concurring.
The Court holds that a person commits the offense of unauthorized use of a motor vehicle if he (1) knowingly or intentionally operated another’s motor vehicle (2) without the owner’s effective consent. Under this holding the accused’s knowledge that he was acting without the owner’s consent is not an element of the offense. The Court’s analysis, while giving effect to the state of mind requirement as it relates to conduct, ignores that requirement as it relates to the circumstances surrounding the conduct. V.T.C.A., Penal Code, Sec. 6.03 recognizes that the material elements of offenses vary in that they may involve (1) the nature of the forbidden conduct or (2) the attendant circumstances or (3) the result of conduct. With respect to each of these three types of elements, Section 6.03 attempts to define the kinds of culpability that may arise. The resulting distinctions are necessary to avoid confusing the proof requirements for each type of offense. S. Searcy & J. Patterson, “Practice Commentary,” 1 Vernon’s Texas Codes Annotated: Penal Code 87 (1973).
The offense of unauthorized use of a motor vehicle requires proof of the forbidden conduct and the attendant circumstances of the crime. The State had to show at a minimum that the appellant knowingly operated the motor vehicle of another (the conduct element) without the effective consent of the owner (the attendant circumstances element). Under the approach adopted by Section 6.03 the mental state requirement applies to the attendant circumstances element as well as to the conduct element of the offense. A person acts “knowingly” with respect to circumstances surrounding his conduct when he is aware that the circumstances exist. V.T.C.A., Penal Code, Sec. 6.03(b). In other words, knowledge that the requisite external circumstances exist is an element of the instant offense.
I would hold that Section 6.03 required the State to prove that the appellant was aware that he did not have the owner’s consent to operate the vehicle in order to sustain its burden of proof.* But the Court apparently considers the issue of the appellant’s knowledge as to the element of consent to be an affirmative defense which must have been raised and proved by the appellant. This approach may have been proper under the former Penal Code but it is not consistent with the new concept of culpable mental states adopted by the present Code. The Court is correct in saying that the appellant’s “defense” (that he used the automobile thinking he had the owner’s consent) did not create an additional element of the offense. That element of knowledge was created by the Penal Code’s requirement that the proscribed culpable mental state be applied to each distinct element of the offense-including the requisite attendant circumstances. The approach adopted by the Court today has failed to recognize this requirement, and it can only be described as incongruous to the present Penal Code.
PHILLIPS, W. C. DAVIS and CLINTON, JJ., join this opinion.I would further hold that there was sufficient evidence for the trial court to have found that the appellant acted with knowledge of this requisite circumstance. Therefore 1 concur in the result.