Carl Clifton Current, Jr. v. The State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

 

No. 10-96-083-CR

 

CARL CLIFTON CURRENT, JR.,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 77th District Court

Limestone County, Texas

Trial Court # 8569-A

 

O P I N I O N

 

A jury convicted Carl Clifton Current, Jr. for theft of property valued at $100,000 but less than $200,000 and assessed punishment at 20 years' confinement and a $10,000 fine. Current now appeals this conviction claiming trial-court error in: (1) denying his pre-trial motion to suppress evidence, (2) giving the jury the option of finding him guilty of theft over $100,000 because there was insufficient evidence to support this valuation and the property was not sufficiently identified, (3) allowing evidence of allegedly stolen property not listed in the indictment, and (4) allowing evidence of his prior void-conviction. Because the trial court committed no error requiring reversal, we affirm.

In his first point of error, Current complains that the trial court erred in not suppressing all evidence relating to the theft because the State failed to comply with Chapter 47 of the Texas Code of Criminal Procedure by not conducting an examining trial to decide whether the allegedly stolen property should be released to the purported owners and by not filing schedules of the property with the court. // Current contends the State's failure to comply with articles 47.02, 47.03, and 47.04 of the Texas Code of Criminal Procedure renders the stolen property inadmissible. Tex. Code Crim. Proc. Ann. art. 38.23(a). // However, if evidence is not obtained in violation of any law, then its admission at trial is not in contravention of article 38.23(a). State v. Mayorga, 901 S.W.2d 943, 945 (Tex. Crim. App. 1995); Carroll v. State, 911 S.W.2d 210, 219 (Tex. App. Austin 1995, no pet.).

Obtained is defined as to get hold of by effort, to get possession of, to procure, to acquire, to succeed in gaining possession of something as the result of planning or endeavor. Carroll, 911 S.W.2d at 220. Suppression is the appropriate remedy when evidence is illegally obtained in violation of the defendant's rights, but is not mandated when the property may have been improperly disposed of as opposed to having been illegally obtained. Jackson v. State, 717 S.W.2d 713, 715 (Tex. App. San Antonio 1986, pet. ref'd, untimely filed). Because improperly disposing of stolen property under Chapter 47 does not equate with illegally obtaining the property, the failure to follow Chapter 47 of the Texas Code of Criminal Procedure does not require that the evidence be suppressed at trial. Id.; Collins v. State, 686 S.W.2d 272, 275 (Tex. App. Houston [14th Dist.] 1985, no pet.). Thus, the failure of the trial court to hold a hearing before returning the stolen property and of the police to immediately file a schedule with the court does not require the suppression of the stolen property.

Furthermore, the violation of just any "law" does not always invoke the provisions of article 38.23(a). // Carroll, 911 S.W.2d at 221. The primary purpose of the exclusionary statute is to deter unlawful actions which violate the rights of criminal suspects. Id. Current asserts that the purpose behind Chapter 47 is to assure that property alleged to have been stolen is ultimately returned to the rightful owner. Attempting to demonstrate why a failure to comply with Chapter 47 violates his rights, Current attacks the logic used by the court in Jackson. He argues that the Jackson court's characterization of "illegally obtained evidence" is overly restrictive by excluding violations of Chapter 47. Current espouses that it is not simply the stolen property that constitutes evidence of theft, but rather the State also must produce evidence that such property was appropriated without the owner's effective consent. The State elicited testimony from nine different people that each had not given Current consent to exercise control over the property. Current contends all this testimony constituted illegally obtained evidence because without compliance with articles 47.02, 47.03, and 47.04 the State cannot establish lack of consent when no judicial determination has been made showing the witnesses actually owned the stolen property. Although the Jackson case dealt with violations of article 47.01, we adopt the reasoning of that case and apply it to violations of articles 47.02, 47.03, and 47.04. In Jackson, the defendant argued that the return of stolen property to its owners without complying with article 47.01 deprived him of the ability to challenge the existence of the property at trial. Jackson, 717 S.W.2d at 716. The court found this contention to be without merit because Jackson had ample opportunity to attack the credibility of the witnesses concerning the existence of such property. Id. Likewise, Current had ample opportunity at trial to attack these nine witnesses regarding their lack of ownership and ability to give consent to exercise control over the stolen property. Therefore, we overrule the first point.

