Dennis Lamar Anders v. State

Affirmed and Memorandum Opinion filed June 25, 2009 Affirmed and Memorandum Opinion filed June 25, 2009. In The Fourteenth Court of Appeals ____________ NO. 14-08-00297-CR ____________ DENNIS LAMAR ANDERS, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 1123706 M EM O R A N D U M   O P I N I O N A jury found Dennis Lamar Anders guilty of the offense of unauthorized use of a motor vehicle; the trial court sentenced appellant to two years= confinement. In his sole issue on appeal, appellant argues that the evidence is legally and factually insufficient to support his conviction for unauthorized use of a motor vehicle. We affirm. Background In the summer of 2007, Alfredo Jesus Silvas employed appellant as an electrician. The employment terminated when appellant refused to come to work on a Saturday. A few weeks later, on June 22, 2007, one of Silvas=s work trucks C a 1996 gray Ford F-150 pick up truck C was stolen. Freddie Rebmann, another electrician who worked for Silvas, had parked the truck in front of his apartment. On June 25, 2007, Silvas saw his stolen truck stopped at the light in front of him as he approached Vista Street at the intersection of Pansy and Vista at about 6:00 p.m. Although the sign ACenturion Electric@ and Silvas=s telephone number on the back of the truck had been painted over with a dark gray color, Silvas recognized his truck and the truck=s license plate number. Silvas could not see who was driving his truck, but the driver recognized him and ran the red light. Silvas waited for the traffic light to turn green and pursued the stolen truck. Silvas noticed that the truck=s passenger window was missing and the driver=s side window was open. As Silvas followed, the truck made a u-turn into oncoming traffic. As the truck drove back toward Silvas, Silvas recognized appellant as the driver. At trial, Silvas identified appellant as the driver of the truck and testified that there was Ano doubt@ in his mind that appellant drove the stolen truck on June 25, 2007. Silvas also explained that, because the truck had been stolen twice before, the truck=s ignition was linked to an innocuous switch; before the truck could be started, the switch had to be activated to allow a connection to one of two gas tanks. Silvas stated that one would have to know about the switch in order to start the truck. Silvas testified that, although appellant had access to the truck because he had ridden in it as a passenger, appellant never had permission to drive Silvas=s truck. Rebmann testified at trial that appellant and Rebmann were the only ones who knew Aabout the ignition not being able to operate with the key@ and also knew about the switch. Rebmann testified that appellant never had permission to drive Silvas=s truck. Appellant=s private investigator, William Hodge, also testified at trial. Hodge stated that he interviewed Rebmann, and that Rebmann told him that Silvas had given appellant permission to drive Silvas=s truck. Hodge further testified that Rebmann told him three other people besides Rebmann and appellant knew about the truck=s unique ignition system. Analysis Appellant argues on appeal that the evidence is legally and factually insufficient to support his conviction for unauthorized use of a motor vehicle because the State failed to prove that he operated the truck without the owner=s authorization. In reviewing legal sufficiency of the evidence, an appellate court will examine the evidence in the light most favorable to the verdict to determine whether any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Salinas v. State, 163 S.W.3d 734, 737 (Tex. Crim. App. 2005). The court does not sit as a thirteenth juror and may not re‑evaluate the weight and credibility of the record evidence or substitute its judgment for that of the fact finder. Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Reconciliation of conflicts in the evidence is within the exclusive province of the fact finder. See Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998) (en banc). The appellate court=s duty is not to re-weigh the evidence, but to serve as a final due process safeguard ensuring only the rationality of the fact finder. See Williams v. State, 937 S.W.2d 479, 483 (Tex. Crim. App. 1996). When conducting a factual sufficiency review, an appellate court must determine (1) whether the evidence introduced to support the verdict is Aso weak@ that the fact finder=s verdict seems Aclearly wrong and manifestly unjust,@ and (2) whether, considering conflicting evidence, the fact finder=s verdict is nevertheless against the great weight and preponderance of the evidence. Watson v. State, 204 S.W.3d 404, 414‑15 (Tex. Crim. App. 2006). We view the evidence in a neutral light in a factual sufficiency review. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000) (en banc). In order to declare that an evidentiary conflict justifies a new trial, an appellate court must rely on some objective basis in the record demonstrating that the great weight and preponderance of the evidence contradicts the jury=s verdict. See Lancon v. State, 253 S.W.3d 699, 706‑07 (Tex. Crim. App. 2008). An appellate court should not intrude upon the fact finder=s role as the sole judge of the weight and credibility of witness testimony. Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). The jury may choose to believe or disbelieve any portion of the testimony. See Lancon, 253 S.W.3d at 707. Due deference must be given to the fact finder=s determinations concerning the weight and credibility of the evidence, and reversal of those determinations is appropriate only to prevent the occurrence of a manifest injustice. Martinez v. State, 129 S.W.3d 101, 106 (Tex. Crim. App. 2004). A person commits the offense of unauthorized use of a vehicle if he intentionally or knowingly operates a vehicle without the effective consent of the owner. Tex. Penal Code Ann. ' 31.07(a) (Vernon 2003). A[W]hat separates lawful operation of another=s motor vehicle from unauthorized use is the actor=s knowledge of a >crucial circumstance surrounding the conduct= C that such operation is done without the effective consent of the owner.@ McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989) (en banc). An owner=s testimony that a defendant had no consent generally is sufficient in itself to prove the defendant knew he had no consent to operate the vehicle. See id. at 604‑05; see also White v. State, 844 S.W.2d 929, 932 (Tex. App.CHouston [1st Dist.] 1992, pet. ref=d). We conclude that the record contains legally and factually sufficient evidence to support the jury=s verdict in this case. At trial, Silvas testified that: (1) he saw his stolen truck in front of him at a stoplight, and he recognized the truck=s license plate; (2) the driver of his stolen truck recognized him and ran a red light; (3) after the driver of the truck u-turned into oncoming traffic and then drove by Silvas, there was no doubt in Silvas=s mind that appellant was the driver of his stolen truck on June 25, 2007; (4) it still was light around 6:00 p.m. when he saw appellant driving by him in his truck; (5) because his truck had been stolen twice before, the ignition was linked to an innocuous switch that had to be activated to allow a connection to one of the two gas tanks; (6) one would have to know about the switch in order to start the truck; and (7) although appellant had access to the truck as a passenger, Silvas never gave appellant permission to drive his truck. The jury also heard Rebmann=s testimony at trial. Rebmann testified that he and appellant were the only ones who knew Aabout the ignition not being able to operate with the key,@ and who knew about the switch. Rebmann further testified that appellant never had permission to drive Silvas=s truck. Viewing this evidence in the light most favorable to the jury=s verdict, we hold that this evidence is legally sufficient to support appellant=s conviction. With respect to his factual sufficiency challenge, appellant contends that the Aevidence which tends to show that [he] did not use Silvas=[s] truck without his consent overwhelmingly outweighs the evidence which shows that he did use the truck.@ He points to the following to support his contention: (1) ASilvas admitted that he failed to include in his affidavit to the police that he saw@ appellant driving the truck as he made a u-turn; (2) Silvas admitted that the u-turn provided the only opportunity for Silvas to see appellant driving the truck; and (3) AHodge testified that Rebmann told him that Silvas had given [appellant] and several other people permission to drive the truck.@ The jury is the sole judge of the credibility of the witnesses and the weight to be given the evidence; thus, the jury is entitled to believe or disbelieve all or part of a witness=s testimony. Roy v. State, 161 S.W.3d 30, 35 (Tex. App.CHouston [14th Dist.] 2004, no pet.). Although Silvas acknowledged that his affidavit does not reflect that he recognized the appellant driving his stolen truck after he executed a u-turn and drove past him, he testified at trial that he had no doubt that he saw appellant driving his stolen truck as he passed by him. Nor does the fact that Silvas neglected to mention in his affidavit how and when he recognized appellant driving his stolen truck support appellant=s assertion that he had permission to drive the truck. Although Hodge testified that Rebmann told him that appellant had permission from Silvas to drive his truck, both Silvas and Rebmann testified to the contrary. Additionally, there is no evidence to suggest that appellant had permission to drive Silvas=s truck after his employment had terminated. Viewing the evidence in a neutral light, we cannot conclude that the evidence introduced to support the verdict is so weak that the fact finder=s verdict seems clearly wrong and manifestly unjust, or that the fact finder=s verdict is against the great weight and preponderance of the evidence. Therefore, we hold the evidence is factually sufficient to support the jury=s finding of guilt. Accordingly, we overrule appellant=s sole issue on appeal. Conclusion The judgment of the trial court is affirmed. /s/ William J. Boyce Justice Panel consists of Justices Frost, Brown, and Boyce. Do Not Publish C Tex. R. App. P. 47.2(b).