Affirmed and Memorandum Opinion filed July 9, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00304-CR

HENRY RICHARD BULLOCK, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 177th District Court

Harris County, Texas

Trial Court Cause No. 1400383

MEMORANDUM OPINION

A jury found appellant1 guilty of theft of a truck valued at $20,000 or more 

but less than $100,000, a third-degree felony. See Tex. Penal Code Ann. 

§ 31.03(a), (e)(5). The jury found two enhancement allegations true and assessed 

punishment at thirty years’ confinement. Appellant challenges his conviction in 

 1 Appellant contends his name is incorrectly captioned in this case and it is “Richard 

Bullock Henry or Imari Obadele.” We use the name appearing in the trial court’s judgment. 

Neither party asks this court to modify the trial court’s judgment to reflect a different name.
2

three issues, contending that (1) the evidence is legally insufficient to prove the 

value of the truck; (2) he suffered egregious harm from the trial court’s failure to 

define “value” in the jury charge; and (3) the trial court erred by refusing to charge 

the jury on the lesser-included offense of attempted theft. We affirm.

I. SUFFICIENCY OF THE EVIDENCE OF VALUE

In his first issue, appellant contends the evidence is legally insufficient to 

prove beyond a reasonable doubt that the fair market value of the truck at the time 

of the offense was $20,000 or more but less than $100,000. We hold that the 

evidence is legally sufficient.

A. Standards for Legal Sufficiency and Proof of Value

“In determining whether the evidence is legally sufficient to support a 

conviction, a reviewing court must consider all of the evidence in the light most 

favorable to the verdict and determine whether, based on that evidence and 

reasonable inferences therefrom, a rational fact finder could have found the 

essential elements of the crime beyond a reasonable doubt.” Whatley v. State, 445 

S.W.3d 159, 166 (Tex. Crim. App. 2014) (quotation omitted); see also Jackson v. 

Virginia, 443 U.S. 307, 318–19 (1979). In reviewing historical facts that support 

conflicting inferences, we must presume that the jury resolved any conflicts in the 

State’s favor, and we must defer to that resolution. Whatley, 445 S.W.3d at 166.

“[A]n inference is a conclusion reached by considering other facts and deducing a 

logical consequence from them.” Id. (alteration in original) (quotation omitted).

In a theft case, the State has the burden to prove the property’s value through 

evidence of either “(1) its fair market value at the time and place of the offense, or 

(2) the cost of replacing it within a reasonable time after the theft if fair market 

value could not be ascertained.” Smiles v. State, 298 S.W.3d 716, 719 (Tex. 
3

App.—Houston [14th Dist.] 2009, no pet.) (citing Tex. Penal Code Ann. § 31.08). 

“Fair market value is the amount of money that the property would sell for in cash, 

given a reasonable time for selling it.” Id. When an owner of the property testifies 

about value, we “presume that an owner’s testimony regarding the value of 

property is an estimation of the property’s fair market value.” Id. An owner may 

testify about fair market value “in terms of purchase price or the cost to him of 

replacing the stolen property.” Id. “Because such testimony is an offer of the 

owner’s best knowledge of the value of his property, it is legally sufficient 

evidence for the trier of fact to make a determination as to value based on the 

owner’s credibility as a witness.” Id. “If a defendant wishes to rebut the owner’s 

opinion evidence as to value, he must do more than merely impeach the witness’s 

credibility during cross-examination; he must actually offer controverting evidence 

as to the value of the stolen item.” Id.

B. Evidence at Trial

Roy Martinez testified that he was an assistant manager at Cort Furniture 

Rental, and he was making a delivery with the company’s leased delivery truck. It 

was a big, twenty-six-foot box truck with eighteen-wheeler tires and air brakes. It 

was a “pretty heavy” truck that held about 25,000 pounds. While Martinez was in 

the back of the truck, appellant got in the cab, turned on the truck, and revved the 

engine by pushing on the gas pedal. The truck did not go forward because the air 

brake was on, so Martinez went to the cab of the truck and confronted appellant. 

Appellant’s hands were on the steering wheel, and appellant was pushing the gas 

and the brake pedals. Appellant jumped out of the truck and ran away. After a 

chase, Martinez subdued appellant.

Martinez testified about the truck’s value:

Q. And how much is the truck worth?
4

A. We have it in the statement from the — because my company 

leases one from Penske, and the value of the truck is $83,000.

Q. Okay.

A. Without saying, like, the merchandise, you know.

Q. That was only the value of the vehicle itself?

A. Just the vehicle.

. . . . 

Q. Right. And how did you — how do you know the value of the 

vehicle?

A. Well, that day they asked me what was the value of the vehicle 

since I’m kind of familiar and been working there for many years. 

