NO. 07-07-0151-CR

	IN THE COURT OF APPEALS

	FOR THE SEVENTH DISTRICT OF TEXAS

	AT AMARILLO

	PANEL C

	AUGUST 5, 2008

	______________________________

	ARMANDO GONZALES, APPELLANT

	V.

	THE STATE OF TEXAS, APPELLEE

	_________________________________

	FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

	NO. 05-11-6126; HONORABLE HAROLD PHELAN, JUDGE

	_______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

			MEMORANDUM OPINION

	Following a plea of not guilty, Appellant, Armando Gonzales, was convicted by a jury of unauthorized use of a motor vehicle.  Punishment was assessed by the trial court at fifteen months confinement.  Presenting a sole point of error, Appellant maintains the trial court erred in denying his requested charge on the defense of mistake of fact.  We reverse and remand.

	Background Facts

	On October 22, 2005, the Hockley County Sheriff’s Office was participating in an auction to sell some patrol cars and seized vehicles.  Although the auction was conducted by Floyd Nesbitt, Sheriff David Kinney put Lieutenant Gordon Bohannon in charge of supervising the sale of the vehicles.  Bohannon informed Nesbitt that the vehicles were to be sold “as is” with no test driving allowed.  The vehicles had the keys in them.  While Bohannon was gone for lunch, Appellant got into a red Dodge Neon and casually drove away from the auction.  The Neon was reported missing and officers were notified to be on the lookout for it.  

	Officer Justin Ty Land testified that he received a call concerning a possible stolen vehicle and approximately ten minutes later located the Neon at a Dollar General Store.  When Land approached Appellant, who was inside the store, Appellant politely turned the keys over to him and explained that he had been given permission to test drive the Neon by a large Hispanic male at the auction.  

	Bohannon arrived at the scene and as Appellant was being placed in the patrol car, he heard him holler and scream that he was merely test driving the vehicle.  Bohannon testified that the Neon was parked in front of the store and in no way hidden.  Appellant was charged with unauthorized use of a vehicle.

	By his sole point of error, Appellant maintains the trial court erred in denying his requested charge on the defense of mistake of fact.  We agree.  During the charge conference, defense counsel objected to the court’s failure to include an instruction of mistake of fact and requested three alternative instructions which the trial court denied.

	Discussion

	A person commits the offense of unauthorized use of a vehicle if he intentionally or knowingly operates another’s . . . motor-propelled vehicle without the effective consent of the owner.  Tex. Penal Code Ann. § 31.07(a) (Vernon 2003).1  The offense of unauthorized use of a vehicle encompasses two distinct conduct elements: (1) proof of the forbidden conduct (i.e. whether the defendant intentionally or knowingly operated a motor vehicle), and (2) proof of the attendant circumstances of the crime (i.e. whether the defendant knew his use was without the effective consent of the owner).  McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App. 1989).  See also Gardner v. State, 780 S.W.2d 259, 262 (Tex.Crim.App. 1989) (Emphasis in original).  

	It is a defense to prosecution of an offense if the actor, through mistake, formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense.  See § 8.02(a).  It is a defense to prosecution of the offense of unauthorized use of a vehicle if the actor, through mistake, formed a reasonable belief that he had the consent of the owner to operate the vehicle.  McQueen, 781 S.W.2d at 603.

	If there is some evidence presented raising the issue of mistake of fact, a defendant is entitled to an instruction on the issue.  See Woodfox v. State, 779 S.W.2d 434, 435-36 (Tex.Crim.App. 1989), citing Lynch v. State, 643 S.W.2d 737, 738 (Tex.Crim.App. 1983) (rejecting the State’s contention that unauthorized use of a motor vehicle was a strict liability criminal offense).  It is not necessary that the defendant offer direct personal testimony  in order to be entitled to an instruction on mistake of fact.  Woodfox, 779 S.W.2d at 435.

