ACCEPTED
03-15-00127-CR
5548015
THIRD COURT OF APPEALS
AUSTIN, TEXAS
6/4/2015 2:14:26 PM
JEFFREY D. KYLE
CLERK
IN THE COURT OF APPEALS
FILED IN
FOR THE THIRD DISTRICT 3rd COURT OF APPEALS
AUSTIN, TEXAS
6/4/2015 2:14:26 PM
AT AUSTIN, TEXAS JEFFREY D. KYLE
Clerk
AARON JOSEPH HOES, § CAUSE NO. 03-15-00127-CR
Appellant § Trial COURT No. 01167
V. §
THE STATE OF TEXAS, §
Appellee §
BRIEF OF APPELLANT
Appealed from the 33rd Judicial District Court, Blanco County, Texas
Honorable Alan Garrett, presiding
Law Office of Alice E. Price
408 South Liveoak
Lampasas, Texas 76550
Tel/Fax 512-556-4777
State Bar No. 00786177
apgregg50@hotmail.com
Attorney for Appellant
APPELLANT HEREBY WAIVES ORAL ARGUMENT
1
TABLE OF CONTENTS
Page
Table of Contents 2
Index of Authorities 3
Identity of Parties and Counsel 4
Statement of the Case 5
Issue Presented 6
The evidence is insufficient to support
Mr. Hoe’s conviction for theft of property (a tractor)
valued between $1500 dollars, but less
$20,000 dollars, because there is no evidence that
the tractor was worth the statutory amount of
<$1500 but > $20,000.
Statement of Facts 6
Summary of the Argument 7
Argument 8
Standard of Review 12
Prayer 14
Certificate of Service and 15
of Compliance with Rule 9
2
Index of Authorities
Authorities Page Page
Court cases United States Supreme
Jackson v. Virginia
443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 550 (1979) 12
Texas Court of Criminal Appeals cases
Drost v. State
(App. 8 Dist. 2001) 47 S.W.3d 41. 8
Sandone v. State
394 S.W.3d 788, 791 (Tex.App.-Fort Worth 2013, no pet.) 10
Brooks v. State
323 S.W. 3d 893 (Tex.Crim.App.2010) 12
Jones v. State
(App. 14 Dist.1991) 814 S.W. 2d 801 10
Uyamadu v. State
359 S.W.3d 753,759(Tex.App.-Houston [14th Dist.] 2011, pet. ref'd) 9
Houston v. State
(App.13 Dist. 1982) 636 S.W. 2d 7, remanded 640 S.W.2d 605, on
remand 652 S.W.2d 472. 11
Johnson v. State 14
23 S.W.3d 1 (Tex. Crim. App. 2000)
Statutes
TEX. PENAL CODE ANN. §31.03(a) (e) (4) (F) (West 2012) 5,6,7
TEX. PENAL CODE ANN. §31.03(a) (West 2012) 10
3
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT
AT AUSTIN, TEXAS
AARON JOSEPH HOES, §
Appellant §
§ CAUSE No. 03-15-00127-CR
V. § TRIAL COURT NO. 01167
THE STATE OF TEXAS, §
Appellee §
IDENTITY OF PARTIES AND COUNSEL
TO THE HONORABLE COURT OF APPEALS:
COMES NOW AARON JOSEPH HOES, the Appellant herein, and
would show the court interested parties herein are as follows:
AARON JOSEPH HOES, appellant, c/o/ Garza East Unit 4304
Highway 202 Beeville, TX 78102-8981
Thomas Felps, trial attorney
For appellant, P O Box 442 Johnson City, Texas 78636
Alice Price, appellate attorney for appellant, 408 South Liveoak
Lampasas, Texas 76550
Sonny McAfee, Burnet County District Attorney, and
Gary Bunyard, Assistant District Attorney, Burnet, Texas
4
IN THE COURT OF APPEALS
FOR THE THIRD DISTRICT
AT AUSTIN, TEXAS
AARON JOSEPH HOES, §
Appellant §
§ CAUSE No. 03-15-00127-CR
V. § TRIAL COURT NO. 01167
THE STATE OF TEXAS, §
Appellee §
STATEMENT OF THE CASE
A jury in the 33rd Judicial District Court in and for Blanco County,
Texas, convicted Aaron Joseph Hoes for theft of property more than
$1500, but less than $20,000. (CR I, 96) and see TEX. PENAL CODE
ANN. § 31.03 (a) (e)(4)(A) (West 2012) The same jury then assessed
punishment of five (5) years confinement in the Texas Department of
Criminal Justice – Institutional Division and a $1,000 fine. (CR 1,103).
