N O . 03-15-00127-CR 

I N TH E COURT OF APPEALS 

OF TH E THIR D DISTRICT OF TEXAS 

AARO N JOSEPH HOES, 

Appellant 

V . 

T H E STATE OF TEXAS 

Appellee 

Appeal in Cause No . CR01167 in the 

33rd Judicial District Court o f Blanco County, Texas 

Brief For Appellee 

OFFICE OF DISTRICT ATTORNEY 

33^^ and 424'^ JUDICIA L DISTRICTS 

Wiley B. McAfee, District Attorney 

P. O. Box 725, Llano, Texas 78643 

Telephone Telecopier 

(325) 247-5755 (325) 247-5274 

g.bunyard@co.llano.tx.us 

By: Gary W. Bunyard 

Assistant District Attorney 

State Bar No . 03353500 

ATTORNEY FOR APPELLEE 

June 11, 2015 

Oval Argument Waived 

ACCEPTED

03-15-00127-CR

5646314

THIRD COURT OF APPEALS

AUSTIN, TEXAS

6/11/2015 4:42:28 PM

JEFFREY D. KYLE

CLERK

 FILED IN 3rd COURT OF APPEALS AUSTIN, TEXAS 6/11/2015 4:42:28 PM JEFFREY D. KYLE Clerk
Identity Of The Parties 

Trial Court 

Honorable J. Allan Garrett 

33rd Judicial District 

Burnet County Courthouse Annex (North) 

1701 East Polk St., Suite 74 

Burnet, T X 78611 

State/Appellee 

Perry Thomas (Trial Counsel) 

First Assistant District Attorney 

P. O. Box 725 

Llano, Texas 78643 

(325) 247-5755 

State Bar No . 19849120 

Anthony J. Dodson (Trial Counsel) 

Assistant District Attorney 

P. O. Box 725 

Llano, Texas 78643 

(325) 247-5755 

State Bar No . 05927200 

Gary W. Bunyard (Appellate Counsel) 

Assistant District Attorney 

P. O. Box 725 

Llano, Texas 78643 

(325) 247-5755 

State Bar No . 03353500 

g.bunyard@co.llano.tx.us 

ii 
Appellant 

Thomas M . Felps (Trial Counsel) 

Attorney at Law 

P.O. Box 442 

Johnson City, T X 78636 

(830) 868-7106 

State Bar No . 06889700 

Alice E. Price (Appellate Counsel) 

Attorney at Law 

408 South Liveoak 

Lampasas, T X 76550 

(512) 556-4777 

State Bar No . 00786177 

apgregg50@hotmail.com 

Aaron Joseph Hoes (Appellant) 

TDCJ #01987824 

SID #06270672 

Garza East/Chasefield Wilderness Unit 

4304 Highway 202 

Beeville,TX 78102-8981 

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Table Of Contents 

Page 

Index o f Authorities V I 

Statement of the Case 1 

Statement on Oral Argument, 1 

Response to Issues Presented 2 

Statement o f the Facts 3 

Summary o f the Argument - Response to Issue No . 1 6 

l.a. Bobby Humphrey had sufficient use and contact with 

the tractor to be able to render an opinion as to value. 

l.b. Bobby Humphrey had a greater right o f possession to the 

tractor than that of Appellant and as such would be an 

owner o f the tractor. 

I.e. A rational jury could have found beyond a reasonable doubt 

that the value of the tractor was $1,500 or more but less 

than $20,000 based on the testimony o f Bobby Humphrey. 

Argument on Response to Issue No . 1 

1.1 Standard o f Review 8 

1.2 Applicable Facts 9 

1.3 Discussion and Conclusion 11 

iv 
Prayer for Relief. 

Certificate o f Word Count 

Certificate o f Service 
Index Of Authorities 

Case Law Page 

Brooks V. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) 8 

Brown v. State, 333 S.W.3d 606 (Tex. App.— 

Dallas 2009, no pet.) 8 

Griffith V. State, 976 S.W.2d 686 (Tex. App.--

Tyler 1997, pet. ref d) 9 

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007) 8 

Jackson V. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 

61 L. Ed. 2d 560 (1979)) 8 

Keeton v. State, 803 S.W.2d 304 (Tex. Crim. App. 1991) 8 

Penagraph v. State, 623 S.W.2d 341 (Tex. Crim. App. 1981) 9 

Sharp V. State, 707 S.W.2d 611 (Tex. Crim. App. 1986) 9 

Constitutions 

None Cited. 

