No. 13-14-683-CR

IN THE THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI AND EDINBURG, TEXAS

CHRISTOPHER SIEBERT, Appellant

vs.

STATE OF TEXAS, Appellee

Appeal from Cause No. 14-CR-0055-C in the 94th Judicial District Court,

Nueces County, Texas, the Hon. Bobby Galvan presiding

APPELLANT’S BRIEF

Respectfully submitted by:

Donald B. Edwards

State Bar No. 06469050

Law Office of Donald B. Edwards

P.O. Box 3302

Corpus Christi, TX 78463-3302

(361) 887-7007

(361) 887-7009 (fax)

Appellant requests oral argument

ACCEPTED

13-14-683-CR

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

5/26/2015 1:53:40 PM

DORIAN RAMIREZ

CLERK

 RECEIVED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 5/26/2015 1:53:40 PM DORIAN E. RAMIREZ Clerk
List of Parties

Appellant

Christopher Siebert

TDCJ# 01960898

Garza West Unit

4250 S HWY. 202

Beeville, TX 78102

Appellant’s Trial Counsel Appellant’s Appellate Counsel

Mr. Gabriel Salais Mr. Donald B. Edwards

410 People’s St. Law Office of Donald B. Edwards

Corpus Christi, TX 78401 P.O. Box 3302

Corpus Christi, TX 78463-3302

Veronica Garza (withdrew)

500 N. Water St., Ste. 601

Corpus Christi, TX 78401

Appellee State of Texas Trial and Appellate Counsel

Ms. Elizabeth Schmidt (trial)

Mr. Matthew Manning (trial)

Mr. Doug Norman (appellate)

Asst. Nueces County District Attorneys

901 Leopard St.

Corpus Christi, TX 78401

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Table of Contents

List of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Issues Presented.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Underlying facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Procedural history. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

I. The evidence is insufficient to support the conviction.. . . . . . . . . . . . . . 16

A. Standard of review. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

B. The charged offense. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

C. The evidence is insufficient to support inference of guilt. . . . . . 21

II. The trial court committed egregriously harmful error by charging the

jury concerning a conduct element that is not an element of the

offense, thus expanding the definition of the offense beyond that set

out in the statute and permitting a finding of guilt based on

inoffensive conduct.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

A. Conduct elements in general.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

B. Such error constitutes egregious error.. . . . . . . . . . . . . . . . . . . . . 23

III. Trial counsel was ineffective for failing to object to the charge and to

prosecutorial misstatement of the law in closing argument.. . . . . . . 24

A. Standards regarding counsel ineffectiveness claims. . . . . . . . . . 24

B. Application. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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Certificate of Compliance and Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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Index of Authorities

Cases

Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App. 1985). . . . . . . . . . . . . . . . . . . 23, 24

Barfield v. State, 63 S.W.3d 446 (Tex. Crim. App. 2001). . . . . . . . . . . . . . . . . . . 17

Bruno v. State, 845 S.W.2d 910 (Tex. Crim. App. 1993).. . . . . . . . . . . . . . . . . . . 20

Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . 17

Cook v. State, 884 S.W.2d 485 (Tex. Crim. App. 1994) .. . . . . . . . . . . . . . . . . . . . . . . 22

Ellison v. State, 86 S.W.3d 226 (Tex. Crim. App. 2002).. . . . . . . . . . . . . . . . . . . . . . . 23

Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . 26

Hart v. State, 89 S.W.3d 61 (Tex. Crim. App. 2002). . . . . . . . . . . . . . . . . . . . . . . 18

Hernandez v. State, 819 S.W.2d 806 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . 18

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). . . . . . . . . . . . . . . . . . . . . 16, 18

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Jefferson v. State, 189 S.W.3d 305 (Tex. Crim. App. 2006) . . . . . . . . . . . . . . . . . 23

King v. State, 895 S.W.2d 701 (Tex. Crim. App. 1995). . . . . . . . . . . . . . . . . . . . . 16

Lane v. State, 763 S.W.2d 785 (Tex. Crim. App. 1989). . . . . . . . . . . . . . . . . . . . . . . . 19

Lopez v. State, 343 S.W.3d 137 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . 24

Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997). . . . . . . . . . . . . . . . . . . . . 17

