United States District Court,

E.D. Pennsylvania.

Yaa GYAMFOAH

v.

EG & G DYNATREND (now EG & G Technical Services)

Sept. 4, 2003.

MEMORANDUM

ONEILL, J.

FINDINGS OF FACT

I. BACKGROUND

A. Parties

Plaintiff, Yaa Gyamfoah, is a citizen of Ghana who arrived at JFK International Airport in New York City on May 7, 1999. She brought with her two suitcases containing a large number of watches. United States Customs seized the suitcases along with their contents because they suspected that the watches were counerfeit.

Defendant EG & G Dynatrend is now known as EG & G Technical Services. EG & G is a private company under contract with the United States Department of Treasury to provide seized property management services for all agencies of the Department of Treasury. This contract work includes consignment, transportation, storage, maintenance and disposition of property seized by Treasury agencies, including U.S. Customs, for violations of federal law.

B. Procedural History

Plaintiff filed her original complaint on September 7, 2001 and an amended complaint on June 4, 2002. I dismissed Plaintiff’s complaint against the United States of America on December 13, 2002.

After I dismissed plaintiff’s claim against the United States EG & G moved to dismiss plaintiff’s claim against it for lack of subject matter jurisdiction. I denied that motion by Order of April 9, 2003.

I held a bench trial on April 29, 2003. Both parties have submitted proposed findings of fact and conclusions of law as well as post-trial briefs.

II. Chain of Custody

A. Custody of the Suitcases

The chain of custody of the suitcases seized by U.S. Customs is clear. I find the following facts to be true regarding those suitcases:

1. Plaintiff brought the suitcases into the county on May 7, 1999.

2. U.S. Customs seized the suitcases on May 7, 1999.

3. J. Cioffi Trucking transported the suitcases from U.S. Customs to EG & G’s warehouse in Edison, New Jersey on June 2, 1999.

4. EG & G’s Edison, New Jersey warehouse accepted and signed for the suitcases on June 2, 1999.

5. On November 19, 1999, pursuant to a Customs’ Disposition Order two U.S. Customs officials, Les Isaacson and Gabriel Greppi, “manipulated” the contents of the suitcases. [FN1] EG & G’s Warehouse Supervisor for the New York District, Walter Wenczel, observed the manipulation but did not participate in it. The Chain of Custody/Management Activity Report issued by U.S. Customs and signed by Mr. Wenczel on November 19, 1999 states that “the seizure now includes: 2 suitcases with watches and 1 suitcase with violative watches.”

FN1. Walter Wenczel, the EG & G warehouse supervisor testified as to his understanding of a “manipulation”: “Typically it would be where some officials would come in and either count or separate, or any other process they’d like to do with the property. Does not mean take or remove anything.” Depo. of Walter Wenczel at p. 44.

6. Agents Isaacson and Greppi conducted another manipulation of the suitcases on November 24, 1999. Again Mr. Wenczel of EG & G observed the manipulation. The Chain of Custody/Management Activity Report issued by U.S. Customs and signed by Mr. Wenczel on November 24, 1999 lists the seized items as 2 suitcases and 1 carton.

7. On May 23, 2000 pursuant to a Customs’ Disposition Order dated May 15, 2000 EG & G released the two suitcases to plaintiff’s agent, Akwasi Baidoo.

8. The carton referred to in the November 24, 1999 Chain of Custody/Management Activity Report remains at the EG & G warehouse.

B. Custody of the Watches

The chain of custody of the watches is disputed by the parties. Plaintiff purchased approximately 4,000 watches in Hong Kong on May 6, 1999. Ex. 2. A Customs document entitled “Custody Receipt For Retained Or Seized Property” numbers the watches at 3,380 on May 7, 1999, the day plaintiff brought them into the county. Ex. 4. The number of watches was changed by a Customs’ official on May 10, 1999 to 3,520 watches. Ex. 5.

Ron Simon, Director of Fines, Penalties & Forfeitures at JFK Airport wrote to plaintiff in Ghana on May 28, 1999. Ex. 6. The letter did not put a number on the watches but described the seized property as “counterfeit Citizen watches/leather straps and cases with an appraised domestic value of $35,200.00.” Id. An October 13, 1999 letter from Mr. Simon to plaintiff’s agent Mr. Baidoo states that “[a]fter review of the case file and your petition, this office has determined that the non-violative portion of the seizure (2,940 watches) will be remitted upon payment of $1,470.00.” Ex. 8. On November 19, 1999 Customs Agent Isaacson removed “580 violative watches” from the suitcases and placed them in a carton. Ex. 10.

