                               NUMBER 13-07-632-CR

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


ROY CLARENCE EISENBACH,                                                          Appellant,

                                              v.

THE STATE OF TEXAS,                                                               Appellee.


 On appeal from the 51st District Court of Tom Green County, Texas.


                         MEMORANDUM OPINION
    Before Chief Justice Valdez and Justices Yañez and Benavides
            Memorandum Opinion by Justice Benavides

       Appellant, Roy Clarence Eisenbach, was indicted for theft of a motor vehicle and

for unauthorized use of a motor vehicle. See TEX . PENAL CODE ANN . § 31.03 (Vernon

Supp. 2007); id. § 31.07 (Vernon 2006). A bench trial commenced. After the close of the

State’s evidence, the district court dismissed count two of the indictment, alleging theft, and

acquitted Eisenbach of the charge.       The trial court, however, convicted Eisenbach of
unauthorized use of a motor vehicle, sentenced him to 735 days’ imprisonment, and

ordered a $750.00 fine. The court then suspended the prison sentence and placed

Eisenbach on community supervision for three years.          By a single issue, Eisenbach

argues that the evidence is legally and factually insufficient to support the trial court’s

finding that Eisenbach did not have a greater right to possession of the vehicle than the

alleged owner, as required to show unauthorized use. We affirm.

                                      I. Background

       Eisenbach was a car salesman who sold cars under a “floor-plan agreement.”

Under this agreement, Jim Hall would finance Eisenbach’s purchase of a car for resale.

According to Hall’s testimony, Eisenbach would approach him with a proposed car

purchase. Hall would inspect the vehicle to ensure that it was in good condition. Hall

would then give Eisenbach money to purchase the car. Eisenbach was required to bring

Hall the title to the car, which would be left “open.” In other words, the purchaser or dealer

reassignment blanks would be left empty. According to Hall, at that point, he owned the

car. Eisenbach was authorized to place the car for sale at Alternative Auto Sales, a used-

car dealership owned by James Mann. Eisenbach would sell the car using Mann’s dealer

license.

       Under the agreement, Eisenbach would sell the car, pay Hall the amount Hall spent

to purchase the car, plus a fee and interest, and keep the excess profit. Hall would then

give Eisenbach the title to the car so that the purchaser’s name could be put on the title.

According to Hall, Eisenbach was not allowed to sell the cars under an installment plan.

Rather, when Eisenbach sold a car, he was required to pay Hall off in full. Only then was



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Eisenbach allowed to release the car to the buyer’s possession. Hall testified that he

periodically inspected Alternative Auto Sales to verify that all the cars he had purchased

were on the lot.

       In 2005, Eisenbach approached Hall about purchasing a Cadillac Concourse. Hall

testified that he paid $5,500.00 for the Cadillac, and Eisenbach provided Hall with the title.

The title was admitted into evidence. Eisenbach’s name is not listed anywhere on the title.

Hall testified that at the time he received the title, it was left “open,” meaning that no

purchaser was filled in, so that the title was “negotiable.”

       Richard Havelock-Bailie testified that he went to Alternative Auto Sales in 2005 and

negotiated with Eisenbach for the purchase of the Cadillac. He testified that there was no

written agreement for the sale.      Bailie testified that he agreed to pay Eisenbach a

$5,000.00 down payment for the car by making payments of $100.00 per week. Bailie

stated that he traded in a truck and a dolly used to tow cars as part of the down payment.

Eisenbach allowed Bailie to take possession of the car. Bailie testified that Eisenbach

stated that he would occasionally need to take the car to show Hall its condition, given that

Hall was financing the purchase. Bailie testified that Eisenbach never told him that if he

missed a payment, Eisenbach would repossess the car.

       Bailie made payments beginning in April 2005 and purchased insurance for the car.

Bailie testified that he made weekly payments throughout April, May, and June. He stated

that on weeks that he did not have enough money to make a payment, Eisenbach allowed

him to double the payment the next week. He further stated that on June 16, 2005, his

wife made a payment of $450 because he knew he would not be able to make another

payment that month.

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       On July 9, 2005, Bailie testified that when he woke up in the morning, the Cadillac

was missing from his driveway. Bailie testified that he had not given Eisenbach permission

to take the car. When he spoke to Eisenbach later that day, Eisenbach informed him that

he had taken the car and had hit a deer in El Dorado, Texas. Hall testified that the car was

a total loss. Bailie made a claim on his insurance policy and, after learning that Hall held

the title to the car, made Hall the loss payee on the insurance policy. Hall and Bailie

divided up the proceeds from the insurance.

       Eisenbach was indicted for theft and for unauthorized use of a motor vehicle. After

the State rested, the trial court acquitted Eisenbach of the theft charge. Eisenbach’s

nephew testified on his behalf. He testified that he assisted Eisenbach with repossessing

the vehicle. He testified that after repossessing the vehicle, he brought the car to

Alternative Auto Sales.

       The trial court convicted Eisenbach of unauthorized use of the vehicle, sentenced

him to 735 days’ imprisonment, and ordered a $750.00 fine. The court then suspended

the prison sentence and placed Eisenbach on community supervision for three years. This

appeal ensued.

                                 II. Standards of Review

       By a single issue, Eisenbach argues that the evidence is legally and factually

insufficient to support his conviction. To assess whether the evidence supporting a verdict

is legally sufficient, we consider all the evidence in the record in the light most favorable

to the verdict and determine whether a rational trier of fact could have found the defendant

guilty of all the elements of the crime beyond a reasonable doubt. Hooper v. State, 214

S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson v. Virginia, 443 U.S. 307, 318-19

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(1979)); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003).

