Jerry Curtis v. State , 385 S.W.3d 636 ( 2012 )

NO. 07-12-0129-CR
NO. 07-12-0130-CR
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
OCTOBER 12, 2012
_____________________________
JERRY CURTIS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
_____________________________
FROM THE COUNTY COURT OF GARZA COUNTY;
NOS. 10851 & 10871; HONORABLE LEE NORMAN, PRESIDING
_____________________________
Opinion
_____________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Jerry Curtis appeals two convictions, one for burglary of a
vehicle and the other for attempted theft in an amount of $500 or more
but less than $1500. Six issues are asserted before us. They concern
whether 1) the trial court erred in denying his challenges for cause
levied against venire members, 2) the offense of attempted theft was
barred by double jeopardy, 3) the evidence was insufficient to prove
the value of the property involved in the attempted theft, 4) the
trial court erred by allowing evidence of the replacement value of the
battery, 5) the trial court erred in finding his statement to police
to be admissible, and 6) the trial court erred in submitting an
enhancement charge to the jury because he never entered a plea to the
enhancement allegation. We sustain issues one and three.
Sufficiency of the Evidence
We first consider the contention that the evidence was
insufficient to prove that the property involved in the attempted
theft had a value of $500 to $1500. In accusing appellant of
attempted theft, the State alleged in its information that the
batteries appellant tried to steal from the school bus had a value of
$500 to $1500. Effort was made to prove the allegation at trial via
the testimony of the school district’s transportation director. He
was asked how much it would cost to replace the three batteries
appellant allegedly tried to steal. His response consisted of his
reference to an estimate obtained from a battery supply company.
That estimate, which exceeded $500, reflected the cost of new
batteries plus a “core charge” if old batteries were unavailable for
exchange. No other evidence of value was proffered by anyone, and the
State argues that what it did proffer was enough to prove its
allegation. We disagree.
The value of the property involved in the theft dictates the
classification of the offense. For instance, if the value of the
property is less than $50, then the crime is a class C misdemeanor.
Tex. Penal Code Ann. § 31.03(e)(1)(a) (West Supp. 2012). Stealing
property having a “value of . . . $500 or more but less than $1,500”
is a class A misdemeanor. Id. § 31.03(e)(3).
The concept of “value” can mean many things. For purposes of
the theft statute, the legislature has defined it as “the fair market
value of the property . . . at the time and place of the offense.”
Id. § 31.08(a)(1) (West 2011). Yet, “if the fair market value of the
property cannot be ascertained, [then value means] the cost of
replacing the property within a reasonable time after the theft.” Id.
§ 31.08(a)(2). So, while value can represent fair market value or
replacement value, evidence of the latter is pertinent only when the
former cannot be ascertained.
Next, our Court of Criminal Appeals recognized long ago that the
term fair market value is not statutorily defined. Simmons v. State,
109 S.W.3d 469, 473 (Tex. Crim. App. 2003). So, it opted to construe
the term to mean “. . . the dollar amount the property would sell for
in cash, given a reasonable time for selling it” or, in other words,
“. . . ‘the price the property will bring when offered for sale by one
who desires to sell, but is not obliged to sell, and is bought by one
who desires to buy, but is under no necessity of buying.’” Id.,
quoting Keeton v. State, 803 S.W.2d 304 (Tex. Crim. App. 1991).
Here, the State did not proffer, nor did we find, any evidence
of what the three used batteries would sell for in cash given a
reasonable time for selling them. Instead, we only have evidence of
what it would cost to replace the item. But, the latter is of no
evidentiary weight since nothing appears of record suggesting that the
fair market value of the batteries was unascertainable. In other
words, the State could not substitute replacement value for market
value without first showing that the latter could not be determined.
Because it did not do that, testimony regarding the batteries’
replacement value constituted no evidence of value for purposes of
proving that appellant committed the theft of which he was accused.
And, because it did not, there is no evidence of record proving that
the value of the property was $500, $1500, or anything between those
two amounts. So, the State failed to prove all the elements of the
crime at issue.
Challenges for Cause
Next, appellant contends that the trial court erred in refusing
to remove over twenty members of the jury venire for cause. This is
because each of those members evinced an inability to consider the
full range of punishment, peremptory challenges were used to strike
several of those venire members, additional peremptory challenges were
denied appellant, and a number of the venire members in question sat
on the jury that convicted him. We agree.
As this court stated in Weaver v. State, 355 S.W.3d 911 (Tex.
App.–Amarillo 2011, pet. ref’d), a “defendant is entitled to jurors
who can ‘consider’ the entire range of punishment.” Id. at 913,
quoting Cardenas v. State, 325 S.W.3d 179 (Tex. Crim. App. 2010).
