Justin Cornell Nickerson v. State ( 1996 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-94-00331-CR



Justin Cornell Nickerson, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT NO. 0934514, HONORABLE MIKE LYNCH, JUDGE PRESIDING

This appeal is taken from a conviction for theft of property of the value of more than $750 but less than $20,000, a third degree felony at the time of the commission of the offense on June 29, 1993. ⁽¹⁾ After the jury found appellant guilty, the trial court assessed punishment at five years' imprisonment and a fine of $500. The imposition of the sentence was suspended and appellant was placed under community supervision subject to certain conditions.

Appellant advances a single point of error. He challenges the legal sufficiency of the jury's verdict claiming that the State "wholly failed to introduce evidence to establish the value of the four microprocessors ⁽²⁾ involved in the alleged theft." The thrust of appellant's argument is that the nonowner expert who testified as to the fair market value of the stolen computer chips acknowledged that he had not seen the chips, had not tested them, and could not testify that they were functional.

The record reflects that appellant was employed by Dell Computer Corporation in April 1993. He was assigned to work in the Reliability Test Lab which was "set up to do environmental type testing on computers and related products." John Parker was the manager of the test lab and appellant's supervisor. ⁽³⁾ In response to the previous theft of computer chips from the lab in May 1993, Parker and Dell security personnel decided to install a hidden camera aimed at a cabinet from which the chips had been taken in order to determine who was stealing the chips. The first attempt to identify a suspect failed due to a lighting problem and seven more chips were taken. A new light was installed and Parker placed four "new" computer chips which had just arrived from the manufacturer into a carrier and placed the carrier in the cabinet. Inside the carrier, Parker placed a note ordering that the computer chips therein were not to be removed from the cabinet. Parker identified the four chips as one Intel Brand 486DX2-50 and three Intel Brand 486DX-50. He copied each computer chip or processor's description, family speed, and manufacturing lot number.

The videotape from the hidden camera clearly showed appellant removing the carrier with the four chips from the cabinet. Appellant in his direct examination admitted that he had removed the chips from the cabinet and acknowledged that he seen Parker's "Do Not Remove" note or sign. Appellant stated that he removed the chips to use them in a test he was conducting but that they disappeared from his work station before he had an opportunity to use them. The chips were never recovered.

Reginald Major, a senior buyer at Dell Computer Corporation for the purchase of memory chips and microprocessors (computer chips), was called by the State to testify as to the value of the chips stolen. Major had been employed at Dell since June 1991, managing the buying of microprocessors and supervising the inventories. He had twelve years of experience in the field in addition to training and knew the fair market value of the computer chips that Dell purchased. He explained that Dell regularly purchased Intel 486DX-50 and 486DX2-50 computer chips. In his expert opinion, each new Intel 486DX2-50 had a fair market value of $450 on June 24, 1993, and the one new Intel 486DX-50 had a fair market value on that date of $550. He also testified that within a short period of time after they were taken, the replacement cost of the 486DX2-50 chip would be $375 each and the cost of the 486DX-50 chip would be $457 plus administrative and shipping costs.

On cross-examination, Major stated that he had not personally seen the four chips used in the "sting," that he had not personally tested the chips, that he did not personally know whether the chips had been used or were functioning chips, and that a non-functioning chip would have no value. The record then reflects:

Q [by defense counsel]:  Okay. So isn't it fair to say, Mr. Majors [sic.] that because you don't know which four chips were used or whether they were functioning you have no personal knowledge as to the value of the four chips involved in this prosecution?

A: I know the value of the processors.

Q: That's a "Yes" or "No" question, Mr. Majors [sic.]. Do you have any personal knowledge as to the value of the chips used in this prosecution.

A: No.

Appellant did not seek to have Major's testimony withdrawn or to have the jury instructed to disregard the witness's opinion of value. He did move for an instructed verdict which motion was denied.

