COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00295-CR

NO. 02-10-00296-CR

NO. 02-10-00297-CR

MATTHEW BRAGDON APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

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MEMORANDUM OPINION1

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These appeals arise from three convictions resulting from a jury trial 

(unlawful possession of a firearm, 02-10-00295-CR (trial court Cause No. 

1178620D), unauthorized use of a vehicle, 02-10-00296-CR (trial court Cause 

No. 1178621D), and tampering with a witness, 02-10-00297-CR (trial court 

Cause No. 1197454D)), wherein the jury assessed punishment at fifteen (15), ten 

(10), and five (5) years’ confinement, respectively. The trial court sentenced

 

1See Tex. R. App. P. 47.4.
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appellant accordingly. In his sole issue, appellant challenges the sufficiency of 

the evidence to support the unauthorized use of a vehicle conviction. He lodges 

no complaint concerning the other two convictions. In a crosspoint, the State 

contends that the judgment in trial court Cause No. 1178620D (the unlawful 

possession of a firearm conviction) mistakenly reflects that appellant entered a 

plea of guilty, when in fact he entered a plea of not guilty. No party complains of 

the conviction of tampering with a witness; we therefore affirm the trial court’s 

judgment in Cause No. 1197454D. Because the evidence is sufficient to support 

appellant’s conviction for unauthorized use of a vehicle, we also affirm the trial 

court’s judgment in Cause No. 1178621D. But we agree with the State that the 

judgment for unlawful possession of a firearm should be modified; we therefore

affirm the trial court’s judgment in Cause No. 1178620D as modified.

Facts

On November 2, 2009, Fort Worth Police Officer Robert Ellis responded to 

a domestic disturbance report at 10000 Leatherwood. At that scene, Officer Ellis 

handcuffed appellant and put him in the patrol car. The officer then went over to 

inspect a gray Dodge pickup truck parked adjacent to the complainant’s house. 

Through the driver’s side window, Officer Ellis saw a pistol lying on the driver’s 

side of the seat. Dixie Valdez, the complainant in the domestic disturbance call 

and apparently appellant’s former girlfriend, told Officer Ellis that she thought the 

Dodge pickup might be stolen. So Officer Ellis ran the license plates and the VIN 

number. He learned from the VIN number that the truck had been stolen a few 
3

days earlier. Officer Ellis sent Officer Spivey to an address that was shown for

the plates, and it was discovered that the plates had been switched with those of 

another gray Dodge pickup. Appellant was then arrested for unauthorized use of 

a vehicle and possession of a firearm by a felon. While appellant was sitting in 

the patrol car, he sent a text message to Valdez asking her to remove the gun 

from the pickup truck and hide it. While appellant was in jail awaiting trial, he 

sent Valdez a letter in which he offered her money if she and her best friend, 

Melanie Spear, would falsely testify that his friend Daniel had left the stolen 

pickup truck parked next to her house and that appellant had never driven it.

Valdez told Detective J.L. Hill that appellant had told her that the truck was 

stolen and that he was having to get rid of it, but that he was unlikely to get 

caught because his accomplice, Daniel, had switched the license plates. Spear 

was present with Valdez on the day that appellant was arrested and overheard a 

voicemail message from appellant intended for Valdez, in which appellant spoke 

of killing himself by running his stolen truck off a road or by shooting himself with 

a gun that he had. Additionally, appellant gave a written statement to police in 

which he admitted that he knew the truck was stolen but said that Daniel stole it 

and brought it to appellant’s house with the gun already in the front seat.

In a rather curious brief, appellant, in his sole issue, alleges that the 

evidence was factually insufficient to support the conviction. In the body of his 

brief, however, he argues that the evidence was legally insufficient to support the 

conviction for unauthorized use of a vehicle. This latter argument by appellant 
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was perhaps occasioned by the Texas Court of Criminal Appeals’s decision in 

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). In Brooks, the Texas 

Court of Criminal Appeals jettisoned the factual sufficiency concept of measuring 

sufficiency of the evidence and in doing so, returned to a single yardstick for 

measuring sufficiency equivalent to that found in Jackson v. Virginia, 443 U.S. 

307, 99 S. Ct. 2781 (1979), viz: whether any rational trier of fact could have 

found the essential elements of the crime beyond a reasonable doubt, when 

viewing the evidence in a light most favorable to the prosecution. Brooks, 323 

S.W.3d at 902 (citing Jackson, 443 U.S. at 319, 99 S. Ct. at 2789); see also 

Wirth v. State, 327 S.W.3d 164, 165 (Tex. Crim. App. 2010) (remanding a case 

that the court of appeals had reversed for factual insufficiency and ordering that 

court to reconsider its decision in light of Brooks).

Standard of Review

As previously mentioned, we review the evidence in a light most favorable 

to the prosecution, or verdict, as it is sometimes stated. The trier of fact is 

responsible for resolving conflicts in the testimony, weighing the evidence, and 

drawing reasonable inferences from basic facts to ultimate facts. Jackson, 443 

U.S. at 319, 99 S. Ct. at 2789. The trier of fact is the sole judge of the weight 

and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West

1979). As a reviewer on appeal, an appellate court may not re-evaluate the 

weight and credibility of the evidence and substitute its judgment for that of the 

factfinder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert. 
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denied, 529 U.S. 1131 (2000). A reviewing court must presume that the 

factfinder resolved any conflicting inferences in favor of the prosecution and defer 

to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.