Martinez v. State, 313 S.W.3d 358 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd).. . . 25

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McGee v. State, 774 S.W.2d 229 (Tex. Crim. App. 1989).. . . . . . . . . . . . . . . . . . . . . . 19

McGinn v. State, 961 S.W.2d 161 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . 26

McMann v. Richardson, 397 U.S. 759, 90 S. Ct. 1441, 1449 (1970). . . . . . . . . . . . . . . 24

McQueen v. State, 781 S.W.2d 600 (Tex.Crim.App. 1989). . . . . . . . . . . . . . . . . . 20

Mosley v. State, 983 S.W.2d 249 (Tex. Crim. App. 1998). . . . . . . . . . . . . . . . . . . 16

Phillips v. State, 130 S.W.3d 343 (Tex. App.-Houston [14th Dist.] 2004), aff'd,

193 S.W.3d 904 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55 (1932). . . . . . . . . . . . . . . . . . . . . . . . . . 25

Powell v. State, 194 S.W.3d 503 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . 18

Randon v. State, 178 S.W.3d 95 (Tex. App.-Houston [1st Dist.] 2005, no pet.). . . . . . . 26

Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . . 25

Robertson v. State, 871 S.W.2d 701 (Tex. Crim. App. 1993). . . . . . . . . . . . . . . . . . . . 19

Saunders v. State, 817 S.W.2d 688 (Tex. Crim. App. 1991). . . . . . . . . . . . . . . . . . . . . 23

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064 (1984). . . . . . . . . . . . . 25

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). . . . . . . . . . . . . . . . . . . . . . 25

Threadgill v. State, 146 S.W.3d 654 (Tex. Crim. App. 2004). . . . . . . . . . . . . . . . 26

Williams v. State, 235 S.W.3d 742 (Tex. Crim. App. 2007).. . . . . . . . . . . . . . . . . 17

Winfrey v. State, 393 S.W.3d 763 (Tex. Crim. App. 2013). . . . . . . . . . . . . . . . . . 18

Wood v. State, 260 S.W.3d 146 (Tex. App.-Houston [1st Dist.] 2008, no pet.). . . . . . . 26

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Statutes

TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon 2003). . . . . . . . . . . . . . . . . . . . . . 22

TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon 2003). . . . . . . . . . . . . . . . . . . . . . . . . 22

TEX. PENAL CODE ANN. §31.07. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

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Statement of the Case

On September 30, 2014, a jury found Christopher Siebert guilty of

unauthorized use of a vehicle. CR 69. Appellant elected for the court to assess

punishment. CR 37. At a separate punishment hearing on October 17, 2014,

Appellant pled “Not true” to allegations of prior convictions in California for felony

burglary and felony possession of a controlled substance. RR Vol. 5, p. 5. On

October 17, 2014, the court found the enhancements to be true and assessed

punishment at 15 years confinement. CR 78. Appellant timely filed a notice of

appeal on October 21, 2014. CR 81.

Issues Presented

Whether the offense of unauthorized use of a vehicle has the mens rea attach

to the circumstance of lack of effective consent, requiring the State to prove the

defendant knew he did not have the owner’s consent to use the vehicle.

Whether the evidence is sufficient to establish beyond a reasonable doubt

whether the defendant had any awareness his use of the vehicle was without the

effective consent of the owner.

Whether the trial court commits error by including “nature of the result”

language in a jury charge for an offense that only has the conduct elements of nature

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of conduct and nature of circumstances.

Whether it is incurably prejudicial for the State to argue to the jury that it only

needed to find whether the defendant knowingly operated the vehicle and whether

such operation was without the owner’s effective consent.

Whether trial counsel was ineffective for failing to object to a charge that

expanded the mens rea of the offense and for failing to object to the prejudicial jury

argument by the State that mis-stated the elements of the offense. 

Statement of Facts

Underlying facts

On January 2, 2014, Mary Saylor’s husband suffered a heart attack and drove

himself to the hospital, using her Ford Ranger. RR Vol. 4, p. 32. He was at that

hospital for about 45 minutes before an ambulance took him to Spohn Shoreline. RR

Vol. 4, p. 24, ll. 17-25. Mary Saylor was given all of her husband’s clothes and

belongings. RR Vol. 4, p. 24, ll. 1-6. She thinks she put his keys in the jacket, which

she left in her Ford Ranger, but she never checked to see if they stayed there. RR

Vol. 4, p. 25, ll. 15-25.