“Once a prospective juror admits his inability to consider the full
range of punishment . . . a sufficient foundation has been laid to
support a challenge for cause.” Id. At this point, either the
opposing party or trial court may examine the individual to verify the
nature or extent of the panel member’s position, but unless these
inquiries ameliorate the unequivocal nature of the prior response, the
trial court must grant the challenge. Cardenas v. State, 325 S.W.3d
at 185. Finally, the trial court’s decision on the matter is reviewed
under the standard of abused discretion. Gardner v. State, 306
S.W.3d 274, 295-96 (Tex. Crim. App. 2009).
Here, appellant was charged with burglary of a motor vehicle and
attempted theft of property valued at $500 or more but no more than
$1500. The former was punishable as a class A misdemeanor, and the
latter as a class B misdemeanor.[1] Next, the punishment for
committing a class A misdemeanor is 1)  a fine not to exceed $4,000 or
2) confinement in jail for a term not to exceed one year or 3) both.
Tex. Penal Code Ann. § 12.21 (West 2011). The punishment for
committing a class B misdemeanor can be a fine not to exceed $2,000,
confinement in jail for a term not to exceed 180 days, or both. Id. §
12.22 (West 2011). Neither range, however, requires a mandatory
minimum. So, it is conceivable that the least punishment that could
be given for committing either offense was a dollar fine, while the
greatest for the burglary was a $4,000 fine and a year in jail and for
the attempted theft, a $2,000 fine and a 180-day jail term.[2]
While conducting its voir dire of the potential jurors, the State
discussed the range of punishment facing appellant. While doing so,
it asked the entire venire if they could “conceive of a fact pattern
where you might offer the minimum in that range and you could also
conceive of the fact person [sic] where you’d give him the maximum . .
.” and whether “everybody [could] consider the full range of
punishment in this kind of case, in a theft type of case . . . .” No
member indicated that they could not. In response to that
questioning, appellant asked the entire panel whether they could
“consider” punishment of one dollar. To that, over twenty members
stated “no,” and neither the trial court nor the prosecutor undertook
to clarify or otherwise question the individuals about their stance.
Thereafter, appellant challenged each for cause, which challenges the
trial court denied.[3] So too did the trial court deny appellant’s
request for additional peremptory challenges so that he could assure
that none of the venire members in question were selected for the
jury. Five of the six jurors ultimately seated were those who
unequivocally stated that they could not consider the minimal
punishment alluded to by appellant.
Given the foregoing circumstances, and the fact that the
potential range of punishment included solely a fine of one dollar,
the venire members who disclosed their inability to consider the
entire range of punishment were subject to removal for cause. The
trial court’s decision to the contrary evinced an abuse of discretion
and, therefore, error. Denying appellant additional peremptory
challenges was also error. And, appellant suffered harm from those
errors because the jury trying him consisted of venire members who
should have been excluded. Cardenas v. State, 305 S.W.3d 773, 782
(Tex. App.–Fort Worth 2009), aff’d, 325 S.W.3d 179 (Tex. Crim. App.
2010) (holding harmful error like that at bar).
Disposing of the two issues above as we did, we need not address
appellant’s remaining points. Accordingly, we reverse that judgment
convicting appellant of attempted theft and render judgment acquitting
him of the charge. We also reverse the judgment convicting him of
burglarizing a vehicle and remand that matter to the trial court.
Brian Quinn
Chief Justice
Publish.
-----------------------
[1]The punishment applicable to one’s attempt to commit a
particular crime is one degree or classification lower than the
punishment applicable to the actual commission of the crime. Tex.
Penal Code Ann. § 15.01(d) (West 2011). Because theft of property
having the value of $500 to $1500 inclusive is a class A misdemeanor,
attempted theft of like property is a class B misdemeanor.
[2]The State informed appellant of its intent to enhance the
burglary charge. Until it proved the enhancement allegation, though,
the punishment remained that described above.
[3]The trial court stated that it believed the question posed was
whether $1 was “adequate punishment.” However, the questions were,
“[W]ould you consider a punishment of . . . $1?” or “Could you
consider punishment of a dollar?” In his original question, appellant
also used the phrase “under any circumstance.” A party may ask a
juror if he could consider the minimum punishment in a case dealing
with a particular offense. Cardenas v. State, 325 S.W.3d 179, 184
(Tex. Crim. App. 2010) (stating that a party may ask a juror if he
could consider the minimum punishment in a murder case); accord Weaver
v. State, 355 S.W.3d 911, 913 (Tex. App.–Amarillo 2011, pet. ref’d)
(holding the same).