Gary Nathaniel Davis v. State

11th Court of Appeals Eastland, Texas Opinion Gary Nathaniel Davis Appellant Vs. No. 11-02-00218-CR B Appeal from Dallas County State of Texas Appellee The jury convicted Gary Nathaniel Davis of a state jail felony, “Unauthorized Use of a Vehicle.”[1] The trial court assessed his punishment at confinement in a state jail for 2 years and a fine of $300, but the trial court suspended the imposition of confinement and placed appellant on community supervision for a period of 4 years.[2] We affirm. The Indictment The indictment charged that, on or about August 4, 2000, appellant unlawfully operated a vehicle without the effective consent of its owner. Points of Error Appellant presents five points of error. First, he argues that it was “fundamental error” for the trial court not to charge the jury on the defensive issue of mistake of fact. Then, appellant argues that his trial attorney rendered ineffective assistance of counsel because he failed to request an instruction on that defensive issue. Appellant argues in his next two points that the evidence was “legally insufficient” and “factually insufficient” to support the conviction. Finally, appellant argues that the trial court erred in amending the indictment to show the complainant’s name as “Donald Dean” instead of “Dean Donald.” Appellant’s Claim of “Fundamental Error” in Charge Appellant cites Posey v. State, 916 S.W.2d 88 (Tex.App. - Houston [1st Dist.] 1996), rev’d, 966 S.W.2d 57 (Tex.Cr.App.1998), arguing that the court of appeals was correct when it held that it was “fundamental error” for the trial court not to instruct the jury on the defensive issue of mistake of fact when that defense was raised by the evidence. In his brief, appellant concedes that the court of appeals was reversed and then asks for reconsideration of this issue. Our court is obligated to follow the holdings of the Court of Criminal Appeals, and that court held that TEX. CODE CRIM. PRO. ANN. art. 36.14 (Vernon Supp. 2003) does not require trial courts to instruct the jury on “unrequested defenses.” See Posey v. State, 966 S.W.2d at 60-62: Therefore, the question boils down to whether Article 36.14 imposes a duty on trial courts to sua sponte instruct the jury on defensive issues, or whether Article 36.14 permits a defendant to complain for the first time on appeal about the omission of unrequested defensive issues in the charge. * * * Article 36.14 also mandates that a trial court submit a charge setting forth the law “applicable to the case.” The question in this case is whether this imposes a duty on trial courts to sua sponte instruct the jury on unrequested defensive issues. We hold Article 36.14 imposes no such duty. Point of Error No. 1 is overruled. Assistance of Counsel In discussing a defendant’s right to the assistance of counsel under U.S. CONST. amend. VI and TEX. CONST. art. I, § 10, the court said in Hernandez v. State, 726 S.W.2d 53, 57 (Tex.Cr.App.1986), that Texas “will follow in full” the standards which were established in Strickland v. Washington, 466 U.S. 668 (1984), “for determining ineffectiveness of counsel and for ascertaining when such ineffectiveness is prejudicial.” The court quoted Strickland v. Washington, supra, in Hernandez v. State, supra at 55: [T]he proper standard for attorney performance is that of reasonably effective assistance....When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness....A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance....The court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. * * * The defendant must [also] show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. (Emphasis added) TEX. PENAL CODE ANN. § 8.02 (Vernon 2003) (“Mistake of Fact”) provides that it is a defense to prosecution if the defendant “through mistake formed a reasonable belief about a matter of fact” if his mistaken belief negated the culpability required for commission of the offense. (Emphasis added) Appellant’s trial counsel developed this defensive issue in his cross-examination of the State’s two witnesses and also by putting appellant and two other witnesses on the stand to support his defense that he did not know that the vehicle had been stolen. Then, appellant’s trial counsel made this argument to the jury: Ladies and gentlemen of the jury, I want to thank you for the time you’ve spent on this case. * * * The whole case hinges on should he have known the car was stolen. * * * Okay. We know that everybody in the neighborhood drives around with broken steering columns. The grandmother told you that. The other young man told you that....It’s just the way [those] people do things, you know. You get it fixed; they’re going to break it again. So that’s just the way it goes. Who is to say that’s so unreasonable? Have you heard anything to the contrary? No, you haven’t heard anything to the contrary. That’s a neighborhood where everybody seems to work on cars and do their thing and jury-rig cars. * * * See, we’re talking about a truck here that was...all beat up, torn up and full of junk....So we don’t know. But we do know that the State has not proved to you anything except that he was driving a car with a busted steering column. They haven’t proved he stole the car. * * * I said [to the police officer who arrested appellant], well, how can you say that [appellant stole the car]? All you can say, you caught him driving a car with a busted steering column. He said, yeah, I guess you’re right; that’s all I can say. * * * Now, I’ve said just about all I can say about this case....All I want you to do is follow the Judge’s charge. And it says here he must