On November 24, 1999, when Agent Isaacson returned to EG & G warehouse he reported a count for all of the watches in storage. Ex. 12. After noting that he expected to find 580 violative watches, Agent Isaacson wrote that “the actual count is 384 violative watches.” Id. Furthermore, although the “non- violative watches were to be a total of 2,940,” Agent Isaacson found “only 618 non-violative watches.” Id. The count of non-violative watches (618) was confirmed by a letter from Mr. Simon to Mr. Baidoo on March 23, 2000, in which Mr. Simon explained how plaintiff could retrieve the 618 watches. Ex. 13.

The count of watches on May 1999 was 3,520. By January 2000 there were only 1,002 watches. Some 2,518 watches are unaccounted for.

The evidence supports the inference that approximately 3,520 watches were in the suitcases when Customs first opened them on November 18. When Customs Officer Isaacson returned on November 24 he expected to find 3,520 watches. Ex. 12. If there had only been 1,002 watches when Officer Isaacson left the warehouse on November 18 he would not have expected to find 3,520 watches when he returned. 2,518 watches, the difference between the number expected to be found and the number actually found on November 24, is a large number of watches. They would take up between 26 and 51 bags of 100 watches or 50 watches. It is not credible that Officer Isaacson would not have noticed this many watches missing when he performed the manipulation on November 18.

The evidence also supports my finding that the Customs Officers did not remove the 2,518 watches from the warehouse when they performed the manipulations. Mr. Wenczel testified that it is his understanding that the word “manipulation” as used on Customs’ documents “[d]oes not mean take or remove anything.” Wenczel dep. at 44. Mr. Wenczel also testified that he was present at both manipulations of the seized property. Id. at 22, 37-38, 40. With respect to the manipulation of November 19, Mr. Wenczel answered “yes” to the questions “[w]ere you there during the whole time that they [the Customs agents] were counting the watches” and “did you remain in the vicinity of the customs officers where you could see them the whole time that they were there.” Id. at 37, 40. With respect to the manipulation of November 24, Mr. Wenczel said he was there when the suitcases were opened. Id. at 40. When asked “[d]id you remain the whole time that the customs officers were there” Mr. Wenczel replied “I sat in the vicinity with them, yes.” Id. It is reasonable to conclude that because Mr. Wenczel watched the Customs’ officers conduct both of the manipulations and he knew they were not to take any items out of storage Mr. Wenczel would have noticed if the Customs officers removed more than 2,500 watches from the suitcases.

CONCLUSIONS OF LAW

I. Choice of Law

When jurisdiction is based on diversity of citizenship, as it is here, a district court must apply the choice of law rules of the state in which it sits. Klaxon Co. V. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). In 1964 Pennsylvania abandoned the lex loci delicti rule and adopted “a more flexible rule which permits analysis of the policies and interests underlying the particular issue before the court.” Griffith v. United Air Lines, Inc., 416 Pa. 1, 203 A.2d 796, 805 (Pa.1964). The goal of Pennsylvania’s choice of law system is to permit “the forum to apply the policy of the jurisdiction most intimately concerned with the outcome of [the] particular litigation” Id. at 806 (internal quotation marks and citations omitted).

Pennsylvania’s choice of law rules have been called a “hybrid analysis” because they combine the contacts analysis of the Restatement (Second) of Conflict of Laws (1971) and the interest analysis of the policies of the states involved. Walker v. Pearl S. Buck Foundation, Inc., 1996 U.S. Dist. LEXIS 17297, (E.D.Pa. Dec. 3, 1996).

A. Contacts Analysis

The Restatement contains a list of factors that must be considered any time that a choice of law decision is made in the absence of a statutory directive. Restatement (Second) § 6. In the absence of a statutory directive, Section 6 of the Restatement provides that a court must consider the following:

(a) the needs of the interstate and international systems,

(b) the relevant policies of the forum,

(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,

(d) the protection of justified expectations,

(e) the basic policies underlying the particular field of law,

(f) certainty, predictability and uniformity of result, and

(g) ease in the determination and application of the law to be applied.

Id.

Regarding torts in particular, the Restatement’s general rule is that the law of the state with “the most significant relationship to the occurrence and the parties under the principles stated in § 6” should be applied. Restatement (Second) § 145. The contacts that a court must consider are: (1) the place of the injury; (2) the place where the conduct causing the injury occurred; (3) the domicile, residence, nationality, place of incorporation and place of business of the parties; and (4) the place where the relationship between the parties is centered. Id.; Walker, 1996 U.S. Dist. LEXIS 17297.