On January 4, 2014, Ms. Saylor went to Spohn Shoreline hospital to visit her

husband in the morning and the evening. RR Vol. 4, p. 14. On the evening visit, she

9
took the jacket out of the Ranger to take to him in the hospital, and she thinks the

keys might have fallen out then without her hearing them. RR Vol. 4, p. 20, ll. 1-15. 

When she returned to the parking garage in the evening, she discovered her Ford

Ranger was gone. RR Vol. 4, p. 15, ll. 1-8. She went back into the hospital to report

the theft of the vehicle. RR Vol. 4, p. 26, ll. 17-24. Hospital security called the

police, but Ms. Saylor went home instead of waiting for the police to arrive. RR Vol.

4, p. 27, ll. 1-6. She never showed police the place where the vehicle had been

parked and would have had to take them there but didn’t. RR Vol. 4, p. 28, ll. 1-14. 

Hospital parking garage security camera video was never produced. RR Vol. 4, p.

22, ll. 9-14. Ms. Saylor could only testify she thought her husband’s keys might have

fallen out of his jacket when she was taking it to her husband. RR Vol. 4, p. 10, ll.

10-15. 

On January 5, 2014, Joel Silva saw a man use something that didn’t look like

a key to enter a parked vehicle in a Corpus Christi HEB parking lot. RR Vol. 4, pp.

34-35. He saw the man take some tools from the vehicle and walk to a red Ford

Ranger and drive away. RR Vol. 4, p. 35, ll. 2-9. He called the police and gave a

description of the vehicle the man was driving, including a license plate number. RR

Vol. 4, p. 36, ll. 2-12.

Officer Douglas May responded to the call and saw a red Ford Ranger with a

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matching license plate leaving the HEB parking lot as he approached. RR Vol. 4, pp.

41-42. He followed the vehicle before pulling it over. RR Vol. 4, p. 42, ll. 10-23. 

He arrested the driver, who was Christopher Siebert. RR Vol. 4, p. 43, ll. 1-5; p. 47,

ll. 22-25. Officer May did not recall any damage to the vehicle door or locks. RR

Vol. 4, p. 55, ll. 5-6. He did recall noting the vehicle had the key in the ignition. RR

Vol. 4, p. 59, ll. 3-17. This was an important fact for him to note for purposes of

letting investigators know the car had not been jacked or hotwired. RR Vol. 4, p. 60,

ll. 1-7. Since a person was found operating the vehicle that had been reported stolen,

police made no effort to determine if anyone else had used the vehicle in the last 18

hours or how it was taken from the Spohn Shoreline parking garage. RR Vol. 4, p.

56, ll. 4-18. The Ford Ranger contained s tools that had been taken from the vehicle

in the HEB parking lot, but it had nothing like a slim jim to force entry into other

vehicles. RR Vol. 4, p. 54, ll. 1-18. 

Mr. Siebert was arrested and transported downtown. The vehicle and its

contents were inventoried, but the inventory was not produced at trial. RR Vol. 4, p.

59-60.

Procedural history

A grand jury indicted Mr. Siebert on March 13, 2014, for unauthorized use of

11
a vehicle. CR 5. On May 29, 2014, the State filed a notice of intent to enhance

punishment with two prior felony convictions from California. CR 9. Original trial

counsel Veronica Garza filed a Motion to Withdraw, and the trial court on July 10,

2014, appointed Gabriel Salais to represent Appellant. CR 18, 22. On September 8,

2014, the State filed a second notice of extraneous offenses that may be offered at

trial. CR 32-33. 

On September 9, 2014, a jury was chosen, and Appellant elected for the court

to assess punishment. CR 37, 41. During jury argument, the State argued:

We have to prove that he intentionally or knowingly operated a motor

vehicle. We don't have to prove that he intentionally or knowingly stole

the motor vehicle.