Every time they give us — every five years they give us new trucks 

and they let us know the value of the trucks so we can take care of, 

you know, the vehicles. It’s part of our tools.

. . . . 

Q. Mr. Martinez, we’re calling you back to the stand just very briefly. 

When we were talking about the value of the vehicle, how do you 

know that information?

A. The information was provided from Penske Rental Trucks because 

we lease — well, the company leases the trucks from Penske 

Company.

Q. And so you have personal knowledge of the value of the vehicle?

A. Yes, sir. They send us an e-mail and with the price — well, the 

value of that truck right here (indicating).

Q. And that’s an e-mail from who?

A. From Penske, I think, managers from there, they sent it to us.

Q. And Cort doesn’t own the truck. You guys rent the truck?

A. This is just a lease truck.

Q. It’s a lease?

A. A lease truck.

Appellant represented himself at trial with standby counsel. On cross-examination, 

although appellant testified that he did not agree the value of the truck was over 
5

$20,000 and under $100,000, he testified, “No, I don’t know what the truck was 

valued at.”

C. Sufficient Evidence of Value

Appellant concedes that Martinez is an owner of the truck for purposes of 

this appeal, and generally, an owner’s testimony about the property’s value is 

sufficient to sustain a conviction. Citing several cases from other states, appellant 

asks this court to depart from established Texas law by requiring additional 

evidence of the owner’s familiarity with the property, such as its age, condition, or 

deterioration. We review appellant’s authorities below.

In Sanchez v. Florida, the court of appeals recited the first prong of its “twopronged test” for an owner’s testimony to be sufficient evidence of value, which 

requires evidence of the owner’s “personal knowledge of the characteristics of the 

stolen property, such as the quality, cost, and condition of the property.” 101 So. 

3d 1286, 1285 (Fla. Dist. Ct. App. 2012) (quotation omitted). In Florida, evidence

of value is sufficient when there is evidence about “the condition, quality, age, or 

depreciation of the item,” and the evidence is insufficient if “the value of the 

property is estimated and no other proof is presented.” Id. at 1287. (quotations 

omitted). In Florida, “[t]he competence presumed of an owner is fragile.” Id. at 

1286.

As discussed above, Texas courts do not treat an owner’s competence as 

fragile. For example, in the seminal Court of Criminal Appeals case Sullivan v. 

State, the court held that evidence was sufficient to prove the value of a gun when 

the owner “clearly testified that the value of the gun was $500.” 701 S.W.2d 905, 

909–10 (Tex. Crim. App. 1986). The property owner in Sullivan initially testified 

that he had no idea what the gun was worth:
6

Q. Because of its special nature, did you inquire during the time 

period that you owned this gun, particularly right around August and 

September, ’82, what the current price of that gun might have been?

A. No.

Q. Okay, so you don’t have any idea what the price of the gun would 

have been about the time it was stolen?

A. Well, no.

Id. at 907. After a short recess, the owner gave his opinion of the value of the gun:

Q. As the owner of that gun, do you have an idea as to what the 

market value of that gun was?

A. Since it has been fired and used, I would say Five Hundred Dollars 

($500.00).

. . . .

Q. That’s why you placed it so high?

A. Yes.

Q. Because you just don’t want to sell it?

A. It’s worth Five Hundred Dollars ($500.00) at least.

Id. Finally, the owner testified that $500 was what he would “take for it,” and:

Q. That’s not any comparison with market value? You don’t know 

what this thing sells for out in the street . . . you don’t know what it 

sold for back in September?

A. No.

Id. The Court of Criminal Appeals held that a property owner’s “opinion or 

estimate” of the value is sufficient absent any “controverting evidence as to the 

value of the property.” Id. at 909. In light of Sullivan, Florida case law is 

unpersuasive. See Campbell v. State, 426 S.W.3d 780, 785 (Tex. Crim. App. 

2014) (“[W]e presume that an owner’s testimony estimating the value of his 

property is either estimating the purchase price of the property or the cost to 

replace the property in terms of the fair market value, even though the owner may 
7

not use specific terms ‘market value,’ ‘replacement value,’ or ‘purchase price.’”) 

(citing Sullivan, 701 S.W.2d at 909).

Appellant also relies on New York and Colorado cases, but those cases have 

vastly different facts. In the New York case, the witness testifying about value was 

not the property owner—he was an expert witness. See People v. Medina, 490 

N.Y.S.2d 49, 492 (N.Y. App. Div. 1985). In the Colorado case, the court did not 

specify whether the evidence of value came from the property owner, and the 

witness testified that the value was “in the vicinity of $50.” Henson v. People, 444 

P.2d 275, 277 (Colo. 1968). The offense was theft of property valued at more than 

$50, so evidence that the value was “in the vicinity” of the element was 

insufficient. See id.

