Opinion
No. 05-14-01599-CR
02-04-2016
PATRICK DEYONE LEE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 199th Judicial District Court Collin County, Texas
Trial Court Cause No. 199-80455-2014
MEMORANDUM OPINION
Before Justices Francis, Evans, and Stoddart
Opinion by Justice Francis
Patrick Deyone Lee appeals his conviction for unauthorized use of a motor vehicle. After the jury found him guilty, the trial court assessed punishment, enhanced by two prior convictions, at five years in prison. In two issues, appellant claims the evidence is legally insufficient to support his conviction and the trial court abused its discretion by admitting certain evidence. We affirm.
In his first issue, appellant claims the evidence is insufficient to support his conviction because a rational trier of fact could not have found that appellant knew he did not have the owner's consent to drive the vehicle.
We review the question of legal sufficiency of the evidence under well-established standards. We examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). The jury is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). Thus, the jury resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic to ultimate facts. See Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
A person commits an offense if he intentionally or knowingly operates another's motor-propelled vehicle without the effective consent of the owner. TEX. PENAL CODE ANN. § 31.07 (West 2011). Effective consent includes "consent by a person legally authorized to act for the owner." Id. § 31.01(3). Thus, operating a vehicle is unlawful only if the accused is aware that the operation of the vehicle is without the owner's consent. See McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989); Battise v. State, 264 S.W.3d 222, 227 (Tex. App.—Houston [1st Dist.] 2008, pet. ref'd). Testimony that the car owner did not give consent to operate his vehicle may be sufficient to support a finding that an appellant knew he did not have consent to operate the vehicle. McQueen, 781 S.W.2d at 604-05; Battise, 264 S.W.3d at 227. It is a defense to prosecution that the defendant "through mistake formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense." TEX. PENAL CODE ANN. § 8.02(a).
On November 13, 2013, a 2008 white Chevrolet Impala belonging to William Carden and his fiancé Laquita Wigfall was stolen. According to Carden, he started the car and left it warming up in front of his house in DeSoto. When he returned about ten minutes later, the car was gone. Because he did not give anyone permission to take the vehicle, he contacted the Dallas police department. Wigfall remembered that the car had a GPS tracking device and contacted Public Auto Sales, the company who sold them the car. The general sales manager, Gary Tedder, was able to track the car to a neighborhood in Plano. He relayed the information to Plano police officer Stephen Sanders who located the car around 11:00 a.m. and pulled it over. Appellant, who was driving, told Sanders he was in Plano to see a girl named "Kim" about a job. He did not know Kim's last name or address and said Kim did not know he was driving to Plano to find her. When Sanders told him the car had been reported stolen, appellant said he paid $20 to a man named "Mike" to use the car until noon. Appellant did not know Mike's last name nor did he have a phone number or precise address for Mike although he indicated Mike lived in the Oasis Apartments on Ledbetter in Dallas.
Appellant told the jury he lived with his fiancé, Kim Beasley, and his mother and that he did landscaping and other "odd jobs." On the morning of November 13, he woke up around 5:00 a.m. and drove his mother to work like he did every workday morning. He dropped her off around 5:55 or 6:00 a.m., then returned home. After eating breakfast, he went back to sleep. When he woke up later, he drove Beasley's aunt's 1999 Grand Marquis to the Oasis Apartments to see his mechanic, Robert, about some repairs to his 2013 Dodge Avenger. While he was there, he ran into Mike, "a guy that [he] hadn't seen in while." Appellant described Mike as an acquaintance, not a good friend, and said they had played cards and dominoes a few times. Appellant asked about using Mike's white Chevy Impala to run a few errands and offered to pay him $20. Mike agreed, gave him the keys, and told him to have the car back by noon.
Appellant then drove to Plano looking for "Kim," a woman he described as the cousin of a friend of his. According to appellant, he and his friend had given Kim a ride from her house to work the previous week and Kim said she might know some people who needed yard work done. Appellant did not know Kim's last name or her work schedule, nor did he have her address. But he thought he could drive around Plano and find her house. While he was doing so, the police stopped him. Appellant said he was shocked when the police told him the car had been stolen.
