Marvin Page v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-24-00023-CR

MARVIN PAGE, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 158th District Court
Denton County, Texas1
Trial Court No. F22-484-158, Honorable Steve Burgess, Presiding

August 27, 2024
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Marvin Page, appeals his conviction for the state-jail-felony offense of

theft of property having a value of $2,500 or more but less than $30,000,2 with the

1 This case is before the Court on transfer from the Second Court of Appeals pursuant to a docket

equalization order of the Supreme Court of Texas. See TEX. GOV’T CODE ANN. § 73.001.
2 See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A).
punishment enhanced to that of a second-degree felony by two prior felony convictions.3

We affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

In the early morning hours of March 28, 2021, Appellant loaded 36 carton flow

wheel beds (commonly known as rollers) from Worldpac’s warehouse into his box truck.

Officer Jonathan Patino of the Flower Mound Police Department was on patrol in the

warehouse district when he observed the box truck driving slowly with its back door open.

As the officer got closer to the truck, he noticed that the light illuminating the license plate

was not functioning, so he conducted a traffic stop. The officer saw that the back of the

truck was “loaded up” with metal rollers. Appellant told the officer that he had permission

to pick up the “junk” that he was hauling. According to the officer, the items did not appear

to be trash or junk. Upon further questioning, Appellant gave vague answers and was

unable to say the name of the business or person who provided him permission. Unable

to verify Appellant’s explanation, the officer photographed the materials in the back of the

truck and released Appellant. The information gathered by the officer was turned over to

a detective for investigation. During the investigation, Appellant admitted to taking the

rollers and selling them for $500 to a scrap yard.

An indictment was issued charging Appellant with theft of property having a value

of $2,500 or more but less than $30,000. The indictment further alleged that on August

19, 1994, Appellant had been finally convicted of the second-degree felony offense of

aggravated robbery, which would be used to enhance the range of punishment for the

3 See id. § 12.425(b).

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theft charge. Prior to trial, the State filed a notice of intent to further enhance Appellant’s

punishment, alleging that on October 8, 1985, before the commission of the theft offense,

Appellant was convicted of the felony offense of burglary of a building.

The case proceeded to a jury trial. Worldpac’s operations manager, Kodi York,

testified that the rollers were purchased in 2015 or 2016 making them approximately six

years old at the time of the theft. According to York, the rollers were usable and in good

condition. After the theft, York contacted the company’s facilities department who

informed her that the price of each carton flow rack when purchased was $310. She

testified that $310 was an accurate valuation of the cost of each roller. She calculated

the cost for the 36 stolen rollers at $11,160.

The jury found Appellant guilty of the offense of theft of property with a value equal

to or greater than $2,500 but less than $30,000. Appellant elected to have the trial court

assess punishment. At punishment, the State offered proof of Appellant’s previous felony

convictions. The trial court found the enhancement allegations true and sentenced

Appellant to two years’ incarceration.4

By his appeal, Appellant presents two issues. By his first issue, Appellant

contends that the evidence was insufficient to support the jury’s verdict that the value of

the property in the instant case was $2,500 or more but less than $30,000, as alleged in

4 “If it is shown on the trial of a state jail felony . . . that the defendant has previously been finally

convicted of two felonies other than a state jail felony, . . . and the second previous felony conviction is for
an offense that occurred subsequent to the first previous conviction having become final, on conviction the
defendant shall be punished for a felony of the second degree.” See TEX. PENAL CODE ANN. § 12.425(b).
The punishment range for a second-degree felony is two to twenty years of imprisonment. See id.
§ 12.33(a).

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the indictment. Appellant contends, by his second issue, that the State failed to allege or

prove that his prior convictions were sequential, as required by Texas Penal Code section

12.425(b).

SUFFICIENCY OF THE EVIDENCE ESTABLISHING THE VALUE OF THE PROPERTY

By his first issue, Appellant contends that the evidence is insufficient to support the

jury’s verdict that the property in the instant case had a value of $2,500 or more but less

than $30,000, as alleged in the indictment. Specifically, Appellant contends that there

was insufficient evidence that the stolen property’s fair market value was unascertainable.