       In contrast, three basic rules guide our inquiry when conducting a factual-sufficiency

analysis. Lancon v. State, 253 S.W.3d 699, 704 (Tex. Crim. App. 2008). “First, the court

of appeals must be cognizant . . . that a [fact-finder] has already passed on the facts and

must give due deference to the [fact-finder’s] determinations.” Id. at 705. While we may

not agree with the ultimate decision, we must “afford the appropriate deference in order to

avoid substituting [our] judgment for that of the [fact-finder].” Id. Second, if we determine

that the evidence is factually insufficient, we must explain precisely why. Id. Third, we

must “review all of the evidence in a neutral light, as opposed to a legal-sufficiency review

in which the evidence is viewed in the light most favorable to the verdict.” Id. We will

reverse for factual insufficiency of the evidence if “the evidence supporting the verdict,

though legally sufficient, is nonetheless too weak to support it,” or if, “when considering

conflicting evidence, the . . . verdict is against the great weight and preponderance of the

evidence.” Id.

                                        III. Analysis

       A person commits the offense of unauthorized use of a motor vehicle if he

intentionally or knowingly operates another’s motor-propelled vehicle without the owner’s

consent. TEX . PENAL CODE ANN . § 31.07. An “owner” is defined as “a person who . . . has

title to the property, possession of the property, whether lawful or not, or a greater right to

possession of the property than the actor.” Id. § 1.07(a)(35)(A) (Vernon 2003). Eisenbach

concedes that he did not have permission to use the vehicle on the night it was taken from

Bailie’s driveway. He argues, however, that the evidence was legally and factually



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insufficient to prove that Bailie had a greater right to possess the vehicle because Bailie

defaulted on his payments, and, therefore, Eisenbach had a right to repossess the vehicle.

We disagree.

       A vehicle dealer can validly sell a vehicle without also transferring a certificate of title

at the time of the sale. In re Dota, 288 B.R. 448, 455-58 (S.D. Tex. 2003). “Unless

otherwise explicitly agreed title [to goods] passes to the buyer at the time and place at

which the seller completes his performance with reference to the physical delivery of the

goods, despite any reservation of a security interest and even though a document of title

is to be delivered at a different time or place . . . .” See TEX . BUS. & COMM . CODE ANN . §

2.401(b) (Vernon 1994). “Any retention or reservation by the seller of the title (property)

in goods shipped or delivered to the buyer is limited in effect to a reservation of a security

interest.” Id. § 2.401(a).

       A “secured party” may repossess collateral in the possession of a buyer after a

default if repossession is obtained through judicial process or if repossession can proceed

without a breach of the peace. TEX . BUS. & COMM . CODE ANN . § 9.609 (Vernon 2002). A

“secured party” is defined as “a person in whose favor a security interest is created or

provided for under a security agreement, whether or not any obligation to be secured is

outstanding.” Id. § 9.102(73)(A).

       In this case, Hall testified that he purchased the vehicle and allowed Eisenbach to

sell it, pay him interest and a fee, and retain the excess. Eisenbach concedes that Hall

was the original owner of the vehicle and that he merely had authority to sell the vehicle

on Hall’s behalf. Eisenbach further concedes that he sold the vehicle to Bailie, although

he argues that the parties agreed that title would not be transferred until Bailie finished

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paying the “deposit.” At the time of the sale, regardless of whether title was actually signed

over to Bailie at the same time, Bailie became the owner of the vehicle. TEX . BUS. & COMM .

CODE ANN . § 2.401(b). At most, Eisenbach’s requirement of further payments from Bailie

created a security interest.

         Eisenbach argues that he had a greater right to possession of the vehicle than Bailie

because Bailie had defaulted on his payments, and therefore, Eisenbach had the right to

repossess the car as long as he did not breach the peace. There is no evidence that

Eisenbach was ever an owner of the vehicle or that he had the power to retain a security

interest in his own favor. Id. § 9.102(73)(A). Thus, Eisenbach was not a “secured party”

entitled to repossess the vehicle. Id. At most, a security interest was only created in Hall’s

favor.

         Hall testified that Eisenbach was not authorized to repossess the car on his

behalf—in fact, Hall testified that Eisenbach was never authorized to sell cars on an

installment payment plan. Eisenbach concedes in his brief that he “did not follow the

instructions of Hall when he gave Richard Havelock-Bailie the car to use.” Eisenbach,

therefore, did not have authority, as Hall’s agent, to repossess the car after it had been

sold to a buyer. Eisenbach was never authorized to give possession of the car to Bailie

in the first place in the absence of a full payment for the car.

         Reviewing the evidence in the light most favorable to the verdict, a rational fact-

finder could have found beyond a reasonable doubt that Eisenbach did not have a greater

right to possess the vehicle than did Bailie, the car’s owner. See Hooper, 214 S.W.3d at

13. Furthermore, viewing the evidence in a neutral light, we cannot say that “the evidence

supporting the verdict, though legally sufficient, is nonetheless too weak to support it” or

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that “the jury's verdict is against the great weight and preponderance of the evidence.”

Lancon, 253 S.W.3d at 704. Eisenbach’s sole issue is overruled.

                                     IV. Conclusion

       Having overruled Eisenbach’s sole issue, we affirm the trial court’s judgment.




                                                GINA M. BENAVIDES,
                                                Justice



Do not publish. TEX . R. APP. P. 47.2(b).

Memorandum Opinion delivered and
filed this the 28th day of August, 2008.




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