The Restatement also contains a rule that is more specific to this case. Section 147 provides that:

In an action for an injury to land or other tangible thing, the local law of the state where the injury occurred determines the rights and liabilities of the parties unless, with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the occurrence, the thing and the parties, in which event the local law of the other state will be applied.

Restatement (Second) § 147.

The contacts of the parties and the occurrences in this case with New Jersey quantitatively and qualitatively outweigh the contacts with Pennsylvania. Because the watches were stored in New Jersey it is likely the place where the injury occurred and where the conduct causing the injury occurred. Under both Section 145 and Section 147 of the Restatement these are important contacts that favor New Jersey as the choice of law. Furthermore, the relationship of the parties is centered in New Jersey, which is where the watches were stored and where plaintiff’s agent, Mr. Baidoo, resided. It was Mr. Baidoo’s address in New Jersey that plaintiff used as her United States mailing address on the day the watches were seized.

The contacts of the parties and the occurrences in this case with Pennsylvania are that Pennsylvania is the forum state and the current residence of plaintiff. These contacts, in comparison to the contacts with New Jersey, are insignificant. Furthermore, the application of New Jersey law would not violate any of the principles set forth in Section 6 of the Restatement. The contacts analysis favors the application of New Jersey law.

B. Interests Analysis

The interest component of Pennsylvania’s hybrid analysis considers the relevant states’ interests in the application of their own law to the matter. Walker, 1996 U.S. Dist. LEXIS 17927. I must consider “the extent to which one state has demonstrated, by reason of its policies and their connection and relevance to the matter in dispute, a priority of interest in the application of its rule of law.” Id., quoting McSwain v. McSwain, 420 Pa. 86, 215 A.2d 677, 682 (Pa.1966).

As I will discuss in detail later both Pennsylvania and New Jersey have adopted into their statutes a Uniform Commercial Code provision that governs this case. See 13 Pa.C.S. 7204(a) (2002); N.J.S.A. 12A:7-204 (2003). Although there is a difference in the way in which the courts of the two states have interpreted their respective statutes, Pennsylvania and New Jersey both have a policy of protecting the bailee.

The interests analysis favors neither New Jersey nor Pennsylvania. The contacts analysis, as established earlier, favors the application of New Jersey law. A Pennsylvania court hearing this case and applying Pennsylvania choice of law rules, therefore, would apply New Jersey law.

II. Substantive Law

The duties of a warehouseman that existed under New Jersey common law have now been codified in N.J.S.A. §§ 12A:7-101 et seq. Gonzalez v. A-1 Self Storage. Inc., 350 N.J.Super. 403, 795 A.2d 885, 886-87 (N.J.Super. Law Div.2000). EG & G is a warehouseman under the definition in the statute: “a person engaged in the business of storing goods for hire.” N.J.S.A. §§ 12A:7-102(1)(h). New Jersey requires that a warehouseman exercise reasonable care when storing bailed items. N.J .S.A. § 12A:7-204. The statute imposes the following liability, in a provision adopted from the Uniform Commercial Code:

A warehouseman is liable for damages for loss of or injury to the goods caused by his failure to exercise such care in regard to them as a reasonably careful man would exercise under like circumstances but unless otherwise agreed he is not liable for damages which could not have been avoided by the exercise of such care.

N.J.S.A. §§ 12A:7-204(a).

The warehouseman’s statute has been interpreted to involve a burden shifting scheme that reflects that common law of bailment. ICC Industries, Inc. v. GATX Terminals Corp., 690 F.Supp. 1282, 1290 (S.D.N.Y.1988), Gonzalez, 795 A.2d at 887, Lembaga Enterprises. Inc. v. Cace Trucking & Warehouse. Inc., 320 N.J.Super. 501, 727 A.2d 1026, 1030 (N.J.Super.App.Div.2000). The bailor must present a prima facie case of conversion by proving (1) delivery of the bailed goods to the bailee; (2) demand for return of the bailed goods from the bailee; and (3) failure of the bailee to return the bailed goods. ICC Industries, 690 F.Supp. at 1290. Once the bailor has proved these three points, the burden shifts to the bailor to show how the bailed goods were lost. Id. If the bailee cannot prove how the bailed goods were lost it is liable under the New Jersey statute for conversion. Id. at 1289, Lembaga Enterprises, 727 A.2d at 1030. Although the burden of proof regarding how the goods were lost shifts to the defendant, the burden of proving conversion rests at all times on the bailor as plaintiff. Lembaga Enterprises, 727 A.2d at 1030.