Appeal was subsequently perfected from that verdict and sentence. (CR
1, 145).
5
ISSUE PRESENTED
The evidence is insufficient to support Mr. Hoe’s conviction for theft of
property (a tractor) valued between $1500 dollars, but less than
$20,000 dollars, (CR I, 96) and see TEX. PENAL CODE ANN. § 31.03 (a)
(e) (4) (A) (West 2012) because there is no evidence that the tractor
was worth the statutory amount of <$1500 but > $20,000.
STATEMENT OF FACTS
Background
On April 5, 2014, Deputy Curtis Klimple wrote up a police report at
the Blanco Law enforcement concerning the apparent theft of a tractor
(Massey –Ferguson model 245) belonging to Earl Sultemeier, and last
seen at the Sultemeier ranch located in Blanco county Texas.. The
report was made by his son-n-law Bob Humphries. The tractor was
taken sometime between April 2nd and April 5th, 2015. On about July
5th of 2014, a deputy, Troy Mayes had occasion to pull over a Mr.
Aaron Hoes for a traffic violation. During that traffic stop, it was
6
determined that the tractor Mr. Hoe’s was carrying on an attached
trailer, was the tractor reported stolen by Mr. Humphries on behalf of
Mr. Sultemeier. Mr. Hoes was then arrested and taken into custody and
charged with the theft of the tractor.
SUMMARY OF THE ARGUMENT
The state did not provide evidence that the Massey Ferguson tractor
was indeed valued at the amount of $1500, but less than $20,000
dollars. (CR I, 96) and see TEX. PENAL CODE ANN. § 31.03 (a) (e) (4) (A)
(West 2012). The owner did not testify as to its value, and the non-
owner who did testify offered an opinion but it was not based on any
substantive information such as comparable tractors, local tractor
sales, fair market value of the tractor, or replacement cost of the
tractor. Thus, an essential element for a state jail felony theft was not
proven.
7
ARGUMENT
For purposes of crimes against property, the evidence is legally
insufficient to prove value if there was no evidence presented from
which a reasonable fact finder could find fair market value beyond a
reasonable doubt; or if it is shown that fair market value cannot be
ascertained, if there was no evidence from which the fact finder could
find replacement value beyond a reasonable doubt. Drost v. State
(App. 8 Dist. 2001) 47 S.W.3d 41.
In this instance there is no basis for the determination of the
value of the tractor. Testimony is not given by the owner, it is given by
the son-n-law who has had access to the tractor, but nothing else. We
do not hear any evidence that shows the condition of the tractor, or if it
even works.
Herein is the relevant testimony from the trial:
Q… This Massey Ferguson tractor that was talking about,
What model again was it?
A… It's a 245, an MF 245. Erwin's brother had purchased
8
it in 1979. It was a '79 model.
Q… What's the value of a tractor like that these days?
A …Roughly 7500.
Q …This is a silly question. The law makes me ask this.
The value of that tractor, it's worth more than $1,500?
A… Correct.
Q….. But it's worth less than $20,000?
A… Correct (RR 2 p.77)
Here during this testimony, there was no reference to a purchase price,
or what fair market value is for this tractor. The question states, “What
is the value of a tractor like that these days? Answer is roughly 7500.”
Based on what? Mr. Humphries is not the owner of this tractor. 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
9
Dist.] 2011, pet. ref'd) (stating that an owner may testify either in terms
of purchase price or replacement cost).
Again, Mr. Humphries is not the owner, and is not qualified as a tractor
salesman, or anyone who would have particular knowledge of any
specific piece of farm equipment.
