Opinion
No. 05-03-01009-CR
Opinion file May 27, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 363rd Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-57579-RW. Affirmed.
Before Justices MOSELEY, BRIDGES and LANG-MIERS
OPINION
Appellant Casey Lynn Spriggs appeals his conviction for unauthorized use of a motor vehicle, enhanced, for which he was assessed punishment at fifteen years in prison and a $1,500.00 fine. In three issues, appellant complains that the evidence is both legally and factually insufficient to support the conviction, that the trial court erred when it gave the jury a charge instruction on voluntary intoxication, and that the State made improper jury argument. We affirm.
BACKGROUND
A man's van was stolen from his driveway when he left it running while he went back into his house for a moment. The next morning appellant, passed out from intoxication, was discovered sitting in the van in the driveway of someone else's house. He was arrested and charged with unauthorized use of a motor vehicle. At trial, appellant maintained that he believed the van belonged to a friend, and that the friend had given him permission to drive it.SUFFICIENCY OF THE EVIDENCE
Legal Sufficiency The standard for reviewing a legal sufficiency challenge is whether, viewing the evidence in the light most favorable to the judgment, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Simmons v. State, 109 S.W.3d 469, 472 (Tex.Crim. App. 2003). The jury is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996).Factual Sufficiency
In reviewing the factual sufficiency of the evidence, we are to view all of the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 6-7 (Tex.Crim.App. 2000). We must determine whether a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 Tex.Crim. App. LEXIS 668, at * 20 (Tex.Crim.App. April 21, 2004). The fact finder is entitled to judge the credibility of the witnesses and may choose to believe all, some or none of the testimony presented. Westbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim. App. 2000).The Offense
A person commits the offense of unauthorized use of a motor vehicle when he intentionally or knowingly operates a motor-propelled vehicle without the effective consent of the owner. Tex. Pen. Code Ann. § 31.07 (Vernon 2003). Section 31.07 is not a strict liability offense. Gardner v. State, 780 S.W.2d 259, 262 (Tex.Crim.App. 1989). The "forbidden conduct" — operating a motor vehicle — is made unlawful only when the defendant is aware of the attendant circumstances — that the operation of the vehicle is without the owner's consent. Id. at 262-63. Therefore, one of the elements to be proven by the State is the knowledge of the defendant that he did not have the consent of the owner to operate the motor vehicle. Id. at 263; McQueen v. State, 781 S.W.2d 600, 604 n. 5 (Tex.Crim.App. 1989). It is a defense to prosecution that the accused, through mistake, formed a reasonable belief that he had the owner's consent to use the vehicle. See Tex. Pen. Code Ann. § 8.03 (Vernon 2003); Gardner, 780 S.W.2d at 263.Evidence
In his first issue, appellant complains that the evidence is neither legally nor factually sufficient to support the jury's finding of guilt. On the morning of December 16, 2002, the van's owner started his white Plymouth Grand Voyager, left it running in the driveway, then went back inside. While he was inside the house, his van was stolen from his driveway. Early the next morning, a man unrelated to the theft called the police and reported that an unknown van had been sitting in his driveway for an hour. The police responded to the scene and discovered appellant behind the steering wheel and another person in the passenger seat. They were passed out, apparently intoxicated from drugs or alcohol. The van was in drive, but appellant had his foot on the brakes. The keys were in the ignition and the engine was running. There was no sign that the vehicle had been broken into, but there was a paper temporary tag over the license plate. There was equipment in the back of the van, but when police checked serial numbers, none had been reported as stolen. The van's owner testified that new stereo speakers had been installed in the van some time during the twenty-four hours after the time the van was stolen. He also testified that he had not given appellant his consent to drive his vehicle. Appellant's aunt testified that she picked up appellant on December 14, 2002, and took him to her home in Grand Saline. She returned appellant to Dallas around 4:00 p.m. on December 16, 2002. Appellant's mother also testified that appellant was not in Dallas until the afternoon of December 16, 2002. She testified that at about 9:00 p.m. on that date, she took appellant to a house on Pond Street. Later that evening, a person came to her house driving a light-colored van. Appellant testified that on the evening of December 16, 2002, his mother told his friend Ben Cootie that appellant was at the house on Pond Street. Cootie arrived