COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-181-CR
CARLTON R. LACY APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant Carlton R. Lacy appeals his conviction for unauthorized use of a
motor vehicle. See Tex. Penal Code Ann. § 31.07(a) (Vernon 2003). In two points,
he contends that the evidence is legally and factually insufficient to sustain the
conviction. W e affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
Fort W orth Police Department Detective Joel Harter is part of an auto theft
task force that, in conjunction with Arlington police, participates in the Covert
Organized Bait, Recovery and Apprehension (COBRA) program. COBRA aims to
catch car thieves in high crime areas by planting unlocked cars that have keys inside
and are equipped with cameras and microphones. Officers then wait for someone
to steal such a car, at which point the car’s monitoring system activates to record
and track the location of the car and driver until an arrest is made.
In 2008, Detective Harter deployed a 1992 pickup truck that had large chrome
wheels and keys on the front bench seat as a bait car. More than twenty-four hours
later, at night, appellant entered the truck, which automatically triggered its
monitoring system. 2 The system recorded appellant saying he was “going to drive
this ho,” digging around in the glove compartment, seats, and floorboards of the
truck, and driving the truck for several minutes. Detective Harter received notice that
the truck had been activated, began to track the truck using his computer, and
notified dispatch of the activation. Dispatch told patrol units that a bait car had been
activated. Fort W orth Police Department Officer Rene Frias pulled the truck over
and arrested appellant, who was still driving.
2
The truck has a cellular modem that activates when a door is opened and
that communicates with a computer that the police monitor.
2
A Tarrant County grand jury indicted appellant for unauthorized use of a motor
vehicle; the indictment included an enhancement notice based on appellant’s two
previous felony convictions. At trial, appellant pled not guilty. He testified that he did
not know that he did not have consent to drive the truck, that he needed a ride
home, and that “a guy named Dale” told him that the pickup was his and that
appellant could use it to drive home. After the parties presented evidence and
closing arguments, the jury found appellant guilty. Appellant pled true to the
indictment’s enhancement allegations, and the jury assessed his punishment at
eleven years’ confinement. The trial court sentenced appellant accordingly, and he
filed notice of this appeal.
3
Evidentiary Sufficiency
Standards of review
In reviewing the legal sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution in order to
determine whether any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W .3d 772, 778 (Tex. Crim. App.
2007). This standard gives full play to the responsibility of the trier of fact to resolve
conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences
from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Clayton, 235 S.W .3d at 778.
The trier of fact is the sole judge of the weight and credibility of the evidence.
See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. State, 270
S.W .3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 (2009).
Thus, when performing a legal sufficiency review, we may not re-evaluate the weight
and credibility of the evidence and substitute our judgment for that of the factfinder.
Dewberry v. State, 4 S.W .3d 735, 740 (Tex. Crim. App. 1999), cert. denied, 529 U.S.
1131 (2000). Instead, we “determine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence when
viewed in the light most favorable to the verdict.” Hooper v. State, 214 S.W .3d 9,
16–17 (Tex. Crim. App. 2007). W e must presume that the factfinder resolved any
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conflicting inferences in favor of the prosecution and defer to that resolution.
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 235 S.W .3d at 778.
The standard of review is the same for direct and circumstantial evidence
cases; circumstantial evidence is as probative as direct evidence in establishing the
guilt of an actor. Clayton, 235 S.W .3d at 778; Hooper, 214 S.W .3d at 13.
In determining the legal sufficiency of the evidence to show an appellant’s intent, and
faced with a record that supports conflicting inferences, we “must presume—even
if it does not affirmatively appear in the record—that the trier of fact resolved any
such conflict in favor of the prosecution, and must defer to that resolution.” Matson
v. State, 819 S.W .2d 839, 846 (Tex. Crim. App. 1991).
W hen reviewing the factual sufficiency of the evidence to support a conviction,
we view all the evidence in a neutral light, favoring neither party. Steadman v. State,
280 S.W .3d 242, 246 (Tex. Crim. App. 2009); Watson v. State, 204 S.W .3d 404, 414
(Tex. Crim. App. 2006). W e then ask whether the evidence supporting the
conviction, although legally sufficient, is nevertheless so weak that the factfinder’s
determination is clearly wrong and manifestly unjust or whether conflicting evidence
so greatly outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. Steadman, 280 S.W .3d at 246; Watson, 204
S.W .3d at 414–15, 417. To reverse under the second ground, we must determine,
with some objective basis in the record, that the great weight and preponderance of
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all the evidence, although legally sufficient, contradicts the verdict. Watson, 204
S.W .3d at 417.
Unless we conclude that it is necessary to correct manifest injustice, we must
give due deference to the factfinder’s determinations, “particularly those
determinations concerning the weight and credibility of the evidence.” Johnson v.
State, 23 S.W .3d 1, 9 (Tex. Crim. App. 2000); see Steadman, 280 S.W .3d at 246.
Evidence is always factually sufficient when it preponderates in favor of the
conviction. Steadman, 280 S.W .3d at 247; see Watson, 204 S.W .3d at 417. A
factual sufficiency review of circumstantial evidence is the same as a review of direct
evidence. King v. State, 29 S.W .3d 556, 565 (Tex. Crim. App. 2000); Kutzner v.