	In the case at issue, Kinney and Bohannon both testified that neither had given Appellant permission to drive the Neon.  However, Land and Bohannon both testified that Appellant claimed he had been given permission by a large Hispanic male to test drive the vehicle.  Appellant also presented evidence through a friend, whom he had picked up while driving the Neon, that he had represented to his friend that he was merely test driving the vehicle.

	Nesbitt testified that none of the people helping him with the auction were identified by particular clothing or name tags.  A novice attending an auction might not have known whom to approach with questions nor been aware of procedures and policies.  Additionally, both Land and Bohannon testified that no follow-up investigation was conducted to determine if Appellant’s story was credible.  In fact, in response to questioning from defense counsel, Bohannon testified he “wouldn’t have cared” and didn’t think it was important to investigate whether someone had given Appellant permission to test drive the vehicle because he believed Appellant was lying.  However, when asked to place himself in Appellant’s position, he conceded he would have been angry if no one had followed up on the allegation.  	

	Relying on Bruno v. State, 845 S.W.2d 910 (Tex.Crim.App. 1993), the State maintains that the evidence that Appellant had permission to test drive the vehicle was insufficient to entitle him to an instruction on mistake of fact.  We distinguish Bruno.  In Bruno, the appellant claimed that the true owner of the vehicle gave him permission to use  her vehicle.  Although a defensive instruction on mistake of fact was given, the appellant complained that doing so incorrectly placed the burden of proof on him.  The Court of Criminal Appeals found that the charge as given properly placed the burden on the State, but went on to find that the instruction was not necessary in the first place because a mistake of fact instruction was not proper when the issue was whether or not the true owner did or did not give permission to operate the vehicle.

	We find the underlying facts to be closer to those in Gardner v. State, 780 S.W.2d 259 (Tex.Crim.App. 1989), which involved a third party whom the actor believed had authority to give him consent to operate a vehicle.  Id. at 260.  The Court found that a mistake of fact instruction was proper because the jury could have believed that both: (1) the defendant believed that he had the consent of the third party to use the vehicle and (2) that the true owner of the vehicle had not given him permission.  Id. at 262-63.  In Bruno, the jury could not believe both the testimony of the true owner of the vehicle and the testimony of the appellant as it could in Gardner.  Bruno, 845 S.W.2d at 913.  In Bruno, the mistake of fact instruction was unnecessary because only one of the incompatible stories could have been believed.  Id.

	The State did not present any evidence that Appellant believed that the large Hispanic male was the true owner of the Neon.  As an auction attendee, Appellant could have believed that a third party with authority to give consent to test drive the Neon had done so.  Land, Bohannon, and Appellant’s friend testified that Appellant claimed to have been given permission to drive the Neon by a large Hispanic male.  Thus, under Woodfox, there was at least some evidence entitling Appellant to a defensive instruction on mistake of fact because the jury could have believed that both (1) Appellant believed he had the consent of a third party to drive the Neon and (2) the true owner of the vehicle had not given him permission.  We conclude the trial court erred in denying Appellant’s requested instruction.  Point of error one is sustained.

	Accordingly, the trial court’s judgment is reversed and the cause is remanded to the trial court for further proceedings.

							Patrick A. Pirtle

							      Justice	

Do not publish.e negligence and a premises claim.  According to Puga, the motion addressed only her cause of action sounding in premises liability.  And, because the other went unmentioned, the trial court could not have considered or rejected it via the summary judgment.  We overrule the issue for several reasons.

	First, we entertained the appellate contentions of Puga at oral argument.  During that argument, her counsel stated that he and his client no longer wished to contend that the summary judgment motion failed to address both causes of action.  We construe this as an intentional and knowing waiver of the first point.