RR Vol. 4, p. 84, 1l. 14-17. The State then said it had to prove the owner’s lack of

consent. RR Vol. 4, p. 85, ll. 9-13. The State then repeated its assertion that it only

needed to show knowing and intentional operation:

We have to put prove that the Defendant, on this date in Nueces County,

Texas, intentionally or knowingly operated -- not stole, not

took. We only have to prove operation and you saw it with your

own eyes that he was intentionally operating that vehicle,

okay? So I don't want you to be confused by what this case is

not. What this case is not is a referendum on the police

department's forensic policy, right? This case is not a

conversation about whether the detective could have done more,

whether he did less than he should of. It's none of those

things. This case is whether Christopher Siebert had the

effective consent of Mary Saylor and she told you unequivocally

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on that witness stand, what, that she didn't give him effective

consent, okay?

And by logical extension, effective consent is

what? It's consent that's given by a person that's legally

authorized to act for someone. Did you hear in the evidence

that a person legally authorized to act for the owner gave

consent? No, you didn't. So what this case is not is a case

where there's effective consent, because the one person who

couldn't give the consent told you with her own mouth that she

did not give that consent.

RR Vol. 4, pp. 85-86. 

The State continued with several other references to Appellant knowingly

operating the vehicle and to Ms. Saylor not giving consent, but each time omitted to

refer to any evidence that would even tend to show Appellant had any awareness of

the lack of Ms. Saylor’s consent. RR Vol. 4, pp. 87-88.

Defense counsel did not object to the State’s highly misleading argument that

directed the jury to convict without finding Appellant knew there was no effective

consent to use the vehicle. However, Defense counsel did argue there was no

evidence showing he knowingly or intentionally did it without the owner’s effective

consent. RR Vol. 4, p. 92, ll. 13-22. The State responded with another argument that

it only had to show knowing and intentional operation of the vehicle by the

defendant. RR Vol. 4, p. 93, ll. 18-25.

The jury found Appellant guilty. CR 69. The court recessed for a PSI, held a

13
separate punishment hearing, found the enhancements to be true, and sentenced

Appellant to 15 years confinement. CR 78. 

Summary of the Argument

The evidence to support a criminal conviction must be such that a rational trier

of fact can find all elements beyond a reasonable doubt. 

Unauthorized use of a vehicle hastwo conduct elements–nature of the conduct

(operating a vehicle) and nature of the circumstances(lack of effective consent of the

owner). The mensrea (knowingly or intentionally) attachesto both conduct elements.

Knowledge and intent may be inferred from the circumstances, but there must

be some evidence from which a jury can rationally infer knowledge or intent. 

Unexplained possession of stolen property alone is insufficient to support a finding

of knowledge of the theft. There was nothing about the vehicle that demonstrated to

an objective observer that it had been stolen or was being used without the true

owner’s permission. A rational jury could not conclude beyond a reasonable doubt

that Appellant knew he did not have the effective consent of the owner.

A court egregiously errs when it includes mens rea elements in the charge that

are not part of the offense. Adding an instruction on the “nature of the result” to a

charge of a non-result oriented offense was a misdirection on the law that was likely

14
to injure the defendant’s rights by expanding in the jury’s mind the range of factsthat

would permit a verdict of guilty.

The State commits prejudicial jury argument when it mis-states the elements

of the offense to make one element disappear. In this case, the State argued at length

that it only had to show knowing operation of the vehicle without reference to

whether the defendant had knowledge the use was without effective consent.

It is below the standard of professional care to permit a jury to be charged

regarding knowing the nature of the result of conduct in a case that is not a result

oriented offense and to permit the State to argue a definition of the offense that omits

a necessary element of the offense. Defense counsel recognized the key issue in the

case was whether there was evidence from which the jury could infer Appellant had

knowledge or awarenessthat the vehicle was being used without the owner’s consent. 

There can be no reasonable trial strategy to justify allowing the jury to have a charge

that confuses the mens rea elements and allowing the State to argue the jury does not

have to find Appellant was aware the vehicle was being used without the owner’s

consent. The prejudicial effect of the improper charge and jury argument was such

that confidence in the outcome of the trial is undermined. 

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Argument

I. The evidence is insufficient to support the conviction.

A. Standard of review

When deciding whether evidence is sufficient to support a conviction, a

reviewing court must assess all the evidence in the light most favorable to the verdict

to determine whether any rational trier of fact could find the essential elements of the

crime as charged in the indictment beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). This standard of review applies to cases involving both direct and

circumstantial evidence. King v. State, 895 S.W.2d 701, 703 (Tex. Crim. App. 1995). 