Appellant challenges only the sufficiency of the evidence concerning the value of the

property and not his guilt in committing the theft, appropriation of the property, or criminal

intent.

The standard we apply in determining whether the evidence is sufficient to support

a conviction is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct.

2781, 61 L. Ed. 2d 560 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.

2010). Under that standard, we consider all the evidence in the light most favorable to

the verdict and determine whether, based on the evidence and reasonable inferences

therefrom, a rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson, 443 U.S. at 319; Queeman v. State, 520 S.W.3d

616, 622 (Tex. Crim. App. 2017). Sufficiency of the evidence is measured against the

elements of the offense as defined by a hypothetically correct jury charge. Thomas v.

State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240

(Tex. Crim. App. 1997)). In our review, we must evaluate all the evidence in the record,

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both direct and circumstantial, regardless of whether that evidence was properly or

improperly admitted. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016);

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We are also required to

defer to the jury’s credibility and weight determinations because the jury is the sole judge

of the witnesses’ credibility and the weight to be given their testimony. Winfrey v. State,

393 S.W.3d 763, 768 (Tex. Crim. App. 2013). When the record supports conflicting

inferences, we presume that the jury resolved any conflicts in favor of the verdict and will

defer to that determination. Merritt v. State, 368 S.W.3d 516, 525–26 (Tex. Crim. App.

2012).

As alleged in the indictment and charged to the jury, the State was required to

prove that Appellant unlawfully appropriated property from Kodi York or Worldpac, with

the intent to deprive Kodi York or Worldpac of the property, which was worth $2,500 or

more but less than $30,000. See TEX. PENAL CODE ANN. § 31.03(a), (e)(4)(A). To prove

the value of the property, the State must offer evidence either of (1) “the fair market value

of the property . . . at the time and place of the offense” or (2) “the cost of replacing the

property within a reasonable time after the theft” if the fair market value “cannot be

ascertained.” Id. § 31.08(a).

Fair market value must be proven if the testimony concerning value is given by

someone other than the owner. Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App.

1986) (en banc); Jones v. State, 814 S.W.2d 801, 803 (Tex. App.—Houston [14th Dist.]

1991, no pet.). The owner of the property is competent to testify as to the value of his

property, even if not qualified as an expert on valuation. Sullivan, 701 S.W.2d at 908;

Morales v. State, 2 S.W.3d 487, 489 (Tex. App.—Texarkana 1999, no pet.); Jones, 814
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S.W.2d at 803). “We presume that an owner’s testimony regarding the value of property

is an estimation of the property’s fair market value.” Smiles v. State, 298 S.W.3d 716,

719 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Sullivan, 701 S.W.2d at 908,

and Jones, 814 S.W.2d at 803); see Morales, 2 S.W.3d at 489. The owner’s testimony

as to the property’s fair market value may be stated either in terms of purchase price or

the cost of replacing the stolen property. Smiles, 298 S.W.3d at 719 (citing Sullivan, 701

S.W.2d at 908, and Jones, 814 S.W.2d at 803). Such testimony is an offer of the witness’s

best knowledge of the value of the stolen property and is sufficient evidence upon which

the trier of fact can determine value, even in the absence of specific mention of “market

value” or “replacement value.” Smiles, 298 S.W.3d at 719; Morales, 2 S.W.3d at 489;

Jones, 814 S.W.2d at 803 (citing Sullivan, 701 S.W.2d at 909). “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[s].” Smiles, 298 S.W.3d at 719; Morales, 2

S.W.3d at 489; Jones, 814 S.W.2d at 803 (citing Sullivan, 701 S.W.2d at 909).