	Second, even if the issue were not waived, we remain obligated to overrule the issue for Chavez’ motion did indeed address both causes of action.  As illustrated in the motion itself, he asserted that he was not liable to Puga because Puga was outside the scope of her employment when she encountered the ice and fell.  Logically, that ground could only pertain to Puga’s claim of simple negligence.  With regard to that claim, she posited that Chavez was negligent because he failed to provide her with a safe place to work.2  It does not matter whether one who sues on the theory of premises liability had an employment relationship with the alleged tortfeasor and was outside the scope of that relationship when the injury happened.  Rather, liability is dependent upon the tortfeasor’s ownership or control of the property, knowledge or potential knowledge of a dangerous condition, and failure to act while having the requisite knowledge.  See Meeks v. Rosa, 988 S.W.2d 216, 217 (Tex. 1999) (generally describing the duty of care owed by one who controls property to a business invitee utilizing the property).  On the other hand, the existence of an employment relationship and whether the complainant acted within its scope is pertinent to a claim sounding in negligence due to the failure to provide an employee a safe place to work.  So, we cannot but read Chavez’ ground about Puga being outside the scope of her employment when she fell as attacking her claim of simple negligence.

	Finally, Puga does not assert on appeal that the trial court could not have rejected her negligence claim on the ground that she was outside the scope of her employment when the accident occurred.  Indeed, that contention is addressed nowhere in her appellate brief.  This is fatal given that the trial court did not specify the particular ground upon which he relied in granting the summary judgment.  When attempting to reverse a summary judgment when multiple grounds supporting such relief are alleged in the motion and none are expressly mentioned by the trial court as the catalyst for its judgment, the appellant must attack each ground on appeal.  Star-Telegram, Inc. v. Doe., 915 S.W.2d 471, 473 (Tex. 1995).  That is, it must illustrate why none support the trial court’s judgment.  Id.  Because Puga did not address the ground involving whether she was within the scope of her employment when the injury occurred, she did not carry her burden on appeal.

	Issue Two — Premises Liability and the Purported Existence of Fact Questions

	Next, we consider Puga’s second and last issue.  Through it, she asserts that material issues of fact existed which prevented the court from granting the motion.  We overrule the issue.

	As previously mentioned, it is undisputed that Chavez did not own the property on which Puga fell.  Nevertheless, Puga argues that one who occupies property of another may have a duty to use ordinary care to keep lands adjacent to his property in a reasonably safe condition and that Chavez incurred that obligation viz the property on which she fell.  Admittedly, such a duty may arise.  However, to the extent that it does, the duty exists only in relation to property over which the defendant exercises actual control.  Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911-12 (Tex. 1996); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (1993).  According to the Supreme Court, the “relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.”  County Of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002).  Furthermore, the type of control contemplated is that inherent in the ability to manage, direct, superintend, restrict, regulate, govern, administer, or oversee the lands.  See Thornhill v. Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.--Beaumont 1997, writ dism’d by agr.) (defining the word “control” when used in relation to controlling premises “as ‘the power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee’”).

	Here, Puga believes that sufficient evidence of control existed because Chavez and his employees had an “‘understanding’ that they park on the east side of the building which is not owned by Chavez” and Chavez complained to the lot’s owner that others were parking in that same area.  With regard to the “‘understanding,’” it consisted of Chavez stating, in his deposition, that:

	. . . I don’t think I have ever in any way or another told patients where to park --I mean my employees where to park.  I think it’s kind of an understanding that they normally park on the east side of the building.  [Emphasis added].

Furthermore, Puga testified that though Chavez told her to park “behind the building,” he did not instruct “her of any need to park in a certain spot behind” it.  From evidence indicating that Chavez may have told one or more of his employees where to park, one cannot reasonably infer that Chavez exercised, attempted to exercise, or intended to exercise control of the property on which they parked.  Indeed, it would be irrational to conclude that just because someone tells another to park on a public street that the declarant is purporting to regulate, manage, oversee, govern, or otherwise control the public street in a manner sufficient to obligate him to make that street safe for all who may traverse it.  Similarly irrational is the conclusion that because a mother tells her son to park in front of a particular store at a local shopping center, the mother is controlling the lot to which she alluded.  This is no less true when an employer tells his employees to park somewhere in a neighboring parking lot owned by someone else and apparently available for parking.  In each instance, the party directing the conduct is doing just that, directing conduct, not exercising control over the realty on which they may eventually park.  More is needed to evince control over the property itself.