Current's second point complains that the trial court erred in formulating the charge to allow the jury the option of finding him guilty of theft of property of the value of $100,000 or more but less than $200,000 because there was insufficient evidence that the stolen property had a fair market value over $100,000. A trial court must charge the jury fully and affirmatively on the law applicable to every issue raised by the evidence. Bridgewater v. State, 905 S.W.2d 349, 354 (Tex. App. Fort Worth 1995, no pet.). If evidence presented at trial raises an issue, and a jury charge is requested on that issue, then a charge on that issue must be given. Id.

The Texas Penal Code defines "value" as 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) (Vernon 1994); Keeton v. State, 803 S.W.2d 304, 305 (Tex. Crim. App. 1991); Scott v. State, 741 S.W.2d 435, 437 (Tex. Crim. App. 1987); Sullivan v. State, 701 S.W.2d 905, 906 (Tex. Crim. App. 1986); Lily v. State, 789 S.W.2d 433, 435 (Tex. App. Houston [14 Dist.] 1990, no pet.). Market value is the amount of money the property in question would have sold for in cash, given a reasonable time for selling it. Keeton, 803 S.W.2d at 305. After reviewing all the evidence from trial, we find the State produced sufficient evidence to raise the issue of whether the value of the stolen property exceeded $100,000. Thus, the trial court did not err in allowing the jury the option of finding Current guilty of theft of property with a value of $100,000 or more.

Although Current's point of error complains only about the sufficiency of the evidence to warrant the charge submission, his argument under this point also raises a factual sufficiency complaint regarding market value. Valuation of the property above the $100,000 threshold in this case is an essential element of the offense which the State must prove. Lily, 789 S.W.2d at 435. Because Current attacks the factually sufficiency of an essential element, we view all of the evidence without the "in the light most favorable to the prosecution" prism and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Brumbalow v. State, 933 S.W.2d 298, 299-300 (Tex. App. Waco 1996, pet. ref'd).

An "owner" is a person who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Tex. Penal Code Ann. 1.07(a)(35)(A). Current maintains that implicit in "ownership" is the idea that the property actually belongs to the person purporting to be the owner; therefore, this definition cannot be proper in defining an "owner" for purposes of testifying as to value. Proceeding under this theory, Current assails the testimony of the witnesses representing J.T.M. Industries, Central Texas Oilfield, and Nucor Steel because these witnesses are not "owners" of the stolen property. We find Current's contention to be overly restrictive and unwarranted. A representative of a business entity qualifies as a owner under the Penal Code definition because that representative has a greater right to possession of the property than the alleged thief. See Jones v. State, 814 S.W.2d 801, 803-804 (Tex. App. Houston [14th Dist.] 1991, no pet.) Ketchum v. State, 707 S.W.2d 718, 719 (Tex. App. Texarkana 1986, no pet.). We comprehend no reason why a representative cannot also testify as to the property's value. Taking Current's argument to its logical conclusion would mean that no person could testify as the "owner" of property stolen from a corporate or other legal entity. We disagree. Because the witnesses representing the business entities had a greater right to possession to the stolen property than Current, they qualify presently as "owners" to testify about the value of the property stolen.

Methods of proving fair market value have varied from showing retail price or sale price, to admitting testimony of an owner's opinion of value, to a non-owner's "expert" opinion of value. Keeton, 803 S.W.2d at 305; Washington v. State, 881 S.W.2d 187, 190 (Tex. App. Houston [1st Dist.] 1994, no pet.). Fair market value must be established if the testimony concerning value is given by someone other than the owner. Scott, 741 S.W.2d at 437; Sullivan, 701 S.W.2d at 908-909; Jones, 814 S.W.2d at 803. However, it has long been the rule in this State that the owner of property is competent to testify as to the value of his or her own property. Id. When the owner testifies, the presumption is that the owner is testifying to an estimation of the fair market value. Id. Thus, the owner may testify as to the fair market value of the property either in terms of purchase price or, in some instances, the cost to him of replacing the stolen property. Tex. Penal Code Ann. 31.08(a); Scott, 741 S.W.2d at 437; Sullivan, 701 S.W.2d at 909; Jones, 814 S.W.2d at 803. Because an owner's testimony is an offer of his or her best knowledge of the property value, such testimony constitutes sufficient evidence for the trier of fact to make a determination as to the value based on the owner's credibility. Scott, 741 S.W.2d at 437; Sullivan, 701 S.W.2d at 909; Jones, 814 S.W.2d at 803. When the trier of fact is presented with differing values from different sources or "markets," it must determine value based on the evidence before it. Keeton, 803 S.W.2d at 306.

