Hall v. State

OPINION

DIAL, Justice.

This is an appeal from a conviction for theft of property of the value of $750 or more but less than $20,000, TEX.PENAL CODE ANN. § 31.03(e)(4)(A) (Vernon Supp. 1986), a third degree felony. The defendant was found guilty in a jury trial, and the court set his punishment at confinement for ten years.

The evidence established that the theft occurred at a Circle K convenience store in Bexar County. The defendant and two other males came in, looked around, and left. The two others returned; one asked permission to use the restroom, and the other kept the attention of the clerk/cashier by conversation. The restroom was adjacent to a storeroom where cigarettes were stored in a cabinet. The defendant stayed outside by his parked car with the car doors open. The man in the back came out carrying a garbage bag which he said contained trash. He walked out the door and gave the bag to the defendant. A police officer arrived at that moment and apprehended the defendant and one of the *9others. The garbage bag was found to contain 65 cartons of cigarettes.

By three points of error the defendant attacks the proof of the value of the items stolen.

Value, as it relates to stolen properly, is the fair market value of the property at the time and place of the offense. The fair market value is the amount of money the property in question would sell for in cash, given a reasonable time for selling it. TEX.PENAL CODE ANN. § 31.08(a)(1) (Vernon 1974); Senters v. State, 163 Tex.Crim.R. 423, 291 S.W.2d 739, 740 (1956). These are the instructions that were given to the jury pertaining to value, and no error is urged in this regard. The jury was also instructed on the lesser included offense of theft of property of the value of over $200 and under $750.

The indictment charged the defendant with theft of “SIXTY-FIVE (65) CARTONS OF CIGARETTES ... which had AN AGGREGATE VALUE of Seven Hundred and Fifty Dollars ($750.00) or more but less than Twenty Thousand Dollars ($20,000.00), ...”

The clerk testified that the cartons of cigarettes stolen out of the cabinet in the storeroom were kept by the store to be sold in single packages of cigarettes at $1.33 per package. The cartons stolen contained 650 packs which would have sold for a total of $864.50 when sold for $1.33 per pack. She testified on cross-examination that elsewhere in the store there were cartons of cigarettes for sale at $8.79 per carton. The market value of 65 of those cartons, selling at $8.79 per carton, would be a total of $571.35.

The defendant argues that since the indictment charged theft of cartons of cigarettes, the State should not have been permitted to offer proof of the sale price of individual packages of cigarettes and that the State’s proof was in variance with the allegations in the indictment. He further contends that the court should have directed a verdict of not guilty because the State failed to prove that the property stolen had a value of $750.00 or more.

The allegation that 65 cartons of cigarettes were stolen is an allegation describing the quantity of items stolen. It is an allegation that the State must prove, and the evidence here met that requirement. There is no rule of law that requires the State to offer its proof of value in the same corresponding units as those used in the indictment to describe the items stolen.

It was of course appropriate for the defendant to establish by cross-examination what the sale price of a carton of cigarettes would be and to attempt to convince the jury that the carton price should determine the fair market value.

It was equally permissible for the State to offer testimony as to the price for each package of cigarettes and to develop that the store had intended to sell the stolen cigarettes by the pack. Marketed in that manner the stolen items would have had an aggregate market value of over $750.00.

Both contentions were fairly presented to the jury, and the jury was appropriately instructed on the applicable law. The fact that the jury accepted the evidence of the highest value is not grounds for reversal. Lane v. State, 28 S.W. 202, 203 (1894). The verdict of the jury warranted punishment as a third degree felony. A defendant who steals a large quantity of merchandise is not entitled to a volume discount in the determination of the value of the property stolen. Points of error one, three and four are overruled.

In the remaining point of error the defendant complains of impermissible admission of evidence of an extraneous offense. The arresting officer testified that he saw the defendant holding two plastic bags which contained a total of 71 cartons of cigarettes. Since the defendant was only indicted for theft of 65 cartons of cigarettes, he opines that the testimony as to an additional 6 cartons of cigarettes would amount to evidence of an extraneous offense.

Assuming that this is evidence of an extraneous offense, there is no error. Where another offense is part of the case on trial or blended or closely interwoven *10therewith, proof of all the facts is proper. Waffer v. State, 500 S.W.2d 659, 661 (Tex.Crim.App.1973). Under similar facts such evidence has been held to be properly admitted as res gestae of the arrest and of the offense. Archer v. State, 607 S.W.2d 539, 542 (Tex.Crim.App.1980), cert. denied, 452 U.S. 908, 101 S.Ct. 3037, 69 L.Ed.2d 410 (1981).

Points of error are overruled, and the judgment of conviction is affirmed.

Before the court en banc.