dissenting.
I respectfully dissent. Because I believe that the evidence is sufficient to support that conviction, I would affirm.
This is an appeal from a conviction for unauthorized use of a motor vehicle. Appellant was found guilty after a trial to the court. As set out by the majority, in determining the sufficiency of the evidence, we view the evidence in the light most favorable to the prosecution and determine whether any trier-of-fact could have found the essential elements of the crime beyond a reasonable doubt. Girard v. State, 631 S.W.2d 162, 163 (Tex.Crim.App.1982). Viewed in this light, the evidence shows that appellant was apprehended driving a car belonging to Gina Shands. The evidence further showed that Ms. Shands had not given appellant permission to operate the car.
To convict appellant under section 31.07 of the Texas Penal Code, the State was obliged to prove that (1) appellant intentionally or knowingly operated a motor-propelled vehicle, (2) without the effective consent of the owner of the vehicle. Musgrave v. State, 608 S.W.2d 184, 189 (Tex. Crim.App.1980) (on rehearing). The evidence unquestionably establishes that the State met this burden.
The majority would add an additional element to the State’s burden and require the State to prove that appellant intended to use, or knew that he was using, a Camaro owned by someone other than David and that he did not have that person’s consent. In Musgrave, the Court expressly rejected this proposition and held that evidence of a defensive nature that the appellant used the vehicle thinking he had the consent of the owner does not create an additional element to the offense. Musgrave, 608 S.W.2d at 191.
I agree with the majority, however, that unauthorized use of a motor vehicle is not a strict liability offense. In Lynch v. State, 643 S.W.2d 737, 738 (Tex.Crim.App.1983), the court recognized that an appellant is entitled to present a mistake of fact defense in an unauthorized use prosecution. Id. Under section 8.02 of the Texas Penal Code, it is a defense to prosecution that the actor, through mistake, formed a reasonable belief of a matter of fact, provided his mistaken belief negates the kind of culpability required for commission of the offense. From the court’s holding in Lynch, it is clear that a mistake of fact defense is raised in an unauthorized use of a motor vehicle prosecution by an assertion by the defendant that he was operating the vehicle while under the mistaken belief that the person giving him permission to operate the vehicle was authorized to give that permission. See Lynch, 643 S.W.2d at 738.
Although appellant’s testimony that he borrowed the vehicle from his friend David, whom he believed to be the owner, raises the defensive issue of mistake of fact cognizable under Lynch, we must assume that the trial judge, sitting as trier of fact without a jury, considered this defense and rejected it. McQueen v. State, 714 S.W.2d 142, 143 (Tex.App. — Fort Worth 1986, no pet.); see also Guerrero v. State, 666 S.W.2d 350, 352-53 (Tex.App. — Corpus Christi 1984, no pet.); Simonsen v. State, 662 S.W.2d 607, 612 (Tex.App. — Houston [14th Dist.] 1983, no pet.); Thomas v. State, 646 S.W.2d 565, 566-67 (Tex.App Houston [1st Dist.] 1982, no pet.); Johnson v. State, 635 S.W.2d 564, 566 (Tex.App.— Houston [14th Dist.] 1982, no pet.). This assumption would remain valid even if appellant’s evidence on the mistake of fact defense had been unchallenged. McQueen, *184714 S.W.2d at 143; Bohn v. State, 651 S.W.2d 274, 275 (Tex.App. — Dallas 1983, no pet.).
Finally, even if I were to accept the majority’s conclusion that the State had the burden of proving that appellant knew that he was operating the vehicle without the owner’s consent, this showing may be established by circumstantial evidence. Ehr-man v. State, 580 S.W.2d 581, 583 (Tex. Crim.App.1979). Viewed in the light most favorable to the verdict: (1) appellant was arrested driving a stolen vehicle; (2) the license plates to the stolen vehicle were discovered inside of appellant’s truck; (3) when apprehended, appellant was travel-ling in the direction opposite to that which he should have been going to reach the location where he told the arresting officer he was bound; (4) although appellant stated that he had borrowed the vehicle because his own was experiencing mechanical difficulties, the arresting officer did not notice the complained of mechanical problems when he drove the appellant’s truck. Based upon this evidence, I would conclude that there is sufficient evidence from which a rational trier of fact could conclude that appellant knew that he was operating the vehicle without the owner’s consent.
Accordingly, I would affirm the judgment of the trial court.