IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL C
JULY 1, 2003
______________________________KERRY LEN BRADFORD,
Appellant
v.
THE STATE OF TEXAS,
Appellee _________________________________
FROM THE 242ND DISTRICT COURT OF HALE COUNTY;
NO. B14371-0203; HON. ED SELF, PRESIDING _______________________________
Before JOHNSON, C.J., and QUINN and REAVIS, JJ.
Kerry Len Bradford, appellant, appeals his conviction for the unauthorized use of a motor vehicle. Through two points of error, he contends that the evidence was both legally and factually insufficient to support the verdict of guilty and that the trial court erred in admitting into evidence the testimony of a particular witness. We affirm the judgment.
BackgroundAppellant drove a semi-truck tractor for Jeff Harrell (Harrell). In addition to allowing appellant to drive the semi-truck tractor, Harrell also allowed him to use a white Chevy pickup truck belonging to Harrell's father. The latter approved of the arrangement. However, Harrell informed appellant that the truck was to be his (appellant's) responsibility and was to be used to conduct personal errands (such as for traveling to the store to buy groceries for himself) while he was not driving the semi-truck tractor. So too did Harrell expressly forbid appellant from loaning the vehicle to others.
After returning from a work assignment one day, appellant drove the pickup to town. He was to return the next day in time for another haul; that is, he was scheduled to drive a shipment to Kansas. He did not return, however. Nor did he cause the pickup to be returned or return the phone calls placed to him on the cellular phone loaned to him by Harrell. Instead, appellant stated that he loaned the vehicle to a companion, despite Harrell's admonition against that. Additionally, this companion purportedly failed to return with it. Appellant also informed the police (after his arrest) that a "couple of days later," he found the vehicle in a vandalized state. Items also were missing from it. Those items included an air compressor (which had been affixed to the pickup), tools, a two-way radio and a cellular phone.
Given that the items were missing, the State offered the testimony of an individual named Neal illustrating how they were disposed of and who disposed of them. Neal testified that appellant and two other individuals appeared before him in a white pickup truck and offered to sell items from it which included tools and an air compressor. Neal allegedly inquired into the ownership of the items, and appellant replied that his employer (who supposedly lived in Oklahoma) authorized their sale.
The local police force eventually found the pickup after being contacted by a wrecker. The latter found it abandoned. It had "pretty well been stripped . . . ." Approximately one month later, the State indicted appellant, charging him with the unauthorized use of a motor vehicle.
Issue One - Sufficiency of the EvidenceAppellant initially contends that the evidence was both legally and factually insufficient to support his conviction. This is purportedly so because he had the consent of the owner to use it during the periods involved. We overrule the issue.
The applicable standards of review are well-settled and need not be reiterated. It is sufficient to cite the parties to Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), and Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), for their explanation.
Next, to convict one of the unauthorized use of a motor vehicle, the State must prove, beyond reasonable doubt, that the accused "intentionally or knowingly operate[d] another's . . . motor-propelled vehicle without the effective consent of the owner." Tex. Penal Code Ann. §31.07(a) (Vernon 2003). One operates a vehicle, for purposes of the statute, when he "[takes] action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." (1) Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App. 1995).
As to consent, it is clear that consent to operate a vehicle for specific purposes does not encompass the authorization to do so for all purposes. See Dodson v. State, 800 S.W.2d 592, 593-94 (Tex. App.-Houston [14th Dist.] 1991, pet. ref'd) (holding that the evidence was sufficient to sustain conviction since the appellant had permission to drive and leave the car in a specific parking lot so the owner could retrieve it, but not to "drive around in the car until [appellant] was ready to return it"). In short, operating the vehicle outside the parameters demarcated by the owner may result in use without the owner's effective consent. See id.
Here, evidence appears of record illustrating that though Harrell allowed appellant to use the vehicle for personal errands, the grant of authority was restricted. He was told not to allow others to drive it. Despite this, appellant gave the vehicle to a companion for use. That exceeded the scope of authority granted by Harrell. Furthermore, that he allowed the companion to use the vehicle also demonstrates that appellant took action to affect the functioning of the vehicle in a manner that would enable the vehicle's use. That is, his voluntary action of delivering the vehicle to the companion for use enabled the subsequent use of the vehicle; thus, he could be considered as operating it when it was delivered.