The tort of conversion that can be proved under the statute is not necessarily an intentional tort. In this instance “[a] conversion can occur even when a bailee has not stolen the merchandise but has acted negligently in permitting the loss of the merchandise from its premises.” Id. In other words, if a bailor establishes “that the [bailed goods] had disappeared while in the care of [the bailee], there is a rebuttable presumption of conversion based either on [the bailee’s] negligent conduct in permitting third parties to steal the [goods], or by the negligent or intentional conduct of [the bailee’s] employees or agents.” Id .

III. Defendant is liable for negligence

As established earlier, I find that plaintiff showed by a preponderance of the evidence that: (1) 3,520 watches were delivered to defendant’s warehouse; (2) when plaintiff’s agent presented the papers entitling plaintiff to return of the watches 2,518 watches were missing; and (3) the U.S. Customs officers who manipulated the watches did not remove the missing watches.

Therefore, plaintiff has established delivery to defendant and defendant’s failure to redeliver all of the items on plaintiff’s demand. Under New Jersey law this creates a rebuttable presumption of conversion by defendant.

Defendant produced evidence at trial of reasonable precautions against loss. Mr. Wenzcel testified that the watches were shrink-wrapped to a pallet and stored in a secured area on a high shelf that required a forklift to be reached. Wenczel depo. at pp. 11-14, 727 A.2d 1026. Frederick (Paul) Hehir, the EG & G district manager who oversaw operations in the New York district of the company also testified about security. He testified that the area in which the watches were stored was armed and within a gated area that only EG & G employees could enter. Herir testimony, pp. 7-8.

Defendant does not provide any evidence, however, regarding what happened to the missing watches. EG & G mentions the possibility that the missing watches were never delivered to the warehouse. This possibility is refuted, however, by evidence that U.S. Customs officers left the warehouse on November 18 thinking that there were 3,520 watches in storage. As I stated earlier, I find that plaintiff has proved by a preponderance of the evidence that there were 3,520 watches in the suitcases when the suitcases were delivered to defendant’s warehouse. There is no explanation for the disappearance of the watches other than defendant’s negligence. In fact, when asked “[s]o it’s fair to say that sitting here today, EG & G can offer no explanation of the loss of the majority of the contents of those two suitcases?” EG & G employee Mr. Herir testified “I cannot offer any explanation, no.” Herir testimony, p. 29.

Defendant has not met its burden to rebut the presumption of negligence created by plaintiff’s case. Plaintiff has met her burden of proving by a preponderance of the evidence that defendant is liable to her under New Jersey’s law of bailment, as found in N.J.S.A. §§ 12A:7-204(a) and the common law. Defendant is liable for the value of the lost watches.

The result would be similar if I had applied Pennsylvania law. Pennsylvania has adopted the same provision of the UCC that is found at N.J.S.A. 12A:7- 204 (2003). 13 Pa.C.S.A. § 7204. Furthermore, Pennsylvania applies the same burden shifting analysis and presumption of liability. Adams v. Christie Storage. Inc., 563 F.Supp. 409, 413-14 (E.D.Pa.1983)

The most authoritative interpretation of Section 7204 that my research revealed is Judge Pollack’s decision in Adams. The facts in Adams were similar to those in this case. Some items were stored with the defendant warehouseman and years later could not be produced for the plaintiff. Id. at 410. The parties disputed whose burden it was to prove why the items were missing. Id. at 411. After an examination the relevant law, Judge Pollack came to the conclusion that Pennsylvania courts would rule that “where the record is silent as to the actual disposition of the bailed goods, and that silence includes not even an attempt by the bailee to offer an explanation, the permissible inference is one of negligence.” Id. at 413-14.

This interpretation of the statute conforms with the common law of bailment in Pennsylvania. The District Court for the Western District of Pennsylvania summarized the common law as follows: “[w]hen a bailment is shown to exist, the bailor makes out a prima facie case against his bailee for hire for recovery of the value of the unreturned bailed goods by showing his delivery of the goods to the bailee and the latter’s failure to redeliver them upon the bailor’s demand.” Western Mining Corp., Ltd. v. Standard Terminals, Inc., 577 F.Supp. 847, 850 (W.D.Pa.1984), citing Girard Trust Corn Exchange Bank v. Brink’s. Inc., 422 Pa. 48, 220 A.2d 827, 830 (Pa.1966). See also Moss v. Bailey Sales & Service. Inc., 385 Pa. 547, 123 A.2d 425, 426 (Pa.1956); Utility/Keystone Trailer Sales, 21 Phila. 526, 531, 1990 Phila. Cty. Rptr. LEXIS 93 (1990).

The difference between Pennsylvania and New Jersey law is that in New Jersey the rebuttable presumption is one of conversion where in Pennsylvania the presumption is one of negligence. The concept of conversion in New Jersey includes both the bailee’s “negligent conduct in permitting third parties to steal” the stored items and the “negligent or intentional conduct of [the bailee’s] employees or agents.” Id. at 509.