Although the court of appeals is to consider all evidence presented at trial, it may not

re-weigh the evidence and substitute its judgment for that of the jury. King v. State,

29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The trier of fact is the exclusive judge

of the credibility of witnesses and of the weight to be given their testimony, and it is

the exclusive province of the trier of fact to reconcile conflicts in the evidence. 

Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). Evidence is

insufficient under this standard in four circumstances: (1) the record contains no

evidence probative of an element of the offense; (2) the record contains a mere

"modicum" of evidence probative of an element of the offense; (3) the evidence

16
conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute

the criminal offense charged. Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S.Ct. at

2786, 2789 & n. 11; Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) 

The legal sufficiency of the evidence is measured by the elements of the

offense as defined by a hypothetically correct jury charge for the case that would set

out the law, be authorized by the indictment, not unnecessarily increase the State's

burden of proof or unnecessarily restrict the State's theories of liability, and

adequately describe the particular offense for which the defendant was tried. Malik

v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This standard applies to both

jury and bench trials. Id. However, the sufficiency of the evidence in a bench trial

is measured by the evidence adduced at both guilt-innocence and punishment phases. 

Barfield v. State, 63 S.W.3d 446, 451 (Tex. Crim. App. 2001). 

In viewing the record, direct and circumstantial evidence are treated equally;

circumstantial evidence is as probative as direct evidence in establishing the guilt of

an actor, and circumstantial evidence alone can be sufficient to establish guilt.

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). In determining the

sufficiency of the evidence, a reviewing court examines "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." Id. (quoting

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Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). Finally, the

"cumulative force" of all the circumstantial evidence can be sufficient for a trier of

fact to find the accused guilty beyond a reasonable doubt, even if every fact does not

"point directly and independently to the guilt of the accused." See Powell v. State,

194 S.W.3d 503, 507 (Tex. Crim. App. 2006). However, the trier of fact’s decision

must be rational and thus cannot be upheld if it relies on evidence of physical

impossibilities or speculation. 

Knowledge may be inferred from the acts, words, and conduct of the accused

and fromthe circumstancesin which the prohibited act occurred. Hernandez v. State,

819 S.W.2d 806, 809-10 (Tex. Crim. App. 1991); Hart v. State, 89 S.W.3d 61, 64

(Tex. Crim. App. 2002).

Circumstantial evidence is as probative as direct evidence in

establishing guilt, and circumstantial evidence alone can be sufficient to

establish guilt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). While juries are permitted to draw multiple reasonable inferences

as long as each inference is supported by the evidence presented at trial,

"juries are not permitted to come to conclusions based on mere

speculation or factually unsupported inferences or presumptions." Id.

at 15. "[A]n inference is a conclusion reached by considering other facts

and deducing a logical consequence from them," while "[s]peculation is

mere theorizing or guessing about the possible meaning of facts and

evidence presented." Id. at 16. "A conclusion reached by speculation

. . . is not sufficiently based on facts or evidence to support a finding

beyond a reasonable doubt." Id.

Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013).

18
Intent may be inferred from the actions or conduct of appellant. Robertson v.

State, 871 S.W.2d 701, 705 (Tex. Crim. App. 1993); McGee v. State, 774 S.W.2d

229, 234 (Tex. Crim. App. 1989). Establishment of culpable mental states is almost

invariably grounded upon inferencesto be drawn by the factfinder from the attendant

circumstances. Lane v. State, 763 S.W.2d 785, 787 (Tex. Crim. App. 1989). The

threshold of proof necessary to support a jury finding of an awareness that such a

result is reasonably certain to occur is concomitantly low. Id. Mental culpability is

of such a nature that it generallymust be inferred fromthe circumstances under which

a prohibited act or omission occurs. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.

Crim. App. 1991).

The factfinder’s ability to rely on inferences is not unlimited. 

Under the Jackson test, we permit juries to draw multiple

reasonable inferences as long as each inference is supported by the

evidence presented at trial. However, juries are not permitted to come

to conclusions based on mere speculation or factually unsupported

inferences or presumptions. To correctly apply the Jackson standard, it

is vital that courts of appeals understand the difference between a

reasonable inference supported by the evidence at trial, speculation, and

a presumption. A presumption is a legal inference that a fact exists if

the facts giving rise to the presumption are proven beyond a reasonable

doubt. . . . In contrast, an inference is a conclusion reached by

considering other facts and deducing a logical consequence from them. 

