AFFIRM; Opinion Filed April 11, 2013




                                          S   In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-11-00922-CR

                     RODNEY ANTHONY ALVAREZ, Appellant
                                                 V.
                           THE STATE OF TEXAS, Appellee

                       On Appeal from the 195th Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. F10-60111-N

                              MEMORANDUM OPINION
                             Before Justices Francis, Lang, and Evans
                                    Opinion by Justice Francis
       A jury convicted Rodney Anthony Alvarez of unauthorized use of a motor vehicle and

assessed punishment, enhanced by a prior felony conviction, at seven years in prison. In his sole

issue, appellant contends the trial court abused its discretion by failing to instruct the jury on the

defense of mistake of fact. We affirm.

       Dallas police officers Michael Yarbrough and Michael Vaughn were performing routine

license plate checks on passing vehicles. A check on the plates of a passing truck showed the

vehicle had been reported stolen two days earlier. The officers followed the truck into a business

parking lot and placed the driver, identified as appellant, under arrest. Appellant asked “what

this was all about,” and Yarbrough told him the truck had been reported stolen. Appellant told
the officer he bought the truck from someone on the street for $400 but could not remember the

seller’s name. Appellant later “blurted out” that “he thought the vehicle might have been stolen,

because the guy he had bought it from said it had been stolen before.” Yarbrough testified the

truck’s steering column was broken so that access could be gained to the starting mechanism

without having a key for the ignition. A towel was draped over the top of the broken steering

column. The officer did not find a set of keys to start the vehicle. An inventory of the truck did

not uncover any items showing appellant had purchased the car or was the owner of it. At the

conclusion of the evidence, appellant requested the trial court include a mistake-of-fact

instruction in the jury charge. The trial court denied the request.

       Section 8.02(a) of the Texas Penal Code provides: “It is a defense to prosecution that the

actor through mistake formed a reasonable belief about a matter of fact if his mistaken belief

negated the kind of culpability required for commission of the offense.” TEX. PENAL CODE ANN.

§ 8.02(a) (West 2011).

       A defendant is entitled to an instruction on every defensive issue raised by the evidence,

whether that evidence is weak or strong, unimpeached or uncontradicted, and regardless of what

the trial court may think about the credibility of the defense. Allen v. State, 253 S.W.3d 260, 267

(Tex. Crim. App. 2008). A defense is supported or raised by the evidence “if there is some

evidence, from any source, on each element of the defense that, if believed by the jury, would

support a rational inference that that element is true.” Shaw v. State, 243 S.W.3d 647, 657-58

(Tex. Crim. App. 2007). The evidence is viewed in the light most favorable to the defendant’s

requested submission. Bufkin v. State, 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). We review

the trial court’s denial of a requested jury instruction for an abuse of discretion. Wesbrook v.

State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000).




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       A person commits unauthorized use of a motor vehicle “if he intentionally or knowingly

operates another’s . . . motor-propelled vehicle without the effective consent of the owner.” TEX.

PENAL CODE ANN. § 31.07 (West 2011). Thus, the offense not only requires proof of the

“forbidden conduct” but also of the “attendant circumstances” of the crime. Bruno v. State, 845

S.W.2d 910, 912 (Tex. Crim. App. 1993). The “forbidden conduct” is the knowing operation of

the vehicle. Id. To have knowledge of the “attendant circumstances,” the defendant must be

aware that the operation of the vehicle is without the owner’s consent. Id. In other words, the

conduct of operating a motor vehicle is made unlawful only when the defendant knows his

operation of the vehicle is without the owner’s consent. Gardner v. State, 780 S.W.2d 259, 263

(Tex. Crim. App. 1989) (per curiam). A mistake of fact defense goes not to the “act,” but instead

to the “attendant circumstances.” Id.

       Here, appellant relies on Gonzales v. State, 07-07-0151-CR, 2008 WL 3006340 (Tex.

App.—Amarillo Aug. 5, 2008, no pet.) to support his argument that he was entitled to an

instruction on mistake of fact in this case. In Gonzales, the Hockley County Sheriff’s Office was

participating in an auction to sell some patrol cars and seized vehicles. Id. at *1. The vehicles

had the keys in them, and appellant casually drove off in one of the cars. Police found the

appellant and the vehicle about ten minutes later. When the officer approached appellant, he

handed the officers the keys and explained that he had been given permission to test drive the

vehicle by a large Hispanic male at the auction. Id. The trial court denied the appellant’s

mistake-of-fact instruction. The Amarillo court reversed, explaining there was some evidence

entitling the defendant, as an auction attendee, to have believed a third party had authority to

give consent to his test driving the car. Id.




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       Here, in conjunction with appellant’s statement to the officer that he purchased the car for

$400, he also told the officer he thought the car was stolen. Thus, Gonzalez simply does not

apply to these facts. We therefore conclude appellant was not entitled to an instruction on

mistake of fact. We overrule the sole issue.

       We affirm the trial court’s judgment.




                                                    /Molly Francis/
                                                    MOLLY FRANCIS
                                                    JUSTICE

Do Not Publish
TEX. R. APP. P. 47
110922F.U05




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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                       JUDGMENT

RODNEY ANTHONY ALVAREZ,                           On Appeal from the 195th Judicial District
Appellant                                         Court, Dallas County, Texas
                                                  Trial Court Cause No. F10-60111-N.
No. 05-11-00922-CR        V.                      Opinion delivered by Justice Francis;
                                                  Justices Lang and Evans participating.
THE STATE OF TEXAS, Appellee

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered April 11, 2013.




                                                  /Molly Francis/
                                                  MOLLY FRANCIS
                                                  JUSTICE




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