Under either state’s law plaintiff has proved by a preponderance of the evidence that defendant is liable for the loss of 2,518 watches. For either negligence or conversion the measure of damages is the value of the lost goods.

IV. Damages

The only evidence presented at trial regarding the value of the missing watches is a receipt from Andex Trading Limited. Ex. 2. The receipt lists ten models of watches, the quantity bought by plaintiff, the unit price and the amount paid for the number of watches of each model bought. Because plaintiff has not shown which models the 2,518 missing watches were I will calculate damages as if the least expensive 2,518 watches are missing.

The cost of the least expensive 2,518 watches is $3,781.30. That includes 300 watches at $0.90 each, 100 watches at $1.40 each, 350 watches at $1.55 each and 1,768 watches at $1.60 each.

ORDER

AND NOW, this day of September, 2003, after consideration of plaintiff’s and defendant’s briefs and the evidence adduced at trial and for the reasons set forth in the accompanying memorandum it is ORDERED that judgment is entered in favor of plaintiff Yaa Gyamfoah and against defendant EG & G Dynatrend in the amount of $3,781.30.

Court of Appeals of Texas,

Houston (14th Dist.).

Daniel LOPEZ, Appellant,

v.

The STATE of Texas, Appellee.

Sept. 11, 2003.

Panel consists of Justices YATES, HUDSON, and FROST.

MEMORANDUM OPINION

LESLIE BROCK YATES, Justice.

Appellant Daniel Lopez was convicted by a jury of two counts of felony theft. In seven points of error, appellant claims: (1) the evidence is factually insufficient to support the two convictions; (2) there is insufficient evidence to corroborate the accomplice’s testimony; (3) the State asked improper commitment questions during voir dire; (4) the trial court erred in denying appellant’s request to conduct a voir dire examination of a witness; (5) the State made improper statements about appellant’s prior conviction, and (6) during closing argument, the State improperly attempted to shift the burden of proof. We affirm.

Background

On August 28, 2001, 1200 processors were stolen from the high value parts section of TNT, Compaq Computer Company’s raw materials warehouse. On August 30, 2001, 3000 additional processors were stolen from the same location. Compaq investigator James Hathaway testified that the stolen processors were valued at $793,000.

The warehouse had a complex security system that required all drivers to log in for pick-up of high-end parts. Each truck making a pick-up received an inbound ticket that detailed the date and time of arrival. The ticket also contained information regarding the carrier, rig and trailer number, and the driver’s name and license number. The warehouse also maintained an inbound trailer log containing the same information. Inventory control documents track the goods and are signed by the TNT employee and the driver taking delivery. Appellant, a driver for the trucking company USF Dugan, made frequent cargo pick-ups at the warehouse. Appellant’s accomplices, Spencer Miller, and Bernard Olewe worked at the TNT warehouse.

Factual Sufficiency

In his first and second points of error, appellant claims the evidence is factually insufficient to support his two convictions for theft. We conduct a factual sufficiency review by asking whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination or 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). We may set aside the jury’s verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App.1996). Although we review the fact finder’s weighing of the evidence, and we are authorized to disagree with the fact finder’s determination, our evaluation should not substantially intrude upon the fact finder’s role as the sole judge of the weight and credibility given to witness testimony. Johnson, 23 S.W.3d at 7. In particular, we must defer to the jury’s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor, an evaluation better suited for jurors who were in attendance when the testimony was delivered. Id. at 8.

Here, the State presented sufficient evidence to convict appellant on both counts of theft. First, accomplice Spencer Miller testified that he, appellant, and Bernard Olewe planned the thefts. Both Miller and Olewe worked at TNT and solicited appellant because he drove for USF Dugan trucking, which regularly serviced the warehouse. On August 28 and 30, Miller loaded appellant’s USF Dugan truck at the TNT facility with a large shipment of processors. Appellant then left TNT with the processors. Miller was unsure where appellant took them, but testified Olewe had arranged for a buyer to purchase the stolen merchandise. Olewe paid Miller $50,000 for his role in the theft. Miller shared this sum with appellant.