Current contends that he rebutted the presumption that these owners testified to an estimation of the fair market value. To rebut an owner's opinion-evidence of fair market value, Current must do more than merely impeach the witness' credibility during cross-examination. Scott, 741 S.W.2d at 438; Sullivan, 701 S.W.2d at 909; Jones, 814 S.W.2d at 803; Sanders v. State, 814 S.W.2d 784, 787 (Tex. App. Houston [1st Dist.] 1991, no pet.). He must offer controverting evidence as to the value of the property. Id. Current asserts that the witnesses stated they were testifying as to replacement cost, not fair market value. Additionally, he claims the trial-court-appointed appraiser, who assisted the defense in valuation, testified as to the fair market value of the stolen property. Therefore, Current argues that trial court erred in allowing the witnesses to testify as to property's replacement value because the fair market value could be ascertained. Tex. Penal Code Ann. 31.08(a).

The relevant portions of the respective owner's testimony elicited during trial regarding the value of the property stolen are as follows:

PROSECUTOR: In your opinion, is $800 a fair market value for this equipment?

J.D. KENT: I'd say yes, sir.

* * *

PROSECUTOR: The value of seventeen seventy-five, is that a fair market value?

MIKE PHILLIPS: To replace, I would say yes.

. . .

DEFENSE COUNSEL: Okay. You said that $1,775 was the replacement value. Then you also said it was the fair market value. And for purposes of our discussion here, they're not the same. If you had to go buy all this stuff new, are you saying that's what you would pay is, $1,775?

PHILLIPS: Without knowing exactly, I couldn't tell you that. That's what I figure it would cost to replace it.

. . .

PROSECUTOR: To replace that stuff, as a good a condition as what it was, is it your opinion it would take $1,775 to replace it?

PHILLIPS: Yes, sir.

PROSECUTOR: In as good a good condition?

PHILLIPS: Uh-huh.

PROSECUTOR: Used?

PHILLIPS: Uh-huh. It would cost that.

* * *

PROSECUTOR: We have a value there of $13,030.50. In your opinion, is that --

GLEN McKINNEY: Well, no. Actually, sir, after the initial report, there were other things that I found missing. It was just over $5,000 altogether -- or 15,000, I'm sorry, 15,000.

. . .

PROSECUTOR: Mr. McKinney, how did you arrive at the value of all this stuff?

McKINNEY: I had receipts for many of the items; other ones I just knew the value of. Some of them I had to call or go to places and find out the value.

PROSECUTOR: And you're saying that, when you got through, it was over $15,000 total that you had lost?

McKINNEY: Yes.

* * *

PROSECUTOR: We have a value here of $52,745. How did you reach that figure?

GREGORY PERKINS: We called. Those were market-value numbers. We called the replacement suppliers and asked them to give us values, if we were not able to find any of the equipment. Like I say, the survey equipment, I immediately had that ordered because that was of utmost importance. Our mechanics and maintenance supervisor went through their list, and with our vendors, you know, got responses and valued the equipment.

. . .

PROSECUTOR: The value of this $52,745. Is that, do you think, a fair market value of that stuff, in your opinion?

PERKINS: To replace that material, yes.

. . .

DEFENSE COUNSEL: So, I mean, is this cost that you gave us, this 52,000, a depreciated cost?

PERKINS: No, sir, that's --

DEFENSE COUNSEL: That's brand-spanking new?

PERKINS: Replacements, yes, sir.

* * *

PROSECUTOR: Mr. Jackson, we may have a value listed of $1,450. Is that the fair market value of those four items that you lost?

WILLIAM JACKSON: It's close to the replacement of it, yes.

. . .

PROSECUTOR: So, in your opinion, is that a fair market value, $1,450?

JACKSON: Probably a little bit less, now that I went to replace the stuff.

PROSECUTOR: It costs you more now to replace it?

JACKSON: Yes.

* * *

PROSECUTOR: We've got a value there of $2,973. Is that a fair market value for the stuff?

BENNIE LOPEZ: Yes.

. . .

DEFENSE COUNSEL: So what you're saying is that the values, the twenty-nine seventy-three is basically what you paid for it when you bought it or what you think it -- I mean . . .

LOPEZ: Some of the stuff, what I paid for it; some of it, what I feel that it's worth.

