Braderick Butler v. State

MARY'S OPINION HEADING NO. 12-02-00015-CR IN THE COURT OF APPEALS TWELFTH COURT OF APPEALS DISTRICT TYLER, TEXAS BRADERICK BUTLER, § APPEAL FROM THE SEVENTH APPELLANT V. § JUDICIAL DISTRICT COURT OF THE STATE OF TEXAS, APPELLEE § SMITH COUNTY, TEXAS MEMORANDUM OPINION A jury found Appellant Braderick Butler guilty of the unauthorized use of a motor vehicle, a state jail felony. The court assessed punishment at confinement for eighteen months. Appellant presents four issues on appeal. We affirm. Background Late in the evening of July 16, 2001, Kendrick Knolley reported that his 1990 blue Cadillac had been stolen from in front of his rural residence. Sheriff's Deputy Glenn Blalock investigated the report shortly thereafter. Knolley could not give Deputy Blalock any description of a possible suspect. A few hours after the first report, Deputy Blalock observed Appellant driving Knolley's blue Cadillac, backing out of a parking place in front of the fire station near the jail, and parking nearby in front of a finance company. After he parked the car, Appellant got out and sat on the trunk. When Deputy Blalock approached Appellant and asked him how he came to be in possession of the vehicle, he said he had gotten it from some "dude" in Chapel Hill. When he was asked again for the name of the person who had given him the blue Cadillac, he became agitated and responded, "Are you going to arrest me or what?" Appellant never gave the name of the individual he claimed had given him the car. Knolley testified at trial that at about 7:30 p.m., July 16, 2001, he was in the front yard of his house talking to Robert Phillips. Knolley went inside to answer the telephone. He spent five or ten minutes on the telephone. When he went back outside, Robert Phillips and the blue Cadillac were gone. He had seen no one else in the area except Robert Phillips. Although he thought Phillips had probably taken his car, Knolley did not mention Phillips to Deputy Blalock. Knolley said the keys were in the vehicle when it was taken. He testified that he did not believe that Appellant had stolen his car. In the first, third and fourth issues presented, Appellant challenges the legal and factual sufficiency of the evidence. Specifically, he complains that there was no evidence that he intentionally or knowingly committed the charged offense. Standard of Review In reviewing a legal sufficiency challenge, the appellate court examines the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2787, 61 L. Ed. 2d 560 (1979); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). A factual sufficiency review requires this court to view all of the evidence without the prism of "'in the light most favorable to the prosecution' and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). Discussion A person commits the offense of unauthorized use of a motor vehicle if he or she (1) intentionally or knowingly (2) operates (3) another's boat, airplane, or motor-propelled vehicle (4) without the effective consent of the owner. Tex. Pen. Code Ann. § 31.07 (Vernon Supp. 2000). Appellant concedes the proof shows he was operating the car, and that Knolley had not given him permission to operate it. Appellant insists, however, that since there is no evidence that he took the car or that he knew it had been stolen, the evidence is insufficient to prove that he operated the vehicle knowing that he was doing so without the effective consent of the owner. In support of his argument, he cites McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989). Knolley's testimony that Appellant had no consent is sufficient, in itself, to prove Appellant knew he had no consent to operate the car. White v. State, 844 S.W.2d 929, 932 (Tex. App.-Houston [1st Dist.] 1992, pet. ref'd); McQueen, 781 S.W.2d at 605; Posey v. State, 916 S.W.2d 88, 89 (Tex. App.-Houston [1st Dist.] 1996), rev'd on other grounds, 996 S.W.2d 57 (Tex. Crim. App. 1998). The fact finder was free to reject any evidence that Appellant mistakenly believed the unnamed man in Chapel Hill owned the car and had given him permission to operate it. See McQueen, 781 S.W.2d at 605; Posey, 916 S.W.2d at 90. The evidence is both legally and factually sufficient to support the verdict. Appellant's first, third and fourth issues are overruled. In his second issue, Appellant contends that "[t]he trial court erred in permitting Deputy Glenn Blalock [to] testify about information from the report that he had made about the incident... in the course of his duties as a law enforcement official, thus violating the exclusion from the hearsay exception of rule 803(8)(B)...." Although the officer used the report to refresh his memory and testified to facts he had not included in his report, the report was not introduced and Appellant raised no objection to Deputy Blalock's testimony at trial. Appellant's second issue is without merit and is overruled. The judgment is affirmed. BILL BASS Justice Opinion delivered March 12, 2003. Panel consisted of Worthen, C.J., Griffith, J., and Bass, Retired Justice, Twelfth Court of Appeals, Tyler, sitting by assignment. (DO NOT PUBLISH)