	In short, Puga is confusing access with control.  That someone may have access to property does not alone evince control of the property.  If this were not true then the logical result of equating access with control would lead to an untenable outcome.  For instance, in most claims involving premises liability, the claimant undoubtedly had access to the premises; if not, then they most likely would not have been injured while on it.  Now, if access evinced control then one could reasonably deduce that the claimant controlled the property which caused the injury.  So, in having access to, and thus control over, the property, it could be said that the claimant is responsible for the breach that caused his own injuries.  Surely that is not a result which a claimant would countenance.

	As to the evidence of Chavez supposedly complaining about some tenant of the landowner parking in the lot, the hearsay testimony alluded to by Puga actually illustrates that an employee of Chavez told the tenant to move his vehicle because it was in Chavez’ parking area.  The tenant then complained to the landowner.  In response, the landowner inspected the area and told the tenant “to just tell them to move their cars, we didn’t want them over there.”  Absent from this excerpt, however, is any evidence illustrating who that employee was, when the event occurred in relation to Puga’s fall, on whose directive, if any, the employee acted, whether it was within the scope of the employee’s duties to do that which he or she did, or whether the area in question was even the area in which Puga fell.  Given this lack of evidence tying Chavez to the incident or the property to the spot at which Puga fell, one cannot reasonably infer that it connotes effort on the part of Chavez to restrict, regulate, manage or otherwise control the property on which Puga fell.

	Finally, to the extent Puga cites Wal-Mart Stores, Inc. v. Alexander as support for her position, we find the case inapposite.  The access from plaintiffs [sic] vehicle to his business.” l.  Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911-12 (Tex. 1996); Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 324 (1993).  According to the Supreme Court, the “relevant inquiry is whether the defendant assumed sufficient control over the part of the premises that presented the alleged danger so that the defendant had the responsibility to remedy it.”  County Of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002).  Furthermore, the type of control contemplated is that inherent in the ability to manage, direct, superintend, restrict, regulate, govern, administer, or oversee the lands.  See Thornhill v. Ronnie’s I-45 Truck Stop, Inc., 944 S.W.2d 780, 788 (Tex. App.--Beaumont 1997, writ dism’d by agr.) (defining the word “control” when used in relation to controlling premises “as ‘the power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee’”).

	Here, Puga believes that sufficient evidence of control existed because Chavez and his employees had an “‘understanding’ that they park on the east side of the building which is not owned by Chavez” and Chavez complained to the lot’s owner that others were parking in that same area.  With regard to the “‘understanding,’” it consisted of Chavez stating, in his deposition, that:

	. . . I don’t think I have ever in any way or another told patients where to park --I mean my employees where to park.  I think it’s kind of an understanding that they normally park on the east side of the building.  [Emphasis added].

Furthermore, Puga testified that though Chavez told her to park “behind the building,” he did not instruct “her of any need to park in a certain spot behind” it.  From evidence indicating that Chavez may have told one or more of his employees where to park, one cannot reasonably infer that Chavez exercised, attempted to exercise, or intended to exercise control of the property on which they parked.  Indeed, it would be irrational to conclude that just because someone tells another to park on a public street that the declarant is purporting to regulate, manage, oversee, govern, or otherwise control the public street in a manner sufficient to obligate him to make that street safe for all who may traverse it.  Similarly irrational is the conclusion that because a mother tells her son to park in front of a particular store at a local shopping center, the mother is controlling the lot to which she alluded.  This is no less true when an employer tells his employees to park somewhere in a neighboring parking lot owned by someone else and apparently available for parking.  In each instance, the party directing the conduct is doing just that, directing conduct, not exercising control over the realty on which they may eventually park.  More is needed to evince control over the property itself.