Speculation is mere theorizing or guessing about the possible meaning

of facts and evidence presented. A conclusion reached by speculation

may not be completely unreasonable, but it is not sufficiently based on

facts or evidence to support a finding beyond a reasonable doubt.

19
As stated above, juries are permitted to draw multiple reasonable

inferences from the evidence (direct or circumstantial), but they are not

permitted to draw conclusions based on speculation . . .

Hooper, 214 S.W.3d at 15-16 (Tex. Crim. App. 2007) (citations and footnotes

omitted).

B. The charged offense

Appellant was charged with unauthorized use of a vehicle. CR 3. 

(a) A person commits an offense if he intentionally or knowingly

operates another's boat, airplane, or motor-propelled vehicle without the

effective consent of the owner.

TEX. PENAL CODE ANN. §31.07. The offense of unauthorized use of a motor vehicle

encompassestwo conduct elements. Bruno v. State, 845 S.W.2d 910, 912 (Tex. Crim.

App. 1993); McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App. 1989). The

offense not only requires "forbidden conduct", but also knowledge of the "attendant

circumstances" of the offense. Bruno, 845 S.W.2d at 912; McQueen, 781 S.W.2d at

604. The "forbidden conduct" is the knowing operation of the vehicle. Bruno, 845

S.W.2d at 912; McQueen, 781 S.W.2d at 604. In order to have knowledge of the

"attendant circumstances", the defendant must be aware that the operation of the

vehicle is without the owner's consent. Bruno, 845 S.W.2d at 912; McQueen, 781

S.W.2d at 604. 

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C. The evidence is insufficient to support inference of guilt

The State showed Ms. Saylor’s vehicle wastaken without her permission from

the parking garage at Spohn Shoreline in the early evening of January 4, 2015. The

State showed Appellant was found operating the vehicle in a different part of town

in the afternoon of January 5, 2015. There was no evidence of a forced entry of the

vehicle–no damage to the door, window, lock, or ignition. There was nothing visible

to let an objective person conclude the vehicle had been taken without the owner’s

permission. The only factor to suggest Appellant might have had an awareness the

use was without consent was the fact he was in possession of the vehicle.

Without anything to suggest to an objective occupier of the vehicle that it had

been taken without the effective consent of the owner, the evidence is insufficient for

a rational jury to find beyond a reasonable doubt that Appellant knew his operation

of the vehicle was without the effective consent of the owner. Accordingly, the

judgment should be reversed and an acquittal ordered.

II. The trial court committed egregriously harmful error by charging the jury

concerning a conduct element that is not an element of the offense, thus

expanding the definition of the offense beyond that set out in the statute and

permitting a finding of guilt based on inoffensive conduct.

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A. Conduct elements in general

The court of criminal appeals hasrecognized thatsection 6.03 of the penal code

delineatesthree "conduct elements" that may be involved in an offense: (1) the nature

of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding

the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); see

TEX. PENAL CODE ANN. § 6.03(a), (b) (Vernon 2003). An offense may contain any

one or more of these "conduct elements" that alone, or in combination form, the

overall behavior that our legislature has intended to criminalize, and it is those

essential "conduct elements" to which a culpable mentalstate must apply. McQueen,

781 S.W.2d at 603.

The court’s charge included language allowing the mens rea to attach to 1) the

result of the conduct, 2) the nature of the conduct, or 3) the circumstances

surrounding the conduct. Therefore, the trial court erred because it did not limit the

statutory definitions of "intentionally" or "knowingly" to the respective culpable

mental state required for a nature of the conduct and nature of the circumstances

offense. See Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994) ("It is error

for a trial judge to not limit the definitions of the culpable mental states as they relate

to the conduct elements involved in the particular offense."). 

The “result” of an offense is the injury to person or loss or damage to property

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that defines assaultive or destructive offenses. See, e.g., Jefferson v. State, 189

S.W.3d 305, 312 (Tex. Crim. App. 2006) (gravamen of assaultive offenses is result

of bodily injury). However, there is no such result conduct element in authorized use

of a vehicle as any damage to the vehicle is irrelevant to whether the vehicle was

knowingly used by a person who knows the owner did not give effective consent.