Further, appellant contends that Martinez’s testimony was insufficient to 

prove the value of the truck at the time of the offense because (1) there is no 

evidence of the age or condition of the truck; (2) there is no accounting for 

depreciation; and (3) the “lease value” of the truck is not market value. Appellant 

relies on this court’s decision in Sweeney v. State, 633 S.W.2d 354 (Tex. App.—

Houston [14th Dist.] 1982, pet. ref’d), where the only question and answer about 

value was:

Q. When you purchased the Sony television, approximately how 

much did you pay for it?

A. Financed it and it cost me seven hundred.

Id. at 355. In Sweeney, the evidence was legally insufficient to prove that the value 

of the television exceeded $200 because there was no evidence of the terms under 

which the purchase of the television was financed and no evidence of the age or 

condition of the television that might indicate a lack of significant depreciation. 

See id. at 355–56.
8

Unlike in Sweeney, Martinez testified that his company leased new trucks 

every five years, leading to the rational inference that the truck in question was less 

than five years old at the time of the theft. Although Martinez did not provide an 

opinion about depreciation, such evidence is not always required. See MaGee v. 

State, 715 S.W.2d 838, 839–40 (Tex. App.—Houston [14th Dist.] 1986, no pet.) 

(noting that in “many” theft cases, the property owner will testify about value 

based on the purchase price minus depreciation). Here, a rational fact finder could 

have found beyond a reasonable doubt that the value of the truck was at least 

$20,000 on the date of the offense.

Further, Martinez testified that the value of the truck itself was $83,000, not 

what it “cost” the company. That is, Martinez did not testify about the “lease 

value” or whatever amount the company paid to lease the truck. That type of 

testimony might not have been evidence of fair market value, just as the amount 

paid for a financed television was not evidence of fair market value. See Sweeney, 

633 S.W.2d at 355–56. But Martinez’s testimony about value was clear and 

unequivocal, and appellant did not offer any “controverting evidence as to the 

value of the stolen item,” which was necessary to rebut the property-owner 

presumption. See Sullivan, 701 S.W.2d at 909; Smiles, 298 S.W.3d at 719.

The evidence is legally sufficient. Appellant’s first issue is overruled.

II. JURY CHARGE: DEFINITION OF “VALUE”

In his second issue, appellant contends the trial court erred by failing to 

include a jury instruction defining “value” as “fair market value,” which caused 

appellant egregious harm. Assuming without deciding that “value” should have 

been defined, we hold that appellant has not suffered egregious harm.
9

Because appellant did not object to the trial court’s failure to define “value” 

in the jury charge, we will not reverse unless the record shows egregious harm. 

See Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011). Jury charge 

error is egregiously harmful if the error affects the very basis of the case, deprives 

the defendant of a valuable right, vitally affects the defensive theory, or makes a 

case for conviction clearly and significantly more persuasive. Id. at 490. The 

harm must be actual, not just theoretical. Ngo v. State, 175 S.W.3d 738, 750 (Tex. 

Crim. App. 2005). To make this determination, we will review the entire record, 

including (1) the complete jury charge, (2) the arguments of counsel, (3) the 

entirety of the evidence, including the contested issues and weight of the probative 

evidence, and (4) any other relevant factors revealed by the record as a whole. 

Hollander v. State, 414 S.W.3d 746, 749–50 (Tex. Crim. App. 2013). 

The remainder of the jury charge adequately described the offense and 

included all of the elements of theft. See Lovings v. State, 376 S.W.3d 328, 337–

38 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (citing Rohlfing v. State, 612 

S.W.2d 598, 602–03 (Tex. Crim. App. [Panel Op.] 1981)) (failure of charge to 

include definition of “without consent” in a sexual assault prosecution did not 

cause egregious harm; noting that the charge “included all of the elements of the 

offense”). Thus, the jury charge was not “fundamentally defective.” Id. at 338.

Further, nothing in the record indicates that the lack of a definition would 

have “confused the jury or caused the jury to misapply the law.” Id. In making an 

egregious harm determination, this court has held that “when a statutory definition 

is not included in the jury charge, ‘it is assumed the jury would consider the 

commonly understood meaning in its deliberations.’” Id. (quoting Olveda v. State, 

650 S.W.2d 408, 409 (Tex. Crim. App. 1983)) (referring to dictionary definition to 

determine commonly understood meaning). The dictionary definition of “value” 
10

includes “a fair return in goods, services, or money,” and a “marketable price 

usually in terms of a medium of exchange.” Webster’s Third New International 

Dictionary 2530 (1993) (emphasis added).2

 Because the commonly understood 

meaning of “value” “closely resembles the applicable statutory definition[],” the 

record does not support a finding of egregious harm. See Lovings, 376 S.W.3d at 

338 (no egregious harm when the dictionary definition of “consent” included the 

example “to willingly engage in a sexual act” and it was commonly understood 

that “without consent” would mean unwillingly engaging in a sexual act; the 

statutory definition required the use of physical force, violence, or threatening to 

use force or violence; “the statutory definition was not necessary to correct or 

complete the jury’s understanding of the concepts or terms”).