	In short, Puga is confusing access with control.  That someone may have access to property does not alone evince control of the property.  If this were not true then the logical result of equating access with control would lead to an untenable outcome.  For instance, in most claims involving premises liability, the claimant undoubtedly had access to the premises; if not, then they most likely would not have been injured while on it.  Now, if access evinced control then one could reasonably deduce that the claimant controlled the property which caused the injury.  So, in having access to, and thus control over, the property, it could be said that the claimant is responsible for the breach that caused his own injuries.  Surely that is not a result which a claimant would countenance.

	As to the evidence of Chavez supposedly complaining about some tenant of the landowner parking in the lot, the hearsay testimony alluded to by Puga actually illustrates that an employee of Chavez told the tenant to move his vehicle because it was in Chavez’ parking area.  The tenant then complained to the landowner.  In response, the landowner inspected the area and told the tenant “to just tell them to move their cars, we didn’t want them over there.”  Absent from this excerpt, however, is any evidence illustrating who that employee was, when the event occurred in relation to Puga’s fall, on whose directive, if any, the employee acted, whether it was within the scope of the employee’s duties to do that which he or she did, or whether the area in question was even the area in which Puga fell.  Given this lack of evidence tying Chavez to the incident or the property to the spot at which Puga fell, one cannot reasonably infer that it connotes effort on the part of Chavez to restrict, regulate, manage or otherwise control the property on which Puga fell.

	Finally, to the extent Puga cites Wal-Mart Stores, Inc. v. Alexander as support for her position, we find the case inapposite.  There, Alexander stumbled over a ridge at the base of a concrete ramp leading from the parking lot to Wal-Mart’s store.  Though Wal- Mart had no contractual right to occupy or control the property on which the ramp was located, it nonetheless built the ramp to facilitate access to the store.  Since it built the ramp on its own initiative and at its own expense, Wal-Mart assumed actual control over the ramp and the area on which it lay, according to the Supreme Court.  Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d at 325.  Therefore, it had the duty to cure dangerous conditions caused by it and posed to its customers.  Id. at 324-25.  Here, nothing of record suggests that Chavez built or altered the parking lot in general or the area on which Puga fell.  Nor does the evidence purport to suggest that he did anything that caused or facilitated the dangerous condition (ice) to arise at that particular locale.  So, because the circumstances that triggered Wal-Mart’s liability in Alexander are not present here, Alexander is not dispositive of the outcome here.

	In sum, there exists no evidence of an element necessary to Puga’s claim of  stumbled over a ridge at the base of a concrete ramp leading from the parking lot to Wal-Mart’s store.  Though Wal- Mart had no contractual right to occupy or control the property on which the ramp was located, it nonetheless built the ramp to facilitate access to the store.  Since it built the ramp on its own initiative and at its own expense, Wal-Mart assumed actual control over the ramp and the area on which it lay, according to the Supreme Court.  Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d at 325.  Therefore, it had the duty to cure dangerous conditions caused by it and posed to its customers.  Id. at 324-25.  Here, nothing of record suggests that Chavez built or altered the parking lot in general or the area on which Puga fell.  Nor does the evidence purport to suggest that he did anything that caused or facilitated the dangerous condition (ice) to arise at that particular locale.  So, because the circumstances that triggered Wal-Mart’s liability in Alexander are not present here, Alexander is not dispositive of the outcome here.

	In sum, there exists no evidence of an element necessary to Puga’s claim of premises liability.  That element is actual control over the property on which she fell.  And, because of this, Chavez was entitled to judgment as a matter of law.  Furthermore, this relieves us from having to address her other contentions purportedly illustrating that summary judgment was improper. 

	Having overruled Puga’s issues, we affirm the summary judgment of the trial court.

							Brian Quinn

							   Justice  Justicet’s liability in Alexander are not present here, Alexander is not dispositive of the outcome here.