Opinion filed February 5, 2015




                                                In The


            Eleventh Court of Appeals
                                            __________

                                     No. 11-12-00346-CR
                                         __________

                    APOLONIO RODRIGUEZ, III, Appellant
                                                    V.
                          THE STATE OF TEXAS, Appellee


                         On Appeal from the 385th District Court
                                Midland County, Texas
                            Trial Court Cause No. CR39979


                          MEMORANDUM OPINION
           Apolonio Rodriguez, III 1 appeals his jury conviction for the offense of
unauthorized use of a motor vehicle. See TEX. PENAL CODE ANN. § 31.07 (West
2011). Appellant pleaded “true” to the enhancement paragraph, which alleged that

       1
        We note that, in the indictment, Appellant’s last name is not spelled correctly: there is a “q”
where the “g” should be. Prior to trial, the parties agreed that the indictment should be amended to reflect
the correct spelling: Rodriguez.
he was previously convicted of two state jail felony offenses: tampering with
governmental records and misapplication of fiduciary property. The jury found the
enhancement allegations to be true and assessed Appellant’s punishment at
confinement in the Institutional Division of the Texas Department of Criminal
Justice for a term of nine years and a fine of $7,000. In four issues on appeal,
Appellant argues that the evidence was insufficient to sustain his conviction, that
the State’s closing arguments were improper, that the evidence was insufficient to
show that Appellant had the requisite mens rea, and that the State’s remarks during
the punishment phase were improper. We affirm.
                                Background Facts
      Beau Moore, the new car and truck manager at Rogers Ford, testified that
Appellant was a former employee of Rogers Ford. Rogers Ford is located in
Midland. Moore testified that Appellant’s employment ended in October 2011. A
black 2011 Ford F-150 pickup was last seen on the Rogers Ford lot on October 13,
2011. The pickup in question was a demo vehicle that could be used by managers
at Rogers Ford for anything. He stated that demo vehicles are used until they reach
approximately 4,000 miles. Only Moore, Kelly Tucker (general manager), Brian
Smith (sales manager), Doss Rogers, and Todd Rogers have authority to authorize
an employee access to a demo vehicle.
      Moore testified that he did not give Appellant permission to take the pickup
from Rogers Ford at any time. To his knowledge, no one at Rogers Ford had given
Appellant permission to take the pickup. Doss Rogers testified that he did not give
Appellant permission to take the pickup off the property. Smith and Tucker both
testified that they did not give Appellant permission to use, borrow, or take the
pickup off the lot. Moore stated that Appellant would know the company’s policy
that a regular salesman would not have permission to use a demo vehicle.


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      Kirk Ban, the general manager of Kelly Grimsley Auto Group in Odessa,
testified that Appellant worked at Kelly Grimsley from the middle of October 2011
until April 2012. He stated that Appellant told him and other employees at Kelly
Grimsley that he had purchased the pickup from Rogers Ford. He testified that
Appellant never had permanent tags on the vehicle while he worked there. When
Ban inquired about the temporary tags, Appellant said there were problems with
the title to the pickup. He also saw Kelly Grimsley temporary tags on the pickup
on two different occasions. After the second time, he saw four or five Kelly
Grimsley temporary tags inside the vehicle.
      On April 12, 2012, Ban called Moore at Rogers Ford to ask him about the
pickup. After he received this phone call, Moore stated that he contacted Midland
police to file a report. Ban testified that Appellant was terminated from Kelly
Grimsley after Ban talked to Rogers Ford and the Midland police. Detective Kevin
Wolf of the Midland Police Department testified that, after taking statements from
Moore and Ban, he issued an arrest warrant for Appellant.
                                     Analysis
      In four issues on appeal, Appellant argues (1) that the evidence at trial was
insufficient to sustain his conviction, (2) that the State’s closing remarks were
improper, (3) that the evidence was insufficient to prove Appellant possessed the
requisite mens rea, and (4) that the State’s remarks during the punishment phase
were improper. Appellant contends that, because the vehicle was never reported as
stolen and because Appellant drove the vehicle for several months, the evidence is
insufficient to convict him or show the requisite criminal culpability. Appellant
also contends that the State made improper jury arguments that were beyond the
scope of acceptable and allowable closing remarks and subtly commented on
Appellant’s failure to testify.


