Kevin Ray Hightower v. The State of Texas--Appeal from 272nd District Court of Brazos County

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State: Texas

Court: Texas Northern District Court

Docket No: 01-03-00363-CR

Case Date: 04/01/2004

Plaintiff: Kevin Ray Hightower

Defendant: The State of Texas--Appeal from 272nd District Court of Brazos County

Preview:Kevin Ray Hightower v. The State of Texas--Appeal
from 272nd District Court of Brazos County
Opinion issued April 1, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-03-00363-CR
KEVIN RAY HIGHTOWER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 272nd District Court
Brazos County, Texas
Trial Court Cause No. 28842-272
MEMORANDUM OPINION
A jury found appellant, Kevin Ray Hightower, guilty of the felony offense of aggregated theft // of property with a
value of $20,000 or more but less than $100,000, and the trial court assessed his punishment at confinement for 10
years. The trial court suspended the sentence, placed appellant on community supervision for 10 years, and ordered him
to make restitution in the amount of $127,000. // In four points of error, appellant contends that the evidence was
legally and factually insufficient to support his conviction. We affirm.
Facts
Texas Department of Public Safety Sergeant C. Ashley testified that his duties involved inspecting licensed automobile
salvage yards by comparing a yard s records against its inventory. When he went, on October 4, 2000, to investigate
appellant s business, Hightower Auto Salvage, located on Wixon Road in Bryan, appellant was not on the premises.
However, Sergeant Ashley spoke with appellant s father, Bill Hightower, who told Ashley that he worked for
appellant. Ashley then informed appellant s father that he was there to conduct an inventory of the premises and he
asked for the yard s business records. After appellant s father told Ashley that the records were in appellant s
possession, Ashley then conducted an inventory of the premises.
After Sergeant Ashley completed the inventory, appellant s father told Ashley that some of Hightower Auto Salvage s
vehicles were stored at property he owned on Kurten Cemetery Road. Ashley told appellant s father that Ashley
needed to inspect the vehicles at this other property. After they arrived at the location, appellant s father told Ashley
that, although he owned some of the older model vehicles on the property, appellant owned most of the newer models.
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Appellant s father did not tell Ashley that anyone else owned vehicles located on the property.
When Sergeant Ashley inspected the premises, he found component parts from five stolen pickup trucks and Sports
Utility Vehicles (SUVs) that were in various stages of being disassembled. Specifically, Ashley found (1) a frame
from a 1995 Chevrolet pickup truck, which had been stolen in May 1998; (2) a cab, frame, bed, and two doors from a
1997 Chevrolet pickup truck, which had been stolen in April 1997; (3) a cab, frame, bed, and four tires from a second
1997 Chevrolet pickup truck, which had been stolen in January 1998; (4) a frame, tires, wheels, an engine, a
transmission, a drive train, and a dashboard from a 1999 GMC Yukon, which had been stolen in November 1999; and
(5) a 1999 Chevrolet Suburban in the early stages of disassembly, which had also been stolen in November 1999.
After discovering the stolen pickup trucks and SUVs, Sergeant Ashley asked appellant s father how these items came
to be located on the property. Appellant s father responded that he had purchased the frame from the 1995 Chevrolet
pickup truck from Highway 6 Auto Salvage, an automobile salvage dealer. He also stated that he had purchased the
frame from one of the 1997 Chevrolet pickup trucks from Gordon s Truck Salvage, another automobile salvage dealer.
Appellant s father then stated that he had permitted Jesse Grimaldo, a man he had met at an automobile auction in
Houston, to store the 1999 GMC Yukon, the 1999 Chevrolet Suburban, and the frame from one of the 1997 Chevrolet
pickup trucks on the property. Ashley was unable to locate Jesse Grimaldo.
In Sergeant Ashley s opinion, the pickup trucks and SUVs had not been purchased for salvage. Ashley testified that,
typically, salvaged automobiles are either wrecked, burned, or damaged in some way. Here, Ashley saw that the trucks
and SUVs were not damaged. Moreover, in Ashley s opinion, the pickup trucks and SUVs were being disassembled so
