Joseph Wayne Jackson v. State

Affirmed and Memorandum Opinion filed October 19, 2006 Affirmed and Memorandum Opinion filed October 19, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00840-CR ____________ JOSEPH WAYNE JACKSON, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the County Court at Law Number 3 & Probate Court Brazoria County, Texas Trial Court Cause No. 138128 M E M O R A N D U M   O P I N I O N A jury found appellant guilty of Class B misdemeanor theft. The court assessed punishment at 180 days in jail, probated for 24 months, and a fine of $250 plus court costs. Appellant raises two issues in his appeal. First, he claims that the evidence of the stolen motor=s value is factually insufficient to support the verdict. Second, he claims that the trial court abused its discretion in denying his motion for new trial, because the complainant gave false testimony regarding his employment history. We affirm. Factual and Procedural Background Appellant was convicted of misdemeanor theft for taking a motor from his step-father=s home, which his stepfather had already given to the complainant, Anthony Tucker. At trial, the State elicited testimony from Tucker regarding his employment. Tucker made untrue statements that he had worked as an aircraft inspector for the FAA for five years, when, in fact, he did not work for the FAA at all. Tucker was an aircraft inspector, but was an independent contractor, not an employee of the FAA. He was licensed by the FAA to inspect aircraft, but had held that license for only ten days at the time of trial. Tucker gave undisputed testimony that he was the rightful owner of the motor, because Bill Holley had given it to him before Holley moved to Oklahoma. In fact, the appellant himself testified to that fact at trial. Tucker also testified regarding the value of the stolen motor. He said that the value of the motor was probably Aaround the neighborhood of $400 to $500,@ and was at any rate more than $50, despite being in need of minor repair. This testimony was not challenged, nor were alternative values offered by the defense. Analysis I. The Evidence Is Not Factually Insufficient to Support the Verdict In this case the only evidence of the value of the motor was testimony from the complainant, Tucker. Appellant argues that Tucker was not qualified to testify to the value of the motor, because Tucker did not purchase the motor, he did not have possession of the motor at any time, and was not qualified as an expert. As a result, appellant argues, the State=s evidence is factually insufficient to prove the value of the stolen motor. In a factual-sufficiency review, we consider the evidence in a neutral light and decide whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). The evidence may be insufficient in two ways: (1) considered by itself, evidence supporting the verdict may be too weak to find guilt beyond a reasonable doubt; or (2) evidence contrary to the verdict may be strong enough to preclude a finding of guilt beyond a reasonable doubt. Id. at 484B85. The owner of property is competent to testify as to the value of his own property. Sullivan v. State, 701 S.W.2d 905, 908 (Tex. Crim. App. 1986); Charles v. State, No. 14‑01‑00802‑CR, 2002 WL 1733672, at *5 (Tex. App.CHouston [14th Dist.] July 25, 2002, pet. ref=d). He need not be qualified as an expert. See Sullivan, 701 S.W.2d at 908. When an owner testifies, there is a presumption that he is testifying to an estimation of market value. Id. at 909. Such testimony constitutes sufficient evidence for the fact-finder to determine the value based upon the witness's credibility. Id. To rebut this presumption, it is not sufficient to merely impeach the witness's credibility during cross-examination; rather, appellant must offer controverting evidence as to the value of the property. Id. Here, Tucker was the rightful owner of the motor; the former owner gave it to him. Further, appellant cites no authority for his proposition that the owner must have bought the property or be in possession of it in order to testify to its value. In this case, Tucker knew the specifics of the property. He knew that it was a Briggs and Stratton motor, formerly part of a pressure washer. He knew the horsepower rating, and even that the crankshaft was in need of repair. Thus, the owner clearly knew what he had, and was competent to testify to its value in general and commonly understood terms. See id. Tucker=s testimony was the only evidence of the motor=s value, and was not challenged by cross-examination or controverting evidence. Viewing the evidence in a neutral light, we find the jury was rationally justified in finding the value of the motor proven beyond a reasonable doubt. Issue number one is overruled. II. Denial of Motion for New Trial Was Not Error The trial court rejected appellant=s claim that Tucker=s false testimony regarding his employment history entitled appellant to a new trial. We review the denial of the motion for new trial under an abuse-of-discretion standard. Salazar v. State, 38 S.W.3d 141, 148 (Tex. Crim. App. 2001). We do not substitute our judgment, but only determine whether the trial court=s analysis was arbitrary or unreasonable. Id. Although the record does not reflect precisely when the false statements were discovered, it appears on the record for the first time when the judge announced his findings after the close of the guilt/innocence phase, and after the jury was dismissed. If we assume appellant did not know about the false testimony until this point in the trial, it would mean that appellant did not discover the new evidence until after the jury had been excused.[1] Under these circumstances, the controlling law is that governing new trials upon discovery of new evidence.[2] The Code of Criminal Procedure states that A[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.@ Tex. Code Crim. Proc. art. 40.001. Evidence is Amaterial@ if it meets a four-part test: 1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial; 2) the movant=s failure to discover or obtain the evidence was not due to a lack of diligence; 3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and 4) the new evidence is probably true and will probably bring about a different result on another trial. Keeter v. State, 74 S.W.3d 31, 36B37 (Tex. Crim. App. 2002); Ho v. State, 171 S.W.3d 295, 306 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d). Under this standard, the appellant did not meet the third prong of the materiality test. The new evidence fails the third prong because it has no value other than impeachment. While some impeachment testimony may rise to the level of materiality, there is a clear distinction between testimony which could only impeach a witness who had testified at trial, and evidence showing that such witness was mistaken about a matter material to the State=s case. Barrett v. State, 98 Tex. Crim. 627, 267 S.W. 511, 513 (Tex. Crim. App. 1924). Here, the evidence of Tucker=s employment was not material to any issue in the State=s case. His employment was a collateral issue, and showing that he made false statements in that regard would only impeach his credibility. Thus, the facts support the trial court=s conclusion that the new evidence was not material, and the court below did not abuse its discretion in denying the motion for new trial. Conclusion Having overruled both of appellant=s issues, we affirm the judgment of the trial court. /s/ Wanda McKee Fowler Justice Judgment rendered and Memorandum Opinion filed October 19, 2006. Panel consists of Justices Fowler, Edelman, and Frost. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Had appellant known about the false statements during trial, and failed to raise the error, then it would be waived. See Tex. R. App. P. 33.1. [2] Both appellant and the State assert that we should apply the four- part test outlined in Ramirez v. State. 96 S.W.3d 386, 394B95 (Tex. App.CAustin 2002, pet. ref=d). However, that test incorporates a constitutional harmless error analysis. Here, the error is non-constitutional because the State=s use of false testimony was unknowing. See Tex. R. App. P. 44.2; Ex Parte Adams, 768 S.W.2d 281, 292 (Tex. Crim. App. 1989); see also 42 George E. Dix & Robert O. Dawson, Texas Practice: Criminal Practice and Procedure '22.55 (2d ed. 2001). Therefore, we hold that the Ramirez test does not apply.