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      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d
286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under that standard, we
examine all of the evidence in the light most favorable to the verdict and determine
whether, based on that evidence and any reasonable inferences from it, any rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010).
      A person commits the offense of unauthorized use of a motor vehicle if the
person intentionally or knowingly operates another’s motor vehicle without the
effective consent of the owner. PENAL § 31.07. An owner is 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) (West Supp.
2014). Effective consent is consent by a person legally authorized to act for the
owner. Id. § 31.01(3). The accused must be aware that the operation of the
vehicle is without the owner’s consent. Gardner v. State, 780 S.W.2d 259, 262–63
(Tex. Crim. App. 1989); Edwards v. State, 178 S.W.3d 139, 145 (Tex. App.—
Houston [1st Dist.] 2005, no pet.). Operating a vehicle is unlawful only if the
accused is aware that the operation of the vehicle is without the owner’s consent.
McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). Testimony that a
vehicle owner did not give consent to operate the vehicle can be sufficient to
support a finding that the accused knew he did not have consent to operate the
vehicle. Id. at 604–05.
      Moore, Tucker, Smith, and Doss Rogers all testified that they did not give
Appellant permission to drive the pickup or take it off the lot. Ban stated that
Appellant placed various temporary tags on the vehicle throughout the six months
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that he was employed at Kelly Grimsley. Moore also testified that, as a salesman
at Rogers Ford, Appellant knew company policy was that regular salesmen did not
have access to demo vehicles. There is evidence indicating that Appellant knew he
operated the pickup without the owner’s effective consent.
           The jury is the exclusive judge of the credibility of the witnesses and of the
weight to be given their testimony, and it is also the exclusive province of the jury
to reconcile conflicts in the evidence. Wesbrook v. State, 29 S.W.3d 103, 111
(Tex. Crim. App. 2000). We hold that a rational jury could have found beyond a
reasonable doubt that Appellant committed the offense as charged. We overrule
Appellant’s first issue on appeal.
           In his third issue, Appellant raises the defense of mistake of fact. 2 In order
to preserve error for appellate review, Appellant must make a timely request,
objection, or motion that states the grounds for the desired ruling from the trial
court. TEX. R. APP. P. 33.1(a). Appellant failed to request a jury instruction about
a mistake-of-fact defense. TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007).
The trial court is under no duty to sua sponte instruct the jury on unrequested
defensive issues. Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998).
Appellant has not preserved his third issue for appellate review. We overrule
Appellant’s third issue.
           In his second and fourth issues, Appellant complains that improper jury
arguments were made by the State during the guilt/innocence and punishment
phases of trial. To preserve error for an improper jury argument, a defendant
ordinarily should (1) contemporaneously object to the statement, (2) request an
instruction that the jury disregard the statement if the objection is sustained, and
(3) move for a mistrial if the instruction is granted. Cooks v. State, 844 S.W.2d
       2
        “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.” PENAL § 8.02(a).

                                                   5
697, 727–28 (Tex. Crim. App. 1992). Appellant failed to object to the allegedly
improper remarks, failed to request an instruction to disregard, and failed to move
for a mistrial during either phase of trial. Appellant has not preserved his second
and fourth issues for appellate review. TEX. R. APP. P. 33.1(a); Davis v. State, 329
S.W.3d 798, 823 (Tex. Crim. App. 2010); Cockrell v. State, 933 S.W.2d 73, 89
(Tex. Crim. App. 1996). We overrule Appellant’s second and fourth issues.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.



                                                     JOHN M. BAILEY
                                                     JUSTICE


February 5, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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