At the conclusion of the evidence, the jury was instructed on the applicable law, including the following:
if you find and believe from the evidence beyond a reasonable doubt that the defendant committed the acts as alleged in the indictment, but you further find, or have a reasonable doubt thereof, that the defendant through mistake formed a reasonable belief about a matter of fact, to-wit: that he had effective consent from someone he reasonably believed to be the owner of the vehicle, which mistaken belief negated the kind of culpability required for the commission of the offense, you will acquit the defendant of the offense charged in the indictment and say by your verdict "not guilty."The jury found appellant guilty of the charged offense.
Appellant contends the evidence is legally insufficient to support his conviction because no evidence shows he knew the vehicle was stolen until the police pulled him over and told him. The jury, however, was free to believe or disbelieve appellant's testimony and rejected his mistake of fact defense. Viewing the evidence in the light most favorable to the verdict, we conclude the evidence was legally sufficient for a rational trier of fact to find that appellant intentionally or knowingly operated the vehicle without Carden's or Wigfall's effective consent. We overrule his first issue.
In his second issue, appellant claims the trial court abused its discretion by allowing the State to introduce evidence of three prior convictions in violation of evidentiary rule 609(b). Appellant argues two of the convictions, burglary of a habitation and robbery, were remote and the prejudicial effect of their admission was outweighed by any probative value. Appellant also argues the trial court failed to balance the prejudicial effect of his third conviction, failing to register as a sex offender, with the probative value of its admission.
We review the trial court's decision to admit or exclude evidence under an abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court abuses its discretion when it acts outside the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991) (op. on reh'g).
Rule of evidence 609 provides that evidence of prior convictions is admissible for the purpose of attacking the credibility of a witness if the crime was a felony or involved moral turpitude, regardless of punishment; the probative value of the evidence outweighs its prejudicial effect to the defendant; and it is elicited from the witness or established by public record. TEX. R. EVID. 609(a). Evidence of a prior conviction is not admissible, however, if:
a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.Id. 609(b). We consider several non-exclusive factors in weighing the probative value of a conviction against its prejudicial effect, including: (1) the impeachment value of the prior crime, (2) the temporal proximity of the past crime relative to the charged offense and the defendant's later history, (3) the similarity between the past crime and the offense being prosecuted, (4) the importance of the defendant's testimony, and (5) the importance of the credibility issue. See Theus v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992).
In Theus, the court of criminal appeals addressed the interaction of these factors, noting the impeachment value of crimes involving deception is higher than crimes that involve violence, and the latter have a higher potential for prejudice. Id. at 881. Thus, if a witness has a crime that relates more to deception than not, this factor will weigh in favor of admission. Id. The second factor favors admission if the past crime is recent and if the witness has demonstrated a propensity for running afoul of the law. Id. However, if the past crime and the charged crime are similar, the third factor will militate against admission. Id. The reasoning behind this is that the admission for impeachment purposes of a crime similar to the crime charged presents a situation for the jury to convict on the perception of a past pattern of conduct, instead of on the facts of the charged offense. Id. The last two factors are related because both depend on the nature of a defendant's defense and the means available to him of proving that defense. Id. When a defendant presents an alibi defense and can call other witnesses, the defendant's own credibility may not be as critical an issue. Id. In such situations, the defendant will not necessarily need to testify because other witnesses will be able to give evidence of his defense. Id. If, however, the case involves the testimony of only the defendant and the State's witnesses, the importance of the defendant's credibility and his testimony increases. Id. As the importance of the defendant's credibility escalates, so will the need to allow the State an opportunity to impeach the defendant's credibility. Id.
Before trial, the State filed a notice of intent to offer evidence of ten prior convictions for various misdemeanor and felony offenses for impeachment of appellant's credibility. During a pretrial hearing, the State agreed not to use five of the prior convictions (1995 assault family violence and unlawfully carrying a weapon, 1996 failure to identify, and 1999 evading arrest and unauthorized use of motor vehicle) and ultimately withdrew a 1997 theft from consideration. The State then argued it should be allowed to use the remaining convictions (1997 robbery and sexual assault, 1999 burglary of a habitation, and 2007 failure to register as a sex offender) for impeachment. After considering the arguments presented by both sides, the trial court allowed the State to offer the robbery, burglary of habitation, and failure to register offenses for purposes of impeaching appellant's credibility.