know that this vehicle was stolen [and] you will come to the conclusion that at best the State can prove that he was driving a car with a broken steering column. * * * But justice, honesty, truth, humanity deserves that you tell the State that you have not proved your case....So ladies and gentlemen, please do your job and do it well. Thank you very much. (Emphasis added) Appellant has not shown that “there is a reasonable probability” that he would not have been convicted if his trial counsel had objected to the charge and requested an instruction to the jury on the defensive issue of mistake of fact. Strickland v. Washington, supra; Hernandez v. State, supra. Point of Error No. 2 is overruled. The Evidence Donald Dean testified that he was a truck driver who lived in Dallas and that he owned the 1988 Silverado pickup which appellant was driving at the time of his arrest on August 4, 2000. Dean testified that he bought the pickup about 5 years earlier for $12,000, that it was in “very good” condition when he bought it, and that it was still in good condition when it was stolen. Dean discovered that the pickup was missing when he went out to get the paper on the morning of July 19, 2000; and he called the police to report the theft. Dean testified that he had not given anybody his consent to take the vehicle and that he had not sold it to anyone. About three weeks later, the police told him that his vehicle was in the “pound,” and he took his registration and insurance papers to get his vehicle from the pound. Dean said that his pickup was in “very bad” condition when he got it from the pound, that the steering column was broken, that the seats were torn and ripped, that the glove compartment was missing, that the windshield was cracked, that the rearview mirror was missing, and that the left side door lock was knocked all the way in. Dean also said that the transmission was burned up and had to be replaced. Dean said that he was still the owner of the vehicle, that it cost him $310 to get it from the pound, that the repairs which had been done cost about $1,600, and that he had not had the money to get everything repaired. Dean admitted that he was currently on probation and that he had been convicted for the unauthorized use of a vehicle, for an assault, and for various misdemeanors. Dean also said that appellant had called him, asking him to “please drop the charges” and offering to see to it that the truck was repaired. Dean said that appellant “claimed” that he had bought the pickup from one of his friends but that appellant would not give the name of his friend. Dean said that appellant claimed that he had paid $800 for the vehicle, and Dean estimated that the value of the vehicle at that time was about $7,500. Dean also testified that he thought appellant stole the pickup because he “was caught in the pickup.” Officer Justin White of the DeSoto Police Department testified that he was “conducting stationary radar” on August 4, 2000. Officer White was also “running registrations” on the on-board computer; and, when he ran the license on appellant’s vehicle, he got information from the computer that the vehicle had been reported stolen. Officer White stopped the vehicle, and he gave Miranda warnings[3] to the three people who were in the vehicle. Officer White identified appellant as the driver of the vehicle. Officer White said that appellant claimed that he had “bought the vehicle for $300 from a guy by the name of James.” Officer White said that appellant did not have a title to the vehicle and that the “key lock” on the driver’s side “had been punched in and...was missing.” Officer White also said that the steering column had been “popped” and that the vehicle was “running without the keys.” Officer White arrested appellant and released the other two people. The vehicle was impounded. During his cross-examination, Officer White said that the only evidence he had that appellant had stolen the vehicle was that he was in possession of it and operating it. Officer White also agreed with appellant’s attorney that one of the passengers told Officer White that appellant had paid $300 down and that he was to pay $1,500 later on. During his redirect examination, Officer White testified that appellant claimed that he had bought the car “about two months prior” to his arrest and that the passenger said the car was bought “about a week prior” to the arrest. Officer White said that he did not get consistent stories from appellant and the passenger about the “buying” of the car. After the State rested, appellant’s grandmother testified that she was in the yard working on her car in August of 2000 when a truck drove up with three men in it. She knew one of the men. His name was Cox, and he asked her if she wanted to buy the truck. She said that appellant was not in the truck and that the men drove off. Marcus Cox testified that he lived in Oak Cliff and that he had been convicted for selling drugs. Cox testified that he was with two men when they brought a truck to appellant and that appellant bought the truck for $300. Cox said that one of the men was a “dude” named James and that the other one was named Phil. Cox said that appellant had the truck about two weeks before he was stopped and arrested. Cox also said that the steering column was broken and that the keyhole was punched out on the driver’s side. Even so, Cox said that he did not think the vehicle was stolen. Cox said that he had a car “with the collar broke” and that it was not stolen. Cox said that he brought two guys to sell the pickup to appellant “with no title.” Cox said that they were supposed to give appellant