DEFENSE COUNSEL: Okay. And worth in terms of what you could sell it for if you had it in your hand today.

LOPEZ: If I had it in my hand, yes, sir.

* * *

PROSECUTOR: For a value of $26,056.42.

DAWANE MARTIN: Yes, sir.

PROSECUTOR: Do you feel like that is a fair market value, in your opinion, for that equipment?

MARTIN: Yes, sir, that's what it costs us to replace it.

. . .

DEFENSE COUNSEL: The number listed here at the end of this list, $26,056.42, can you tell me how you arrived at this number?

MARTIN: This is what it costs us, purchase request where we had to buy the replacement tools for it.

. . .

DEFENSE COUNSEL: So this is what you paid to buy new stuff.

MARTIN: Yes, sir.

DEFENSE COUNSEL: And that's how you arrived at your figure, for the most part, $26,056.42.

MARTIN: Yes.

* * *

PROSECUTOR: And you put a value on there of $6,416; is that right?

SUE HITT: Right.

PROSECUTOR: And, in your opinion, is that a fair market value for that equipment that listed on this?

HITT: Yes, sir.

. . .

DEFENSE COUNSEL: How did you arrive at the value of $6,416?

HITT: From bills where we had paid for these items.

DEFENSE COUNSEL: I'm sorry. Say that one more time.

HITT: From the things -- from bills where we had paid for the things.

DEFENSE COUNSEL: In other words, you kept your receipts. And this was how much you paid for these items when you bought them?

HITT: Uh-huh.

DEFENSE COUNSEL: Is that correct?

HITT: Right.

DEFENSE COUNSEL: I assume that you bought these items new when you bought them?

HITT: As far as I know, they were new.

* * *

PROSECUTOR: We've got a value there of $6,042. In your opinion, is that an accurate, fair market value of that list of stuff that was taken?

BOBBY LIDE: Yes.

. . .

DEFENSE COUNSEL: How did you arrive at the value of $6,042?

LIDE: Well, you just -- you know what the stuff is worth. I mean, a new grinder costs about a hundred fifty bucks.

DEFENSE COUNSEL: Okay. So you -- I mean, you went through these items, figured out what the new cost was. You multiplied by however many you lost. Is that how you came up with the figure?

LIDE: Yeah.

DEFENSE COUNSEL: Am I putting words in your mouth?

LIDE: Well, it wasn't new prices. We didn't put new prices on them. That $6,000 probably would be low.

DEFENSE COUNSEL: Well, how did you -- if you didn't figure new prices, what sort of prices did you figure?

LIDE: It's just like when you buy a used car, you know. You just figure what the thing's worth. And that's the way we do this.

DEFENSE COUNSEL: In other words, when you guys are looking for Bosch grinders, you go out looking for used ones?

LIDE: No, sir. We buy new ones.

DEFENSE COUNSEL: Okay. Well, so how did you establish the value of the used Bosch grinders, then?

LIDE: Well, you just know what they're worth. You can call the pawn shop.

DEFENSE COUNSEL: Okay. Is that what you guys did? You called the pawn shop and got this value, 6,042?

LIDE: No, we didn't call the pawn shop. We just know what they're worth.

Current offered the testimony of Joe Frerich, an auctioneer who has experience selling property like that stolen in this case. Frerich testified about different methods of establishing the value of property. These methods included determining values from the sale of property at pawn shops, garage sales, pre-used shops, and auctions. Frerich indicated that the most effective would be the auction method. The pertinent portion of Frerich's testimony is as follows:

DEFENSE COUNSEL: And how do you establish values in the auction method?

FRERICH: You establish value when you bring individuals to an auction where you have, under no-stress conditions, where a willing seller is willing to sell and a willing buyer is willing to buy, and there are no-stress conditions. And that's where you establish the value when you put it on the auction block. And it would be one of the most effective ways to establish a value.

DEFENSE COUNSEL: Okay. And what sorts of percentage, as compared to new value, would one be able to get at auction value?

FRERICH: Okay. There's a lot of circumstances there. Depends on how well the auctioneer has done his advertising; if he's produced brochures that identify the properties in the best manner. If he's done a wide mail-out that actually is mailed directly to the auction-oriented people that are interested in that particular item. So that has a lot of difference, a lot of variances in the value.