2

Elements of Unauthorized Use

To prove unauthorized use of a motor vehicle, the State was required to 

show that appellant intentionally or knowingly operated a vehicle without the 

effective consent of the owner. See Tex. Penal Code Ann. § 31.07(a) (West

2011). In a prosecution for unauthorized use, the State must prove that appellant

was aware that he lacked the consent of the vehicle’s owner. McQueen v. State,

781 S.W.2d 600, 604 & n.5 (Tex. Crim. App. 1989). It is not necessary that the 

State plead and prove lack of consent by all parties when there are multiple 

owners. It is only necessary that the State prove lack of consent by the owner or 

owners named in the indictment. Id.

Arguments of Parties

Appellant argues that the evidence at trial was insufficient to prove lack of 

effective consent because the listed owner of the truck in the indictment, Jeremy 

 

2Whether one subscribes to the lead opinion in Brooks (concluding that the 

standard in Jackson was substantially the same as that in Clewis v. State, 922 

S.W.2d 126 (Tex. Crim. App. 1996), overruled by Brooks, 323 S.W.3d at 895), or 

to the concurring opinion (concluding that Clewis was simply wrongly decided in 

its creation of a concept of semi-sufficiency of the evidence), what remains 

indisputable is that there is now only one standard of review under Jackson for

sufficiency, and giving it a name is not necessary. Additionally, it is logical that 

appellate courts now return to cases analyzing “legal sufficiency” for precedential 

reliance whenever a challenge to sufficiency is lodged.
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Lang, did not testify at trial. Instead, the State offered the testimony of Julie 

Lang, Jeremy Lang’s wife, who is a co-owner of the truck but not named in the 

indictment as such. Julie Lang testified that she did not give appellant consent to 

operate the truck but that she did not know if Jeremy gave appellant consent. 

Appellant avers that the missing testimony of Jeremy Lang renders the evidence 

insufficient to sustain the conviction. Although the State initially contends that it 

showed through Julie Lang that Jeremy Lang did not give appellant consent to 

operate the truck, Julie Lang actually testified that she was not aware of any 

consent given by her husband. However, the State avers that there was other 

evidence that such consent from Jeremy Lang did not exist. We agree with this 

contention.

Valdez testified that appellant told her that he and Daniel “hit some licks,” 

inferring that they committed some “robberies,” that appellant was present when 

Daniel stole the Dodge truck, and that the two of them broke into some cars. 

Daniel brought the Dodge truck to her house for safekeeping, and Valdez saw 

appellant drive it numerous times. Appellant told her that the truck was stolen 

and that he and Daniel had switched the license plates to prevent getting caught. 

She also testified about the letter she received from appellant wherein he offered 

her money to lie about the circumstances surrounding the truck. The letter was 

admitted in to evidence at trial.

Spear testified that, while at Valdez’s house, she heard appellant’s 

voicemail in which he talked about killing himself by running off a road in a stolen 
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pickup truck. Additionally, even in his handwritten statement to Detective Hill, 

appellant admitted that he knew the truck was stolen. He never mentioned to 

anyone, including Valdez, Spear, and Detective Hill, that he had received 

consent to take or drive the Dodge pickup truck from either Jeremy or Julie Lang. 

Thus, the evidence was abundantly sufficient to satisfy any rational trier of fact 

beyond a reasonable doubt that the Dodge truck was taken without the consent 

of Jeremy Lang. Appellant’s sole issue is overruled.

Modification of Judgment

In a crosspoint, the State contends that the judgment in Cause No. 

1178620D (for unlawful possession of a firearm) erroneously shows that 

appellant entered a plea of guilty, rather than not guilty. We have examined the 

reporter’s record, and it shows that appellant entered a plea of not guilty when 

arraigned before the jury. The trial court’s docket sheet reflects that appellant 

entered a plea of not guilty to count one of the indictment (Cause No. 

1178620D), and the record further reflects that the trial court instructed the jury 

that appellant had pled not guilty to said charge.

An appellate court has authority to modify a judgment to make the record 

speak the truth when the matter has been called to its attention by any source.

Tex. R. App. P. 43.2(b); see French v. State, 830 S.W.2d 607, 609 (Tex. Crim. 

App. 1992). It is clear from the appellate record that an error was made in the 

judgment and that appellant pled not guilty to the charge of unlawfully possessing

a firearm. The State has requested this court to modify the judgment and make it 
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speak the truth. Appellant takes no position in the record or his brief as to the 

State’s crosspoint. We sustain the State’s crosspoint. We modify the trial court’s 

judgment in Cause No. 1178620D to reflect that appellant pled not guilty, rather 

than guilty, to the offense charged in the indictment, unlawful possession of a 

firearm.

Conclusion

Because no party complains of the conviction of tampering with a witness, 

we affirm the trial court’s judgment in Cause No. 1197454D (02-10-00297-CR). 

Having held the evidence sufficient to support appellant’s conviction for 

unauthorized use of a vehicle, we also affirm the trial court’s judgment in Cause 

No. 1178621D (02-10-00296-CR). We agree with the State that the judgment for 

unlawful possession of a firearm should be modified by changing the language to 

reflect a plea of not guilty instead of a guilty plea, and we affirm the trial court’s 

judgment in Cause No. 1178620D (02-10-00295-CR) as modified.

PER CURIAM

PANEL: CHARLES F. CAMPBELL (Senior Judge, Retired, Sitting by 

Assignment); LIVINGSTON, C.J.; and GABRIEL, J.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: June 23, 2011