at the house in a white van. Appellant asked Cootie where he got the van and Cootie replied that it belonged to his mother, but that she was letting him use it. Appellant, Cootie, a friend named Robert, and Robert's sister drove around in the van and purchased beer and drugs. Cootie bought some high-quality speakers from Robert and Robert installed them in the van for him. At 5:00 the next morning, Cootie gave appellant the keys to the van and told appellant and Robert to go get some more drugs. On the way to buy drugs, appellant took a wrong turn and ended up in someone's driveway, where he was eventually arrested. Appellant testified that there was nothing about the van which suggested to him that the van was stolen, and that there was no reason for him to disbelieve Cootie. He had known Cootie for five years and did not know him to be a car thief. Appellant admitted that he had previously been convicted of theft from a person, burglary of a residence, and a couple of auto thefts. His most recent conviction was for drug possession. Appellant stated that he had pleaded guilty to all the other charges, but not to this one because he was not guilty. Appellant admitted that he was driving the van on December 17, 2002, but insisted that he did not know the van did not belong to Cootie. He pointed out that during his previous auto thefts, he had never added anything to the cars because it never occurred to him to upgrade a stolen vehicle.Analysis:
The evidence is sufficient to prove that appellant knew he did not have the owner's consent when the owner of the vehicle testifies that he did not give appellant consent to operate his vehicle. McQueen v. State, 781 S.W.2d 600, 604-05 (Tex.Crim. App. 1989) (owner's testimony that he had not given consent to appellant to operate his motorcycle proved, from a sufficiency standpoint, that the appellant knew he did not have the owner's consent); Demary v. State, 798 S.W.2d 376, 378 (Tex. App.-Beaumont 1990, no pet.). This is true even though appellant testifies he held a reasonable belief that he had the owner's consent. See McQueen, 781 S.W.2d at 604-05 (the trial court was free to reject the defendant's evidence); White v. State, 844 S.W.2d 929, 932 (Tex. App.-Houston [1st Dist.) 1992, pet. ref'd) (affirmed conviction even though defendant testified he did not know he did not have consent of the owner). In this case the owner of the van testified unequivocally that he had not given appellant consent to operate his vehicle. Appellant testified that he had his friend's consent to drive the van, that he believed his friend's mother owned the van and that she had given his friend consent to drive it. We must defer to the jury's findings and may not substantially intrude upon the jury's role as the sole judge of the weight and credibility of witnesses. The jury obviously did not believe appellant's version of events. Viewing the evidence in the light most favorable to the judgment, a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Further, a neutral review of all the evidence, both supporting and against the finding, demonstrates that the jury was rationally justified in finding guilt beyond a reasonable doubt. We overrule appellant's first issue.JURY INSTRUCTION ON VOLUNTARY INTOXICATION
In his second issue, appellant complains that the trial court erred when it charged the jury as follows: "You are further instructed that voluntary intoxication does not constitute a defense to the commission of a crime. "Intoxication" means disturbance of mental or physical capacity resulting from the introduction of any substance into the body." When an appellant complains of charge error, we must first determine whether there is any error in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex.Crim.App. 1996). If we conclude there is error, we must determine if the error caused sufficient harm to warrant reversal. Id. at 170-71.Appellant argues that the fact of his intoxication is in no way related to his mistaken belief that he had the owner's permission to operate the van. He asserts that there is no causal connection between this mistaken belief and appellant's intoxication. At trial, appellant did not attempt to use his intoxication as a defense. However, the State is entitled to an instruction on voluntary intoxication when there is evidence that might lead the jury to conclude that the defendant's intoxication somehow excused his actions. See Taylor v. State, 885 S.W.2d 154, 158 (Tex.Crim.App. 1994). In this case, even without appellant arguing that his intoxication negated his culpability, it is conceivable that the jury could have concluded that appellant's intoxication somehow affected his understanding of the surrounding circumstances, thus contributing to his mistaken belief that he was operating the vehicle without the owner's consent. See id. (instruction proper even though defendant did not rely upon intoxication as a defense). Therefore, the trial court did not err in its charge to the jury. We overrule issue two.
