                                                                         ACCEPTED
                                                                     13-14-00683-CR
                                                     THIRTEENTH COURT OF APPEALS
                                                            CORPUS CHRISTI, TEXAS
                                                               8/26/2015 12:10:48 PM
                                                              CECILE FOY GSANGER
                                                                              CLERK


             No. 13-14-683-CR

       IN THE COURT OF APPEALS RECEIVED IN
                              13th COURT OF APPEALS
 FOR THE THIRTEENTH DISTRICT OF TEXAS
                           CORPUS  CHRISTI/EDINBURG, TEXAS
           AT CORPUS CHRISTI 8/26/2015 12:10:48 PM
                                        CECILE FOY GSANGER
                                              Clerk

       CHRISTOPHER SIEBERT,                              FILED
            APPELLANT,
                                               IN THE 13TH COURT OF APPEALS
                                                 CORPUS CHRISTI - EDINBURG


                                                      08/26/15
                     v.
                                              CECILE FOY GSANGER, CLERK
                                              BY CCoronado
        THE STATE OF TEXAS,
             APPELLEE.


ON APPEAL FROM THE 94TH DISTRICT COURT
        NUECES COUNTY, TEXAS

        BRIEF FOR THE STATE


                Douglas K. Norman
                State Bar No. 15078900
                Assistant District Attorney
                105th Judicial District of Texas
                901 Leopard, Room 206
                Corpus Christi, Texas 78401
                (361) 888-0410
                (361) 888-0399 (fax)
                douglas.norman@co.nueces.tx.us

                Attorney for Appellee


    ORAL ARGUMENT IS REQUESTED
                                    TABLE OF CONTENTS

INDEX OF AUTHORITIES .......................................................................... ii

SUMMARY OF THE ARGUMENT ..............................................................1

ARGUMENT ...................................................................................................2

Reply Point No. 1.
There was legally sufficient evidence to support the conviction, and
specifically to infer that Siebert knew that he lacked consent to operate
the stolen vehicle. ...........................................................................................2
       I. Statement of Facts. ...........................................................................2
       II. Standard of Review. .......................................................................3
       III. The Knowledge Element of Unauthorized Use. .........................5

Reply Point No. 2.
The trial court did not commit egregious error by including in the
abstract portion of the jury charge an instruction concerning the mens
rea for a result-oriented offense. ..................................................................8
      I. Statement of Facts. ...........................................................................8
      II. Superfluous Definitions..................................................................9
      III. Application. ................................................................................ 11

Reply Point No. 3.
Siebert’s trial counsel was not ineffective for failing to object to the jury
charge or to the prosecutor’s closing argument. ..................................... 13
      I. Standard of Review. ...................................................................... 13
      II. Statement of Facts. ...................................................................... 15
      III. Deficient Performance. .............................................................. 18
             A. The Jury Charge. ................................................................. 18
             B. Closing Argument. ............................................................... 18
      IV. Prejudice. .................................................................................... 20

PRAYER ....................................................................................................... 21

RULE 9.4 (i) CERTIFICATION .................................................................. 22

CERTIFICATE OF SERVICE ..................................................................... 22
                                    INDEX OF AUTHORITIES

                                                       Cases

Acosta v. State, 429 S.W.3d 621 (Tex. Crim. App. 2014). ........................ 4, 5

Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984). ..........................9

Arline v. State, 721 S.W.2d 348 (Tex. Crim. App. 1986). ..............................9

Barnes v. United States, 412 U.S. 837, 93 S. Ct. 2357 (1973). .......................6

Battise v. State, 264 S.W.3d 222 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref'd). ................................................................................................................5

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). .............................3

Crenshaw v. State, 378 S.W.3d 460 (Tex. Crim. App. 2012). ..................... 10

Cueva v. State, 339 S.W.3d 839 (Tex. App.—Corpus Christi 2011, pet.
ref’d). ...................................................................................................... 13, 14

Demary v. State, 798 S.W.2d 376 (Tex. App.—Beaumont 1990, no pet.). ....6

Gardner v. State, 780 S.W.2d 259 (Tex. Crim. App. 1989)............................5

Goodspeed v. State, 187 S.W.3d 390 (Tex. Crim. App. 2005). ................... 15

