### TEXA S C OU R T OF A PPEAL S, THIR D DIST R ICT , AT AU STIN

NO. 03-05-00015- CR

Er ne stSm it h, J r ., App e lla nt

v. The State of Texas, App ellee

F ROM THE DISTRICT CO URT OF TRAVIS COUNTY , 331ST JUDICI AL DISTRICT

NO. 20410 83, H ONO RAB LE BO B PERK INS, JUDGE P RESIDING

M E M O R

A N D U M O P I N I O N Ap pe lla nt E rn e st Sm ith , Jr. , c ha lle ng e s th e su ff ic ie nc y of the e vid e nc e to s up po rt

his conviction for una

uthorized use of a ve hicle. See Tex. P en. Code Ann. § 3 1
. 0 7 (W est 2003). He
wa s c on vic te d f

oll ow inga

be nc h tr ia l, s e nte nc e d to tw o y e ars in s tate ja il, and pla c e d o n c omm

un ity supervision. We will affirm the judg ment of convic tion.

Appellant conte nds that the evidenc e is leg ally insufficient to prove that he did not have the eff

ective c onsent of the owne r t o operate t he vehicle. The que stion presented is whe ther, viewing all the evidenc e in the lig ht most favor able to the verdic t, a rational trier

of fa ct could have found this e lement of the offe nse bey ond a re asonable doubt. J ac k so n v . V irg ini a , 443 U.S. 307, 324 (1 97 9) ; Gr iff

in v . S tate , 614 S.W .2d 155, 158-59 (Te x . Crim. App. 1981).2 On the morningof Marc h 6, 2004, Craig J ohnson’s blue Suburban wa s stolen from his driveway . The followingday , witnesses saw app el l an t d ri ving the Suburban. All four of the vehicle’ s tires wer e fla

t, and the g rill and outside mirrors we re missing
. As these witnesse s watche d,
a pp e lla nt p ark e d th e Sub ur

ba n in the str e e t and

wa lke d a wa y wi th hi s pa sse ng e r, Phy

lli s H arr is, leavingthe t ruck running. A ppellant and Ha

rris we re a rre sted shortly

there afte r. Ac cordingto police testimony , the Suburban bore marks indicatingforc ed entr y , the steer ing c olumn was broken, a nd it had been “ hot wired” to start.

One of the investig ating office rs re membere d seeingthe Suburban e arlier that day parke d in J oe Patina’s ba ck y ard, which was a fe w blocks fr om where the vehicle was a bandoned. The off icer did not notice the condition of the truck at that time. Both appe llant and Har ris testified that Patina had paid them $40 to remove the Suburban f rom his y ard. A

ppellant said that Patina had started the tr

uck, and he did not notice that it did not have a key until he tried to turn it off. I t is a ppellant’s contention that Patina was an owner of the Suburban as a matter of law, and the re fo re he op e rate d th e ve hic le wi th the owne r’ s e ff e c tiv e c on se nt. He ba se s th is contention on the penal code definition of “owner,” which includes the person who “ha s titl e to the proper ty , possession of the property, whether lawful or not , or a g reater rig ht to po s s es s i o n o f the pr op e rt y tha n th e a c tor .” Te x. Pen. Cod e Ann. § 1 .0 7( a )( 35 )( A) (We st Su pp . 2 00 5) (e mph a sis added) . He a lso relies on the c ourt of cr iminal appeals’ obse rvatio n t h at a v eh i cle c an have more than one “ owner .” Mc Qu e e n v . S tate , 7 8 1 S
. W
. 2 d

6 0 0 , 6 0 2 n . 1 ( T e x . C r i m . A p p . 1 9 8 9 )
. In McQ ueen , th e cou rt wr ote that in a pr os e c uti on

fo r u na uth or ize d u se , th e State mus t pr ov e a t a minimum that the def

endant kne w he lacke d the consent of the owne r name d in the indictment, butI n McQ ueen , th e de fe nd ant c la ime d that he mist a ke nly be lie ve d that the pe rs on wh o g a ve him 1 permission to ope rate the vehicle was the owner
. Mc Qu e e n v . S tate , 7 8 1 S. W. 2 d

6 0 0 , 6 0 4
- 0 5 ( T e x. Crim. App. 1989). I n the instant cause , appellant is not asser ting a mistake of fact. He c ontends that Patina was an owne r. Under appellant’ s rea ding of the code , he could just as we ll assert that he w as himself “ow ner” 2 of the Suburban be cause it was in his possession while he drove it. 3 if the evide nce raises an issue as to whether the def endant r ece ived ef

fec tive consent fr om another
owner , a reasonable doubt on the i ssue re quires an a cquittal. Id . at 604 n.5. Appellant ar g ues that 1 the evidenc e does not support his conviction for unauthorized use of the Suburban be cause he had Patina’s conse nt, and Patina was a n owner of t he Suburban be cause it was in his possession, whether lawf ull y or no t. We will not construe stat u t o ry l an guag e so as to re ach a n absurd r esult that the leg islature could not possibly have intende d. Se e Bo

y k in v . S tate , 8 18 S.W. 2d 78 2, 78 5 (T e x. Cr im. App. 1991). Under appellant’ s proposed rea ding of the penal code, a ca r thief c ould not be convicted for una uthorized use of the stolen vehic le bec ause, by rea son of t h e thef

t, the thief possessed the vehicle a nd hence owned it. We ar e co n fi d en t that this does not accur ately ref lect the c ollective 2 intent of the leg islature. We ar e equa lly confide nt that the leg islature did not intend to exempt from prosec ution a person who ope rate s a stolen vehicle knowing that it was stolen mere ly beca use he ha d the thief’s pe rmission to do so. Neverthele ss, we nee d not de cide these matters bec ause, a s trier of fac t, the tri al co u rt could disbelieve a ppellant’s cla im that he had Patina’s c onsent to operate the Sub ur ban
. Mo re ov e r, e ve n if

the c ourt be lie ve d th a t Patin a

g ave the Sub ur

ba n to a pp e lla nt t o dispose of as a

ppellant testified, that ac t terminated Patina’s posse ssion of the Suburban and e nded any owner ship that might have arisen f rom that possession.4 Viewing all the evidenc e in the lig ht most favorable to the conviction, a r ational trier of fa c t c ou ld fi nd be y on d a re a so na ble do ub t th a t Cr a igJohn so n o wn e d th e Sub ur ba n a s a lle g e d in the indictment, appellant ope rate d the S uburban without J ohnson’s consent, a ppellant knew that the Suburban had been stolen, and appellant knew that he did not have the c onsent of the owne r fr om whom the Suburban ha d been stolen. The evidenc e is leg ally suffi cient to sustain appellant’ s conviction for una

uthorized use of the ve hicle. The point of er

ror is over

ruled a nd the judg ment of convic tion is affirmed.

__________________________________________ David Pury ear , J ustice Be fore J ustices B . A. Smith, P atterson a nd Pury ear Affir med Filed: June 2, 2006 Do No t Pu

bli sh