that their parts could be installed in other trucks and SUVs, which would then be sold to the public.
The following day, Sergeant Ashley returned to appellant s business on Wixon Road and met with appellant and asked
for his business records. Although appellant gave Ashley a stack of certificates of title, the stack did not contain
certificates of title for any of the five stolen pickup trucks and SUVs. Ashley then asked appellant to produce his
salvage inventory log so that Ashley could determine from whom appellant had purchased the component parts. Even
though appellant was required by law to keep such a log, he told Ashley that he did not have one. Appellant then told
Ashley that he, rather than his father, had purchased the frame of the 1995 Chevrolet pickup truck from Highway 6
Auto Salvage.
Bill Knight, the owner of Highway 6 Auto Salvage, testified that he had never sold parts from the stolen 1995
Chevrolet pickup truck to appellant or appellant s father. Also, Charles Glass, the manager of Gordon s Truck Salvage,
testified that, contrary to appellant s father s assertion, his business had never possessed any parts from one of the
stolen 1997 Chevrolet pickup trucks.
The owners of the stolen pickup trucks and SUV s gave their opinions as to the fair market value of their vehicles.
Brent Young testified that his 1995 Chevrolet pickup truck had a value of approximately $15,000 when it was stolen in
May 1998. Bohn Hilliard testified that his 1997 Chevrolet pickup truck had a value of approximately $23,000 when it
was stolen in April 1997. Sean Perkins testified that his 1997 Chevrolet pickup truck had a value of approximately
$19,000 when it was stolen in January 1998. Dave Ward, an automobile dealer, testified that his 1999 GMC Yukon had
a value of $33,000 and his 1999 Chevrolet Suburban had a value of $37,000 when both were stolen in November
1999. Ward further testified that, taking into account normal depreciation, on October 4, 2000, his Yukon would have
had a value of $28,000 and his Suburban would have had a value of $32,000.
Appellant s father testified that, in June or July of 1999, Jesse Grimaldo brought the 1999 GMC Yukon, the 1999
Chevrolet Suburban, and the frame from one of the 1997 Chevrolet pickup trucks onto his property. He further
testified that he did not tell Sergeant Ashley that he had purchased the frames from the 1995 Chevrolet pickup truck
and from the second 1997 Chevrolet pickup truck and that he did not know how these frames came to be located on
his property.
Sufficiency of the Evidence
In his first, second, third, and fourth points of error, appellant argues that the evidence was legally and factually
insufficient to support his conviction because the State failed to prove that (1) he appropriated five whole or complete
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stolen automobiles with (2) a value of $20,000 or more.
We review the legal sufficiency of the evidence by viewing the evidence in the light most favorable to the verdict to
determine if any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt.
King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Although our analysis considers all evidence presented at
trial, we may not re-weigh the evidence and substitute our judgment for that of the fact finder. Id.
We review the factual sufficiency of the evidence by examining all of the evidence neutrally and asking whether the
evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine
confidence in the jury s determination, or whether the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000).
A person commits the offense of theft if he unlawfully appropriates property with intent to deprive the owner of the
property. Tex. Pen. Code Ann. 31.03(a) (Vernon Supp. 2004). Appropriation of property is unlawful if the property is
stolen and the actor appropriates the property knowing that it was stolen by another. Id. 31.03(b)(2) (Vernon Supp.
2004). When property is obtained pursuant to one scheme or a continuing course of conduct, whether from the same or
several sources, the conduct may be considered as one theft, and the value amounts aggregated in determining the
grade of the offense. Id. 31.09 (Vernon 2003).
Evidence of Appropriation
In regard to his legal sufficiency challenge on the element of appropriation, appellant argues that, although the State
proved that he possessed parts from the stolen pickup trucks and SUVs, it failed to prove, as required by the