the title later. Appellant testified that he did not steal Dean’s truck and that he bought it from a friend. Appellant also testified that his car had been stolen three or four times and that he does not “even bother with trying to fix the column anymore.” Appellant said that he just goes ahead and drives it. Appellant said that, once the car thieves see that the steering column is broken, they do not want to bother with it. Appellant’s testimony on direct examination reads in part as shown: Q: Tell us what happened and how...you came up with the truck. A: Okay. My wife and myself, we was at home. We were laying in the bed. My friend Marcus Cox came up with James, and he said...I have James right here. He wants to sell his truck. * * * And I was like, well, I already looked at the truck. The steering column is broke on it, you know. And I said, now, I know Cox and I know James. I really don’t trust James. I really don’t want to purchase this truck. You know what I’m saying? Because he’s willing to take anything right now at this point. So I could see that he really just basically wanted some money. * * * Because he...said, man, you know, I really want fifteen hundred for the truck....And I was like, well, I ain’t got no fifteen hundred dollars. I got $300, you know, whatever, down payment on the truck. * * * And at that point, I...asked him, I said, now, you need to let me know what is going on with this truck because it does have a busted steering column. I know you. You know what I’m saying? I know Cox. Cox is not into things like that. He doesn’t do anything like that. He’s trying to go on and be straight, because he was on parole. Q: But you are suspicious when you see a column - - steering column broken and a door punched out like that, right? You are suspicious? A: That’s right. Q: So why did you buy this thing if you’re suspicious? A: Because I got two friends here, and I know - - because Cox was riding around in the truck. This was Cox’s friend. And I was, like, Cox ain’t going to be riding around in no stolen truck and he’s on parole. That would be stupid, you know. And I was, like, no. So Cox was like, well, man, we been riding around and we ain’t had no problem....And I was, like, there can’t be nothing wrong with this truck, you know. And I’m being truthful. So I weighed the situation. And I said here I have two friends who are guaranteeing that this truck is legitimate. So I said okay. My wife said do it. I said okay. I’m willing to give it a try. And that’s what happened. Appellant also testified that he had tried to find his ex-wife and James to get them to testify for him but that Cox was the only one he could find to support his testimony. Appellant also testified that he had never been to the penitentiary and had never been on probation. During his cross-examination, appellant said that he was not willing to give James “$1,500 off the top when he didn’t have no title or nothing.” Appellant also said that he “gave him $300 that day” and that he did not drive the vehicle until the day he was arrested. Appellant also said that he did not tell the police officer that he bought the car two months prior to the day of his arrest. Sufficiency of the Evidence We have reviewed appellant’s claim that the evidence was “legally” insufficient under the test stated in Jackson v. Virginia, 443 U.S. 307 (1979); and we have reviewed his claim that the evidence was “factually” insufficient to support his conviction pursuant to Vasquez v. State, 67 S.W.3d 229, 236 (Tex.Cr.App.2002). The jury was the “exclusive judge of the credibility of the witnesses,” and the reconciliation of conflicts in the testimony was within the “exclusive province of the jury.” Jones v. State, 944 S.W.2d 642, 647 (Tex.Cr.App.1996), cert. den’d, 522 U.S. 832 (1997). We have reviewed all of the evidence, and we hold that it was both “legally” sufficient and “factually” sufficient to support the jury finding that appellant was guilty of the offense; the conviction was neither “clearly wrong” nor “manifestly unjust.” Jackson v. Virginia, supra; Vasquez v. State, supra; Jones v. State, supra. Points of Error Nos. 3 and 4 are overruled. Amendment of Indictment The indictment which was filed on August 15, 2000, alleged that appellant operated a vehicle “without the effective consent of Dean Donald, the owner thereof.” The State’s “Motion to Amend Indictment” was granted on May 17, 2002. The indictment was amended by deleting the words “Dean Donald” and replacing them with the words “Donald Dean.” The changes are shown on the face of the indictment, and the amended indictment was initialed and dated by the district judge. The trial began on June 4, 2002. The amendment of the indictment was proper. See TEX. CODE CRIM. PRO. ANN. arts. 28.10 & 28.11 (Vernon 1989). Point of Error No. 5 is overruled. This Court’s Ruling The judgment of the trial court is affirmed. BOB DICKENSON SENIOR JUSTICE June 26, 2003 Do not publish. See TEX.R.APP.P. 47.2(b). Panel consists of: Arnot, C.J., and Wright, J., and Dickenson, S.J.[4] [1]TEX. PENAL CODE ANN. § 31.07 (Vernon 2003) defines the offense and provides that it is a state jail felony. TEX. PENAL CODE ANN. § 12.35 (Vernon 2003) provides that a person convicted of a state jail felony shall be punished by confinement for not more than 2 years nor less than 180 days. A fine of not more than $10,000 is also authorized. [2]One of the conditions of community supervision was that appellant pay $1,600 in restitution of damages to the vehicle. [3]See Miranda v. Arizona, 384 U.S. 436 (1966). [4]Bob Dickenson, Retired Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.