                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00093-CR
                              NO. 02-12-00094-CR

ARTIE DAVIS A/K/A ARTY DAVIS                                         APPELLANT

                                         V.

THE STATE OF TEXAS                                                         STATE


                                     ------------

      FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
               TRIAL COURT NOS. 1251836D, 1251838D

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                        MEMORANDUM OPINION1
                                     ------------

      A jury convicted Appellant Artie Davis a/k/a Arty Davis of theft and evading

arrest or detention with a vehicle, for which he received concurrent sentences of

six years’ and five years’ confinement, respectively.

      In his first of two points, Davis argues that the evidence is insufficient to

support his theft conviction based on lack of evidence to support the stolen



      1
       See Tex. R. App. P. 47.4.
property’s value.2 To convict Davis of theft as charged in the indictment, the

State had to prove that the total value of the stolen property had a value of

$1,500 or more but less than $20,000. See Tex. Penal Code Ann. § 31.03(a),

(b)(1), (e)(4)(A) (West 2011 & Supp. 2014). In our due-process review of the

sufficiency of the evidence to support a conviction, we view all of the evidence in

the light most favorable to the verdict to determine whether 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, 2789 (1979);

Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013).            We must

presume that the factfinder resolved any conflicting inferences in favor of the

verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793;

Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013).

      Somphet Peter Suphasawud testified that late one night in August 2011,

he was awakened by a police officer’s knock at his door to discover that the four

wheels and tires of his used 2007 Cadillac Escalade SUV had been stolen while

the vehicle was parked in his driveway. The tires and rims came with the vehicle

when he purchased it.     Sewell Cadillac faxed him an estimate of $7,075.48,

including tax, as the replacement cost; the estimate was admitted as State’s

Exhibit 4 and showed that four wheel kits (before tax and without caps and

sensors) would cost $4,857.48. Suphasawud testified that he did not know the

      2
      Davis does not argue that the evidence is insufficient to support the
remaining theft elements or his evading arrest conviction.

                                        2
open market value of 2007 Cadillac Escalade wheels and that the only

information he had as to the property’s value was Sewell’s replacement-cost

estimate. Fort Worth Police Officer Travis Edelman testified that the wheels and

tires in the photograph in State’s Exhibit 1 were the ones that were recovered

from Davis and returned to Suphasawud.

      Davis argues that the evidence on value is insufficient because the State

relied on the property’s replacement value instead of its fair market value and

that there was no testimony about the condition of the stolen property or its fair

market value. However, “value” is the fair market value of the property at the

time and place of the offense or, if the fair market value cannot be ascertained,

the cost of replacing the property within a reasonable time after the theft. Tex.

Penal Code Ann. § 31.08(a) (West 2011). An owner may testify as to his opinion

of his property’s value. Sandone v. State, 394 S.W.3d 788, 791 (Tex. App.—Fort

Worth 2013, no pet.); see also Uyamadu v. State, 359 S.W.3d 753, 759 (Tex.

App.—Houston [14th Dist.] 2011, pet. ref’d) (stating that an owner may testify

either in terms of purchase price or replacement cost). The jury was entitled to

consider Suphasawud’s testimony as to the property’s replacement cost,

particularly when the evidence also showed that the 2007 vehicle had been

purchased as a used vehicle, that the vehicle was four years old, and that the

tires and wheels had come with the purchase.        The evidence also included

Sewell’s breakdown of the costs involved in replacing the wheels and tires and a

photograph of the wheels and tires that Davis had stolen, which showed their

                                        3
condition at the time of the theft. Because a rational trier of fact could have found

beyond a reasonable doubt based on all of this evidence that the used property

had a value of more than $1,500, we overrule Davis’s first point.

       In his second point, Davis complains that his exercise of his constitutional

right against self-incrimination was violated when the trial court overruled his

objection to an unsolicited comment on his post-arrest silence. Specifically, after

defense counsel asked Officer Tom Geirling whether the accomplice had ever

been apprehended, the officer replied that Davis would not tell the police who he

was.