Hardesty v. State, 656 S.W.2d 73 (Tex. Crim. App. 1983). ............................6

Hernandez v. State, 726 S.W.2d 53 (Tex. Crim. App. 1986). ...................... 13

Hooper v. State, 214 S.W.3d 9 (Tex. Crim. App. 2007). ................................4

Hughes v. State, 897 S.W.2d 285 (Tex. Crim. App. 1994). ................... 10, 11

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781 (1979). ......................... 3, 4

Jacobs v. State, 05-01-01864-CR, 2002 WL 31835745 (Tex. App.—Dallas
Dec. 19, 2002, no pet.) (not designated for publication). ............................. 12

                                                           ii
Johnson v. State, 871 S.W.2d 183 (Tex. Crim. App. 1993). ...........................4

Mallett v. State, 65 S.W.3d 59 (Tex. Crim. App. 2001). .............................. 14

Mata v. State, 226 S.W.3d 425 (Tex. Crim. App. 2007). ................. 14, 15, 19

McQueen v. State, 781 S.W.2d 600 (Tex. Crim. App. 1989). .............. 5, 6, 12

Medina v. State, 7 S.W.3d 633 (Tex. Crim. App. 1999). ............................. 10

Padilla v. State, 326 S.W.3d 195 (Tex. Crim. App. 2010)..............................4

Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995)........................ 9-11

Plata v. State, 926 S.W.2d 300 (Tex. Crim. App. 1996). ............................. 10

Poncio v. State, 185 S.W.3d 904 (Tex. Crim. App. 2006). .............................6

Roberts v. State, 220 S.W.3d 521 (Tex. Crim. App. 2007). ......................... 14

Strickland v. Washington, 466 U.S. 664 (1984). .................................... 13, 14

Thompson v. State, 9 S.W.3d 808 (Tex. Crim. App. 1999). ......................... 14

White v. State, 844 S.W.2d 929 (Tex. App.—Houston [1st Dist.] 1992, pet.
ref'd). ................................................................................................................6

Ex parte White, 160 S.W.3d 46 (Tex. Crim. App. 2004). ........................... 18

Wilson v. United States, 162 U.S. 613, 16 S. Ct. 895 (1896). .........................6

                                              Statutes & Rules
Tex. Penal Code § 31.07. .................................................................................5




                                                           iii
                             NO. 13-14-683-CR

CHRISTOPHER SIEBERT,                  §     COURT OF APPEALS
        Appellant,                    §
                                      §
V.                                    §     FOR THE THIRTEENTH
                                      §
THE STATE OF TEXAS,                   §
         Appellee.                    §     DISTRICT OF TEXAS

                        BRIEF FOR THE STATE

TO THE HONORABLE COURT OF APPEALS:

                   SUMMARY OF THE ARGUMENT

      First Issue -- The owner’s testimony that she did not give Siebert or

anyone else permission to operate her truck provided sufficient evidence for

the jury to infer that Siebert knew he lacked such permission or consent

when he was arrested only a day after the truck was stolen.

      Second Issue -- Inclusion of superfluous mental state definitions in the

abstract portion of the jury charge was harmless in view of a correct

statement of the elements in the application paragraph.

      Third Issue – Siebert’s trial attorney was not deficient in failing to

object to the definitions in question, in view of the fact that these

superfluous definitions were rendered irrelevant and harmless by the correct

instructions in the application paragraph. In addition, the prosecutor did not

misstate the law in his jury argument merely because he did not discuss all
mental elements of the offense of Unauthorized Use of a Motor Vehicle, nor

has Siebert shown that his trial attorney was not exercising sound trial

strategy in refraining from objecting to that argument.

                               ARGUMENT

                             Reply Point No. 1.
  There was legally sufficient evidence to support the conviction, and
specifically to infer that Siebert knew that he lacked consent to operate
                             the stolen vehicle.

                           I. Statement of Facts.

      Christopher Siebert was indicted for Unauthorized Use of a Motor

Vehicle, charging specifically that he intentionally or knowingly operated an

automobile without the effective consent of Mary Saylor, the owner. (CR p.

