Harper v. State

533 S.W.2d 776, 1976 Tex. Crim. App. LEXIS 866

• Court: Court of Criminal Appeals of Texas
• Decided: February 18, 1976
• Docket: 50533
• Status: Published

Opinions

OPINION

MORRISON, Judge.

The offense is unauthorized use of a motor vehicle; the punishment, enhanced by two prior felony convictions, life.

Appellant was stopped while driving a 1971 Volkswagen after making a sudden turn while approaching a driver’s license check point. He did not have a license, and the arresting officer proceeded to make a check on the license number of the car. The car license was registered as belonging on a Toyota. The officer asked appellant to whom the car belonged, and appellant stated that the car belonged to his sister, Mary Richardson. He was subsequently arrested for “theft”.

In his first two grounds of error appellant contends that the statement he made to the arresting officer was admitted in violation of the Fifth and Fourteenth Amendments of the United States Constitution and Article 38.22, V.A.C.C.P.

The owner of the car testified that he had not given appellant or anyone else permission to use his car. He had left the car in a repair shop approximately a month earlier for work to be done on it. The mechanic who had been given temporary control of the car testified that he had not given anyone permission to take the car from his car lot. Appellant did not testify or offer any defensive theory. The evidence of appellant’s guilt for intentionally operating a motor vehicle without the owner’s consent was overwhelming.

While the statement was improperly admitted, we conclude that it was harmless error beyond a reasonable doubt. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284; Hampton v. State, Tex.Cr.App., 511 S.W.2d 1; Bridger v. State, Tex.Cr.App., 503 S.W.2d 801; Whitehead v. State, Tex.Cr.App., 450 S.W.2d 72.

In his third and fourth grounds of error, appellant contends the trial court erred in failing to instruct the jury as to Mary Richardson’s ownership of the car in question.

Appellant contends that his statement that the ear belonged to Mary Richardson raised an issue as to the ownership of the car by Mary Richardson. Appellant submitted to the court a requested charge on the issue of her ownership of the car. The requested charge was refused by the court. Appellant then objected to the charge given to the jury.

The cases cited by appellant are not in point because there was no evidence that Mary Richardson had given appellant her consent to use the car. The indictment alleged that appellant “knowingly and intentionally operated a motor vehicle owned by William H. Dinkins, Jr., without his effective consent.”

The State proved that Dinkins was the owner of the motor vehicle. The State further proved that appellant operated the motor vehicle knowingly and intentionally without the effective consent of Dinkins. There was no evidence to raise the issue that appellant had received the consent of Mary Richardson to operate the motor vehicle in question.

In Bonner v. State, Tex.Cr.App., 426 S.W.2d 869, this Court reversed a conviction on similar facts; however, in that case the defendant testified that he did not know the car was stolen and that he had been given the car to use by his friend, James. This was enough to raise an issue as to his defensive theory and to require the court to charge the jury on the same. By contrast, in the instant case, appellant did not testify and offered no evidence on the issue of consent to operate the motor vehicle.

Appellant’s third and fourth grounds of error are overruled.

Appellant’s fifth ground of error complains of the failure of the court to grant his requested charge on punishment.

Appellant was indicted under the habitual offender statute for having twice previously been convicted of felony offenses. The appellant requested a charge that could have allowed the jury to find that he had been convicted of one prior felony, but not the other. The charge that was given was more favorable to appellant than the requested charge would have been. Under the charge given, if the jury found appellant had committed one of the prior felonies, but not the other, they would have to find simply not true to the allegation of two prior felonies. The error, if any, was harmless to the appellant.

The judgment is affirmed.