Statutes/Rules 

Tex. Penal Code Sec. 1.07 (a)(35) 9 

vi 
statement Of TIte Case 

Appellant has adequately described the Statement o f the Case. 

Statement on Oral Argument 

The undersigned waives Oral Argument. Appellant has waived Oral Argument 

and the undersigned does not believe that Oral Argument will be beneficial for this 

case for the reason that the issues are straight forward and lack any novel or complex 

nuances. Should the Court believe that Oral Argument will assist the Court in any 

way, the undersigned will gladly accommodate the Court. 

1 
Respons e To Issue s Presented 

Response To Issue 1: 

1 .a. Bobby Humphrey had sufficient use and contact with the tractor 

to be able to render an opinion as to value. 

1 .b. Bobby Humphrey had a greater right of possession to the tractor 

than that o f Appellant and as such would be an owner of the 

tractor. 

I.e. A rational jury could have found beyond a reasonable doubt that 

the value o f the tractor was $1,500 or more but less than $20,000 

based on the testimony o f Bobby Humphrey . 

2 
statement Of The Facts 

Appellant has not fully described the facts of this case under the requirements o f 

Texas Rules o f Appellate Procedure 38.1 (g). 

I n April 2013 Mr. Erwin Sultemeier was the owner of a 1979 Massey Ferguson 

Model 245 tractor. RR Vol. 2 Pages 75, 77, 119 - 120. Mr. Sultemeier's son-inlaw, Bobby Humphrey, helped Mr. Sultemeier in performing tasks on the 

Sultemeier farm and ranch. RR Vol. 2 Pages 74 - 75. On April 3, 2013, Mr. 

Humphrey last used the tractor and then stored the tractor by the barn by the old 

house. RR Vol. 2 Page 75. On April 5,2013, Mr. Humphrey observed the gate at 

the road to the old house to be open when it should not have been and heavy ruts 

in the road. RR Vol. 2 Page 76. Checking the property further, Mr. Humphrey 

discovered that the tractor and a lowboy trailer to be missing. RR Vol. 2 Pages 76 -

77. Mr. Humphrey, who had personally operated the tractor at the Sultemeier farm 

and ranch for many years, testified at Appellant's trial that the tractor was worth 

approximately $7,500. RR Vol. 2 Pages 75, 77. Mr. Humphrey further testified 

that the value of Mr. Sultemeier's tractor was more than $1,500 but was less than 

$20,000. RR Vol. 2 Pages 77 - 78. 

3 
I n July 2013 Hays County Sheriffs Deputy Troy Mayes conducted a traffic stop 

o f a heavy duty pickup being driven by Appellant pulling a trailer with a tractor on 

the trailer. RR Vol. 2 Pages 91 - 93. The passenger o f the pickup was identified as 

Laurie Chase. RR Vol. 2 Page 93. Further investigation showed that the VI N 

number on the tractor in Appellant's possession matched the VI N number o f the 

tractor stolen from Mr. Sultemeier. RR Vol. 2 Page 97. When questioned about 

the tractor, Appellant told Deputy Mayes that Appellant had purchased the tractor 

and produced a Bill o f Sale. RR Vol. 2 Page 96. 

During the investigation Hays County Detective Brad Doring arrived. At that 

time Detective Doring was part o f a multicounty auto theft task force. RR Vol. 2 

Page 102. Detective Doring inspected the tractor and found it odd that there were 

no stickers on the tractor, that the tractor was too clean for its age, and it appeared 

that the tractor was recently painted in a "homemade" fashion. RR Vol. 2 Pages 

103 - 104. Detective Doring noticed that the Bill of Sale presented by Appellant was 

dated January 2, 2013, which was a date prior to the date that the tractor was stolen 

from Mr. Sultemeier. RR Vol. 2 Page 114 - 115. Detective Doring was unable to 

locate the seller named on the Bill o f Sale. RR Vol. 2 Page 113 - 114. Detective 

Doring testified that he was personally familiar with the handwriting o f both 

4 
Appellant and his passenger, Ms. Chase. RR Vol. 2 Pages 116 - 117. It was the 

opinion of Detective Doring that Ms. Chase was the author o f the Bill o f Sale. RR 

Vol. 2 Page 117. 