5)

      At trial, Mary Saylor testified that, while she was visiting her husband

in the hospital on the evening of January 4, 2014, her truck was taken from

the parking lot. (RR vol. 4, pp. 13-16) Saylor testified that she did not

know Siebert, that she did not give him the keys to the truck, nor did she

give Siebert or anyone else permission to use her truck. (RR vol. 4, p. 20)

      Joel Silva testified that, on January 5, 2014, the day after the truck had

been stolen, he witnessed Siebert breaking into another vehicle and returning

to the stolen truck with property from that vehicle. (RR vol. 4, pp. 34-36)



                                       2
      Police Officer Douglas May testified that, on January 5, 2014, he was

dispatched to a certain location in reference to an auto burglary in progress.

(RR vol. 4, pp. 40-41) Officer May then stopped Siebert driving the stolen

truck and recovered from that truck tools that had been stolen from the other

vehicle. (RR vol. 4, p. 43) Officer May identified Siebert as the person he

arrested driving Saylor’s truck (RR vol. 4, pp. 47-48), and testified that

Siebert was the driver and sole occupant in the stolen truck. (RR vol. 4, pp.

49-50) Officer May also testified that he found the keys to the truck in the

ignition. (RR vol. 4, p. 59)

      On the recording of Officer May’s traffic stop, entered into evidence

as SX # 2, at approximately time marker 4:30, Siebert claimed that “a guy

loaned me the truck.” At trial, the State offered only the first five minutes of

the recording into evidence and played this for the jury. (RR vol. 4 pp. 45-

48)

                           II. Standard of Review.

      In order to determine if the evidence is legally sufficient, the appellate

court reviews all of the evidence in the light most favorable to the verdict

and determines whether any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Jackson v.

Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781 (1979). In Brooks v. State, 323


                                       3
S.W.3d 893 (Tex. Crim. App. 2010), the Court of Criminal Appeals

abandoned factual sufficiency review and determined that the Jackson v.

Virginia legal-sufficiency standard is the only standard that a reviewing

court should apply in determining whether the evidence is sufficient. This

“familiar standard gives full play to the responsibility of the trier of fact

fairly to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts.” Padilla v.

State, 326 S.W.3d 195, 200 (Tex. Crim. App. 2010) (quoting Jackson, 443

U.S. at 319).

      Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be

sufficient to establish guilt. Acosta v. State, 429 S.W.3d 621, 625 (Tex.

Crim. App. 2014); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App.

2007). In such cases, it is not necessary that every fact and circumstance

point directly and independently to the defendant's guilt; it is enough if the

conclusion is warranted by the combined and cumulative force of all the

incriminating circumstances. Acosta, 429 S.W.3d at 625; Johnson v. State,

871 S.W.2d 183, 186 (Tex. Crim. App. 1993).




                                      4
      Moreover, the jury may use common sense and apply common

knowledge, observation, and experience gained in ordinary affairs when

drawing inferences from the evidence. Acosta, 429 S.W.3d at 625.

           III. The Knowledge Element of Unauthorized Use.

      A person commits Unauthorized Use of a Motor Vehicle if “he

intentionally or knowingly operates another's boat, airplane, or motor-

propelled vehicle without the effective consent of the owner.” Tex. Penal

Code § 31.07 (a).

      In order to be guilty of Unauthorized Use of a Motion Vehicle, the

defendant must have known that he did not have the consent of the owner to

operate the vehicle in question. Gardner v. State, 780 S.W.2d 259, 262-63

(Tex. Crim. App. 1989); McQueen v. State, 781 S.W.2d 600, 603 (Tex.

Crim. App. 1989) (the unauthorized use of a motor vehicle is a

“circumstances” type offense, and the culpable mental state of “knowingly”

must apply to those surrounding circumstances).

      However, the owner’s testimony that he or she had not given the

defendant or anyone else consent to operate the vehicle provides sufficient

circumstantial evidence to also infer that the defendant knew he did not have

consent at the time he operated the vehicle. McQueen, 781 S.W.2d at 604-

05; Battise v. State, 264 S.W.3d 222, 227 (Tex. App.—Houston [1st Dist.]


                                      5
2008, pet. ref'd); White v. State, 844 S.W.2d 929, 932 (Tex. App.—Houston

[1st Dist.] 1992, pet. ref'd); Demary v. State, 798 S.W.2d 376, 378 (Tex.