Although appellant assigns the court's ruling as error, we do not agree. With respect to the burglary of a habitation and robbery, these convictions are "remote;" thus, the probative value of the convictions must outweigh their prejudicial nature. Burglary, when it includes the element of theft, is a crime of deception which favors admission. See LaHood v. State, 171 S.W.3d 613, 621 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (citing White v. State, 21 S.W.3d 642, 647 (Tex. App.—Waco 2000, pet. ref'd) (factor favored admission because theft is crime of deception and impeachment value of crime involving deception is higher than impeachment value of crime involving violence)). Robbery, however, involves the threat or use of violence along with the element of theft. See Leyba v. State, 416 S.W.3d 563, 572 (Tex. App.—Houston [14th Dist.] 2013, pet. ref'd). In light of this, we conclude the first factor weighs in favor of admitting the burglary conviction but neither in favor of nor against admission of the robbery conviction.
Regarding the temporal proximity factor, appellant was convicted in 1999 for burglary and robbery. Since his release, he was again convicted in 2007 for failing to register as a sex offender. Although appellant argues his burglary and robbery offenses should not be admitted because the State "did not show Appellant had a propensity for breaking the law," we disagree. Failing to register when required by law is "breaking the law" and furthers the State's argument that appellant had not reformed and continued to run afoul of the law following his prior convictions. We conclude this factor weighs in favor of admission of both the robbery and the burglary offenses.
The similarity factor weighs against admission because the burglary of a habitation and robbery are similar to unauthorized use of a motor vehicle, and the States concedes this factor. Regarding the last two factors—the importance of appellant's testimony and the need to impeach—appellant's mistake of fact defense rested on his testimony at trial regarding his belief that Mike owned the car and he had Mike's permission to use it. Although he presented other witnesses, appellant was the only witness with firsthand knowledge of his belief. Accordingly, it was important for the State to be able to impeach his testimony and to refute his claims. These factors weigh in favor of admitting the previous offenses. After evaluating appellant's case under all the Theus factors, we cannot conclude the trial court abused its discretion by admitting the previous convictions for burglary and robbery. We overrule appellant's complaint with respect to the admission of his burglary and robbery convictions.
We now address his complaint that the trial court erred by admitting evidence of his 2007 conviction for failing to register as a sex offender. Appellant concedes the conviction was not remote but claims, without any specific argument or analysis, that the trial court did not weigh all the Theus factors before ruling.
The trial court's application of the balancing test need not be overt. In other words, the court need not expressly inform the parties that it undertook the balancing test, describe the factors it weighed, or issue a finding disclosing whether those circumstances favored either the inclusion or exclusion of the evidence. See Chitwood v. State, 350 S.W.3d 746, 749 (Tex. App.—Amarillo 2011, no pet.); Bryant v. State, 997 S.W.2d 673, 676 (Tex. App.—Texarkana 1999, no pet.). In fact, the appellate court presumes the test was performed. Chitwood, 350 S.W.3d at 749; Bryant, 997 S.W.2d at 676. So, to the extent that appellant suggests the trial court erred in failing to inform the parties that it undertook the balancing test and to specify why the result of that test favored the admission of the evidence, he is mistaken.
Furthermore, the record shows the trial court held a pretrial hearing to consider whether to admit ten extraneous offenses, including the failure to register offense. The trial court later revisited the issue during trial in a hearing outside the jury's presence. The record shows the trial court carefully considered the arguments and authorities presented by both sides during both hearings before ruling.
Finally, our review of the factors weighs in favor of admission. Failing to register bears on a defendant's character for truthfulness. See Vasquez v. State, 417 S.W.3d 728, 732 (Tex. App.—Houston [14th Dist.] 2013, pet ref'd). Appellant's 2007 conviction was relatively recent which also favors admission; the lack of similarity between the failure to register and the unauthorized use of a motor vehicle weighs in favor of admission. See Theus, 845 S.W.2d at 881. And the importance of appellant's testimony and the State's need to impeach, as discussed above, weigh in favor of admission. We conclude the trial court did not abuse its discretion and overrule the remainder of appellant's second issue.
We affirm the trial court's judgment.
/Molly Francis/
MOLLY FRANCIS
JUSTICE Do Not Publish
TEX. R. APP. P. 47
141599U.U05
JUDGMENT
On Appeal from the 199th Judicial District Court, Collin County, Texas
Trial Court Cause No. 199-80455-2014.
Opinion delivered by Justice Francis, Justices Evans and Stoddart participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered February 4, 2016.