in the Matter of A. P.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-97-00731-CV In the Matter of A. P. FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT NO. J-16,298, HONORABLE JEANNE MEURER, JUDGE PRESIDING Appellant, a juvenile, was adjudicated delinquent in a bench trial for committing the crime of unauthorized use of a motor vehicle. Based upon previous offenses and a consistent failure to abide by the terms of his earlier probation, the district court of Travis County, sitting as a juvenile court, ordered appellant placed in the care and custody of the Texas Youth Commission (the "Commission") for an indeterminate time not to exceed the time when appellant reaches twenty-one years of age. In two points of error, appellant challenges the factual sufficiency supporting the trial court's finding of delinquency and the disposition ordering appellant into the care of the Commission. We will affirm the order of the trial court. Background On the evening of September 9, 1997, Officer Donald Baker ("Baker") observed a new Dodge van being driven by A.P., appellant. Noticing that appellant was not wearing a seatbelt and believing appellant to be under the legal age to drive, Baker followed the van into the parking lot of an apartment complex and initiated a stop. As Baker approached the vehicle, he observed A.P. get out of the driver's seat and move towards the rear passenger area of the van. Peering into the van, Baker noted three youths seated inside, including A.P., previously the driver of the van, seated on the rear bench seat. When asked for insurance, A.P. informed the officer that he did not know whether the van was insured, that he did not have a driver's license, and that he was fourteen years old. It is undisputed in the record that the van belonged to Advantage Rent-a-Car, that there existed no rental contract on the van at the time of the stop, that A.P. operated the vehicle prior to the stop, and that A.P. did not have consent from the rental company to drive the vehicle. The record does, however, contain conflicting testimony regarding A.P.'s knowledge of the alleged ownership of the vehicle as well as a dispute regarding the way in which he gained possession. Baker testified that A.P. told him at the time of the stop that A.P. did not know who owned the van. Later, A.P. told the officer that the van belonged to or was rented by a man named Darnell, apparently the father of one of the other two boys in the van. The other occupants of the van, both also below the legal age to drive, testified that A.P. picked them up in the van. Both boys also testified that they did not know to whom the van belonged, though they knew the van did not belong to A.P. Conversely, A.P. testified that the other two boys picked him up in the van, that one of these boys had the keys because his father, the above mentioned Darnell, had rented the van for his fourteen-year-old son, and that he, A.P., only drove the van because his friend was operating the van in an unsafe manner. Discussion In his first point of error, appellant challenges the factual sufficiency supporting the trial court's finding that he engaged in the unauthorized use of a motor vehicle. Specifically, appellant contends that the State failed to prove beyond a reasonable doubt that he knew that he lacked consent to drive the van. We review factual sufficiency points by considering all the credible evidence without the prism of "in the light most favorable to the prosecution" and set aside the verdict "if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). In a factual dispute as this one, however, the issue often turns on the credibility of testimony. The trial judge in a bench trial is the sole trier of the facts, the credibility of the witnesses, and the weight to be given their testimony, and may accept all or any part of the testimony given by the witnesses. Wright v. State, 603 S.W.2d 838, 840 (Tex. Crim. App. 1980). The trier of fact may believe or disbelieve all or any part of a witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984). And, the credibility of a witness is a matter for the trier of fact rather than the court of appeals. Aquino v. State, 710 S.W.2d 747, 751 (Tex. App.--Houston [14th Dist.] 1986, pet. ref'd). A person commits the offense of unauthorized use of a motor vehicle when he intentionally or knowingly operates another's motor vehicle without the effective consent of the owner. Tex. Penal Code Ann. §31.07(a) (West 1994). The culpable mental state must apply both to the operation of the vehicle and the issue of effective consent. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). Appellant admits to knowingly operating the van. The appellant challenges whether the evidence was factually sufficient to prove that he knew that he was operating the van without effective consent. It remains undisputed that appellant did not have the effective consent of the true owner, Advantage Rent-a-Car. An owner's testimony that a defendant had no consent is generally sufficient in itself to prove defendant knew he had no consent to operate the van. See McQueen, 781 S.W.2d at 604-05; see also White v. State, 844 S.W.2d 929, 932 (Tex. App.