### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00710- CR

Charles Bishop , Appellan t

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 403 RD JUDICI AL DISTRICT NO. D-1 -DC- 08- 2032 63, H ONO RAB LE DONALD LEO NARD, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury convicted appellant Charles Bishop of the offe nse of unauthorized use of
a mot or vehicle. See Tex. P enal Code A nn. § 31.07(a) (West 2003). Punishm ent was assessed at fourtee n y ear s’ i mprisonment. This appea l followed. I n two issues on appea l, Bisho p ch all eng es the fac tual sufficie ncy of the evide n ce and asser ts that the district court abused its discretion in excluding ce rtain evide nce. We will affirm the judg ment. 1

After appellant’ s counsel filed his br ief, this Court rec eived from Bishop a pro se motion 1 to file a pro se brief. I n the motion, Bishop criticizes counsel’s brief and raises additional issues. Howeve r, a criminal defe ndant has no rig ht to hy brid rep rese ntation or to repr esent himself on direc t appea l. Scheane tte v. State , 144 S.W .3d 503, 505 n.2. (Tex. Crim. App. 2004). Acc ording ly , the motio n h as b ee n marke d “re ceive d not filed,” and we will not rule on or addre ss any of the arg uments raised in the motion. See id .; Berry v. State , 278 S.W .3d 492, 495 (Tex. App.—Austin 2009, pet. re f’d)

.ANALYSIS

F actual suf

fi ciency I n his first issue, Bishop asser ts that the evidenc e is fac tually insufficient to support his conviction. Specifica lly , Bishop claims that the evidenc e was fac tually insufficient to overc ome his defensive theory

of mistake of f

act. I n a fac tual sufficie ncy revie w, an appellate court views the evidenc e in a neutra l light
to deter mine whether the jury ’s verdic t of g uilt was rationally justified. S ee Lancon v. State , 253 S.W .3d 699, 705 (Tex. Crim. App. 2008); Roberts v. State , 220 S.W .3d 521, 524 (Tex. Crim. App. 2007); W

atson v. State , 204 S.W .3d 404 , 4 1 5 (Tex. Crim. App. 2006). Reversa l for fac tual insufficienc y occur s only when: (1) the evidenc e supp o rt i n g t h e verdic t is so wea k the verdic t

seems clea

rly wrong and manifestly unjust; or (2) there is some objective basis i n t he rec ord that shows the g rea t w eig ht a

nd preponde ranc e of the evidenc e contra dict the jury ’s verdic t. See Berry

v. St a t e , 2 3 3 S

. W.3d 847, 854 (Tex. Crim. App. 2007); Roberts , 220 S.W .3d at 524; W atson , 204 S.W .3d at 417.

A per s o n commits the offe nse of unauthorized use of a motor vehicle if he intentionally or knowing ly opera tes another ’s motor-prope lled vehicle without the eff ective consent of the owne r. Tex. Penal Code Ann. 31.07(a ). Thus, the State wa s require d to show not only that Bishop int entionally or knowingly opera ted t he vehicle, but that Bishop knew he d i d not have the
consent of the owner . See McQ ueen v. State , 781 S.W .2d 600, 603 (Tex. Crim. App. 1989). Bishop does not dispute that he intentionally or knowing ly opera ted the vehicle. He claims, howeve r, that the State failed to prove that he knew he did not have consent of the owner . I n other words, Bishop is arg uing tha t he mistakenly believed tha t he had c onsent to opera te the vehic le.

2I t is a defe nse to prosec ution that the actor throug h mistake formed a rea sonable

belief about a matter of fac t if h i s m i s t ak en belief neg ated the kind of culpability require d for commission of the offe nse. Tex. Pena l Code Ann. § 8.02 (West 2003)

. A belief is rea sonable if it is one that would be held by an ordinary an d prudent person under the same circ umstances
as t he actor. W

i n kl ey v. S t a t e , 123 S.W .3d 707, 712 (Tex. App.—Austin 2003, no pet.). As with other d ef en s es, the defe ndant bear s the initial burden to produce some evidenc e that supports his theory of mistaken belief. See Zuliani v. State , 97 S.W .3d 589, 594 (Tex. Crim. App. 2003); Saxton

v. State , 804 S.W

. 2 d 9 1 0 , 9 1 3 -14 (Tex. Crim. App. 1991); Roy v. State , 161 S.W .3d 30, 35 (Tex. App.—Houston [14t h Dist.] 2004, no pet.). Once the defe ndant produce s such evidenc e, the State then bear s the burden of persua sion to disprove the raised defe nse. Zuliani , 97 S.W .3d at 594. Howeve r, the burden of persua sion “is not one t h at requires the production of evidenc e, rathe r it require s only that the State prove its case bey ond a rea sonable doubt.” Id

. “When a jury finds the defe ndant g uilty , there is an implicit finding ag ainst the defe nsive theory .” Id

.