Turning to the evidence and contested issues, the value of the truck was not

a significant issue at trial. Appellant’s sole defensive theory was that he intended 

to steal something from the cab of the truck like a navigation system or cash, and 

he did not intend to steal the truck. Appellant presented no evidence about the 

value of the truck, and he testified that he did not know the value of the truck. 

Appellant did not cross-examine Martinez about the value of the truck, and there 

was no dispute about whether Martinez was testifying about the fair market value 

or some other type of value (such as replacement cost). Cf. Hodges v. State, 160 

S.W.2d 262, 264–65 (Tex. Crim. App. 1942) (reversible error for not defining 

value in the jury charge when there was some evidence that the property had no 

market value and the replacement value was less than the State’s proposed market 

value).

 2 We refer to this dictionary because it is “among the most commonly used.” Clinton v. 

State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011).
11

Accordingly, our review of the evidence and contested issues does not favor 

a finding of egregious harm. See id. at 338–39 (no egregious harm from failing to 

define “without consent” even though the sole contested issue at trial was whether 

the sexual encounter was consensual, but the complainant’s testimony was 

consistent with the omitted statutory definition, and the real issue was whose 

version of the events to believe); see also Hudson v. State, 179 S.W.3d 731, 740 

(Tex. App.—Houston [14th Dist.] 2005, no pet.) (no egregious harm from failure 

to define “common-law marriage,” “consanguinity,” and “affinity,” in a 

prosecution for assault of a family member because the jury heard evidence that 

the defendant and complainant were common-law married and “it is commonly 

understood that one’s spouse is a member of one’s family”).

The record as a whole does not demonstrate that the failure of the jury 

charge to define “value” as “fair market value” deprived appellant of a valuable 

right, affected a defensive theory, or made the case for conviction more persuasive. 

Appellant did not suffer egregious harm.

Appellant’s second issue is overruled.

III. JURY CHARGE: ATTEMPTED THEFT

In his third issue, appellant contends the trial court erred by denying his 

requested instruction on the lesser-included offense of attempted theft. The State 

concedes that attempted theft is a lesser-included offense of theft. See Tex. Code 

Crim. Proc. Ann. art. 37.09 (“An offense is a lesser included offense if . . . it 

consists of an attempt to commit the offense charged or an otherwise included 

offense.”).

But a defendant is only entitled to a lesser-included offense instruction if 

there is “evidence in the record which would permit a jury to rationally find that, if 
12

the defendant is guilty, he is guilty only of the lesser-included offense.” Rice v. 

State, 333 S.W.3d 140, 145 (Tex. Crim. App. 2011). “[A]nything more than a 

scintilla of evidence may be sufficient to entitle a defendant to a lesser charge.” 

Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007). “The evidence must 

establish the lesser-included offense as ‘a valid, rational alternative to the charged 

offense.’” Rice, 333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536).

A person commits an attempt offense “if, with specific intent to commit an 

offense, he does an act amounting to more than mere preparation that leads but 

fails to effect the commission of the offense intended.” Tex. Penal Code Ann. 

§ 15.01(a). After reviewing the entire record, we conclude there is no evidence 

that would enable to a jury to find appellant guilty of the attempted theft of the 

truck as a valid, rational alternative to the theft of the truck. In particular, appellant 

testified and argued to the jury that he lacked the specific intent to steal the truck.3

 

Although appellant denied exercising control over the truck, the inference he 

sought to establish was that he lacked intent to steal the truck, not that he failed to 

steal the truck as intended. According to appellant’s own testimony, he did not 

commit the offense of attempted theft of the truck. He was not entitled to a lesserincluded instruction on attempted theft.

Appellant’s third issue is overruled.

 3

 Appellant testified, “At no time was I trying to steal the truck,” and, “at no time did I 

try to steal the truck.” He testified, “I was looking for something to steal,” such as a GPS unit, 

laptop, cash, checks, money orders, or “something I could take and boogie on down the road 

with.” He argued during closing arguments, “I had no intention whatsoever to take the man’s 

truck.”
13

IV. CONCLUSION

Having overruled all of appellant’s issues, we affirm the trial court’s 

judgment. 

/s/ Sharon McCally

Justice

Panel consists of Chief Justice Frost and Justices Boyce and McCally.

Do Not Publish — Tex. R. App. P. 47.2(b).