Granado v. State

749 S.W.2d 238, 1988 Tex. App. LEXIS 1071, 1988 WL 47223
CourtCourt of Appeals of Texas
DecidedMarch 31, 1988
DocketNo. 04-87-00494-CR
StatusPublished
Cited by2 cases

This text of 749 S.W.2d 238 (Granado v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Granado v. State, 749 S.W.2d 238, 1988 Tex. App. LEXIS 1071, 1988 WL 47223 (Tex. Ct. App. 1988).

Opinion

OPINION

CHAPA, Justice.

Appellant Harvey Ray Granado was found guilty by the trial court for the offense of unauthorized use of a vehicle. The court found the enhancement portions of the indictment to be true and assessed punishment at 45 years’ confinement. We affirm.

In his sole point of error, appellant attacks the sufficiency of the evidence to [239]*239support his conviction. Specifically, appellant contends the evidence is insufficient to establish that the complainant named in the indictment was the owner of the vehicle.

The indictment alleges as follows:

... on or about the 7TH day of JANUARY, A.D., 1987, HARVEY RAY GRA-NADO, hereinafter called defendant, did then and there intentionally and knowingly operate a motor-propelled vehicle, to-wit: AN AUTOMOBILE, owned by VINCENT DE MARTINO, without the effective consent of the owner; ...

The test in determining the sufficiency of the evidence to support a conviction is the same in both direct and circumstantial evidence cases. Dickey v. State, 693 S.W.2d 386, 387 (Tex.Crim.App.1984) (en banc). The standard of review requires that we view the evidence in the light most favorable to the prosecution and determine whether “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979); Dickey v. State, 693 S.W.2d at 387. Furthermore, the trial court as fact finder is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony. Limuel v. State, 568 S.W.2d 309, 311 (Tex.Crim.App.1978).

The record reflects that on November 22, 1986, a white Chevrolet Camaro was discovered missing from the car lot of the Gillespie Motor Company (“Gillespie”). It was not until January 7, 1987 that police officers observed appellant driving the vehicle. After discovering that the vehicle was reported as stolen, the police officers placed appellant under arrest for unauthorized use of a vehicle.

It has consistently been held that it is the better practice to allege ownership on behalf of a corporation in a person acting for the corporation. Eaton v. State, 533 S.W.2d 33, 34 (Tex.Crim.App.1976); Castillo v. State, 469 S.W.2d 572, 573 (Tex.Crim.App.1971); Walling v. State, 437 S.W.2d 563, 564 (Tex.Crim.App.1969). Further, it is the employment relationship that determines whether a given individual is an “owner” under TEX.PENAL CODE ANN. § 1.07(a) (Vernon 1974).1 Compton v. State, 607 S.W.2d 246, 250 (Tex.Crim.App.1980), cert. denied, 450 U.S. 997, 101 S.Ct. 1701, 68 L.Ed.2d 197 (1981).

Vincent De Martino testified as follows:

Q: What is your occupation?
A: I’m a sales manager for Gillespie Motor Company.
* * * * * *
Q: All right. Were you the manager of that Gillespie Ford back on November 22nd of 1986?
A: Yes, I was.
******
Q: All right. Now, as the manager of this Gillespie Ford, did you have care, custody control of the vehicles parked on that lot?
A: Well, they were under my realm of responsibility as the manager.
******
Q: On January 7th, 1987, you were still the manager at Gillespie Ford, I assume?
A: On January 7th, yes, ma’am.

As manager of Gillespie responsible for vehicles, De Martino clearly had a greater right to possession than did the appellant.2 Dingler v. State, 705 S.W.2d 144, 150 (Tex.Crim.App.1984) (en banc).

Appellant, relying on Freeman v. State, 707 S.W.2d 597 (Tex.Crim.App.1986) (en banc) and Dingler v. State, 705 S.W.2d 144, [240]*240argues that the evidence is insufficient since appellant objected to any testimony that De Martino had greater right of control to the vehicle. Appellant directs this Court to the following part of the record on redirect examination of De Martino:

Q: At that point, at that point in time when you had reached maybe a verbal agreement with the insurance company, and yet then you found the car had been recovered, did you, Gillespie Ford, and you as their representative, did you have a greater right of control to that automobile than Harvey Ray Gra-nado?
MR. BINDOCK: (counsel for defendant) Your Honor, I have to object to the multifarious nature of the question. It’s assuming. She’s asking him to assume things. She needs to ask the questions one at a time.
MS. SCOLARO: (prosecutor) I don’t think there is more than one question.
MR. BINDOCK: Let’s establish if there was a verbal agreement or was not. [sic]

We hold that the objection was insufficiently preserved as to De Martino’s claim of greater right to possession. Further, the record reflects other statements without objection concerning the claim to greater right of possession, De Martino’s managerial authority, and his responsibility over Gillespie’s vehicles. Where the same evidence is admitted without objection, any error in the admission of the same is waived. Anderson v. State, 717 S.W.2d 622, 628 (Tex.Crim.App.1986) (en banc).

Appellant finally contends that Gillespie’s insurance carrier owned the vehicle on January 7, 1987, the date of the commission of the offense, and therefore no one from Gillespie could have been the owner on that date.

The record reflects that Gillespie reported the loss of the vehicle to their insurance carrier on November 24, 1986. On December 11, 1986, Gillespie, acting through one of its owners, F.W. Bitter, signed a proof of loss claim. In addition, on the same date, Bitter signed a document appointing the insurance essipany power of attorney for Gillespie with respect to transactions involving title to the Camaro. The record is unclear, however, as to the date that title was actually transferred from Gillespie to the insurance company. Gillespie received payment on the claim on January 16, 1987.

De Martino testified as follows:

Q: On January 7th, 1987, you were still the manager at Gillespie Ford, I assume?
A: On January 7th, yes, ma’am.

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Bluebook (online)
749 S.W.2d 238, 1988 Tex. App. LEXIS 1071, 1988 WL 47223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/granado-v-state-texapp-1988.