App.—Beaumont 1990, no pet.).          In McQueen, the stipulated evidence

showed that the vehicle had been stolen only the day before the defendant

was arrested operating it. 781 S.W.2d at 601. Similarly, in White, the

defendant was arrested driving the vehicle only two days after it had been

stolen. 844 S.W.2d at 931.

      In addition, even when the defendant claims that someone else, whom

he believed to be the owner, gave him consent to operate the vehicle, the

jury is free to reject this evidence. See McQueen, 781 S.W.2d at 605;

Demary, 798 S.W.2d at 378.

      This inferred knowledge of lack of consent appears related to the

long-standing inference of guilt in theft and burglary cases when the

defendant is found in the unexplained possession of recently stolen property.

Poncio v. State, 185 S.W.3d 904, 904-05 (Tex. Crim. App. 2006); Hardesty

v. State, 656 S.W.2d 73, 76–77 (Tex. Crim. App. 1983); see also Barnes v.

United States, 412 U.S. 837, 843, 93 S. Ct. 2357 (1973) (inference of guilty

knowledge may be drawn from the fact of unexplained possession of stolen

goods); Wilson v. United States, 162 U.S. 613, 619, 16 S. Ct. 895 (1896)

(Possession of the fruits of crime, recently after its commission, justifies the


                                       6
inference that the possession is guilty possession, and, though only prima

facie evidence of guilt, may be of controlling weight, unless explained by

the circumstances or accounted for in some way consistent with innocence.).

      In other words, if finding the defendant in unexplained possession of a

recently stolen vehicle creates an inference that he stole the vehicle, a

fortiori it creates an inference that he lacked permission to operate that

vehicle for purposes of Unauthorized Use of a Motor Vehicle.

      In the present case, Saylor’s testimony that she had not given anyone

permission to operate her truck provided sufficient evidence for the jury to

infer that Siebert knew he lacked consent when he was arrested on the

following day driving the truck.

      Nor was the jury required to believe Siebert’s claim that some

unidentified “guy” loaned it to him. Common sense suggests that an auto

thief does not immediately loan out a stolen vehicle the next day to an

innocent person. Unlike a quick sale, there is no incentive to make the loan

and only a heightened chance that the vehicle will be discovered and the

innocent lessee will turn the thief over to the authorities.

      Siebert’s first issue on appeal should be overruled.




                                        7
                            Reply Point No. 2.
   The trial court did not commit egregious error by including in the
 abstract portion of the jury charge an instruction concerning the mens
                     rea for a result-oriented offense.

                            I. Statement of Facts.

      At the charge conference, Siebert raised no objection to the guilt-

innocence jury charge. (RR vol. 4 p. 77)

      The abstract portion of that charge instructed the jury, in pertinent

part, as follows:

                                       1.
             A person commits the offense of unauthorized use of a vehicle if
      he intentionally or knowingly operates another's boat, airplane, or motor-
      propelled vehicle without the effective consent of the owner.

                                 *        *     *
                                        3.
              A person acts intentionally, or with intent, with respect to the
      nature of his conduct or to a result of his conduct when it is his
      conscious objective or desire to engage in the conduct or cause the
      result.
              A person acts knowingly, or with knowledge, with respect to the
      nature of his conduct or to circumstances surrounding his conduct when
      he is aware of the nature of his conduct or that the circumstances exist. A
      person acts knowingly, or with knowledge, with respect to a result of his
      conduct when he is aware that his conduct is reasonably certain to cause
      the result.

(CR p. 62-63) (emphasis added)        The italicized portions are the result-

oriented mens rea which Siebert complains should not have been included.

      The application paragraph of the charge then instructed the jury as

follows:

                                       8
                                       4.
             Now bearing in mind the foregoing instructions, if you believe
      from the evidence beyond a reasonable doubt, that the defendant,
      CHRISTOPHER SIEBERT, on or about January 5, 2014, in Nueces
      County, Texas, as alleged in the indictment, did then and there
      intentionally or knowingly operate a motorpropelled vehicle, to-wit: an
      AUTOMOBILE, without the effective consent of Mary Saylor, the
      owner thereof, you will find the defendant guilty of the offense of
      Unauthorized Use of Motor Vehicle and so say by your verdict, but if
      you do not so believe, or if you have a reasonable doubt thereof, you will
      acquit the defendant and say by your verdict "Not Guilty."