DEFENSE COUNSEL: Let's assume, then, for purposes of what we want to write down on this board, that the auctioneer has done an adequate job of mailing out to the folks who might be interested in these products, and he's done it. He's set forth the items that are going to be sold, and he's done it in a timely fashion so that, if they choose to attend, they can. Can you give me a range as to percentage of new value?

FRERICH: Anywhere from 50 to 70 percent.

. . .

DEFENSE COUNSEL: What I'm going to ask you for is: First of all, have you, in you prior preparation for trial today, have you had occasion to go through and establish what new value, 100 percent value, is as to each of these items?

FRERICH: Yes, sir, I have on the majority of these that I had.

DEFENSE COUNSEL: And what sources did you go to establish that?

FRERICH: Well, we've used -- I have a book called the Granger Book, and I've got another one -- another book here that indicates value, new values, which is an AMWAY book, and pretty well goes from A to Z.

. . .

DEFENSE COUNSEL: What did you do, in the event that you didn't know a brand name? Certainly, some of the items the witnesses weren't able to recall the brand. How did you establish value in the case where you had an item that no brand name was given?

FRERICH: Well, on the hand tools and the industrial-type tools, the Granger Book had several different types of brands in there. So I just used that as a guideline to establish value from the different brands.

What I done was I took -- They might have had two or three different kinds, and I took the three and appraised it out, and divided it, and took an average value of new value of those particular items.

DEFENSE COUNSEL: Okay. Now, you're going to give us a new value, and then you're going to give us another value. Which of these values are you going to give us?

FRERICH: I'm going to use the auction method.

. . .

DEFENSE COUNSEL: My calculations, based on the numbers that we have here, total out to $51,993.

FRERICH: Pretty close.

DEFENSE COUNSEL: Now, what new adjustments need to be made based on what you've heard at trial?

FRERICH: Sir?

DEFENSE COUNSEL: We'll go through each one, if you want to do it that way.

FRERICH: I tell you what I did. After listening to two days here and listening to all the testimony on their particular items and how they described it to be -- Again, I have not seen any of the merchandise personally, just from the list that I was provided.

What I've done is, listening carefully, as much as I could hear back there, I randomly took and added about 20 percent and added to it, which would be an additional $10,000. I round it off to $10,000.

. . .

DEFENSE COUNSEL: So you added $10,000 total to all nine of the alleged victims; and so, if I added 10,000 here to the 993, or the 51,993, after having heard all the testimony, that would reflect what you consider to be the auction value of all the items listed in the indictment, is that correct?

FRERICH: That could be true. Again, I have not seen any of the merchandise. I've not seen any of the photographs, just from this printout that I have. It could be more and, then, it could be less. One way or the other; works both ways.

DEFENSE COUNSEL: But based on the limited information that you've been given and what you've heard at trial, you feel like that's an accurate number?

FRERICH: I would feel real confident in that, yes, sir, from the past experiences that I've had.

. . .

PROSECUTOR: I asked you, where did you find the Garcia rod and reel?

FRERICH: I did use an estimated value.

PROSECUTOR: You just pulled it out of the air, didn't you?

FRERICH: No, sir.

PROSECUTOR: Where did you get it?

FRERICH: From AMWAY.

PROSECUTOR: AMWAY. Let's look. How about Bass Pro Shop? Have you ever heard of that?

FRERICH: Sir?

PROSECUTOR: Have you ever heard of Bass Pro Shop?

FRERICH: Yes.

PROSECUTOR: Largest tackle store in the nation?

FRERICH: Yes.

PROSECUTOR: Could be the cheapest.

FRERICH: Could be.

PROSECUTOR: I want to show you the Garcia rods, and I want you to tell me which one you can get me for $30, because I want to place an order. There's Abu Garcia. How much are they?

FRERICH: Well, you have your $54.

PROSECUTOR: You have what now?

FRERICH: What I see is $54.

PROSECUTOR: Down? Do you find anything? Looks to me like it's 64. Isn't it 90?

FRERICH: You're not trying to tell me --

PROSECUTOR: No, I just want you to know. How much did you get? Which one of those rods did you use?

FRERICH: Well, on this particular --

PROSECUTOR: You pulled it out of the air.

FRERICH: On this particular -- Well, particularly this particular bunch, yes, because of the amount of time.

. . .

PROSECUTOR: You pulled those out of the air.

FRERICH: The amount of time that was given to me to spend --

PROSECUTOR: I didn't ask you about amounts of time. Where did you get those figures is what I'm asking. You pulled those figures out of the air.