In addition to Miller’s testimony, other evidence supports appellant’s conviction. The TNT warehouse had extensive security procedures that required its personnel to keep detailed information about who made deliveries and picked up orders. Specifically, security personnel tracked truck entry, arrival at the high value area, and all exits from the compound. Appellant worked for USF Dugan, which made frequent pick-ups at the facility. Warehouse documentation showed a USF Dugan truck picked up the stolen property. Further, the August 30 sign-in documents showed the driver as a D. Lopez with driver’s license 16300102 and trailer number 13081. Appellant’s license is 10300102 and his assigned tractor number was 13081. Two TNT security officers, one from each date, identified appellant from a photo spread as the driver of the truck that picked up the stolen property. The State also presented evidence that appellant was undertaking an extensive remodeling effort on his home, indicating that he might recently have received a large influx of money.

Appellant points to both documentary and testimonial evidence to support his contention that the evidence is factually insufficient to support the conviction. For the August 28 thefts, appellant argues the shipping documents fail to link him to the theft. The authorization slip, outbound order, packing list, and outbound checklist contained no connection to appellant other than through Miller’s testimony and signature. However, the authorization form and bill of lading are tied to USF Dugan, the carrier for which appellant works. Documents also show that the August 28 driver was “Thomas Garza,” driving trailer 5873 and arriving at TNT at 10:02 a.m. Appellant began work at 9:33 a.m. that day and was assigned trailer 5873.

Appellant also points to the inability of warehouse employees to identify him in court as the USF truck driver on either August 28 or 30. For the August 28 theft, neither the Burns security supervisor, the warehouse supervisor, inbound gate security guard, nor the warehouse supervisor could identify appellant as the truck driver. The Burns security officer, Geraldine Wilson, selected appellant from a photo spread as the August 28 truck driver, but failed to identify him in court.

Warehouse personnel were also unable to identify appellant as the August 30 driver. The main gate security guard, Cornelio Medina, tentatively identified appellant from a photo spread, but did not make an identification in court. Medina also wrote down the driver’s license number as 10300102 when appellant’s is 16300182. However, Medina described the driver’s license as “kind of old” and having a black smudge on the left hand corner. In addition, he testified the licence photo looked like the truck driver.

Finally, appellant points to his own testimony in support of his argument that the evidence is factually insufficient. He testified that he did not know Spencer Miller and could not explain why Miller and Olewe’s phone numbers were on his cell phone. In addition, he claimed the remodeling was only of his kitchen cabinets and he had purchased only wood for the job. He denied having visited the TNT warehouse or stealing any of the processors.

Although there were no positive in-court identifications, we conclude that the State presented factually sufficient evidence to the jury to show that appellant committed the theft offenses. Accomplice testimony, cell phone records, warehouse documents, and other testimonial evidence connect appellant to the trucking company, the warehouse on the days of the theft, and with the admitted accomplice. Therefore, appellant’s first and second points of error are overruled.

Corroboration Evidence

In his third point of error, appellant claims the evidence was insufficient to corroborate the accomplice testimony of Spencer Miller. “A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.” Tex.Code of Crim. Proc. Ann. art. 38.14 (Vernon 1979). The evidence need not directly connect the defendant to the crime or “that it be sufficient by itself to establish guilt; it need only tend to connect the defendant to the offense.” Cathey v. State, 992 S.W.2d 460, 462 (Tex.Crim.App.1999) (citing Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988)). “If the combined weight of the non-accomplice evidence tends to connect the defendant to the offense, the requirement of Article 38.14 has been fulfilled.” Id. (citing Gosch v. State, 829 S.W.2d 775, 777 (Tex.Crim.App.1991)).

“The test for sufficient corroboration is to eliminate from consideration the accomplice testimony and then examine the other inculpatory evidence to ascertain whether the remaining evidence tends to connect the defendant with the offense.” Burks v. State, 876 S.W.2d 877, 887 (Tex.Crim.App.1994). In applying the test for sufficiency, each case must be considered on its own facts and circumstances. Reed v. State, 744 S.W.2d 112, 126 (Tex.Crim.App.1988) (citing Mitchell v. State, 650 S.W.2d 801, 807 (Tex.Crim.App.1983)). All the other facts and circumstances in evidence may be looked to as furnishing the corroboration necessary. Id. (citing Brown v. State, 561 S.W.2d 484 (Tex.Crim.App.1978)). The corroborative evidence may be circumstantial or direct. Id. The combined cumulative weight of the incriminating evidence furnished by the non-accomplice witnesses that tends to connect the accused with the commission of the offense supplies the test. Mitchell v. State, 650 S.W.2d 801 (Tex.Crim.App.1983). It is not necessary that the corroboration directly link the accused to the crime or be sufficient in itself to establish guilt. Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Crim.App.2002).