State, 994 S.W .2d 180, 184 (Tex. Crim. App. 1999) (reasoning that “[c]ircumstantial
evidence, by itself, may be enough to support the jury’s verdict”).
Applicable law and analysis
To prove unauthorized use of a motor vehicle, the State was required to show
that appellant intentionally or knowingly operated the pickup without the effective
consent of its owner. See Tex. Penal Code Ann. § 31.07(a); Denton v. State, 880
S.W .2d 255, 257 (Tex. App.—Fort W orth 1994), aff’d, 911 S.W .2d 388 (Tex. Crim.
App. 1995). Thus, the State had to establish three elements: (1) appellant operated
the truck, (2) he knew he was operating the truck, and (3) he did so without the
permission of the owner. McQueen v. State, 781 S.W .2d 600, 602 (Tex. Crim. App.
6
1989). Furthermore, the State also had to show that appellant was aware that he
did not have the owner’s effective consent at the time of operation. Id.
In his two related points, appellant contends only that the evidence is legally
and factually insufficient to prove that he knew that he did not have the owner’s
permission to drive the truck. 3 He argues that because the only direct evidence as
to whether he knew he had consent to drive the truck is his own testimony that he
did have consent, the State failed to uphold its burden. W e disagree.
Direct evidence is not the only evidence the jury may use to make its
determination; circumstantial evidence may also be used to determine that the
defendant was aware that he did not have consent from the owner. See Walker v.
State, 846 S.W .2d 379, 382–83 (Tex. App.—Houston [14th Dist.] 1992, pet. ref’d);
Coleman v. State, 802 S.W .2d 394, 395 (Tex. App.—Dallas 1990, no pet.);
Daugherty v. State, 652 S.W .2d 569, 577 (Tex. App.—Fort W orth 1983, pet. ref’d)
(“[P]roof of lack of consent . . . may be made by circumstantial evidence the same
as any other issue in a criminal case may be proved by circumstantial evidence.”).
In this case, appellant’s entering the truck late at night, his comment about
“driv[ing] this ho,” and his searching the truck’s glove compartment, area behind the
passenger seat, and front passenger floorboard comprised circumstantial evidence
3
Appellant does not contest the State’s assertion that Detective Harter was
the “owner” of the truck at the time appellant drove it because Detective Harter had
a “greater right to possession” of the truck than appellant. See Tex. Penal Code
Ann. § 1.07(a)(35)(A) (Vernon Supp. 2009).
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that could lead a rational jury to believe that appellant was aware he did not have
consent from the owner to drive the pickup.
Additionally, the jury is free to accept or reject the testimony of any witness.
Hernandez v. State, 161 S.W .3d 491, 500 (Tex. Crim. App. 2005); Franklin v. State,
193 S.W .3d 616, 620 (Tex. App.—Fort W orth 2006, no pet.). The jury in this case
was therefore not required to believe appellant’s testimony that he had consent to
drive the truck and in fact had reason to disbelieve him and find that he did not have
consent because of his vague responses about his relationship with Dale. The
following exchange occurred during the State’s cross-examination of appellant:
Q. W here is Dale?
A. I don’t know at this time.
....
Q. W hat’s his last name?
A. I don’t know.
Q. W here does he live?
A. I don’t know that either.
Q. How long have you known him?
A. Like just don’t really know him, I just know of him.
....
Q. So you don’t know his last name, where he lives, or -- do you
know where he works?
8
A. No.
....
Q. W ho did you meet him through?
A. I just met him. Not through anybody, I just met him.
....
Q. How long ago?
A. I can’t really just say how long. I just knew him because I just
seen him. I can’t just say that.
Because of appellant’s apparent lack of knowledge about Dale, who he claimed
gave him consent to drive the truck, a rational juror could choose to entirely
disregard his testimony and determine that he did not have consent to drive it. 4 See
Johnson, 23 S.W .3d at 7 (reiterating that the fact finder is the sole judge of a
witness’s credibility).
Finally, the jury also had reason to find that appellant’s testimony was not
credible because it heard evidence of appellant’s prior convictions when he testified.
See Tex. R. Evid. 609(a); Jackson v. State, 50 S.W .3d 579, 591 (Tex. App.–Fort
W orth 2001, pet. ref’d). The State presented evidence that appellant was previously
convicted of unauthorized use of a motor vehicle, burglary of a habitation, burglary
of a vehicle, delivery and possession of a controlled substance, and assault causing
bodily injury to a family member.
4
No one named Dale or anyone else other than appellant testified that
appellant had been given consent to drive the truck.
9
For all of these reasons, we hold that the evidence detailed above, when
viewed in the light most favorable to the prosecution, could enable a rational trier of
fact to find beyond a reasonable doubt that appellant committed the essential
elements of the crime. The evidence is legally sufficient. Further, when the same
evidence, including appellant’s testimony that he had consent to drive the truck
(which was the sole evidence tending to contradict the jury’s verdict), is viewed in a
neutral light, it is not so weak as to cause appellant’s conviction to be clearly wrong
or manifestly unjust. The evidence is factually sufficient. W e overrule both of
appellant’s points.
Conclusion
Having overruled appellant’s points, we affirm the trial court’s judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 17, 2010
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