I n this case , the jury hear d evidenc e that on J une 1, 2008, Bishop enter ed an unlocked vehicle pa

rked on Sabine Avenue in downtown Aust in. Unbeknownst to Bishop, the vehicle w as

a “bait car ” owned by the Austin Police Depa rtment as part of its B ait Vehicle Prog ram. As soon 2 as Bishop enter ed the vehicle, a camer a inside the vehicle beg an recording

. The camera rec orded Bishop rummag ing throug h the car for approximately two minutes, then g etting into the driver’ s seat and starting the vehicle, and driving awa y . Approxim ately seven minutes later, the came ra rec orded

Acc ording to Detec tive J ohn Spill ars of the Austin Police Depa rtment, the Ba it Vehicle 2 Prog ram “involves the use of sting vehicles which have came ras, GPS, an alar m sy stem and a series of sensors. The se vehic les are place d throug hout the city in high c rime spot are as.” 3Bishop p ar k t h e v ehicle, turn off the eng ine, and rema in inside. Shortly there afte r, the came ra

rec orded Bi s h o p b ei ng arr ested. A copy of the video rec ording was admitted into evidenc e and play ed for the jury

. Also admitted into e vidence and considere d by the jury wer e video rec ording s of two pre vious entries by Bishop into the same ba it vehicle on May 30 and May 31, 2008. I n the

rec ording s, Bishop can be seen rummag ing throug h the vehicle for sever al minutes and examining items left inside such as pa pers, c andles, a

nd shoes. The arr esting office r was Offic er Ver no n Steve nson of the Austin Police Depa rtment, who was also identified in the indictment as the “owne r” of the vehicle. Stevenson testified that he had authority over the vehicle, did n o t g ive consent for Bishop to enter the vehicle, and was not

awa re of any one else g iving B ishop consent to enter the vehicle

. Bishop testified in his defe nse. Acc ording to Bishop, he is homeless, and his way of making mo n ey i s t o “assist [] people who g o to Six th Street to party in parking their vehicles.” Bishop explained that he would offe r to park or retrie ve someone’s vehicle and, in return, the driver of the vehicle would usually g ive him a “tip” of one or two dollars. On the night in question, Bishop claimed, he was approa ched by a “Mr. Fe liciano” wh o asked Bishop to help locate his vehicle in exchang e for twenty dollars. Bishop testified that he ag ree d and proce eded to walk to the are a wher e “Mr. F eliciano” said the vehic le could be f ound. Bishop explained,

So I wande red to the vehicle and I opened t h e d o o r an d the key s wer e rig ht on the console. And I g ot in the vehicle. And as y ou saw, I chec ked it out and around and started the vehicle and drove the vehicle direc tly past the police station rig ht up to the hill wher e I had left Mr. Fe liciano. I g ot there and parke d the vehicle and that’s when I was a rre sted.

4When asked if he had any information as to who this “Mr. Fe liciano” was, Bishop testified, “Other

than specula

tion, no, I don’t.” Bishop descr ibed him as an intox icated Hispanic male, “short, kind of heavy set,” and an “older man.” Bishop claimed that, upon his arr est, he had informed the office rs about Fe liciano and told them that he “ had bee n g iven per mission t o drive the ve hicle.” Acc ording to Bishop, on the two prior occa sions h e h ad en t er ed the vehicle, he thought the vehicle had been stolen or abandone d and was looking inside the vehicle “for identification to the owne r of the vehicle so that I could contac t them possibly to rec eive a

rew ard for g etting the ir vehicle returne d to them.” Eac h time the came ra r ecor ded him sear ching throug h the vehicle , Bishop cla imed, he wa s merely looking f or the owne r’s identification. On cross-e x amination, Bishop admitted to prior felony convictions for unauthorized

use of a motor vehicle, ag g rava ted theft, cre dit car d abuse, and possession of a controlled substance. Bishop also admitted that, during a prior conver sation with the prosec utor in w hich the prosec utor had showed Bishop the video rec ording of his entries into the vehicle, Bishop “hung his head” and nodded when the prosec utor told him, “The jig is up, Charles. You’re busted. You’re a liar and we all know it.” B ishop denied, howe ver, tha t he was ly ing a bout what had ha

ppened. The jury , as the sole judge o f the cre dibilit y of the witnesses and the weig ht to be
g iven their testimony , was fre e to disbelieve Bishop’s version of events and to cre dit the testimony of the arr esting office r that neither he nor any one else g ave Bishop permission to enter the vehicle. See McQ ueen , 781 S.W .2d at 605. The State attacke d Bishop’s cre dibilit y extensively during crossexamination, and Bishop was unable to provide much information reg arding the identity of the alleg ed “Mr. Fe liciano.” M o re importantly , the jury saw Bishop enter the bait vehicle on
t h re e s ep ara