B. Such error constitutes egregious error.

When, as in this case, an accused fails to object to the charge, "he will obtain

a reversal only if the error is so egregious and created such harm that he `has not had

a fair and impartial trial' — in short `egregious harm.'" Almanza v. State, 686 S.W.2d

157, 171 (Tex.Crim.App. 1985). The error must "`go to the very basis of the case,'"

"deprive the accused of a `valuable right,'" or "`vitally affect his defensive theory.'"

Id. at 172. The degree of harm, sufficiently serious to be called "egregious," is

present whenever a reviewing court finds the case for conviction or punishment was

actually made clearly and significantly more persuasive by the error. Saunders v.

State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991). Egregious harm is a difficult

standard to prove and must be determined on a case-by-case basis. Ellison v. State,

86 S.W.3d 226, 227 (Tex. Crim. App. 2002). The actual degree of harm is assayed

in light of the entire jury charge, the state of the evidence, including the contested

23
issues and weight of probative evidence, the argument of counsel, and any other

relevant information revealed by the record of the trial as a whole. Almanza, 686

S.W.2d at 171.

In this case, the vehicle was shown to have suffered damage to the undercarriage and a hole in the radiator. A jury could reasonably believe an operator of the

vehicle had knowledge of damage caused to the vehicle during that operation and

thus convict Appellant based on a belief that he knew his operation of the vehicle

caused damage to the vehicle. However, causing damage to a vehicle is not a part of

the elements of unauthorized use of a vehicle, so the instruction is a mis-direction of

the law, requiring reversal. See TEX. R. APP. P. 21.3. 

III. Trial counsel was ineffective for failing to object to the charge and to

prosecutorial misstatement of the law in closing argument.

A. Standards regarding counsel ineffectiveness claims

Both the United States Constitution and the Texas Constitution guarantee

individuals the right to assistance of counsel in a criminal prosecution. "The right to

counsel requires more than the presence of a lawyer; it necessarily requires the right

to effective assistance." Lopez v. State, 343 S.W.3d 137, 143 (Tex. Crim. App. 2011)

(citing McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S. Ct. 1441, 1449 (1970);

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Powell v. Alabama, 287 U.S. 45, 57, 53 S. Ct. 55, 77 (1932)). Effective assistance

is not errorless representation but, rather, objectively reasonable representation. Id. 

To prevail on his claim of ineffective assistance of counsel, a defendant must must

show that: (1) counsel's representation fell below an objective standard of

reasonableness, and (2) the deficient performance prejudiced the defense. Id.

(repeating the test set out by the United States Supreme Court in Strickland v.

Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)).

Courts of appeals mustmake a "strong presumption that counsel's performance

fell within the wide range of reasonably professional assistance." Robertson v. State,

187 S.W.3d 475, 482 (Tex. Crim. App. 2006); Martinez v. State, 313 S.W.3d 358,

364 (Tex. App.-Houston [1st Dist.] 2009, pet. ref'd). To overcome that presumption,

a defendant mustshow that the challenged action could not be considered sound trial

strategy under the circumstance. Martinez, 313 S.W.3d at 364 (citing Strickland, 446

U.S. at 689, 104 S. Ct. at 2065). Allegations of ineffectiveness must be firmly

founded in the record, which must demonstrate affirmatively the alleged

ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). If

the record issilent on trial counsel'sreasoning or strategy, a reviewing court presume

that his action was strategic. Id. at 814. The record on direct appeal rarely provides

the reviewing court an opportunity to conduct a fair evaluation of the merits of an

25
ineffective assistance of counsel claim. Randon v. State, 178 S.W.3d 95, 102 (Tex.

App.-Houston [1st Dist.] 2005, no pet.). If the record does not establish that trial

counsel's conduct fell below reasonable professional standards, a reviewing court is

not to speculate to find trial counsel ineffective. See Wood v. State, 260 S.W.3d 146,

148 (Tex. App.-Houston [1st Dist.] 2008, no pet.). In the event the appellate court

finds the issue is not shown on the record, the appellant may pursue the claim by way

of a habeas petition. Ex parte Brown, 205 S.W.3d 538, 546 (Tex. Crim. App. 2006).