FRERICH: Okay.

. . .

PROSECUTOR: How about a tackle box, $10. Where did you get that?

FRERICH: You know, when you don't have any pictures to go by --

PROSECUTOR: I didn't ask you about that. I asked you where you got the $10 figure, sir.

FRERICH: I just pulled it out of the air on that particular item.

PROSECUTOR: Okay. Are you aware tackle boxes in the Bass Pro Shop what they're worth?

FRERICH: I'm sure they're worth more than that.

PROSECUTOR: All right. If they're filled with lures and so forth, they're worth a lot more than that.

FRERICH: I didn't know if they were or not.

PROSECUTOR: I see. Did you come -- You were appointed as investigator by the Court to help the defense.

FRERICH: I was appointed as an appraiser.

PROSECUTOR: As an appraiser? Okay. Did you ever contact me?

FRERICH: I wasn't asked to.

PROSECUTOR: Okay. Did you ever contact the victims and look at the stuff?

FRERICH: Never was made aware to me, sir. They was [sic] made where I could go looking.

PROSECUTOR: In other words, what you did was you took a list and went through Granger.

FRERICH: Exactly. I took this list --

PROSECUTOR: And pulled a bunch of it out of the air and wrote a bunch of figures down.

FRERICH: I wouldn't say a bunch.

. . .

PROSECUTOR: Did you get it right?

FRERICH: According to your facts and figures, what you have there on black and white on that particular item, I guess I didn't, sir.

PROSECUTOR: Okay. According to my figures.

FRERICH: Yes.

PROSECUTOR: Could you give us your figures on it where you got it? Give us your figures.

FRERICH: I already made the statement that you said I pulled it out of the air.

. . .

PROSECUTOR: Two tool boxes, $50.

FRERICH: Sir, I don't know how big they are or how small they are. I just put, you know -- Which one are we on?

PROSECUTOR: The last, J.T.M.

FRERICH: Small toolbox, 50 bucks I figured you can buy. I didn't realize anything as far as big, small.

PROSECUTOR: Where did you get that? You just pulled it out of the air?

FRERICH: Pulled it out of the air.

PROSECUTOR: All right. Would you be surprised to know those are $600 apiece?

FRERICH: Probably so.

. . .

DEFENSE COUNSEL: How about the -- says two typewriters. All right. Where did you get your two typewriters?

FRERICH: I didn't find that one right there. I just put down -- I assumed that those were good typewriters, new, and I put them as a value of $800 on them two, $400 apiece.

. . .

PROSECUTOR: Let me make sure I understood that last statement. You pulled the typewriter out of the air too. Is that what you're saying?

FRERICH: Sir?

PROSECUTOR: Did you pull the typewriter prices out of the air also?

FRERICH: I just established an opinion on that, yes, sir.

. . .

DEFENSE COUNSEL: Is it your opinion, Mr. Frerich, that more often than not it's been your experience that the fair market value is usually between 50 and 70 percent of the replacement value?

FRERICH: As an average, from the past experiences that I've had, and auctions that I've conducted, that is a fair market value: 50 to 70 percent. Again, Mr. Cantrell asked me a question about some will bring more; but, then again, some will bring less.

The record illustrates several instances, other than those set forth above, when Frerich made assumptions about the items stolen.

Because the owners of stolen property may testify as to the fair market value either in terms of the purchase price or, under appropriate circumstances, the replacement cost, we find their testimony sufficient to establish a total value of over $100,000. Tex. Penal Code Ann. 31.08(a); Scott, 741 S.W.2d at 437; Sullivan, 701 S.W.2d at 909; Jones, 814 S.W.2d at 803. Current offered controverting evidence of the stolen properties' fair market value by establishing an auction value of $61,993 through Frerich's testimony. After reviewing the record, we cannot say that the jury's acceptance of the owners' testimony regarding fair market value over Frerich's was so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129; Brumbalow, 933 S.W.2d at 299-300. Therefore, we overrule his second point of error.