(CR p. 64)

      The jury found Siebert guilty, as alleged in the indictment. (CR p. 69)

                        II. Superfluous Definitions.

      For charge error that was not preserved at trial, the error must have

been so harmful that the defendant was denied “a fair and impartial trial,”

such that he suffered actual “egregious” harm. Patrick v. State, 906 S.W.2d

481, 492 (Tex. Crim. App. 1995); Arline v. State, 721 S.W.2d 348, 351 (Tex.

Crim. App. 1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1984).

      The Court of Criminal Appeals has recently explained the distinction

between the abstract and application paragraphs of the jury charge, as

follows:

      It is the application paragraph of the charge, not the abstract portion,
      that authorizes a conviction. The abstract paragraphs serve as a
      glossary to help the jury understand the meaning of concepts and
      terms used in the application paragraphs of the charge. An abstract

                                       9
      charge on a theory of law that is not applied to the facts does not
      authorize the jury to convict upon that theory. Generally, reversible
      error occurs in the giving of an abstract instruction only when the
      instruction is an incorrect or misleading statement of a law that the
      jury must understand in order to implement the commands of the
      application paragraph.

Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012) (citations

omitted).

      Accordingly, when the facts, as applied to the law in the application

paragraph, point the jury to the appropriate portion of the definitions, no

harm results from the trial court's failure to limit the definitions of culpable

mental states in the abstract portion of the charge. Hughes v. State, 897

S.W.2d 285, 296-97 (Tex. Crim. App. 1994); see also Medina v. State, 7

S.W.3d 633, 640 (Tex. Crim. App. 1999); Patrick, 906 S.W.2d at 492-93.

      Thus, the inclusion of a merely superfluous abstraction never

produces reversible error in the court's charge because it has no effect on the

jury's ability fairly and accurately to implement the commands of the

application paragraph or paragraphs. Plata v. State, 926 S.W.2d 300, 302–3

(Tex. Crim. App. 1996); see also Medina, 7 S.W.3d at 640 (citing Plata).

      Specifically, when the jury charge includes overbroad mental state

definitions, the Court of Criminal Appeals looks to the factual context in

which the mental state is charged in the application paragraph and whether it



                                       10
becomes apparent in context which mental state applies to which conduct

element of the offense. See Hughes, 897 S.W.2d at 296.

      For example, the Court of Criminal Appeals has held in a murder case

that inclusion of such superfluous instructions are harmless when the

application paragraph instructed the jury to convict only if it found that the

defendant did “intentionally cause the death” of the victim, noting that:

      Although the definitions of “intentionally” and “knowingly”
      indiscriminately set forth the three alternative conduct elements, when
      those terms are viewed in their factual context, it becomes apparent
      which conduct element applies to which element of the offense. For
      instance, the application paragraph states that appellant “did
      intentionally cause the death of [the victim.]” The term intentionally
      directly modifies the phrase “cause the death”. Referring back to the
      definitions of culpable mental states, it is obvious that the “result of
      conduct” and cause the result language are the applicable portions of
      the full code definitions. We conclude that because the facts, as
      applied to the law in the application paragraph, pointed the jury to the
      appropriate portion of the definitions, no harm resulted from the
      court's failure to limit the definitions of culpable mental states to
      proving the conduct element of the underlying offense.

Patrick, 906 S.W.2d at 493 (citations omitted).

                              III. Application.

      In the present case, as discussed in connection with the first issue on

appeal, Unauthorized Use of a Motor Vehicle “encompasses two ‘conduct

elements’, viz: that the defendant intentionally or knowingly operated a

vehicle (nature of conduct) knowing that such operation was without the



                                      11
effective consent of the owner (circumstances surrounding conduct).”

McQueen, 781 S.W.2d at 604.