For purposes of determining whether minimum jurisdictional amount
for felony theft has been met, fair market value of stolen property must
be established if testimony concerning value is given by someone other
than owner. Jones v. State (App. 14 Dist. 1991) 814 S.W.2d 801. Fair
market “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). Appellant would
agree with both of these methods, but neither of these methods was
utilized. An opinion given by the owner’s son-n-law with no
collaborative information is all that is provided. Examples would be,
10
“Have you seen any tractors for sale in this area and how much did they
cost? Or any references to eBay pricing or online tractor stores. Nothing
was given to substantiate the fair market value or the replacement
cost.
The owner cannot attest to the value or the model. See below
Q… Do you remember what model vehicle that is? What
model tractor that is?
A… No, I really don't. I can't tell you that.
Q… Do you recall what year it was manufactured?
A… No, I can't do that either.
Q …It's okay. I thank you for your honesty.
(RR2 p120)
For opinion of worth of property by someone other than owner,
prerequisite to admissibility under this section is knowledge of fair
market value. Houston v. State (App. 13 Dist. 1982) 636 S.W.2d 7,
remanded 640 S.W.2d 605, on remand 652 S.W.2d 472. There is no
knowledge of fair market value presented in this case.
11
Standard of Review
In a sufficiency review, a reviewing court examines the evidence in
the light most favorable to the verdict to determine whether any
rational fact-finder 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 550 (1979); Brooks v. State, 323 S.W.3d
893 (Tex. Crim. App. 2010). The fact-finder is the exclusive judge of the
facts, the credibility of the witnesses, and of the weight to be given
testimony. Brooks, 323 S.W. 3d at 899. Any evidentiary inconsistencies
are resolved in favor of the judgment. Id.
Analysis
Viewing the evidence in this case in the light most favorable to the
verdict, a rational fact-finder could not have found beyond a reasonable
12
doubt that the tractor was valued between the amount of $1500 and
$20,000. The owner did not testify to the tractor’s value. The son-n-law
testified to what it would “go for these days” as” $7500”, (RR 2 p 77)
but that was not based on anything substantive. Not the fair market
value, not replacement cost, or any information to verify the value of
the tractor. There was no testimony regarding the functioning of the
tractor or if it had any mechanical issues. Therefore, the State failed to
prove that the tractor was valued in the specified amount of $1500 to
20,000 dollars
Conclusion
The appellant in this case was not charged with ordinary theft but,
rather, with theft of property valued between $1500 and $20,000,
which rises to the level of a state jail felony. Evidence of that theft is
insufficient because there was no proof that the property (a tractor)
was in fact, valued at that amount. Absent that proof, the State failed
to prove an essential element of the offense charged. While the jury as
13
the finder of fact is normally the sole judge of the weight and credibility
of the witness' testimony, an appellate court retains the authority to
disagree with the jury's determination "when the record clearly
indicates such a step is necessary to arrest the occurrence of a manifest
injustice." Johnson v. State, 23 S.W.3d 1 (Tex. Crim. App. 2000). In the
instant case, this court may prevent such manifest injustice by holding
that the evidence supporting Mr. Hoe’s conviction for theft of property
was insufficient.
Prayer
WHEREFORE, Aaron JOSEPH HOES prays that this court reverse the
judgment of the trial court and render a judgement of acquittal in this
case or enter such other orders as it finds just and appropriate in
keeping with its findings herein.
Law Office of Alice E. Price
408 South Liveoak
Lampasas, Texas 76550
Tel/Fax 512-556-4777
14
By: /s/ Alice E. Price
Alice E. Price
St Bar No. 00786177
Attorney for Appellant
CERTIFICATE OF SERVICE AND OF
COMPLIANCE WITH RULE 9
This is to certify that on June 2, 2014, a true and correct copy of the
above and foregoing document was served on Sonny McAfee, District
Attorney, Burnet County. P O Box 725 Llano, TX 78643,
in accordance with the Texas Rules of Appellate Procedure,
and that the Brief of Appellant is in compliance with Rule 9 of the Texas
Rules of Appellate Procedure and that portion which must be included under
Rule 9.4(i)( 1) contains 12,461 words.
_/s/_Alice E. Price ______
Alice E. Price
15