NO. 07-01-0144 -CR NO. 07-01-0145 -CR NO. 07-01-0146 -CR IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L A JANUA RY 9, 2002

______________________________ LINDA ELIZABETH ARNHEITER, A PPELLANT

V. THE STATE OF TEXAS, APPELLEE

_________________________________ FROM THE COUNT Y CRIMINAL COURT NO. 5 OF HARR IS COUNTY; NOS. 1025562, 1 025563, 1025564; HON ORABLEE. JAN ICE LAW, JUDGE

_______________________________ Before BOYD, C.J., and REAVIS and JOHNSON, JJ. Appellant Linda Elizabeth Arnheiter brings this appeal from three convictions for failure to m aintain motor vehicle title r ecords as requi red by a spe cial sta tute ap plica ble to Harris County. Finding m erit in the second of appellant’s three issues, w e reverse.
In an effo rt to cu rb what w as perceived as a serious problem with fraudulent docum ents and transactions involving mo tor vehicle titles, the Harris County Tax Assessor1 Section 520.05 7 provide s:

(a) A holder of

a m otor vehicle title service li cense shall maintain records as required by th is se ction on a form prescribed and m ade available by the county tax ass essor-collec tor

for each transaction in w hich the license holder receives com pensation. The records shall include: (1) the date of the transac tion; (2) t he nam e, a ge, add res s, s ex , dr iver’s lice nsenum ber , an d a le gible photocopy of the driver’s license for each custom er; and (3) the lice nse plate nu m ber , ve hicleiden tificatio n nu m ber , an d a le gible photocopy

of proof of

fina ncia l res pon sibil ity for them oto r ve hicleinvolved. (b) A m otor vehicle title service shall keep: (1) tw o co piesof a ll records required un der this s ection fo r at least two years after the date of the t ransaction; (2) legible photocopies of any docume nts subm itted by a custom er; and (3) legible photocopies of any docum ents subm itted t o the co unty tax asses sor-collector.
2 Compliance with rules promulgated by the tax assessor are not at

issue here and we need not address w hether the legislature improperly delegated its power to d efin e crim inal offe nse s totha t of fici al. 2 and Hou sto n P oliceDep art m ent sup por ted thepas sag e of

theTro y B land o M oto r V ehic le TheftPrevention Act of 1999 (the Act). 76 th Leg., R.S., Ch. 1478, sec. 2, 1999 Tex.Gen. La ws 5 09 1. It was co di fi ed as Ch ap te r 5 20 of th e T ra ns po rt at i on Co de an d b ec ame effective on Septem ber 1, 1999. The Act requires anyonew ho o per ate s a “m oto r ve hicle titleservice” in Harris County to obtain a license from the county tax assessor, com ply with record keeping requirements, and p erm it in spection of their records w ithout a warrant. Section 520.057. 1 Se ctio n 52 0.0 61 m ake s v iolat ion of th e ch apt er, or aruleadopted by the cou nty tax

asses sor, 2 a Class A m isdemeanor off ense.3

Itis undisputed that appellant operates a m otor vehicle title service in Harris County and thatshe obtained a license in Decem ber 1999. On October 4, 2000, Detective Wil liam Sm ith of the Harris County S heriff’s Departm ent inspected the rec o rds m aintained by Arn hei ter, doing business under the nam e Servicios Latino Am ericanos. Sm ith found a form which indicated Arnheiter transferred the titles on three vehicles for w hich shedid not maintain all of the records required by the statute. Specifi cally, Sm ith could not find any records showing the nam e, age, a ddress, se x or drivers’ li cense number of these
cus tomers. On October 11, 2000, appellant was charged by separate instrum ent s w it h failure to maintain m otor vehicle records on each of the t hree vehicles.
Ather jury t rial, appell ant adm itted she did not have the a ddi tional records, but testified she was

not aware she wasrequired to keep that inform ation. She adm itted that she knew additiona l reco rd kee ping req uire m ents were im pos ed o n m oto r ve hicletitl e services about Decem ber 1999 when she obtained her license. She also adm itted seeing posters in the tax off

ice aboutthe new rules and receiving a letter from the tax asses sor announcing a m eeting to discuss application of the statute. S he discar de d the letter because it arrived the day after the m eeting. The State presented the testim ony of a deputyclerk nam ed Diana Aguilar in the tax office, who stated i t was her practice to inform each person who appl ied for a l icense of the record keeping requirements of the statute and provide them with a copy of it. She did not have specific recollection of doing this with appellant.4