The State alleged Kodi York as the owner of the stolen property. 5 She testified

that the rollers were purchased in 2015 or 2016 and were in good condition. Based on

what the rollers cost when purchased, York testified that $310 per roller was an accurate

valuation of each roller. Using this amount, she calculated the value of the 36 stolen

rollers at $11,160. We presume that an owner’s testimony regarding the value of property

is an estimation of the property’s fair market value. Campbell v. State, 426 S.W.3d 780,

5 Appellant does not dispute York’s status as owner of the stolen property.

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785 (Tex. Crim. App. 2014); Smiles v. State, 298 S.W.3d 716, 719 (Tex. App.—Houston

[14th Dist.] 2009, no pet.) (citing Sullivan, 701 S.W.2d at 908, and Jones, 814 S.W.2d at

803); see Morales, 2 S.W.3d at 489. Examining the evidence in the light most favorable

to the verdict, we conclude that a rational trier of fact could have found beyond a

reasonable doubt that the value of the rollers was between $2,500 and $30,000,

especially since Appellant presented no controverting evidence at trial to rebut the State’s

evidence as to value. See Morales, 2 S.W.3d at 489; Jones, 814 S.W.2d at 804.

Appellant contends that, because the evidence did not establish that the fair

market value of the rollers was unascertainable, the jury could not use York’s testimony

regarding the replacement cost of the rollers as establishing their value. However,

because York was the owner of the property, a contention which Appellant does not

dispute, her testimony, even if “in no way purported to be the ‘fair market value’ of the

[rollers], was sufficient to allow a rational trier of fact to assess the value of the property.”

Sullivan, 701 S.W.2d at 905 (citing Coronado v. State, 508 S.W.2d 373, 374 (Tex. Crim.

App. 1974). Because the owner testified as to the value of the rollers, it was not

necessary for the State to prove that their fair market value was unascertainable. See

Smiles, 298 S.W.3d at 719; Morales, 2 S.W.3d at 489; Jones, 814 S.W.2d at 803 (citing

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

Considering all the evidence in the light most favorable to the verdict, we conclude

that the evidence was sufficient to allow a rational jury to have found that the value of the

property exceeded $2,500 beyond a reasonable doubt. See Jackson, 443 U.S. at 319;

Queeman, 520 S.W.3d at 622. Accordingly, we overrule Appellant’s first issue.

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ENHANCEMENT OF STATE JAIL FELONY WITH TWO PRIOR FELONY CONVICTIONS

By his second issue, Appellant contends that the trial court erred in finding the two

enhancements true because the State failed to allege or prove that the prior felony

convictions relied upon for enhancement purposes were sequential.6

The jury found Appellant guilty of the state-jail-felony offense of theft of property

having a value of $2,500 or more but less than $30,000. See TEX. PENAL CODE ANN.

§ 31.03(a), (e)(4)(A). A state-jail-felony offense carries a punishment range of

confinement in a state jail for a term of not more than two years and not less than 180

days and a fine not to exceed $10,000. Id. § 12.35(a), (b). However, the range of

punishment may be enhanced to the range applicable to a second-degree felony if it is

shown that: (1) the defendant has previously been finally convicted of two felonies other

than a state jail felony punishable under section 12.35(a); and (2) the second previous

felony conviction is for an offense that occurred subsequent to the first previous conviction

having become final. Id. § 12.425(b). The punishment range for a second-degree felony

is imprisonment for a term of not more than twenty years and not less than two years and

a fine not to exceed $10,000. Id. § 12.33.

6 In his brief, Appellant notes that the trial court moved from the guilt-innocence phase of trial, which

was before the jury, directly into the punishment phase, which was before the court. In doing so, the judge
did not read the enhancement allegations or ask for Appellant’s pleas to the enhancements on the record.
When the trial court assesses a defendant’s punishment instead of a jury, the court is not required to read
the enhancement paragraphs or the findings to the defendant, although it is preferred. See Garner v. State,
858 S.W.2d 656, 659−60 (Tex. App.—Fort Worth 1993, pet. ref’d) (“While it is the better practice for trial
courts to orally read the enhancement paragraphs and find them to be true or false on the record, we find
that the trial court did not err by failing to do so since the trial court assessed punishment instead of a jury.”).

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In reviewing the sufficiency of the evidence to support a finding that an

enhancement allegation is true, we consider all of the evidence in the light most favorable

to the finding and determine whether a rational trier of fact could have found the essential

elements of the enhancement beyond a reasonable doubt. Wood v. State, 486 S.W.3d

583, 589 (Tex. Crim. App. 2016). The sufficiency of the evidence to support an

enhancement should be measured by the hypothetically correct jury charge for the

enhancement, as defined by statute. Roberson v. State, 420 S.W.3d 832, 841 (Tex. Crim.