In his third point, Current repeats his complaint that the trial court erred in charging the jury that it could find him guilty of theft over $100,000 but under $200,000 because a significant amount of the property alleged to have been stolen was not sufficiently identified. The thrust of Current's complaint is that the items stolen from J.T.M. Industries were not introduced into evidence. Furthermore, the only photographs of the stolen property from J.T.M. Industries consisted of a charger and recovery system, two employee's uniforms, and a survey pole. Current contends that the trial court should not have allowed the unidentified property to be considered in ascertaining the value. Gregory Perkins, area manager for J.T.M. Industries, testified that the items listed in the indictment had been stolen from the J.T.M. Industries' premises. Moreover, Perkins testified that he and some other J.T.M. Industries workers retrieved some of the stolen property from the police. The State also produced the testimony of the police officers who seized the property from Current's control and returned it to J.T.M. Industries after their workers identified it. In fact, some of the property recovered from Current contained a "J.T.M." inscription. We find this evidence sufficient to establish the identity of the property stolen from J.T.M. Industries. See Christopher v. State, 833 S.W.2d 526, 528 (Tex. Crim. App. 1992); Nickerson v. State, 810 S.W.2d 398, 399-401 (Tex. Crim. App. 1991); Snider v. State, 681 S.W.2d 60, 64 (Tex. Crim. App. 1984). // Therefore, we overrule Current's third point.

Current's fourth point alleges the trial court erred in allowing the State to introduce evidence regarding the theft of property not listed in the indictment. The State responds that there is no evidence the jury ever considered these items in reaching its verdict. Additionally, the property not listed in the indictment was not necessary to calculate the $100,000 amount. Initially, we must determine what complaint Current attempts to raise by his point. Nowhere in the record does Current object to the introduction of this property as an extraneous offense or under Rule 403. Tex. R. Crim. Evid. 403. It appears his complaint is that property not listed in the indictment, but about which testimony was offered, was used by the jury to reach the $100,000 plateau. Thus, we will limit our analysis to whether any error resulted in allowing this testimony in view of Current's complaint concerning only the valuation issue.

The purpose of an indictment is to "give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment"; an indictment must also be specific enough to "enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." Tex. Code Crim. Proc. Ann. arts. 21.11, 21.04 (Vernon 1989); Lehman v. State, 792 S.W.2d 82, 84 (Tex. Crim. App. 1990). For these reasons, a theft conviction can never rest in whole or in part upon theft of property not alleged in the indictment as stolen. Lehman, 792 S.W.2d at 84. However, once Current received proper notice that he must prepare to defend himself against a charge that he has stolen a certain "bundle" of property, there is no reason that he should be acquitted if the evidence shows him guilty of stealing enough of the "bundle" to make him guilty of the offense charged. Id. Because Current had the proper notice to prepare his defense, we find no error in the State's eliciting testimony of other alleged stolen property not listed in the indictment as long as that property is not used to surpass the $100,000 value amount. Thus, we overrule the fourth point.

In his fifth point of error, Current complains the trial court erred at the punishment phase by allowing the State to introduce evidence of a prior conviction that was void on its face. Once the State makes a prima facie case the burden shifts to the defendant to show that a prior conviction is void. Johnson v. State, 725 S.W.2d 245, 246-47 (Tex. Crim. App. 1987). The State establishes a prima facie case of proof of a prior conviction by introducing copies of the judgment and sentence and connecting them with the defendant. Id. at 247.

In this case, the State introduced a copy of the judgment and sentence from Current's prior felony conviction of Attempt to Take a Weapon from a Peace Officer. Current stipulated that the judgment and sentence referred to him. Nevertheless, Current alleges that this prior conviction is void on its face because he had no effective assistance of counsel. Current introduced an order signed on April 2, 1991, allowing the withdrawal of William Smith as his attorney. The motion attached to this order cited lack of cooperation as the reason for the withdrawal. On May 17, 1991, Current entered a guilty plea and was sentenced eight years' confinement in accord with a plea bargain. This judgment shows that Current was "present with attorney Bill Smith." Current points out that the trial court's docket sheet never indicates the reappointment of Bill Smith as counsel. Thus, Current contends he was without counsel when he plead guilty making his conviction void. However, we believe the judgment's recitation that Current's counsel was present overrides the court's docket sheet. // Mackintosh v. State, 845 S.W.2d 361, 363-64 (Tex. App. Houston [1st. Dist.] 1992, no pet.). Current has the burden to prove his prior conviction is void. Johnson, 725 S.W.2d at 246-47. He failed to adequately rebut the recitation contained in the judgment that his counsel was present when he plead guilty. Therefore, we overrule Current's fifth point.

We affirm the judgment.

REX D. DAVIS

Chief Justice

Before Chief Justice Davis,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed May 7, 1997.

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