Appellant took the stand in the defense case-in-chief. Appellant denied that he 

was guilty o f the offense charged. RR Vol. 2 Page 128. Appellant testified that he 

purchased the tractor off o f Craigslist sometime in March/April 2013 for $4,000. 

RRVol.2Page 133. 

5 
Summary Of The Argument on 

Respons e to issu e No. 1 

l.a. Bobby Humphrey had sufficient use and contact with the 

tractor to be able to render an opinion as to value. 

l.b. Bobby Humphrey had a greater right of possession to the 

tractor than that of Appellant and as such would be an 

owner of the tractor. 

I.e. A rational jury could have found beyond a reasonable 

doubt that the value of the tractor was $1,500 or more but 

less than $20,000 based on the testimony of Bobby 

Humphrey. 

Appellant complains that there is no evidence that the tractor was worth $1,500 

or more but less than $20,000 and as such there is insufficient evidence to support 

the State Jail Felony offense o f Theft. I n particular. Appellant complains that a 

"non-owner" o f property can not testify about the value of property owned by 

another unless the basis for the opinion o f the "non-owner" has been established. 

However, there was evidence related to valuation o f the property from a witness 

who had substantial, long term use of the property and who had actual care, custody, 

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and control over the property prior to it being stolen. The evidence described was 

not challenged or impeached to any degree. Being the ultimate trier o f fact, the jury 

could rationally fmd beyond a reasonable doubt that the value o f the property stolen 

was $1,500 or more but less than $20,000. 

7 
Argument On Respons e to Issue No. 1 

1,1 Standard of Review 

I n evaluating legal sufficiency of the evidence, reviewing courts look at all 

evidence in the light most favorable to the verdict to determine whether any rational 

fact-finder could have found guilt beyond a reasonable doubt. Brooks v. State, 323 

S.W.3d 893, 912 (Tex. Crim. App. 2010) {ciimg Jackson v. Virginia, 443 U.S. 307, 

319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)); Brown v. State, 333 S.W.3d 606, 608 

(Tex. App.—Dallas 2009, no pet.). 

Legal sufficiency is examined under the direction of the Brooks opinion, while 

giving deference to the responsibility o f the jury "to fairly resolve conflicts in 

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts 

to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing 

Jackson, 443 U.S. at 318-19). 

Fair market value of property may be proven in a variety o f ways, including the 

opinion o f the owner and the opinion o f a non-owner expert opinion. Keeton v. 

State, 803 S.W.2d 304 (Tex. Crim. App. 1991). 

8 
"Owner" is defined as a person who (A) has title to the property, possession o f 

the property, whether lawful or not, or a greater right to possession o f the property 

than the actor; or (B) is a holder in due course o f a negotiable instrument. Tex. 

Penal Code Sec. 1.07 (a)(35). 

I n addition, when it comes to witness credibility and the weight to be given a 

witness's testimony, the jury is the exclusive judge. Penagraph v. State, 623 S.W.2d 

341, 343 (Tex. Crim. App. 1981). The jury may believe all, some, or none o f any 

witness's testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). 

The jury may use common sense and apply common knowledge, observation, and 

experience gained in the ordinary affairs o f life when giving effect to the inferences 

that may reasonably be drawn from the evidence. Griffith v. State, 976 S.W.2d 686, 

690 (Tex. App.--Tyler 1997, pet. ref d). 

1.2 Applicable Facts 

I n this case, Bobby Humphrey is the son-in-law of Erwin Sultemeier, the owner 

o f the stolen tractor. RR Vol. 2 Pages 74 - 75, 77, 119 - 120. Bobby Humphrey 

was familiar with the history o f the tractor beginning from when Mr. Sultemeier's 

9 
brother bought the tractor new in 1979. RR Vol. 2 Page 77. Bobby Humphrey 

personally used the tractor on a regular basis for many years. RR Vol. 2 Page 75. 