In the absence of the accomplice’s testimony, the State still presented sufficient evidence to convict appellant. As stated previously, evidence placed appellant at the warehouse on the dates in question. Cell phone records revealed calls to the accomplices and warehouse. Even in the absence of accomplice testimony explaining the theft scheme, the evidence directly linked appellant to the crime. Independent evidence corroborated appellant’s presence at the scene on the dates in question when there was no scheduled pick-ups or deliveries. On August 28, warehouse documents recorded a USF Dugan carrier with a trailer number registered to appellant. On August 30, warehouse documents showed D. Lopez signing in with the rig number assigned to him. This evidence tends to connect appellant with the crime such that it sufficiently corroborates the accomplice testimony. We overrule appellant’s third point of error.

Improper Commitment Questions During Voir Dire

In his fourth point of error, appellant claims the State conducted an improper voir dire by attempting to commit the jury to a particular verdict using a hypothetical fact pattern that was factually specific to this case. See Standefer v. State, 59 S.W.3d 177, 181 (Tex.Crim.App.2001) (prohibiting improper commitment questions). An attorney’s questioning during voir dire is proper if it seeks to discover a juror’s views on an issue applicable to the case. See Smith v. State, 703 S.W.2d 641, 643 (Tex.Crim.App.1985). In this case, the prosecutor asked, “do you think you would be okay deciding beyond a reasonable doubt based on paperwork, based on records?” and “if you believe that circumstantial evidence beyond a reasonable doubt that would require more, require that eyewitness …”. The court sustained defense counsel’s objection and gave an instruction ordering the jury to disregard the prosecutor’s questions. Appellant’s motion for mistrial was denied. The issue, therefore, is not whether the State’s voir dire questions called for improper commitment, but whether the instruction to disregard cured any taint.

The voir dire examination allows counsel to assess the desirability of venire members and to select a “competent, fair, impartial, and unprejudiced jury.” Staley v. State, 887 S.W.2d 885, 896-97 (Tex.Crim.App.1994), cert. denied, 514 U.S. 1020, 115 S.Ct. 1366, 131 L.Ed.2d 222 (1995); see also Woodall v. State, 77 S.W.3d 388, 399 (Tex.App.-Fort Worth 2002, pet. ref’d) (reviewing instruction to disregard improper voir dire examination). When reviewing a trial court’s ruling on the propriety of a question asked, we will not disturb the ruling absent an abuse of discretion. Woodall, 77 S.W.3d at 399 (citing Davis v. State, 894 S.W.2d 471, 474 (Tex.App.-Fort Worth 1995, no pet.)); Fuller v. State, 1998 WL 548709 (Tex.App.-Dallas 1998, pet. ref’d); see also Davila v.. State, 2003 WL 21404087, (Tex.App.-Amarillo 2003) (memorandum opinion) (applying Tex.R.App. Proc. 33.1 to appeal challenging commitment questions); Schumacher v. State, 72 S.W.3d 43, 47 (Tex.App.- Texarkana 2001, pet. ref’d) (applying rule to comment during voir dire). Whether the trial court abused its discretion in denying a motion for mistrial depends on whether the court’s instruction to disregard cured any prejudicial effect. Dinkins v. State, 894 S.W.2d 330, 357 (Tex.Crim.App.1995). Generally, an instruction to disregard cures the prejudicial effect except where the comment or question “is clearly calculated to inflame the minds of the jury or so indelibly ingrained in their minds that it is not susceptible to withdrawal or retraction by an instruction to disregard.” Fuller, 1998 WL 548709 see also Dinkins, 894 S.W.2d at 357. Here, the questions were not so inflammatory as to render an instruction to disregard ineffective. Thus, because any possible prejudice was cured by the instruction to disregard, we need not address whether the State’s questions were improper commitment questions. We overrule appellant’s fourth point of error.

Failure to Conduct Voir Dire of State’s Witness

In his fifth point of error, appellant claims the court erred in denying defense counsel’s request to conduct a voir dire examination of the Compaq investigator as an expert witness on the value of the processors. The State examined James Hathaway, the complainant on the indictment and Compaq’s representative, regarding the value of the stolen property. Appellant’s trial counsel sought to conduct a voir dire examination of Hathaway to establish his qualifications for determining the fair market value of the processors. The trial court denied the voir dire request. In reviewing a trial court’s admission or exclusion of evidence we apply an abuse of discretion standard. Goff v. State, 931 S.W.2d 537, 553 (Tex.Crim.App.1996).