On appeal, it is contended that the prosecution failed to prove the element of value as alleged in the indictment. The standard for reviewing the legal sufficiency of the evidence is whether, viewing the evidence in the light most favorably to the jury's verdict, any rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense charged. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex. Crim. App. 1990). The standard of review is the same in both direct and circumstantial evidence cases. Herndon v. State, 787 S.W.2d 408, 409 (Tex. Crim. App. 1990); see also Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991). It is not the reviewing court's duty to disregard, realign or weigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The jury is the exclusive judge of the credibility of the witnesses and of the weight to be given their testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Saxton v. State, 804 S.W.2d 910, 914 (Tex. Crim. App. 1991). The jury is free to accept or reject any or all of the evidence presented by either party. Beardsley v. State, 738 S.W.2d 681, 684 (Tex. Crim. App. 1987). Reconciliation of evidentiary conflicts is solely a function of the trier of fact. Bowden v. State, 628 S.W.2d 782, 784 (Tex. Crim. App. 1982).

Value is defined as "the fair market value of the property or service at the time and place of the offense." Tex. Penal Code Ann. art. 31.08(a)(1) (West 1994). "Fair market value" is not statutorily defined, but it has been held to be the amount the property would sell for in cash, giving a reasonable time for selling it. Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); see also Senters v. State, 291 S.W.2d 739, 740 (Tex. Crim. App. 1956); Pichon v. State, 756 S.W.2d 16, 19 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd). Methods of proving fair market value have varied from showing retail price or sale price, see Speights v. State, 499 S.W.2d 119, 122 (Tex. Crim. App. 1973), to admitting testimony of an owner's opinion of value or a nonowner's "expert" opinion of value, see Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986). No one method has ever been held exclusive. Use of various methods to show fair market value is certainly due to the necessity for flexibility because of the various circumstances of theft that arise. Keeton, 803 S.W.2d at 305.

A nonowner who testifies regarding the value of stolen property must be qualified as to his knowledge of the value of the property and must give testimony explicitly as to the fair market value. Sullivan, 701 S.W.2d at 909. In the case sub judice, Major was shown to be an "expert" witness as to value by virtue of his training and years of experience. See Tex. R. Crim. Evid. 702, 703. He had personal knowledge of the value of the type of the new computer chips involved and the evidence of the fair market value of each chip was established by his testimony on direct examination, showing a total value of more than $750 and less than $20,000. See Pichon, 756 S.W.2d at 19-20. Major's testimony on cross-examination went to the weight to be given his testimony and to his credibility as a witness, an issue for the jury, but it did not nullify his earlier testimony of value, leaving no evidence of value in the record. Appellant concedes that the "State proved the value of the chips generally, but failed to offer any evidence about the value of the particular chips involved." Parker testified that the chips were new, having just been received from the manufacturer, and having been retained in his custody until placed in the carrier--the inference being that the chips had not been used. Appellant admitted taking the chips from the carrier for the purpose of using them in a test he was to conduct--the inference being that the chips appeared to be functional. Appellant was free to offer evidence that a certain percentage of the type of chips involved received from the manufacturer were defective. This he did not do. Appellant has not cited any authority and we have found none which requires a nonowner expert witness on value of property to have not only personal knowledge of the value of the type of items stolen, but to have prior personal knowledge of the exact items taken, to have seen and examined the items, and perhaps to have tested the items, even when they are not available at the time of trial because of a defendant's actions. Appellant's cross-examination of Major was an attempt to impeach his credibility as a witness, but it did not disqualify him as a witness on value or render his earlier testimony unusable.

The closest case in point seems to be Sanders v. State, 814 S.W.2d 784 (Tex. App.--Houston [1st Dist.] 1991, no pet.). There, the witness testified that he was the owner of certain items of property stolen on a certain date. He testified as to the value of each item and agreed that the total value was over $750 and less than $20,000. On cross-examination, the owner testified that he did not know the fair market value of the property on the date of the offense. On appeal, the defendant claimed the evidence was insufficient as to the element of value. The defendant relied upon Logan v. State, 720 S.W.2d 669 (Tex. App.--San Antonio 1986, no pet.). The Sanders court responded:

However, in Logan, the court held that "[s]o long as there was evidence that the value of the items was in excess of $750, this court is not in a position to hold that the evidence is insufficient for the jury to make such a finding." 720 S.W.2d at 671. Here, complainant's direct testimony was such evidence. To rebut an owner's opinion evidence of fair market value, the appellant "must do more than merely impeach the witness' credibility during cross-examination. He must offer controverting evidence as to the value of the property." Sullivan, 701 S.W.2d at 909. Viewed in a light most favorable to the jury's verdict, there is sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that the value of the stolen property was over $750 and less than $20,000. Therefore, the trial court did not err in overruling appellant's motion for instructed verdict.