       Assuming without deciding that the trial court erred by overruling Davis’s

objection to the comment, we must evaluate whether the trial court’s ruling

harmed Davis, taking into account “any and every circumstance apparent in the

record that logically informs an appellate determination whether ‘beyond a

reasonable doubt [that particular] error did not contribute to the conviction or

punishment,’” and considering the nature of the error, the extent that it was

emphasized by the State, its probable collateral implications, and the weight a

juror would probably place on the error. Snowden v. State, 353 S.W.3d 815, 822

(Tex. Crim. App. 2011) (quoting Tex. R. App. P. 44.2(a)). To do this, we must

evaluate the entire record in a neutral, impartial, and even-handed manner, not

“in the light most favorable to the prosecution.” Harris v. State, 790 S.W.2d 568,

586 (Tex. Crim. App. 1989), disagreed with in part on other grounds by

Snowden, 353 S.W.3d at 821–22.

                                         4
      During voir dire, the trial court told the venire that if Davis chose not to

testify, it could not take that as a fact against him before asking if any prospective

juror would hold him accountable if he did not testify. The prosecutor reiterated

this and addressed the Fifth Amendment when talking about motive.3               And

Davis’s counsel discussed the right to remain silent with the venire as it pertained

to whether it would hold it against Davis if he did not testify.

      In her opening statement, the prosecutor stated that the evidence would

show that Davis was caught “red-handed” stealing four tires and wheels from

Suphasawud’s car and that Davis fled at a high rate of speed to try to evade

arrest. Davis’s counsel reserved the right to make an opening statement but did

not make one.

      Suphasawud, Officer Edelman, and Officer David Crim testified before

Officer Geirling made the statement at issue here with regard to Davis’s

accomplice. Officer Crim testified that on August 24, 2011, at around 2 a.m., he

was in an unmarked vehicle as part of the tracking unit conducting surveillance of

Davis. He saw Davis drive a silver Impala and circle the block, “slowing down,

stopping, looking around.” After Davis left the neighborhood, the police found a

      3
       The prosecutor stated,

      When somebody gets arrested, the police say you have the right to
      remain silent. Anything you say can and will be used against you.
      So I think, you know—I think a lot of us would like to take advantage
      of that law if we’re ever in that situation, wouldn’t we? Sure. Go
      ahead and protect yourself. So that’s why we may not know what
      the motive is.

                                           5
Cadillac Escalade with its front left tire and wheel missing and two bricks under

the back two tires. Three houses to the east, they found the missing wheel.

They left the wheel where they found it and continued to maintain surveillance.

      At around 3:15 a.m., Officer Crim saw Davis return to the location in a red

four-door vehicle.   Davis pulled the red vehicle in front of Officer Crim’s

surveillance van and looked into the van’s dark-tinted windows before he and his

companion went to the Escalade with a jack and removed the remaining wheels

and tires. Officer Crim said that he watched Davis and his accomplice remove

the wheels and tires and load them into the red vehicle before they drove down

the street and picked up the fourth tire and left the neighborhood. Officer Crim

stayed at the scene and went with a uniformed sergeant to notify Suphasawud,

whose testimony is set out above in our sufficiency analysis.

      Officer Edelman testified that he was in the same surveillance group that

night in another unmarked car. He followed Davis after the theft until a marked

patrol car took over pursuit. When Davis was apprehended, Officer Edelman

saw three wheels and tires in the back seat of Davis’s vehicle and one wheel and

tire in the trunk, and he testified that the wheels and tires were photographed and

returned to Suphasawud.