The jury fou nd h e r guilty in each case and punishm ent was assessed by the trial court at eight days confinem ent in the Harris County Jail. Appellant time ly perfected appeal from each ju dgmen t and now presents three issues for our rev iew. T hey are whether 1) there was legally sufficient evidence to support the conviction when the State failed to prove the tax assessor-collector prescribed and m adeava ilablea fo rm to m aintain the records required under Section 520.057(a); 2) the evidence was legally sufficient to
sus tain her conviction when th e form ma de available by the tax asses sor-collector does notrequest all of theinfo rm atio n re quir ed b y th e statu te, and 3) t he t rial cour t er red in setting out the provisions of Section 520.057 (b) in its charge whe n appellant was not charged with violating that subsection. Appellant’s first challenge is to the legal sufficiency of the evidence. She argues there wasno evidence that the Harris Count y Tax A ssessor-Collector created and m ade
ava ilablea form as required by the Act. In con si de ri ng a l eg al in su ff ic ie nc y ch al le ng e, we are required to view the evidence in a light m ost favorable to the pros ecution and then determ ine if any rational trierof fact could have found the essenti al ele ments of the offense beyond a re aso nab le doubt. Ja cks on v. V irg inia , 443 U.S. 30 7, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d. 560 (1979).
Attrial, the State adm itted the docum ent e ntitl ed Harris Cou nty Titl e Service Transaction For m as its ex hibit nu mber si x. Deputy Clerk Agu ilar identi fied the form and stated “they have topre sen t th is f ormeve ry t im e th ey cond uct bus ines s w ithin our office.” In discussing the processing of applications for title services, s h e state d th at s he w ould5

explain to title services “what t hey have to dowith that transacti on sheet

. . .” ( em pha sis added). View ing t he e vide ncein th e l ig ht most fa vo ra bl e t o t he ver di ct , a s we mu st, from thistestimon y, and the tex t of the form itself, a rati onal tri er of fact coul d find that State’s exhibit num ber six w

as a form promu lgated by the tax assessor

pursuant to the A

ct. We overrule appellant’s first issue. Appella nt’s second iss ue a ssu m es, for thepur pos e of

arg um ent , th at S tate’sex hibit si x, entitled “Harris County Title Service Transaction Form,” is a f orm pres cribed by the tax
assessor pursuant to the A

ct. That f

or m c ontains b lanks for date of sale, ve hicle year, make, vehicle identification number and purchaser’s nam e. It does not contai n a place for the recordati on of a customer’s age, sex, driver’s li cense number, or the vehicl e’s licen se plate num ber. Appellant argues there was no evidence “that the .

. . tax a ssessor-collector prescribed an d m ade available a form that cou ld be used to m aintain all the records required by Se ction 520 .057(a). Therefor e itwas im possible for the State to establish that appellant failed to maintain records on a form prescribed bythe tax assessor-collector.” After reciting the evidence introduced at trial, the State’s argum ent in support of the jury’s verdict consists of a single conclusory sentence thatthe evidenceis suffic ient to s upport
a finding that appellant failed to maintain the information o n the tax assessor’s form . It
con tain s no di scuss ion of how a licensee could record this inf orm ation on t he form provided.
Resolution of this issue requires const ruction of section 520.057 . A court’sprim ary objective in construing a statute is to determ ine and give effect to the legislative intent.6