IMPROPER JURY ARGUMENT
In his third issue, appellant complains that the prosecutor's assertion that the equipment in the back of the van was stolen by appellant was improper jury argument. Statements to this effect were made on three separate occasions. The approved general areas of argument are (1) summation of the evidence, (2) any reasonable deduction from the evidence, (3) an answer to the argument of opposing counsel, and (4) plea for law enforcement. Wesbrook v. State, 29 S.W.3d 103, 115 (Tex.Crim.App. 2000).In his first statement, the prosecutor said, "You have to believe that these guys were driving around at 5:00 in the morning with a bunch of stolen stuff that he didn't know it was stolen." Appellant objected and his objection was overruled. We agree that this argument was improper because there is no evidence in the record to support a deduction that the items in the van were stolen. Thus the trial court erred when it overruled appellant's objection. After finding that argument is improper, this court must conduct a harm analysis. See Wilson v. State, 938 S.W.2d 57, 61 (Tex.Crim.App. 1996). To measure the harm resulting from improper jury argument, we employ rule 44.2(b). Jones v. State, 119 S.W.3d 412, 427 (Tex. App.-Fort Worth 2003, no pet.). That rule provides that any non-constitutional "error, defect, irregularity or variance that does not affect substantial rights must be disregarded." Tex.R.App.P. 44.2(b). A substantial right is affected when an error has a substantial, injurious effect or influence in determining the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997). In determining harm under this standard, the appellate court should consider the following factors: (1) severity of the misconduct; (2) curative measures; and (3) the certainty of the conviction absent the misconduct. Mosley v. State, 983 S.W.2d 249, 259 (Tex.Crim.App. 1998). If we are assured the error did not influence the jury, or only had a slight effect, we must affirm the trial court. See Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App. 1998). First, we consider the severity of the misconduct. We do not consider this comment to be extreme. Second, we consider the court's curative measures. Although the trial court did not cure the State's misconduct because it overruled appellant's objection, it did somewhat minimize the impact of the comment by instructing the jurors at the time the objection was made to decide the case on the evidence they heard from the witness stand Finally, we must evaluate the certainty of appellant's conviction absent the misconduct. Appellant admitted to being a life-long criminal and testified to drug problems, to being on parole for burglary of a habitation, and conviction of several crimes, including theft of a motor vehicle and theft from a person. The suggestion that he also stole the items in the van was minor in comparison to his admission that he committed numerous burglaries and car thefts. As a result, we cannot conclude that the prosecutor's argument had a substantial, injurious effect or influence in determining the jury's verdict. In his second statement, the prosecutor argued the following:
Officer Thurman said they had to take the generator and some of the other things into custody and check serial numbers and all that stuff. No one was charged with the theft of that property, but you have to believe — you have to — is it reasonable? Do you believe this guy? If he had never stolen a car before, maybe. If he wasn't just a thief, maybe. It's still not real believable.Appellant did not object to this statement and any error is waived. Valencia v. State, 946 S.W.2d 81, 82 (Tex.Crim.App. 1997). A few minutes later, the prosecutor made the following argument:
If they want to put on a defense, they've got to sell it to the 12 of you, and that's really what it comes down to. We know he was operating a stolen vehicle, but did he have a reasonable belief? Do you believe that? Do you believe that he really thought he had a right to do that? Or do you know what was going on? Do you know him and his buddy were driving around in stolen vehicles, stealing stuff out of cars that night?Appellant did object to this argument and the trial court sustained his objection. However, appellant did not also ask for an instruction to disregard or for a mistrial, and any error is waived. See Cockrell v. State, 933 S.W.2d 73, 89 (Tex.Crim. App. 1996) (failure to request instruction to disregard or mistrial waives error); see also Cook v. State, 858 S.W.2d 467, 473 (Tex.Crim.App. 1993) ("[w]hen appellant has been given all the relief he requested at trial, there is nothing to complain of on appeal.") We overrule issue three. We affirm the judgment of the trial court.