indictment, that he ever appropriated a whole or complete 1999 Chevrolet Suburban, 1999 GMC Yukon, 1995
Chevrolet pickup truck, and two whole or complete 1997 Chevrolet pickup trucks.
However, Sergeant Ashley testified that he saw that the stolen pickup trucks and SUVs were in various stages of being
disassembled. In Ashley s opinion, appellant ran a chop shop, and the pickup trucks and SUVs were being
disassembled so that their parts could be installed in other trucks and SUVs, which would then be sold to the public.
Appellant s father also told Ashley that appellant owned most of the newer model vehicles located on the Kurten
Cemetery Roadproperty. Furthermore, appellant did not have certificates of title for any of the pickup trucks and
SUVs, and he told Ashley that he did not have a salvage inventory log listing the persons from whom he had
purchased component parts.
Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant had
appropriated, as alleged in the indictment, the stolen pickup trucks and SUVs and, in October 2000, was in the process
of disassembling them and placing their parts in other pickup trucks and SUVs. Accordingly, we hold that the evidence
was legally sufficient to support the jury s finding that appellant unlawfully appropriated, as alleged in the indictment,
five stolen pickup trucks and SUVs.
In regard to his factual sufficiency challenge on the element of appropriation, appellant merely reiterates the same
arguments advanced under his legal sufficiency challenge. However, as the exclusive judge of the facts, the credibility
of the witnesses, and the weight to be given their testimony, the jury was free to believe or disbelieve all or any part of
Sergeant Ashley s testimony. McKinny v. State, 76 S.W.3d 463, 468-69 (Tex. App. Houston [1st Dist.] 2002, no pet.).
Our review of the record reveals that no other evidence outweighed Ashley s testimony or otherwise demonstrated that
the proof of guilt was so obviously weak as to undermine confidence in the jury s determination. Accordingly, we hold
that the evidence was factually sufficient to support the jury s finding that appellant unlawfully appropriated, as alleged
in the indictment, five stolen pickup trucks and SUVs.
Evidence of Value
In regard to his legal sufficiency challenge on the element of value, appellant asserts that the State failed to prove that
he appropriated property with a value of $20,000 or more because none of the owners of the stolen pickup trucks and
SUVs could testify as to the fair market value of their vehicles on October 4, 2000.
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An owner of property unlawfully taken from him may testify about his opinion of the value of the property even
though he may not be qualified to testify as an expert on the fair market value of the property. Anderson v. State, 871
S.W.2d 900, 903 (Tex. App. Houston [1st Dist.] 1994, no pet.). Fair market value of property is determined at the time
and place of the theft. Tex. Pen. Code Ann. 31.08(a)(1) (Vernon 2003).
Here, Dave Ward, an automobile dealer, testified that, taking into account normal depreciation, on October 4, 2000, his
1999 GMC Yukon would have had a value of $28,000 and his 1999 Chevrolet Suburban would have had a value of
$32,000. Considering this evidence, a rational fact finder could have found, beyond a reasonable doubt, that appellant
had appropriated property that had an aggregated value of $20,000 or more on October 4, 2000, and we hold that the
evidence was legally sufficient to support such a finding.
In regard to his factual sufficiency challenge on the element of value, appellant again merely reiterates the same
arguments advanced under his legal sufficiency challenge. However, the jury was free to believe or disbelieve all or
any part of Dave Ward s testimony concerning the values of his Yukon and Suburban. McKinny, 76 S.W.3d 468-69.
Our review of the record reveals that no other evidence outweighed Ward s testimony or otherwise demonstrated that
the proof of guilt was so obviously weak as to undermine confidence in the jury s determination. Accordingly, we hold
that the evidence was factually sufficient to support a finding that appellant appropriated property that had an
aggregated value of $20,000 or more on October 4, 2000.
We overrule appellant s first, second, third, and fourth points of error.Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Nuchia, Jennings, and Keyes.
Do not publish. Tex. R. App. P. 47.2(b).
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