Sanders, 814 S.W.2d at 787.

Appellant relies upon Scott v. State, 741 S.W.2d 435 (Tex. Crim. App. 1987), in which the evidence was held insufficient in a theft case to show the value of the car to be in excess of $750 at the time of the offense. The only evidence as to value was the owner's testimony that after the recovery of the car he received $1000 as a "trade in" on another vehicle. The court noted that the trade-in value can be and is often based on a different standard than cash value or fair market value. Scott is clearly distinguishable from the instant case as are the other cases upon which appellant relies. See Hilbish v. State, 485 S.W.2d 554 (Tex. Crim. App. 1972); Sweeney v. State, 633 S.W.2d 254 (Tex. App.--Houston [14th Dist.] 1982, pet. ref'd).

Viewing the evidence in the light most favorable to the jury's verdict, we conclude that a rational trier of fact could have found beyond a reasonable doubt all the essential elements, including value, as alleged in the offense charged. The point of error is overruled.

The judgment in the trial court reflects that appellant waived trial by jury and entered a guilty plea before the court to the indictment. This is in error. The judgment is reformed to show that a plea of not guilty was entered before a jury and reformed to show the jury's verdict.

As reformed, the judgment is affirmed.

John F. Onion, Jr., Justice

Before Justices Powers, Jones and Onion^*

Reformed and, as Reformed, Affirmed

Filed: January 10, 1996

Do Not Publish

^* Before John F. Onion, Jr., Presiding Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1988).

1.   Act of May 23, 1991, 72d Leg., R.S., ch. 565, § 1, 1991 Tex. Gen. Laws 2603 (former section 31.03(e)(4)(A) of the Texas Penal Code).

2.   The indictment alleged the theft of "computer chips." The State notes that the statement of facts uses the terms "computer chips," "microprocessors," and "processors" interchangeably.

3.   Parker was alleged as the "owner" of the computer chips in the indictment. When a corporation is the owner of property that has been stolen, it is preferable pleading practice to allege "special" ownership in a natural person acting for the corporation. Simpson v. State, 648 S.W.2d 1, 2 (Tex. Crim. App. 1983). "It is obvious that a corporation cannot testify or give direct testimony of lack of consent." Wells v. State, 608 S.W.2d 200, 202 (Tex. Crim. App. 1980).

:

However, in Logan, the court held that "[s]o long as there was evidence that the value of the items was in excess of $750, this court is not in a position to hold that the evidence is insufficient for the jury to make such a finding." 720 S.W.2d at 671. Here, complainant's direct testimony was such evidence. To rebut an owner's opinion evidence of fair market value, the appellant "must do more than merely impeach the witness' credibility during cross-examination. He must offer controverting evidence as to the value of the property." Sullivan, 701 S.W.2d at 909. Viewed in a light most favorable to the jury's verdict, there is sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that the value of the stolen property was over $750 and less than $20,000. Therefore, the trial court did not err in overruling appellant's motion for instructed verdict.

Sanders, 814 S.W.2d at 787.

Appellant relies upon Scott v. State, 741 S.W.2d 435 (Tex. Crim. App. 1987), in which the evidence was held insufficient in a theft case to show the value of the car to be in excess of $750 at the time of the offense. The only evidence as to value was the owner's testimony that after the recovery of the car he received $1000 as a "trade in" on another vehicle. The court noted that the trade-in value can be and is often based on a different standard than cash value or fair market value. Scott is clearly distinguishable from the instant case as are the other cases upon which appellant relies. See Hilbish v. State, 485 S.W.2d 554 (Tex. Crim. App. 1972); Sweeney v. State, 633 S.W.2d 254 (Tex. App.--Houston [14th Dist.] 1982, pet. ref'd).