      Specifically, with regard to charging Unauthorized Use, we should

assume that the jury will read the application paragraph in a logical and

common-sense manner in applying the mental state element. To that end,

the Dallas Court of Appeals reasoned as follows:

      In the court's charge, the word “knowingly” precedes the act of
      operating another's vehicle. Since operating another's vehicle is not
      criminal by its nature, a logical reading of the phrase is that the word
      “knowingly” applies to the “circumstances” surrounding his conduct
      of operating another's vehicle. Thus, in an unauthorized use of a motor
      vehicle case, a culpable mental state applies to whether the defendant
      knew his use of the motor vehicle was without the effective consent of
      the owner.

Jacobs v. State, 05-01-01864-CR, 2002 WL 31835745, at *2 (Tex. App.—

Dallas Dec. 19, 2002, no pet.) (not designated for publication).

      Accordingly, a common-sense reading of the application paragraph of

the present charge pointed the jury to the appropriate nature of conduct and

circumstances surrounding conduct definitions.

      In his brief, Siebert suggests that the charge might have convinced the

jury to find him guilty based on his knowledge that he caused damage to the

vehicle, rather than his knowledge that he did not have permission to operate

it. (Appellant’s Brief p. 24) However, nowhere in the charge is there any

suggestion that damage to the vehicle is an element of the present offense,

                                      12
nor was damage ever argued as an element at trial. It would be unreasonable

to assume that, because of an abstract definition concerning the mental state

for a result-oriented offense, the jury thereafter ignored the application

paragraph and went searching through the evidence to find a result to pin

that mental state on and to replace the charged elements as a means of

finding Siebert guilty. This would be to assume a renegade jury, rather than

one that was following the application paragraph of the charge.

      Siebert’s second issue on appeal should be overruled.

                            Reply Point No. 3.
Siebert’s trial counsel was not ineffective for failing to object to the jury
             charge or to the prosecutor’s closing argument.

                          I. Standard of Review.

      To establish a claim for ineffective assistance of counsel, appellant

must show (1) his attorney's representation fell below an objective standard

of reasonableness, and (2) there is a reasonable probability that, but for his

attorney's errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 664, 668 (1984); Hernandez v. State,

726 S.W.2d 53, 57 (Tex. Crim. App. 1986); Cueva v. State, 339 S.W.3d 839,

857 (Tex. App.—Corpus Christi 2011, pet. ref’d). Review of counsel's

representation is highly deferential, and ineffective assistance will be found

only if the appellant overcomes the strong presumption that his counsel's


                                      13
conduct fell within the wide range of reasonable professional assistance. See

Strickland, 466 U.S. at 689; Cueva, 339 S.W.3d at 858.

      In addition, allegations of ineffectiveness of counsel must be firmly

founded in the record. Mallett v. State, 65 S.W.3d 59, 63 (Tex. Crim. App.

2001); Cueva, 339 S.W.3d at 858. In most cases, a silent record which

provides no explanation for counsel's actions will not overcome the strong

presumption of reasonable assistance. Mallett, 65 S.W.3d at 63; Thompson v.

State, 9 S.W.3d 808, 813-14 (Tex. Crim. App. 1999); see also Mata v. State,

226 S.W.3d 425, 431 (Tex. Crim. App. 2007) (silent record as to why

counsel failed to object to prosecutor’s argument failed to rebut presumption

that the decision not to object was reasonable). The Court of Criminal

Appeals has said that “the presumption that trial counsel's performance was

reasonably based in sound trial strategy, coupled with the absence of any

supporting evidence in the record of unreasonableness, compels a reviewing

court to consider ways in which trial counsel's actions were within the

bounds of professional norms.” Mata, 226 S.W.3d at 431.

      To warrant reversal without affording counsel the opportunity to

outline the reasons for his omission, the challenged conduct must be “so

outrageous that no competent attorney would have engaged in it.” Roberts

v. State, 220 S.W.3d 521, 533-34 (Tex. Crim. App. 2007) (quoting


                                     14
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)); see also

Mata, 226 S.W.3d at 430 (applying this standard to trial counsel’s failure to

object to allegedly improper argument).

                           II. Statement of Facts.

      In his opening statement at trial, Siebert’s attorney stated to the jury,

“[t]hey have to prove that Mr. Siebert intentionally and knowingly, in

essence, knew that he didn't have the effective consent of Mary Saylor to

drive that vehicle, because that's gonna be the issue of this case.” (RR vol.