Also, and as acknowledged by appellant in his brief, evidence of record illustrates that appellant was granted authority to use the pickup until it came time to haul another load for the Harrells. Furthermore, appellant took the pickup for the last time on January 21st and was scheduled to haul a delivery to Kansas the next day, i.e. the 22nd. Thus, a rational factfinder could reasonably deduce that his permission to use the vehicle expired on the 22nd. Yet, appellant did not return with the vehicle on that day. Nor did he return to work. Instead, and rather than abide by the limits placed on its use, he and his companions used the pickup to contact Neal with an offer to sell stolen property, i.e. the vehicle's contents. Selling the contents as well as using the vehicle to transport those contents is evidence manifesting appellant's intent to exceed or ignore the bounds of authority granted him by Harrell. That is, it along with the evidence that he allowed third parties to use the pickup and then failed to return the vehicle at the allotted time is evidence upon which one could reasonably infer that appellant no longer felt bound by and exceeded the scope of the consent granted him by Harrell. No longer was he using the vehicle for the legitimate purposes approved by Harrell but instead was using it to pursue an illegitimate end.
Again, the consent granted by the owner delineates the operator's sphere of authority. And, if one is to heed common sense, then one must conclude that when X allows Y (and only Y) to use a car only for personal errands such as buying groceries, the authority granted Y does not encompass permission to allow Z to drive the car for personal errands or to allow Y to sell its contents and then opt not to return what is left of the stripped vehicle. Nor does it encompass the authority to use the vehicle as a means of conducting illegal activity, that being the transport of items converted from Harrell and sold to others.
In short, evidence appears of record upon which a factfinder could conclude, beyond reasonable doubt, that appellant operated the vehicle without the effective consent of the owner. Furthermore, such a determination would not be so contrary to the great weight of the evidence as to be clearly wrong or supported by evidence so weak as to render the finding clearly wrong or manifestly unjust.
Issue Two - Admission of Evidence
Next, appellant complains of the admission of Neal's testimony. The trial court allegedly erred in admitting it because 1) the State used Neal to impeach testimony that it offered (namely appellant's written statement alleging that the companion took the vehicle) and 2) its probative value was substantially outweighed by its danger of unfair prejudice. (2) We overrule the point.
As to the matter of impeaching one's own testimony, that basis for objection went unmentioned below. There, appellant simply contended that the evidence was irrelevant and that its probative value failed to outweigh its prejudicial effect. Given that this ground of objection went unmentioned below, it was waived. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App. 2002) (holding that the objection raised on appeal must comport with that asserted below to be preserved).
As to the remaining ground for objection, appellant's argument is founded upon the belief that the testimony had no value since it was irrelevant. We disagree. At the very least, it served to illustrate appellant's intent to exceed and that he actually exceeded the authority extended by Harrell. As previously discussed, the transaction with Neal evinced not only that appellant was selling the contents of the pickup (which contents he converted) but also using the pickup to transport those contents to prospective buyers. Neither fell within the purpose for which Harrell allowed him to operate the vehicle. So, the evidence was quite relevant to the elements of operating the pickup without the effective consent of the owner.
The evidence also served to rebut the defense appellant built into his confession, the defense being that someone else took and stripped the vehicle. And, while it depicted extraneous misconduct, we cannot say that the trial court abused its discretion in concluding that its probative value was not substantially outweighed by its danger of undue prejudice. See Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991) (holding that the decision whether to admit or exclude evidence under Rule of Evidence 403 falls within the trial court's discretion).
Accordingly, the judgment is affirmed.
Brian Quinn
Justice
Do not publish.
1. We acknowledge that the definition is quite broad. Yet, it is the one adopted by the Court of
Criminal Appeals, and we must follow it. See Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d
580, 585 (Tex. 2002) (requiring an intermediate court of appeal to apply the law as declared by the highest
courts in the Texas judiciary).
2.
l if it is without the effective consent of the owner. § 31.03(b)(1). Consent is not effective if it is induced by deception or coercion. § 31.01(3)(A). Deception means creating or confirming by words or conduct a false impression of law or fact that is likely to affect the judgment of another in the transaction, and that the actor does not believe to be true; or, promising performance that is likely to affect the judgment of another in the transaction and that the actor does not intend to perform or otherwise knows will not be performed. § 31.01(1)(A) and (E). However, mere failure to perform the promise in issue, without other evidence of intent or knowledge, is not sufficient proof that the actor did not intend to perform or knew the promise would not be performed. § 31.01(1)(E).
