## 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

---------- FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORA NDUM OPINION 1

---------- Th e s e appeal s arise from three convictions resulting from a jury trial (unlawful possession of a firearm, 02

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- 00 295

- CR (trial court Cause No. 1178620D) , unauthorized use of a vehicle, 02

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- 00 296

- CR (trial court Cause No. 117862 1D) , and tampering with a witness, 02

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- 00 297

- 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 sentence d

1 See Tex. R. App. P. 47.4.2

appellant accordingly. In his so le issue , appellant challenges the sufficiency of the evidence to support the unauthorized use of a vehicle conviction. He lodges

n o complaint concerning the other two convictions. In a crosspoint , the State contends th at the judgment in trial court C aus e No. 1178620D (the unlawful possession of a firearm conviction) mistakenly reflects that a ppellant entered a plea of guilty, when in fact he entered a plea of not guilty. No party complains of the convict ion of tampering with a witness; we therefore affi rm 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 w e 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 O n November 2, 2009, Fort Worth P olice O fficer 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 gr a y Dodge pickup truck parked adjacent to the complainant’s house. Through the driver’s side window, O fficer 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 Office r Ellis ran the license plates and the VIN number. He learned from the VIN number that the truck had been stolen a few3

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 rem ove 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 pi ckup truck parked next to her house and that appellant had never driven it. Valdez told Detective J.L. Hill that a ppellant 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 a ccomplice, Daniel, had switched the license plates. Spear

was present with Valdez on the day that a ppellant was arrested and overheard a voicemail message from a ppellant intended for Valdez , in which a ppellant spoke of killing himself by running his stole n truck off a road or by shooting himself with a gun that he had. Additionally, a ppellant 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 a ppellant’s house with the gun already in the front seat. In a rather curious brief, a ppellant, 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 insufficien t to support the conviction for unauthorized use of a vehicle

. This latter argument by a ppellant4

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 Cour t 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. 278 1 (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. a t 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 )

. Standa rd o f 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 drawin g 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 revie wer on appeal, an appellate court may not re

- evaluate the weight and credibility of the evidence and substitute it s judgment for that of the fact finder. Dewberry v. State , 4 S.W.3d 735, 740 (Tex. Crim. App. 1999), cert.5

denied , 529 U.S. 1131 (2000). A re viewing 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 o f Unauthorized Use To prove unauthorized use of a motor v ehicle, the State was required to show that a ppellant intentionally or knowingly operated a vehicle without the effective consent of the owner. See Tex. Penal Code Ann. § 31.07(a) ( West 20 11 )

. In a prosecution for unauthorized use, the State must prove t hat 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

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

owners named in the indictment. Id. Arguments o f Parties Appellant argues that the evidence at trial was insufficient to prove lack of effective consent because the listed owne r of the truck in the indictment, Jeremy

2 Whether one subscribes to the lead opinion in Brooks (concluding that the standard in Jackson was substantially the s ame 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 pre cedential reliance whenever a challenge to sufficiency is lodged.6

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 a ppellant 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 initial ly contends that it showed through Julie Lang that Jeremy Lang did not give a ppellant 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 evi dence that such consent from Jeremy Lang did not exist. We agree with this contention

. Valdez testified that a ppellant told her that he and Daniel “hit some licks,” inferring that they committed some “robberies,” that a ppellant was present when Daniel st ole 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

a ppellant drive it numerous times. Appellant told her that the truck was stolen and that he and Daniel had swi tched the license plates to prevent getting caught. She also testified about the letter she received from a ppellant 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 a ppellant’s voicemail in which he talked about killing himself by running off a road in a stolen7

pickup truck. Additionally, even in his handwritten statement to Detective Hill,

a ppellant admitted that h e 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. Modific ation of Judgment In a crosspoint , the State contends that the judgment in Cause N o. 1178620D (for unlawful possession of a firearm) erroneously shows that

a ppellant entered a plea of guilty, rather than not guilty. We have examined the reporter’s record , and it shows that a ppellant entered a plea of not guilty when arraigned before t he jury. The trial court’s docket sheet reflects that a ppellant entered a plea of not guilty to count one of the indictment ( Cause N o. 1178620D), and the record further reflects that the trial court instructed the jury that a ppellant had pled not guilty t o 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. T ex . R. A pp . P. 43.2(b) ; s ee French v. State , 830 S.W.2d 607, 609 (Tex. Crim. App. 199 2). It is clear from the appellate record that an error was made in the judgment and that a ppellant pled not guilty to the charge of unlawfully possessing a firearm. The State has requested this c ourt to modify the judgment and make it8

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 C ause N o. 1178620D to reflect that a ppellant pled not guilty , rather than guilty, to the offen se 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

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- 00 297

- CR)

. Having held the evidence suf ficient to support appellant’s conviction for unauthorized use of a vehicle, we also affirm the trial court’s judgment in Cause No. 1178621D (02

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- 00 296

- CR) . We agree with the State that the judgment for unlawful possession of a firearm should be modifie d 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

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- 00 295

- CR) as modified.

PER CURIAM PANEL: CHARLES F. CAMPBELL (Senior Ju dge , Retired, Sitting by Ass ignment); LIVINGSTON, C.J.; and GABRIEL , J. DO NOT PUBLISH Tex. R. App

. P. 47.2(b ) DELIVERED: June 23, 2011