te occa sions, sear ch throug h the vehicle eac h time, and, on the third occa sion, driv e 5the v eh i cl e fo r approximately seven minut es. The jury could have found t hat t he video evidenc e,

combined with Offic er Ste v en s o n ’s testimony reg arding lack of consent, satisfied the State’s burden of proof. I n finding Bishop g uilty of the offe nse, the jury implicitl y reje cted his mistake-offac t defe nse. We cannot say , with some o b j ec t i v e b as i s in the rec ord, that the g rea t weig ht and preponde ranc e of the evidenc e contradicts t he jury ’s verdict or t hat t he verdict is clear ly wrong or manifestly

unjust. We overrule Bishop’s f

irst issue.

Evid ence adm issib ility

I n his s ec o n d i s sue, Bishop asser ts that the district court abused its discretion in excluding evidenc e “re g arding the motivation of the authorities to prosec ute the case ag ainst him.” Acc ording to Bishop, Austin Police Depa rtment office rs “we re conspiring to fra me him for the crime in question, rathe r than fac e t h e p ro s pect of being sued by Mr. Bishop for various tort claims.” Bishop wanted to provide testimony to that eff ect. The district court did not allo w h i m to do so, finding the profe rre d evidenc e to be not rele vant. On appea l, Bishop arg ues that the exclusion of the evidenc e violated Rule 404(b) , which allows for the admission of extraneous offe nse evidenc e for

cer tain purposes, including to show the motive and bias of witnesses other than the defe ndant. See Tex. R. Evi d. 404(b); Castaldo v. State , 78 S.W .3d 345, 349 (Tex. Crim. App. 2002).

I n a hear ing outside the prese nce of the jury , Bishop explained the n at u re of the evidenc e he wanted to introduce. He rec alled that in September 2007, while he was “assisting ” an intox icated individual on Six th Street, he was assaulted by a man who, acc ording to B ishop, was a suspect in sever al robber ies. Bishop claimed that as a result of his actions in identify ing the man in

6a li neup, the man w as l ater appre hended. Bishop then proce eded to descr ibe a subsequent assault

ag ainst him that had alleg edly occur red outside a homeless shelter. When asked how this assault was

connec ted to the Austin Police Depa rtment, Bishop explained that the Depa rtment “has a prese nce there at t he [ shelter] fac ility and office ” and was invol ved in investiga ting the assault. Acc ording
to Bishop, the Depa

rtment, afte r revie wing videotape footag e of the incident, believed Bishop was the re sponsible party

and had de cided not to file c harg es ag ainst Bishop’s a lleg ed assa ilant. Bishop claimed that the Department wa s afr aid that he would f ile a lawsuit ag ainst the Depa rtment “for cover ing up the assault and not pursuing to take char g es ag ainst this m an, assaulting me, as we ll as I might file suit a g ainst [t he homeless shelter] staff the mselves.” B ishop

was asked by his counsel, “You think that beca use these cops are afr aid of civil liability , that’s why they have it in for y ou? ” Bishop answe red, “Exactly

. . . .” The district court interjec ted, “Well, do we have any evidenc e that the people who obs erve d t h at o n that film and the office r who stopped
y ou was involved in this in any way ? Do y ou h av e any evidenc e those people wer e part of the conspirac y ? ” Bishop responde d, “Well, see that’s the problem. We had no investiga tion to discover the possibili ty

—possibili ty of this evidenc e based on no investiga tion. We can only specula te.” The district court then excluded the evidenc e on the basis of rele vance . L ater , Bishop also attempted to specula te during his testimony that “Mr. Fe liciano” may have been an underc over police office r. The district court also excluded this testimony as not rele vant. We rev i ew a t ri al court’s decision to admit or exclude evidenc e for an abuse of discretion. Ramos v. State , 245 S.W .3d 410, 417-18 (Tex. Crim. App. 2008). A trial court abuses its discretion when its decision “is so clea rly wrong as to lie outside that zone within which

7rea sonable persons might disag ree .” McD onald v. State , 179 S.W .3 d 5 7 1, 576 (Tex. Crim. App.

2005) (citing Montgomery v. State , 810 S.W .2d 372, 391 (Tex. Crim. App. 1991) (op. on re h’g )).