      Officer Geirling testified that he was dispatched in his marked patrol car at

around 4 a.m. on August 24, 2011, to pursue the red vehicle. At the end of the

chase, the driver, who Officer Geirling identified as Davis, abandoned the car and

fled into a backyard. Officer Geirling followed on foot and tased Davis after Davis

                                        6
kicked at him, which slowed Davis but did not stop him. It took two additional

officers to take Davis into custody.     Officer Geirling testified during his direct

examination that the police were unable to identify the accomplice from his

dashboard camera’s videotape. Then he made the following response during

cross-examination, which is at issue here:

      [Defense counsel]: That individual has never been apprehended; is
      that correct?

      [Officer Geirling]: Yes, sir. Your client wouldn’t tell us who he was.
      [Emphasis added.]

      During the cross-examination of each officer, Davis’s counsel asked

whether the accomplice was a confidential informant.           Each officer denied

knowing the accomplice’s identity or that he was a confidential informant. Officer

Edelman testified that confidential informants were not allowed to commit

offenses, even at police direction. Davis’s mother testified that between 2 a.m.

and 3 a.m., Davis received a phone call and left by himself.

      The trial court’s guilt-innocence and punishment charges included the

instruction that Davis had elected not to testify, that the jury could not refer to or

allude to this during deliberations, and that it could not be taken into

consideration for any purpose whatsoever as a circumstance against him.

      During closing arguments during the guilt-innocence phase, the prosecutor

addressed the elements of each offense without mentioning the accomplice or

Davis’s decision not to testify. Davis’s counsel then responded that, among other



                                          7
things, with all of the officers and resources at the scene,4 the fact that the

accomplice was not caught raised the possibility that the police were lying, that

the accomplice was a confidential informant who the police had not tried to catch,

and that the police had engineered the chase with the accomplice.                 The

prosecutor rebutted Davis’s counsel’s argument by stating that his argument

“was a load of you know what,” that the evidence showed that Davis was guilty of

both offenses, and that there was no evidence of a confidential informant’s

involvement in the case. The jury found Davis guilty of both offenses.

      After Davis pleaded true to the enhancement allegations (two prior

convictions for state jail felony theft of property $1,500 to $20,000), the trial court

admitted the exhibits containing all of Davis’s previous convictions pursuant to

Davis’s stipulations. In addition to his two previous state jail felony thefts, Davis

also had two convictions for misdemeanor assault-bodily injury of a family

member and a third state jail felony theft conviction. Davis’s mother testified that

Davis had two young children that he supported financially when he could, that

Davis had been employed as a mechanic, and that Davis had started going to

church. During closing arguments during the punishment phase, the prosecutor

argued that Davis had already had a chance with community supervision for his

previous theft offenses and deserved jail time, while Davis’s attorney asked the

jury for lenience.

      4
       There were several officers—“[m]aybe 10”—in the area. A police
helicopter with infrared capabilities and a bright spotlight was also called in.

                                          8
      Having evaluated the entire record, we conclude that a juror would

probably place little to no weight on Officer Geirling’s unsolicited comment, which

was not emphasized by the State, making the trial court’s decision to overrule

Davis’s objection harmless beyond a reasonable doubt.5 See Tex. R. App. P.

44.2(a); Williams v. State, 958 S.W.2d 186, 194 (Tex. Crim. App. 1997). We

overrule Davis’s second point.

      Having overruled both of Davis’s points, we affirm the trial court’s

judgment.




                                                   PER CURIAM

PANEL: MCCOY, J.; LIVINGSTON, C.J.; and DAUPHINOT, J.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: August 28, 2014




      5
        That is, there is no “reasonable possibility” that the error might have
contributed to the convictions or punishments based on its probable impact on
the jury in light of the evidence and the way Davis’s right to remain silent was
reiterated throughout the trial, from voir dire to sentencing. See Wesbrook v.
State, 29 S.W.3d 103, 119 (Tex. Crim. App. 2000), cert. denied, 532 U.S. 944
(2001); Mosley v. State, 983 S.W.2d 249, 259 (Tex. Crim. App. 1998) (op. on
reh’g), cert. denied, 526 U.S. 1070 (1999).

                                        9