Improper closing arguments include references to facts not in evidence or

incorrect statements of law. Phillips v. State, 130 S.W.3d 343, 355 (Tex.

App.-Houston [14th Dist.] 2004), aff'd, 193 S.W.3d 904 (Tex.Crim. App. 2006). For

an improper jury argument to mandate reversal, it must be extreme, violate a

mandatory statute, or inject new facts into the record. Id.

A defendant forfeits his right to complain on appeal about an improper jury

argument if he fails to object to the argument or to pursue his objection to an adverse

ruling. Threadgill v. State, 146 S.W.3d 654, 670 (Tex. Crim. App. 2004). If a trial

court sustains an objection asserting an improper jury argument, to preserve error on

appeal, the complaining party must additionally request an instruction to disregard

an offending argument if such an instruction could cure the prejudice. McGinn v.

State, 961 S.W.2d 161, 165 (Tex. Crim. App. 1998). If the prejudice arising from an

26
erroneousjury argument isincurable, the complaining partymust move for a mistrial. 

Id. 

B. Application

In this case, the State argued at length that it only had to prove:

1) Appellant knowingly used the vehicle, and

2) the use was without effective consent.

The State made several statements that it did not have to show Appellant stole the

vehicle. RR Vol. 4, p. 84, ll. 14-17; pp. 85-86; p. 93, ll. 18-25. Appellant’s trial

counsel failed to object to the argument or ask for a mistrial due to incurably

prejudicial argument. By arguing it only had to show Appellant knew he was

operating the vehicle, the State mis-stated the law concerning the elements of the

offense. It thus led the jury to believe it could convict without first finding Appellant

knew the use of the vehicle was without the effective consent of the owner. However,

the complaint was not preserved for appeal, despite being clearly prejudicial

argument that expanded the method by which the jury could find Appellant guilty.

This was the entire defense of the case–whether Appellant was aware the use

of the vehicle was without consent. To let the State explain the elements to remove

that key element of the case without objection was clearly performance below the

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standard of care and cause prejudice of such a degree that confidence in the outcome

of the trial is undermined. This failure was compounded by the failure in allowing

the court to mis-direct the jury with a charge that included instruction on knowing the

result of the conduct, an element that is not part of the offense of unauthorized use of

a vehicle. As a result, Appellant was convicted by a jury that was given a confusing

charge and an explanation by the State that ended the confusion by eliminating a

necessary element of the offense. 

Appellant was convicted on a charge that impermissibly expanded the mensrea

under which he could be found guilty and after the jury had beaten into its collective

skull that it did not need to find Appellant had knowledge he was using the vehicle

without the owner’s effective consent. Trial counsel was aware the crucial issue in

the case was the lack of direct evidence of any awareness the use of the vehicle was

non-consensual; however, he failed to object to the charge or to the prosecutors’

argument that negated the crucial issue of the mens rea of the circumstances. There

can be no conceivable trial strategy to permit the charge to expand the scope of the

offense or to allow the State to argue that an essential element of the offense was not

an element it needed to prove. 

Appellant was so severely prejudiced by trial counsel’s failure to object to the

charge and the evidence that confidence in the outcome is undermined, and the

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judgment should be reversed and a new trial ordered.

Prayer

Appellant Christoper Siebert respectfully requests this Honorable Court to

reverse the judgment of the court below and order an acquittal. Alternatively,

Appellant respectfully requests this Honorable Court to reverse the judgment of the

trial court and remand for a new trial. 

Respectfully submitted,

 /s/ Donald B. Edwards

Donald B. Edwards

State Bar No. 06469050

Law Office of Donald B. Edwards

P.O. Box 3302

Corpus Christi, TX 78463-3302

(361) 887-7007

(361) 887-7009 (fax)

Attorney for Appellant

Certificate of Compliance and Service

I, Donald B. Edwards, certify that this brief contains 4,789 words in those

matters not exempted under Rule 9. A copy of this brief is being delivered on May

26, 2015, via copy forwarding service of the electronic filing system to Mr. Doug

Norman at his email addresses of douglas.norman@nuecesco.com and

douglas.norman@co.nueces.tx.us.

 /s/ Donald B. Edwards

Donald B. Edwards

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