Fair market value must be established if the testimony concerning value is given by someone other than the owner. Sullivan v. State, 701 S.W.2d 905, 908 (Tex.Crim.App.1986). It has long been the rule in this State that the owner of property is competent to testify as to the value of his own property. Jones v. State, 814 S.W.2d 801, 803 (Tex.App.-Houston [14th Dist.] 1991, no pet). When an owner testifies, the presumption is that the owner is testifying to an estimation of the fair market value. Id. Thus, the owner may testify as to the fair market value of the property either in terms of purchase price or the cost to him of replacing the stolen properly. Id. If appellant wishes to rebut the owner’s opinion evidence, he must do so through the use of cross- examination and the offer of controverting evidence as to the value of the property. Id.

Here, James Hathaway was named as the complainant and owner in both of the indictments. As such, he need not be taken on voir dire as an expert witness. Appellant’s fifth point of error is overruled.

Improper Statement about Length of Sentence

In his sixth point of error, appellant contends the prosecutor improperly testified to the jury about the length of sentence on a revocation of probation during the guilt-innocence phase. The exchange went as follows:

Q. Let’s talk about your probation.

A. Yes, ma’am.

Q. That is a felony probation, correct?

A. Yes, ma’am.

Q. And you face two to ten years in prison, correct? If this crime is true, your probation can be revoked and you can be sentenced to prison for two to ten years?

A. No, ma’am.

Q. What do you think–you’re on ten years probation, if your probation is revoked, isn’t it true you can go to prison for up to ten years?

A. No. I could–I could do the rest of the time that I haven’t done on probation.

Q. That would be incorrect. You could do up to ten years in prison–

The trial court sustained defense counsel’s objection to the comment about the length of the sentence. The trial court then instructed the jury to disregard the statement, overruling appellant’s motion for mistrial. When the trial court gives a curative instruction rather than granting a motion for mistrial, the question becomes whether the trial court erred in denying the motion for mistrial. Hyett v. State, 58 S.W.3d 826, 832 (Tex.App.-Houston [14th Dist.] 2001, pet. ref’d). “Only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted.” Bauder v. State, 921 S.W.2d 696, 698 (Tex.Crim.App.1996) (en banc); see also Ford v. State, 14 S.W.3d 382, 394 (Tex.App.-Houston [14th Dist.] 2000, no pet.). To the extent that the statement was objectionable, we find the trial court’s instruction was sufficient to cure any prejudice and the prosecutor’s comment did not rise to the level necessary to warrant the granting of a mistrial.

Appellant’s sixth point of error is overruled.

Improper Closing Argument: Shifting Burden

In point of error seven, appellant contends the prosecutor improperly attempted to shift the burden of proof from the State by arguing to the jury that appellant could have presented contradictory evidence. [FN1] Proper jury argument includes four areas: (1) summation of the evidence presented at trial, (2) reasonable deduction drawn from that evidence, (3) answer to the opposing counsel’s argument, or (4) a plea for law enforcement. McFarland v. State, 845 S.W.2d 824, 844 (Tex.Crim.App.1992) (en banc), cert. denied, 508 U.S. 963, 113 S.Ct. 2937, 124 L.Ed.2d 686 (1993). To constitute reversible error the argument must be manifestly improper or inject new, harmful facts into the case. Jackson v. State, 17 S.W.3d 664, 673 (Tex.Crim.App.2000); Gaddis v. State, 753 S.W.2d 396, 398 (Tex.Crim.App.1988).

FN1. The statements made during the State’s final argument were:

He had a reason to lie, and there is nothing to substantiate what he’s saying. Something to substantiate every one of these guards, their identifications. And he wants to sit up and say it’s not me. I don’t know any of these people. I’m a victim. Out to get me. Sir, the perfect world doesn’t work that way. If you think–if they had documents to show it wasn’t him making the phone calls, you would see them. If they had documents to show someone else during those times, you would see them. Following a sustained objection and instruction to disregard, the prosecution made the following statement, “the defense has the power to make people appear, to subpoena records, just like the State.” The trial court overruled appellant’s objection in this regard.

The Court of Criminal Appeals has repeatedly held that the prosecutor may comment on the defendant’s failure to produce witnesses and evidence so long as the remark does not fault the defendant for exercising his right not to testify. Jackson, 17 S.W.3d at 674; Patrick v. State, 906 S.W.2d 481, 491 (Tex.Crim.App.1995) (en banc), cert. denied, 517 U.S. 1106, 116 S.Ct. 1323, 134 L.Ed.2d 475 (1996); Livingston v. State, 739 S.W.2d 311, 338 (Tex.Crim.App.1987), cert. denied, 487 U.S. 1210, 108 S.Ct. 2858, 101 L.Ed.2d 895 (1988). Here, reference to the defense’s failure to produce contrary witnesses and phone records was not improper.

Appellant’s seventh point of error is overruled.

Having denied appellant’s seven points of error, we affirm the trial court’s judgment.