Amin Sattar (Ahmed) v. The State of Texas--Appeal from 147th District Court of Travis County

Ahmin2 v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-90-093-CR
AMIN SATTAR AHMED,
APPELLANT
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 147TH JUDICIAL DISTRICT
NO. 99,083, HONORABLE MACE B. THURMAN, JR., JUDGE

Appellant was convicted of felony theft and sentenced to five years imprisonment, probated. Tex. Pen. Code Ann. 31.03(e) (4)(A) (Supp. 1991). In two points of error appellant challenges the sufficiency of the evidence to support a felony conviction. He complains that the evidence was insufficient to support a finding that the property was worth at least $750, the jurisdictional threshold for felony theft, and that the testimony about value was inadmissible as hearsay. We overrule both points of error and affirm the conviction.

The Austin Police Department conducted a "sting" operation in which undercover officers sold cartons of cigarettes represented to have been stolen. Appellant was arrested for purchasing ninety-four cartons of mixed-brand cigarettes during the "sting." At trial, Austin police officers Mark Gil and Don Mayes testified about the value of the cigarettes. Officer Gil, the coordinator of the "sting," testified that a carton of name-brand cigarettes was worth approximately $12.50 on the day of the offense and approximately $13 on the day of the trial. To arrive at these figures he had called a retail store and asked the price per carton of three name-brand cigarettes.

Appellant objected to Officer Gil's testimony, complaining that it was hearsay. He argued that Officer Gil could not testify about the value of the cigarettes because he was not an owner and was not qualified as an expert. The trial court overruled appellant's hearsay objection and allowed Officer Gil to testify as an owner of the cigarettes, stating that the officer, who was in charge of the "stolen property," had a greater right of possession to the cigarettes than the appellant.

We first address appellant's complaint that Officer Gil's testimony about value was inadmissible hearsay and therefore was not competent evidence that the value of the stolen property received was at least $750. Because appellant does not challenge the court's determination that Officer Gil had sufficient custody and control of the cigarettes to qualify as an owner, we test the validity of appellant's hearsay objection under the existing doctrinal law governing an owner's right to testify about the value of property.

In Texas, the owner of property, although not qualified as an expert, is competent to testify about the value of that property. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Cr. App. 1986); Davila v. State, 547 S.W.2d 606, 610 (Tex. Cr. App. 1977). The owner's opinion is admissible although based on hearsay testimony. Esparza v. State, 367 S.W.2d 861, 862 (Tex. Cr. App. 1983); Holmes v. State, 126 Tex. Crim. 587, 72 S.W.2d 1092, 1093 (1934). In Sullivan, the Court of Criminal Appeals established distinct requirements for qualifying an owner, as opposed to a non-owner, to testify about the value of property:

 

When the proof of value is given by a non-owner, the non-owner must be qualified as to his knowledge of the value of the property and must give testimony explicitly as to the fair market value or replacement value of the property.

 

However, when the owner of the property is testifying as to the value of the property, he or she may testify as to his or her opinion or estimate of the value of the property in general and commonly understood terms. Testimony of this nature is an offer of the witness' best knowledge of the value of his property. Such testimony will constitute sufficient evidence for the trier of fact to make a determination as to value based on the witness' credibility.

 

701 S.W.2d at 909. Appellant asks this Court to follow a later case which purports to limit Sullivan by holding that an owner's testimony about value may not be based solely on hearsay. McMillan v. State, 754 S.W.2d 422, 425 (Tex. App. 1988, pet. ref'd).

In McMillan, the owner of a stolen diamond attempted to expand the Sullivan doctrine to give "eyeball" testimony about the weight of the missing diamond, even though the owner had never personally weighed the diamond and was relying on third-party estimates she "recalled." The State needed this testimony to meet its burden of proof because the diamond had been described in the indictment to weigh one carat. The State argued that hearsay testimony by an owner about the weight of a diamond was analogous to hearsay testimony by an owner about value. Citing a jeweler's testimony that it was "impossible for the naked eye to determine the weight of the diamond," the court rejected the analogy and ruled that an owner who had no personal knowledge about the weight of her diamond could not give testimony about its weight based solely on hearsay. Id.

Even though there was no issue regarding the value of the diamond, the McMillan court unnecessarily extended its ruling to require that an owner have personal knowledge in order to testify about the value of her property. We view this portion of the opinion as dictum squarely at odds with the holding in Sullivan. In criminal cases we are bound by the rulings of the Court of Criminal Appeals. We conclude that the trial court properly relied on Sullivan to admit Officer Gil's testimony about the value of the cigarettes.

Appellant next complains that there was insufficient evidence to prove that the stolen cigarettes had a value of at least $750. In criminal appeals where the appellant challenges the sufficiency of the evidence, we must consider the evidence in the light most favorable to the verdict and limit our review to determining whether any rational trier of fact could have found, from the evidence presented, the elements of the charge beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Butler v. State, 769 S.W.2d 234, 239 (Tex. Cr. App. 1989).

In addition to Officer Gil's testimony regarding the retail price of cigarettes by the carton, Officer Mayes testified that the appellant's own store sold "off-brand" cigarettes at $12.50 per carton at the time of trial. Officer Mays also testified that on the day of the offense the appellant had designated twenty-eight of the stolen cartons as "off-brand" and sixty-four cartons (1) as "name-brand" cigarettes.

The trier of fact determines the credibility of the witnesses, weighs the evidence and resolves all conflicts in the testimony. Chanslor v. State, 697 S.W.2d 393, 396 (Tex. Cr. App. 1985); Tex. Code Cr. P. Ann. art. 38.04 (1979). The Sullivan court specifically holds that an owner's testimony will support a challenge to the sufficiency of the evidence, depending on the witnesses' credibility. 701 S.W.2d at 909. This "sting" involved a total of ninety-four cartons of cigarettes. The trier of fact believed the two officers' testimony that the average value per carton, including "off-brand" and "name-brand" cigarettes, was at least $8 (94 cartons x $8 = $752). Viewing the evidence in the light most favorable to the verdict, we hold that any rational trier of fact could have found that the total value of the cartons of cigarettes purchased by appellant met or exceeded $750. The record contained testimony from Officers Gil and Mayes that the value per carton at the time of the offense and at the time of trial was between $12.50 and $13. Although appellant objected to Officer Gil's testimony as hearsay, the court properly overruled this objection. The appellant made no other objections and failed to offer any evidence that the value per carton was less:

 

If the appellant wishes to rebut the owner's opinion evidence he 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.

We conclude that appellant's points of error have no merit and we affirm the conviction.

 

Bea Ann Smith, Justice

[Before Chief Justice Carroll, Justices Jones and B.A. Smith]

Affirmed

Filed: June 12, 1991

[Do Not Publish]

1. Officer Mayes testified that appellant counted 92 cartons of cigarettes. There is evidence in the record that there were 94, the number listed in the Warrant of Arrest and Detention.