4, p. 10) However, he then also stated to the jury, “You're here for one case,

whether or not Mr. Siebert took Mary Saylor's vehicle without her effective

consent, …. But you have to ask yourself what evidence are they gonna

bring to show me that he intentionally and knowingly took this car from

Mary Saylor?” (RR vol. 4, p. 11) The defense attorney concluded his

opening statement as follows:

      What we're proposing for you today is that because a lack of evidence,
      they lacked the evidence that would prove that he intentionally and
      knowingly took the car without consent from Mary Saylor. The
      presumption alone says you have to find him not guilty. And that's
      what we're gonna ask you to do here today is to find him not guilty
      because they can't prove that crucial element of the charge which is
      that he intentionally and knowingly took this vehicle from Mary
      Saylor.

(RR vol. 4, p. 12)



                                      15
       After both sides later rested and closed at the guilt-innocence phase of

trial, the Court submitted the jury charge discussed in the State’s response to

the second issue on appeal.

       During the State’s closing argument at the guilt-innocence phase of

trial, the prosecutor stated.

       We have to prove that he intentionally or knowingly operated a motor
       vehicle. We don't have to prove that he intentionally or knowingly
       stole the motor vehicle.

(RR vol. 4 p. 84)

       We also had to prove that it occurred without the effective consent of
       the owner Mary Saylor. You heard Mary Saylor tell you she did not
       give him the consent to drive the vehicle, right? We all heard that.
       Okay. So that's what's been proven, number one.
                                   *      *       *
       We have to put prove that the Defendant, on this date in Nueces
       County, Texas, intentionally or knowingly operated -- not stole, not
       took. We only have to prove operation and you saw it with your own
       eyes that he was intentionally operating that vehicle, okay?

(RR vol. 4 p. 85)

       And what does your common sense tell you? It tells you that this is
       not a case of auto theft, nor is this a case of auto burglary. Okay.
       There was conversation about that because that was incidental to this
       case which is the unauthorized use of a motor vehicle, right? That's
       how police officers made contact. But this case is not anything more
       than whether he intentionally or knowingly operated a motor vehicle
       on January 5, 2014.

(RR vol. 4 pp. 86-87)

       We've proven every element of this charge beyond a reasonable doubt
       with absolutely no issue. The person who could have given consent

                                      16
      did not give consent. It happened on this date, it was this gentleman
      right here. He was intentionally and knowingly operating the vehicle
      as the officers told you, as you saw with your own eyes. Okay. And
      then you have the effective consent of Mary Saylor who told you she
      did not give him that consent.

(RR vol. 4 p. 87)

      After the State concluded its initial closing argument, Siebert’s trial

attorney then argued to the jury as follows:

      Because that thing in your mind, which is reasonable doubt, it tells
      you whether -- it tells you whether or not Mr. Siebert really
      intentionally and knowingly took this car from Ms. Mary Saylor
      because we don't know that. We don't know that. We still don't know
      that after the conclusion of the evidence.

(RR vol. 4 p. 91)

      But could they really prove to you that he intentionally and knowingly
      did it without the effective consent? Because Ms. Saylor isn't the only
      one that can give the consent, because the law tells you that.
      Paragraph 2 tells you the owner of the vehicle on that day could be
      any person who has possession of the property whether lawful or not.
      And we don't know if another person had possession that day. And
      because we don't know, that's reasonable doubt.

(RR vol. 4 p. 92)

      The State then closed its argument at the guilt-innocence phase of trial

as follows:

      All that we have to prove are the elements that we have, in fact,
      proven, the elements that's alleged in the indictment, that the
      Defendant was operating that motor vehicle that's owned by Mary
      Saylor, intentionally or knowingly on January 5th here in Nueces
      County.


                                      17
(RR vol. 4 p. 93)

      We don't know if the Defendant is the person who took that vehicle,
      the truck, from Spohn Shoreline on January 4 of 2014, when Mary
      came out and discovered it was gone. But guess what? It doesn't
      matter. We don't have to prove that.

(RR vol. 4 p. 94)

                         III. Deficient Performance.

                             A. The Jury Charge.

      For the reasons discussed in the State’s response to the second issue

on appeal, the superfluous inclusion of mental state definitions for a result-

oriented offense were harmless and irrelevant in view of the application

paragraph pointing the jury to the correct application of mental states to the

nature of conduct and circumstances surrounding the conduct elements of

the offense. Accordingly, Siebert’s attorney was not deficient in failing to

object to the charge, since such an objection would have gained nothing of

value for his client.