--Houston [1st Dist.] 1992, pet. ref'd). Appellant, however, raises the defense of mistake of fact. The evidence tending to support appellant's contention that he believed he did have effective consent, namely that he believed the van was rented by Darnell for the use of his fourteen-year-old son who then gave appellant permission to drive, comes solely from the testimony of appellant. No other evidence corroborates appellant's version of the events. Appellant's testimony conflicts with that of the other two boys and Baker. In making its determination, the trial court apparently chose to disbelieve appellant or to believe as more credible the testimony of Baker and the other two boys over appellant. Furthermore, appellant's furtive conduct in getting out of the driver's seat as Baker approached the van, and his initial admission that he did not know who owned the van, provides further evidence that appellant knew he lacked effective consent to drive the van. We overrule appellant's first point of error. In his second point of error, appellant challenges the factual sufficiency supporting the trial court's disposition ordering appellant placed in the care and custody of the Commission. Appellant complains that the unauthorized use of a vehicle is a state jail felony and that he should therefore be assigned to sanction level three according to the progressive sanction guidelines in the Juvenile Justice Code. See Tex. Fam. Code Ann. § 59.003, .006 (West 1996). Sanction level three recommends several possible punishments, including probation, community service, and restitution, but falls short of recommending commitment to the Commission. Tex. Fam. Code Ann. § 59.006 (West 1996). As guidelines, however, these sanction recommendations are advisory rather than binding. See Tex. Fam. Code Ann. § 59.003(e) (West 1996). When committing a child into the care and custody of the Commission, a juvenile court must include in its order the determination that (1) the disposition is in the child's best interest; (2) reasonable efforts were made to prevent or eliminate the need to place the child outside the home; and (3) the child, in the child's home, cannot obtain the quality of care necessary to meet the conditions of probation. Tex. Fam. Code Ann. § 54.04(i) (West 1996). The trial court included these findings in the disposition order. Appellant complains that the court's order fails to recite evidentiary support for its findings. Such documentation is not required by the Family Code. In re M.S., 940 S.W.2d 789, 792 (Tex. App.--Austin 1997, no writ). The Family Code requires only that the court include in its order the determination that the statutory requirements are met. Id. In reviewing the factual sufficiency supporting the disposition order, we consider and weigh all of the evidence in the case, and, if the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust, we set aside the judgement and remand for a new trial. See In re A.S., 954 S.W.2d 855, 861 (Tex. App.--El Paso 1997). Absent a showing of an abuse of discretion, the juvenile court's findings will not be disturbed. M.S., 940 S.W.2d at 791. We conclude that the record supports the disposition order of the court. The record shows that appellant was already on ISP probation for assault, theft, and possession of marihuana at the time of the instant offense. The record also reflects numerous incidents showing appellant's disrespect for school authority and disrespect for the terms of his earlier probation. Appellant skipped school and a scheduled visit with his probation officer the day he was stopped in the van by Baker. Such flagrant disregard for the terms of a previous probation make it likely that any new probation imposed would be treated with similar disdain. Under these conditions, we cannot say that the court abused its discretion in going outside the progressive sanction guidelines and ordering appellant into the care and custody of the Commission. We overrule appellant's second point of error. Conclusion There exists sufficient evidence in the record to support the trial court's adjudication of delinquency for the crime of unauthorized use of a motor vehicle. And, appellant failed to show the trial court abused its discretion because the record contains sufficient evidence supporting the trial court's disposition ordering appellant into the care and custody of the Texas Youth Commission. Having overruled appellant's two points of error, we affirm the order of the trial court. Mack Kidd, Justice Before Justices Powers, Aboussie and Kidd Affirmed Filed: October 8, 1998 Do Not Publish rthermore, appellant's furtive conduct in getting out of the driver's seat as Baker approached the van, and his initial admission that he did not know who owned the van, provides further evidence that appellant knew he lacked effective consent to drive the van. We overrule appellant's first point of error. In his second point of error, appellant challenges the factual sufficiency supporting the trial court's disposition ordering appellant placed in the care and custody of the Commission. Appellant complains that the unauthorized use of a vehicle is a state jail felony and that he should therefore be assigned to sanction level three according to the progressive sanction guidelines in the Juvenile Justice Code. See Tex. Fam. Code Ann. § 59.003, .006 (West 1996). Sanction level three recommends several possible punishments, including probation, community service, and restitution, but falls short of recommending commitment to the Commission. Tex. Fam. Code Ann. § 59.006 (West 1996). As guidelines, however, these sanction recommendations are advisory rather than binding. See Tex. Fam. Code Ann. § 59.003(e) (West 1996). When committing a child into the care and custody of the Commission, a juvenile court must include in its order the determination that (1) the disposition is in the child's best interest; (2) reasonable efforts were made to prevent or eliminate the need to place the child outside the home; and (3) the child, in the child's home, cannot obtain the quality of care necessary to meet the conditions of probation. Tex. Fam. Code Ann. § 54.04(i) (West 1996). The trial court included these findings in the disposition order. Appellant complains that the court's order fails