NO. 07-00-0128 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A SEPTE MBE R 28, 2001

______________________________ ROY DAY, APP ELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE 15 4TH DIST RICT COURT OF LAMB COUNTY; NO. 3196; HON ORABLEJACK D. YOUN G, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Upon a plea of not guilty, appellant Roy Day w as convicted by a j ury of theft by check and punishm ent wasassessed at 180 days confinem entin t he L am b Co unt y J ail. Bya s ole p oint

of e rro r, a ppe llant

con ten ds t he e vide nceis le gally insufficient to support hi s c on vi ct i on . B as ed up on th e r at i on al e e xp re ss ed he re i n, we a ff i rm.2

On Ma rch 28, 1995, a ppellant purc hased f arm implem ent parts for a tandem disk from Thompson Im plement, Inc. and also i ncurred i nstall ation char ges. Appellant ma de his purchase by check in the amo unt of $263.54. The chec k wastwice pr esented to Thomps on Im plement’s bank, and on April 24, 19 95, t he check w as returned w ith a notation indicating appellant did not have sufficient funds. On August 1, 1995, Thomps on Imp lement

notified appellant by letter that his account w

as being turned over to its lawyer for collection. A dem and letter was s ent to appellant by Thompson Im plem ent’slawyer, butno response or paym ent was made. Resultantly, the dishonored check w as forwarded to the Lam b County Attorney who n otified appellant on October 12, 1995, that failure to resolve them atter m ight res ult in his arrest . A

rem inde r was m ailed to a ppe lla nt b y the County Attorney on N ovem ber 1, 1995. Appellantwas c harged and convicted of theft by check of property valued at $20 or m ore, but less than $500. Ap pella nt’ s s ole content ion o n ap pea l is that the evidence is legally insufficient to support his convi ction because the State failed to prove the value of the stolen property pursuantto section 31.08 of the Tex as Code of Crim inal Procedure. W e di sa gree. In conducting a l eg al su ff i ci en cy re vi ew , we mus t d et er mi ne whethe r, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found th e e ss en ti al el eme nt s o f t he cr i me beyond a reasonable doubt. Jacks on v. Virginia, 443 U.S. 307, 31 8, 99 S.Ct. 2781, 2789, 61 L.E d.2d 560, 573 (1979); Geesa v. State, 820 S .W .2d 154, 157 (Tex.C r.App. 1991), overruled on other grounds , Paulson v. State, 2 83

S.W.3d 570, 57 3 (Tex .Cr. App. 2 000). It is a fundam ental rule of criminal law that one cannotbe convicted of a crim e unless it is shown beyon d a reasonable doubt that th e defendant

commi tt ed ea ch el emen t o f th e a ll eg ed of fe ns e. U.S . Co ns t. amen d. XIV ; T ex. Code Crim. P roc. Ann. art. 38. 03 (Vernon S upp. 2001); Tex. Pen. Code A nn. § 2.01 (Vernon 199 4). Asan a ppe llatecou rt, w e m ay n ot s it as a th irte ent h j uro r, b ut m ust uph old the jury's verdict unless it is irrational or unsupported by m ore th an a m ere mo d icum of evidence . Mo reno v. State, 755 S .W.2d 866, 867 (Tex.C r.App. 1988). Appellant contends the State fai led to prove the value of the property healleg edly stole. Va lue is

the fair ma rket value of the property at t he time and place of the offense. Te x. Pen. Code A nn. § 31.08 (Vernon 1994). To establi sh value, the State must prove the fair market value of the proper ty in questi on. Sulli van v. State, 701 S .W .2d 905, 908 (Tex.Cr.A pp. 198 6). “Fa ir m arket value ” is t he a m oun t of m one y th e pr

ope rty in question
w ould sell for in cash, given a reasonable time for s elling it. Keeton v. S tate, 774 S.W.2d 716, 717 (T ex.App.–El Paso 1989), aff’d , 803 S.W .2d 304 (Tex.Cr. App. 199 1). An owner is com petent to testify

to the value of property i n general and comm only under stood terms. Johnson v. State, 676 S .W .2d 416, 418 (Tex.Cr.App. 1984); Morales v. S tate, 2 S.W.3d 487, 488 (Tex.App. –Texarkana 1999, pet. ref’d), citing Sulli van . W hen an owner testifi es, i tis presum ed that he is testifying to an estim ate of the fair m arket value an d if th e defendant

wishes to rebut

the owner’stestimon y, he m ust offer controverting proof of the value of the property. Sulli van , 701 S.W.2d at 909.4

Mike Perry, w ho was m anager and pa rt own er of Th omp so n I mpl eme nt at th e t i me of the inci dent, testifi ed that on March 28, 1995, appellantpurchased parts for a tandem disk and had the service d epartm ent ins tall some of the parts. The State introduced appell ant’s check into evidence w ithout objection. Perry testified that the am ount of the check was $263.54. He also tes tified regarding an itemized invoice listing a b re ak do wn of costs for the parts

and l abor p urchased. This exhibit was also introduced without objection. Appellant did not offer any testim onyor introduce any evidence to rebut Perry’s testimony

of the value of the property. Considering that Perry w as in the b usiness o f selling farm implem ents, his testim onyand the ex hibits established the value of the stolen pr opertyfor purposes of the value statute. We conclude the evidence was lega ll y sufficientto prove the value elem ent of t hef t by che ck. Ap pella nt’ s s ole content ion is overruled. Accordingly, the j udgme nt of the trial court is affirmed.

Don H. Rea vis Justice Do not publish.