Whether a theft has occurred is determined at the time of the taking of the property. See Downs v. State, 81 Tex. Crim. 160, 194 S.W.138 (1917) (“[i]f the original taking was lawful, no false pretext being used, a conviction based upon a subsequent appropriation will not be sustained under an ordinary indictment for theft.”). See also Sparks v. State, 131 Tex. Crim. 37, 95 S.W.2d 704, 706 (1935) (“it must be shown that the accused, when he took possession of the [property], intended to deprive the owner of the value of the same, the proof of which rested upon the State, and it was incumbent upon the State to establish it beyond a reasonable doubt”). In other words, the intent to deprive must exist at the time the property is obtained, Draper v. State, 539 S.W.2d 61, 69 (Tex.Crim.App. 1976), and it must be determined from the words, acts, and conduct of the accused. Banks v. State, 471 S.W.2d 811, 812 (Tex.Crim.App. 1971).
There is no doubt that the State proved Appellant acquired or otherwise exercised control over the automobile in question or that the value of the property was at least $1,500 because Appellant took possession of the automobile and made a down payment of $2,200. Likewise, there is no doubt that Appellant acquired the property with the consent of the owner because the acquisition of the property came about in the context of a sale of that property. The disputed issues were whether that consent was induced by deception (and therefore not effective) and whether Appellant had the intent to deprive the owner of the property at the time of the taking.
Consent of Owner Induced by Deception
The State relies on Rowland v. State, 744 S.W.2d 610, 612 (Tex.Crim.App. 1988), in support of its argument that Appellant “gained permission to have the vehicle by deception, the bad check.” In Rowland, the defendant, a former employee of the complainant, asked to borrow the complainant’s truck to do temporary painting work. The complainant agreed on the condition that the truck be returned within three days. The defendant never returned the truck and the complainant discovered that the defendant had falsely represented the reason for borrowing it. The complainant had contacted the individuals whom the defendant had represented he would be doing painting work for and learned that no working arrangements ever existed. Id. at 611. The truck was later retrieved in poor condition and the defendant was convicted of theft.
We disagree with the State that Rowland is similar to the underlying case. In Rowland, the defendant gained the consent of the owner through false representations, i.e., by deception. In this case, Appellant gained the consent of the owner through a promise to pay. The fact that the check tendered for the down payment went unpaid, without other evidence of intent or knowledge, is insufficient to prove Appellant did not intend to perform or knew the promise would not be performed. The State never presented any evidence as to why the check went unpaid and did not present any evidence of deception on Appellant’s part. Furthermore, the State offered no evidence that at the time of the taking, Appellant knew he was issuing a check on a closed account.
The evidence established that Kernell and Appellant entered into a financial arrangement wherein Appellant agreed to make a down payment for one-third of the sale price and Kernell agreed to finance the balance. That the check was returned unpaid without evidence of why the check was not honored did not establish that Kernell’s consent was procured through deception. Based on the evidence presented to the jury, when viewed in a light most favorable to the prosecution, we conclude that a rational trier of fact could not have found beyond a reasonable doubt that Appellant induced Kernell’s consent by deception.
Intent to Deprive
In Rowland, the appellant challenged his conviction by arguing the evidence was insufficient to prove he intended to deprive the owner of his property. 744 S.W.2d at 612. In affirming his conviction, the Court found the following evidence demonstrated an intent to deprive:
∙ the defendant did not return the truck;
∙ the defendant never contacted the owner; and
∙ the manner in which the defendant obtained the truck was through deception.
Id. at 613. The Court determined that the jury could have inferred that when the defendant obtained the owner’s truck, he unlawfully appropriated it, which could have been construed as circumstantial evidence of an intent to deprive. Id.
In this case, no evidence was presented that Appellant knew that the account had been closed or that he gave false information on his credit application. Because Appellant was never contacted by Kernell to inform him that his check had been returned, we are left to speculate as to whether or not he would have contacted Kernell or returned the vehicle once he knew. Although Kernell testified he made numerous phone calls to a phone number provided on Appellant’s credit application, he conceded that all calls were placed during normal working hours when Appellant may not have been home. Kernell further testified that he never contacted Appellant by mail. In sum, the State did not present any evidence to show that at the time Appellant and Kernell entered into an agreement for the sale of the automobile, Appellant, by his words, acts, and conduct intended to deprive Kernell of his property. Accordingly, the State did not establish beyond a reasonable doubt that when Appellant drove the automobile off Kernell’s lot, a theft was committed. Appellant’s issue is sustained.
Conclusion
Having concluded that the evidence is legally insufficient to support the conviction, we need not address the factual sufficiency of the evidence. Accordingly, the trial court’s judgment is reversed and a judgment of acquittal is hereby rendered.
Patrick A. Pirtle
Justice
Do not publish.