App. 2013); Young v. State, 14 S.W.3d 748, 750 (Tex. Crim. App. 2000). “The State has

the burden of proof to show that any prior conviction used to enhance a sentence [is] final

under the law and that the defendant [is] the person previously convicted of that offense.”

Donaldson v. State, 476 S.W.3d 433, 439 (Tex. Crim. App. 2015).

For punishment to be enhanced under section 12.425(b), the chronological

sequence of events must be proved as follows: (1) the first conviction becomes final; (2)

the offense leading to a later conviction is committed; (3) the later conviction becomes

final; and (4) the offense for which the defendant presently stands accused is committed.

See TEX. PENAL CODE ANN. § 12.425(b); Jordan v. State, 256 S.W.3d 286, 290−91 (Tex.

Crim. App. 2008) (explaining required sequencing of events under nearly identical

language in Penal Code section 12.42(d)).

The indictment in this case alleged that “before the commission of the offense

alleged above, on the 19th day of August 1994, in cause number F-9451937-WK, in

Dallas County, Texas the defendant was finally convicted of the felony offense of

Aggravated Robbery in the Criminal District Court No. 4.” Additionally, the State filed a

notice of intent to enhance Appellant’s punishment, alleging that “before the commission
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of the primary offense, on or about the 8th day of October 1985, in cause − number F-

8589466 in the 203rd District Court, Dallas County, Texas, the defendant was convicted

of the felony offense of Burglary of a Building.”

During the punishment phase, the State offered, and the trial court admitted into

evidence, a certified copy of the indictment and judgment for the 1985 burglary of a

building conviction. These documents allege that the offense, a second-degree felony,

was committed on August 22, 1985. The judgment states that Appellant pleaded guilty

to the offense and sentence was pronounced on October 8, 1985. Additionally, the trial

court admitted into evidence the judgment, indictment, and mandate from Appellant’s

aggravated robbery conviction. The judgment states that the offense, a first-degree

felony, was committed on March 10, 1994, sentence was pronounced on August 19,

1994, and the enhancement paragraph in the indictment alleging a prior final conviction

on October 8,1985 for burglary of a building was “true.” The mandate from the Fourth

District Court of Appeals shows that the conviction was final on June 27, 1996, a date

prior to the commission of the present offense. A fingerprint expert testified that the

fingerprints from the judgments of conviction in each cause number matched Appellant’s

prints.

The primary offense, theft of property having a value of $2,500 or more but less

than $30,000, is a state-jail felony punishable by confinement in state jail between 180

days and two years. See TEX. PENAL CODE ANN. §§ 31.03(a), (e)(4)(A); 12.35(a). To

support Appellant’s sentencing, the evidence had to show that he committed a felony

after being finally convicted of a previous felony. Id. § 12.425(b). Appellant’s aggravated

robbery and burglary of a building are prior felony convictions that are not “state jail
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felonies punishable under Section 12.35(a).” See TEX. PENAL CODE ANN. §§ 12.425(b);

29.03, 30.02. The State’s evidence sufficiently linked Appellant to the aggravated robbery

conviction listed in the indictment and the burglary of a building conviction listed on the

State’s notice of intent to enhance punishment. The trial court could reasonably conclude

that the 1985 felony conviction (previous conviction) for burglary of a building was final,

as alleged in the enhancement paragraph in the indictment on the aggravated robbery,

and that the 1994 aggravated robbery conviction (subsequent conviction) was final after

mandate issued on June 27, 1996. A rational trier of fact could have found beyond a

reasonable doubt Appellant’s link to the convictions and that the sequence of the prior

convictions occurred in the required order. See TEX. PENAL CODE ANN. § 12.425; Jordan,

256 S.W.3d at 290−91. We overrule issue two.

CONCLUSION

Having overruled both of Appellant’s issues, we affirm the judgment of the trial

court.

Judy C. Parker
Justice

Do not publish.

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