estimation of the fair market value. Id.; Trammell v. State, 511

S.W.2d 951, 954 (Tex. Crim. App. 1974). The owner may reasonably be understood to be

testifying as to the fair market value of the property either in terms of the purchase price

or the cost to him of replacing the stolen property. Sullivan, 701 S.W.2d at 909.

        Reisner testified that to determine the value of the t-posts and the cattle panels

taken from her, she looked at prices on-line for new t-posts and cattle panels. She

estimated that the panels cost $100 to $125 each. When asked what she paid for the t-

posts, she estimated that “back then” they ran $3 to $6 each, depending on the height.

        Erwin contends Reisner’s testimony was not credible because she had no

documentation as to what she had paid for the t-posts and cattle panels and because she

based her testimony on the cost of new t-posts and cattle panels. However, as the owner,

Reisner was not required to provide documentation and was permitted to testify as to

replacement cost.

        Reisner testified that she loaned 19 cattle panels and at least 30 t-posts to White.

Based on her testimony, the jury could reasonably determine that the value of the panels

was at least $1,900 and the value of the t-posts was at least $90. Combined, the value of

the property appropriated was $1990, which is well within the jurisdictional amount

necessary to support the conviction. See TEX. PENAL CODE ANN. 31.03(e)(3).

Erwin v. State                                                                           Page 4
        Accordingly, after viewing all of the evidence in the light most favorable to the

verdict, any rational trier of fact could have found the essential element of value beyond

a reasonable doubt, and thus, the evidence was sufficient to support Erwin’s conviction.

        Erwin’s sole issue is overruled, and the trial court’s judgment is affirmed.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
Affirmed
Opinion delivered and filed October 30, 2019
Do not publish
[CR25]




Erwin v. State                                                                         Page 5