Liberty Mutual Insurance Company v. Garrison Contracto rs, Inc. , 966 S.W .2d 482, 484 (T ex. 1998). That purpose i s accom plished by first looking at the plain and comm on meaning of the statute’ s words, unless the plain meaning would produce an abs urd result. Bridges tone/Firestone, Inc. v. Gly n-Jones , 878 S.W.2d 132, 134 (Tex. 1994). By statute we are also instructed t hat in our construction, we are to presum e that the entire statute is int ended to be effective, to c reate a jus t and reasonable result, and one feasible of execution. Tex . Govt. Code A nn. § 311.021 (Vernon 199 8). Here, a literal readi ng of section 520.057(a)(2) and (3) w ould require that the titl e service com pany photocopy cus tom er s’ drive rs’ licenses and proof of financial responsibility directly onto the form promu lgated by the tax assessor. The S tate takes the position tha t th is isw hat is re quir

ed o f tit le se rvice co m pan ies witho ut offe rin g any ex pla nat ion of

ho w thi s co ul d b e a cco mpl is he d o n t he fo rm pr ov id ed . Ho wev er , we perceive this to be an absurd result and question whether it w ould be feasible of execution. The intent of

the legislatu re appears cle ar; that titl e service com panies obtain photocopies of custom ers’ drivers’ licenses as proof of financial responsibility. The failure to provide space on the ta x a ssessor’s form for those copies does not excuse p erformance of that statutoryduty, and appellant haspro vide d noaut hor ity sup por ting thecon clus ion t hat it would. Appellant also argues that the absence of the items on the tax assessor’s for m is determinative because the court’ s charge only al leged she failed to ma intain the7

information on the prescr ibed form , not that she failed to keep the required information. The application paragraph of the court’s charge provided:
No w, if you find from the evidence beyond a reasonable doubt that on or [sic] October 4, 2000, in Har ris County Te xas, the Defendant . . . did unl awfully, w hile the h o lder of a motor vehicle title service li cense, intentionally or know ingly

fail to maintain records for each t ransaction in which the defendant

received com pensation, on the formprescribed and m ade ava ilableby the Harris County tax assessor-collector, as required by section 520.057 . . . namely, a transaction for [lis ting spe cifi c v ehic le], the n yo u w ill find the def endant gui lty.
In Malik v

. State , 953 S.W.2d 234, 240 (Te x. Crim .App. 1997), the C ourt of Crim inal Ap pea ls held that the sufficiency of theevidence m ust be m easured by the elem ents of the offense as defined by a hypothetically correct j ury charge. Id. at 2 40. A h ypo the tica lly correct jur

ycha rge for

a c asew ould be o ne t hat acc ura tely

sets ou t th e law , is authorized bythe indictment, does not unnecessarily restr ict th e State’s t heories of liabil ity, and ade qua tely

describes the particular offense for w hich the d efe ndant wastried. Id. at 239-40. Applying the teachings of Ma lik to this case requires us to determ ine whether the phrase “on the form” in the appl icati on paragrap h of the court’s charge was surplusage. Our holding that the legislature did not intend to require title services to photocopy onto the tax assessor’s form dictates a findi ng that the phrase “o n t he fo rm” is surplusage as to theitem s th at a re r

equ ired to b e ph oto cop ied. Asto t he o the r inf orm atio n, s pec ific ally3 Although not raised by appellant, we n ote theAct d oes not define th e term “custom er.” Thisis significant becaus e the pu rchaser s of tw o of thevehicles a t issue a re sh own to b e Astr

odo m e A utoSa les. We pres um e th is isa c orp ora tion , w hich clea rly w ould nothave a driver’s license, precluding appellant from obtaining a copy of that docum ent. Howeve r, a corporati on would have an addr ess, proof of financial responsibili ty, and the vehicle license plate number. 8 the vehicle license plate number, customer’s address and, for indivi dual customers, 3 the ir age, sex , and driv er’s licens e num ber, thephrase wou ld not be s urplusage. Th ere fore, whe re the evidence clearly showed the tax asses sor’s form did not allow for theentry

of those items, no rational factfinder could find appellant intentionally or knowingly failed to
m aintain that

inform ation “on t he form prescribe d” by th e tax

asses sor.
We sus tain appellant’s second issue. This disposition obviates the need to address appell ant’s third issue. Bec au se we fi nd th e e vi de nc e l eg al ly in su ff ic ie nt , we reverse the judgm ent of the trial court and render a j udgme nt of acquittal in each case.
John T. Boyd Chief Justi ce Do not publish.9