We first observe that Bishop failed to object on the basis of Rule 404(b) during trial. To prese rve a co m p laint for appellate revie w, the rec ord must show that the complaining party “stated the g rounds for the ruling that [he] soug ht from the trial c ourt with sufficient spe cificity to make the trial court awa

re of the complaint, unless the speci fi c gro unds wer e appar ent from the context.” Tex. R. App. P. 33.1(a) (1). “[I ]t is not enoug h to tell the judge that evidenc e is admissible. The proponent, if he is the l osing party on appea l, must have told the judge why the evidenc e wa s admissible.” Rey na v. State , 168 S.W .3d 173, 177 (Tex. Crim. App. 2005). Thus, the complaining party on appea l must have “broug ht to the trial court’s attention the very complaint that party is now making on appea l.” Id

. At trial, Bishop mere ly arg ued that the evidenc e was rele vant to show that
t h e p o l i ce had eng ag ed in a conspirac y to fra me him. He did not arg ue that the eviden ce wa s admissible under Rule 404(b) to show the motive and bias of the witnesses ag ainst him. Thus, he has fa iled to preser

ve er ror. Howeve r, even assuming that Bishop had prese rved erro r, we cannot conclude on this rec ord that the district court abused its discr etion in excluding the evidenc e. The district court excluded the evidenc e as not re levant. “Re levant evidence” means evidence having any tendenc y
to make the exis tence of any fac t that is of conseque nce to the deter mination of t h e ac t i o n more probable or less probable than it would be without the evidenc e. Tex. R. Evid. 401. Evidence which is not rele vant is inadmissible. Tex. R. Evid. 402. Her e, as the district court observe d, the profe rre d evidenc e had no rele vance to the issue of whether Bishop had committed the offe nse of unauthorized

use of a motor vehicle. Bishop provided no evidenc e that the testify ing office rs wer e involved with, 8or even awa re of, the events that Bishop descr ibed. As Bishop admitted, the office rs’ connec tion to the alleg ed police conspirac y agai n s t h i m was purely specula tive. Nor is there any indication in the rec ord that Bishop was “set up” by an underc over office r posing as “Mr. Fe liciano.” On crossex amination, both of the testify ing office rs wer e asked if they knew of a police offic er n am ed Fe liciano. Both tes t i fi ed that they did not. Thus, the district court did not abuse its discretion in finding that the profe rre d evidenc e h ad n o tendenc y to make the exis tence of any fac t that is of
conseque nce to the deter

mination of the ac t i o n m o re p robable or less probable than it would be without the evidence

.

Nor would th e d istrict court have abused its discretion in excluding the evidenc e under Rule 404(b). To be admissible under Rule 404(b), the p ro fe rr ed evidenc e must, among other require ments, survive a balanc ing test under Rule 403. See Castaldo , 78 S.W .3d at 3 5 0 ; Montgomery , 810 S.W .2d at 388-89. R u l e 4 0 3 p ro vides that evidenc e may be excluded if its probative value is substantially outweig hed by the dan g e r o f u nfair prejudice , confusion of the issues,

or misleading the jury , or by considera tions of undue delay , or needle ss prese ntation of cumulative evidenc e. Tex. R. Evid. 403. As we have alre ady explained, the profe rre d evidenc e had no probative value to the fac ts of conseque nce in this case . Howeve r, even if it could be arg ued that the evidenc e was marg inally rele vant under Rule 401, the di strict court would not have abused it s discretion in finding that whateve r probative value the evidenc e may have had was substantially outweig hed by the dang er of unfair prejudice , confusion of the issues, or misleading the jury , or by considerations of undue delay

. The district court coul d h ave found that Bishop’s testimony would have put the office rs and the Depa

rtment on trial, confuse d the issues, and cause d undue delay as the State would likely have f elt compelled to re fute B ishop’s alleg ations. 9Finally , even assuming that the evidenc e should have been ad m i t t ed , we cannot

conclude on this rec ord t h at Bi s h o p was harme d by its exclusion. The err oneous exclusion of evidenc e g ener ally constitutes non-constitutional err or. See Potier v. State , 68 S.W .3d 657, 662- 63 (Tex. Crim. App. 2002). Non-c onstitut ional err or that does not aff ect substantial rig hts must be disreg arde d. See Tex. R. App. P. 4 4

. 2 (b ). “A substantial rig ht is aff ecte d when the err or had

a substantial and injurious eff ect or influence in d et er mining the jury ’s verdic t.” King v. State , 953 S.W .2d 266, 271 (Tex. Crim. App. 1997 ). Be cause of the considera ble evidenc e in this case tending to show that Bishop commit ted t he offense, particular ly the vi deo recording s that showed Bishop en t er t h e b ait vehicle on three separ ate dates, we cannot conclude that the exclusion of purely specula tive testimony by Bishop concer ning an a l l ege d p o l ice conspiracy to fra me hi m for the cr ime aff

ecte d Bishop’s substantial rig hts. We overrule Bishop’s se cond issue.

CONCLUSION We affir m the judgme nt of the district court.

__________________________________________ Bob Pembe rton, J ustice Be fore Chief J ustice Jones, J ustices Pury ear and Pember

ton Affir med Filed: Aug ust 26, 2010 Do Not Publish

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