                            B. Closing Argument.

      When claiming ineffective assistance for failing to object, a party

must first demonstrate that if trial counsel had objected, the trial judge would

have committed error in refusing to sustain the objection. Ex parte White,

160 S.W.3d 46, 53 (Tex. Crim. App. 2004).



                                       18
      In the present context, in order for the prosecutor’s comments to be

objectionable, they must have been a clear misstatement of the law, not

merely an incomplete statement of the law. See Mata, 226 S.W.3d at 431 (it

was not a misstatement of law for the State to tell the jury that the appellant

could “get good time credit,” even if the State omitted the statutory

condition under which his good time credit could be considered by a parole

board).

      From a review of the prosecutor’s closing argument in the present

case, he did not specifically mention the knowledge element of lack of

consent, but neither did he affirmatively assert that knowledge was not

required. In context, moreover, the prosecutor’s argument was clearly aimed

not at eliminating the knowledge of lack of consent element, but at refuting

Siebert’s argument that the State had to prove he was the one who stole the

truck. Accordingly, the State did not misstate the elements, but merely

chose to highlight the conduct element rather than the circumstances

element, leaving Siebert free to mention that element in his own closing

argument.

      However, even if Siebert could have objected to the State’s argument,

he may have chosen not to for strategic reasons.




                                      19
      Siebert’s attorney stressed in his opening statement that it was the

State’s burden to prove that Siebert knew he lacked consent to drive the

vehicle. Although the prosecutor may have left this element out of his own

final argument, by this time the defense had successfully shifted the focus to

its own rabbit-trial issue of whether Siebert had stolen the truck, and thereby

forced the State to spend a significant amount of its jury argument

attempting to convince the jury that this was irrelevant to the present charge

of unauthorized use of the truck. Had Siebert then objected to the State’s

failure to mention the knowledge element of lack of consent to operate, this

may have tended to shift the focus back to the true elements of the offense

and away from his own attempts to raise the bar and require the State to

prove a theft case. Accordingly, trial counsel’s failure to object may well

have been strategic and was certainly not so outrageous that no competent

attorney would have pursued this strategy.

                               IV. Prejudice.

      With regard to the jury charge, even if Siebert’s trial attorney should

have objected to the superfluous definitions, they were clearly harmless for

the reasons already discussed, and this deficiency would not have caused

prejudice under the second prong of Strickland.




                                      20
      Likewise, even if Siebert’s trial attorney should have objected to jury

argument and his lack of objection amounted to deficient performance, at

most the prosecutor merely omitted mention of an element but made no

affirmative plea for the jury to ignore that element. The jury presumably

understood the elements of the offense as set out in the charge and as

discussed in connection with the first and second issues, such that any error

in failure to object to the prosecutor’s having left this element out of his jury

argument would not have been likely to change the result of the proceedings

or cause prejudice to Siebert.

      Siebert’s third issue on appeal should be overruled.

                                   PRAYER

      For the foregoing reasons, the State respectfully requests that the

judgment of the trial court be affirmed.


                                 Respectfully submitted,
                                 /s/Douglas K. Norman
                                 ___________________
                                 Douglas K. Norman
                                 State Bar No. 15078900
                                 Assistant District Attorney
                                 105th Judicial District of Texas
                                 901 Leopard, Room 206
                                 Corpus Christi, Texas 78401
                                 (361) 888-0410
                                 (361) 888-0399 (fax)
                                 douglas.norman@co.nueces.tx.us

                                       21
                      RULE 9.4 (i) CERTIFICATION

      In compliance with Texas Rule of Appellate Procedure 9.4(i)(3), I

certify that the number of words in this brief, excluding those matters listed

in Rule 9.4(i)(1), is 4,704.

                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman



                       CERTIFICATE OF SERVICE

      This is to certify that a copy of this brief was e-mailed on August 26,

2015, to Appellant’s attorney, Donald B. Edwards, at mxlplk@swbell.net.



                                /s/Douglas K. Norman
                                ___________________
                                Douglas K. Norman




                                      22
