Herbert v. State

827 S.W.2d 507, 1992 Tex. App. LEXIS 676, 1992 WL 44647

• Court: Court of Appeals of Texas
• Decided: March 12, 1992
• Docket: 01-90-00341-CR
• Status: Published

Opinions

OPINION

TREVATHAN, Chief Justice.

Appellant, Larry Joseph Herbert, was indicted for the offense of unauthorized use of a motor vehicle. After a jury found him guilty of this offense, appellant pled true to two enhancement paragraphs, and the trial court assessed punishment at 25-years confinement. In five points of error, appellant challenges the validity of the indictment, the charge to the jury, the sufficiency of the evidence, and the effectiveness of his counsel. We reverse and render a judgment of acquittal.

We first address appellant’s fourth point of error.

In his fourth point of error, appellant contends the evidence was insufficient to support his conviction for unauthorized use of a motor vehicle because the undisputed evidence shows that appellant was not aware that he did not have the consent of the owner of the vehicle and could not be guilty of the offense as charged. The statute applicable to the offense is Tex.Penal Code Ann. § 31.07 (Vernon 1989), which provides, in relevant part:

(a) A person commits an offense if he intentionally or knowingly operates another’s boat, airplane or motor-propelled vehicle without the effective consent of the owner.

(Emphasis added.)

In reviewing the sufficiency of the evidence to support a conviction, the evidence is analyzed in a light most favorable to the verdict to determine if 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, 318-19, 99 S.Ct. 2781, 2787-88, 61 L.Ed.2d 560 (1979).

Although we agree with our brother in the concurring opinion and believe that we should only look to the evidence introduced before appellant’s motion for instructed verdict, the current state of the law requires an analysis of all the evidence introduced in the guilt/innocence and punishment phases of the trial. De Garmo v. State, 691 S.W.2d 657, 660-61 (Tex.Crim.App.), cert. denied, 474 U.S. 973, 106 S.Ct. 337, 88 L.Ed.2d 322 (1985). The statement of facts in its entirety reveals that the vehicle in this case, an automobile, was owned by Wade Shelton, Sr., and that he had loaned his car to his son, Robert Shelton, the complainant in this case. Both father and son testified that they did not give appellant or anyone else permission to use the automobile.

On October 18, 1989, during an aggravated robbery, the automobile was taken. Two days later, while on routine patrol, Officer Michael J. Wright of the Houston Police Department saw appellant driving the automobile. After stopping the automobile and determining that none of the occupants of the automobile was the owner, Officer Wright arrested appellant. While in police custody, appellant stated he obtained the keys to the automobile from an individual known as “Cochese.” Appellant consistently denied any involvement in or knowledge of the robbery. The only evidence the State relies on to establish guilt is the assertion that appellant told the arresting officer he would lead the police to the person who stole the car, and appellant’s testimony that he was loaned the car by a man named Cochese. Appellant admitted making the offer; however, he made it after Wright told him the car was stolen. There is no evidence appellant knew the car was stolen before police told him.

Although we must construe the evidence in a light most favorable to the decision of the jury, where appellant puts on uncontradicted evidence establishing a defense, no rational trier of fact could find appellant guilty beyond a reasonable doubt, we must reverse. Van Guilder v. State, 709 S.W.2d 178, 183 (Tex.Crim.App.), cert. denied, 476 U.S. 1169, 106 S.Ct. 2891, 90 L.Ed.2d 978 (1986); Copeland v. State, 747 S.W.2d 14, 16-17 (Tex.App.—Houston [1st Dist.] 1988, no. pet.).

Appellant testified he had known Coch-ese only for three days, but he had known the man with whom Cochese was staying for several years. Cochese had the keys to the car, and there was no evidence that there was anything about the car’s appearance to suggest that it had been stolen. Appellant was not arrested until several days after the theft of the car, and he made no attempt to flee.

Analyzing all the evidence in a light most favorable to the decision of the jury, we find that a rational trier of fact could not have found, beyond a reasonable doubt, that appellant knew he did not have the consent of the owner at the time he used the vehicle.

Where the evidence is insufficient to sustain a conviction on appeal, the court must reverse the conviction, and order a judgment of acquittal. Burkholder v. State, 660 S.W.2d 540, 542 (Tex.Crim.App.1983); Tex.R.App.P. 80(b).

Point of error number four is sustained. Because of the disposition of this point, we need not address appellant’s remaining points.

The judgment of the trial court is reversed and a judgment of acquittal is rendered. Tex.R.App.P. 80(b), (c).

COHEN concurs.