Around the time that the tractor was stolen Bobby Humphrey was in fact exercising 

care, custody, and control over the tractor in that he used the tractor on a regular 

basis and, in this particular instance, stored the tractor in a shed next to the old house 

once he was finished with the tractor for that day. RR Vol. 2 Pages 75, 77. It was 

Bobby Humphrey and his son who later discovered that the tractor was missing. 

RR Vol. 2 Pages 76-77. 

At trial Bobby Humphrey testified that in his opinion the tractor was worth 

$7,500. RR Vol. 2 Page 77. Additionally, Bobby Humphrey testified that the value 

o f the tractor was more than $1,500 but less than $20,000. RR Vol. 2 Pages 77 - 78. 

I n his defense, Appellant took the stand and testified that he bought the tractor 

sometime in March/April for $4,000 and presented a Bill of Sale to Det. Doring that 

contained the tractor's VI N number and was dated January 2, 2013. RR Vol. 2 

Pages 114, 133. 

10 
Prior to deliberation, the trial court instructed the jury as to the definition o f the 

word "value". CR Vol. 1 Pages 91 - 95. The trial court instructed the jury that: 

'Value" means the fair market value of the property at the time and place of 

the offense, or i f the fair market value of the property cannot be ascertained, 

the cost o f replacing the property within a reasonable time after the theft. 

Id. 

The trial court also instructed the jury as to the definition o f the term "owner" 

as follows: 

"Owner" means a person who has title to the property, possession o f the 

property, whether lawful or not, or a greater right to possession o f the 

property than the defendant. 

CRVol. lPages91-95. 

IJ Discussion and Conclusion 

The value opinion given by Bobby Humphrey was legally sufficient to justify the 

verdict of the jury. While not named as the owner of the tractor in the Indictment, 

Bobby Humphrey met the definition o f "owner" in that he had a greater right of 

possession to the tractor than that o f Appellant. Bobby Humphrey had substantial 

knowledge o f the history and condition of the tractor. Appellant's trial counsel 

never objected to the qualifications o f Bobby Humphrey to give an opinion as to the 

value of the tractor nor did counsel make any attempt to cross-examine Bobby 

11 
Humphrey on how Mr. Humphrey arrived at this opinion. No t only did Bobby 

Humphrey give an opinion as to a specific value but he also gave an opinion that the 

value o f the tractor was greater than $1,500 but not as much as $20,000. The only 

other testimony given as to value was the Appellant's own testimony, that he bought 

the tractor for $4,000. There was no mention o f the issue o f value by Appellant's 

trial counsel at closing arguments. A rational jury could very well conclude from 

this evidence, beyond a reasonable doubt, using their common sense and application 

o f common knowledge, observation, and experience gained in the ordinary affairs 

o f life, that the value of the tractor, as the term "value" was defined in the Court's 

Charge, was $1,500 or more but less than $20,000. 

I n as much as Appellant does not challenge on appeal any other issue the 

judgment and sentence entered by the trial court should be affirmed. 

12 
Prayer For Relief 

Wherefore, Appellee prays the Court deny the relief requested by Appellant and 

affirm the judgment and sentence of the trial court. 

Respectfully submitted, 

OFFICE OF DISTRICT ATTORNEY 

33^^ and 424^^ JUDICIAL DISTRICTS 

Wiley B. McAfee, District Attorney 

P. O. Box 725 

Llano, Texas 78643 

Telephone Telecopier 

(325) 247-5755 (325) 247-5274 

Assistant District Attorney 

State Bar No . 03353500 

g.bunyard@co.llano.tx.us 

ATTORNEY FOR APPELLEE 

CERTIFICATE OF WORD COUNT 

This is to certify that the pertinent portion o f this brief contains 1,778 words 

printed in Aldine401 BT 14 font. 

unyara/ 

Assistant District Attorney 

13 
CERTIFICATE OF SERVICE 

This is to certify that a true copy of the above and foregoing instrument, together 

with this proof of service hereof, has been forwarded by EServe and by email on the 

I f ^ day o f June 2015, to Ms. Alice E. Price, Attorney for Appellant, at 

apgregg50@hotmail.com. 

Assistant District Attorney 

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