
Opinion issued January 31, 2008





 





In The
Court of Appeals
For The
First District of Texas



NO. 01-06-00935-CR



RUSCEL LOVEL BATTISE, Appellant

V.

THE STATE OF TEXAS, Appellee



On Appeal from the 344th District Court
Chambers County, Texas
Trial Court Cause No. 13595



O P I N I O N
	A jury convicted appellant, Ruscel Lovel Battise, of unauthorized use of a
motor vehicle, (1) and the trial court assessed his punishment at imprisonment for 12
months.  In four issues, appellant argues that the evidence is legally and factually
insufficient to prove that he (1) intentionally or knowingly operated a motor vehicle
without the effective consent of its owner and (2) operated the same motor vehicle in
Chambers County.
	We affirm.
Background
	At approximately 1:00 p.m. on February 3, 2007, in Chambers County, Texas,
Hubert Thomas ("Thomas") loaned his 1998 Lincoln Town Car to appellant,
instructing him to wash the car and return it before 5:00 p.m. that same day.  Thomas
had known appellant for several years because appellant had been dating Thomas's
sister, Jennifer Thomas.  Appellant and Jennifer Thomas had borrowed vehicles from
Thomas on several occasions before this incident.  Upon receiving the car on
February 3, 2007, appellant drove from Winnie in Chambers County to Beaumont and
failed to return the car to Thomas by 5:00 p.m.  Thomas waited at work for several
hours for appellant to return with his car, but he was eventually forced to call his wife
for a ride.  Around 10:30 that evening, Thomas called the Chambers County Sheriff's
Department to report the car stolen.  Deputy S. Eldridge responded to the call and
indicated in his report that Thomas had loaned appellant the car with instructions to
wash it and return it.  Deputy Eldridge was not aware of there being any specific time
in which the car was to be returned.  Deputy Eldridge testified at trial that Thomas
reported that he only gave appellant permission to take the car to a car wash in
Winnie.  Thomas then signed an affidavit of non-consent that stated that he did not
give anyone consent to use his car, (2) and Deputy Eldridge reported the car stolen.
	Appellant and Jennifer Thomas, however, testified that appellant was unaware
that the car was to be returned by 5:00 p.m. and that Thomas never specified a time
for its return.  Regarding the purpose for which Thomas loaned the car to appellant,
appellant testified that Thomas was "very vague," and only told him to make sure to
bring the car back clean.  Although she was not actually present when Thomas loaned
the car to appellant, Jennifer Thomas testified that Thomas loaned appellant the car
so that appellant could get the car washed and look for a job.  Appellant testified that
he drove the car to the Dairy Queen in Winnie where Jennifer Thomas was working,
and then he drove it to Beaumont.  Once in Beaumont, appellant looked into getting
a birth certificate so that he could get an identification card and drove to a few other
places looking for a job.  Then he drove the car to a car wash in Beaumont and
attempted to find someone to detail the car.
	Once Jennifer Thomas realized that her brother was angry that the car had not
been returned she contacted appellant while he was in Beaumont.  Appellant left the
car unlocked with the keys under the floor mat at a car wash in Beaumont so that
Jennifer Thomas could pick it up.  When Jennifer Thomas went to retrieve the car, it
was not there.  The next day, a Beaumont police officer recovered the stolen car from
three men who had been found riding around in it.  Appellant was not one of the men
discovered with the stolen vehicle.  The car had been damaged on the right front side,
the headliner was torn out, and the back seat was ripped out.
	Thomas had to pay a fine to get the car out of impoundment and a $500
insurance deductible.  Shortly after the incident, appellant's attorney prepared an
affidavit of non-prosecution stating that there was a "mutual misunderstanding"
regarding the terms of Thomas's consent, and appellant presented it to Thomas. 
Thomas reviewed the affidavit and signed it. (3)  Appellant and Thomas agreed that
Thomas would not prosecute appellant in exchange for appellant's paying the $500
insurance deductible.  Thomas testified at trial that he had not received any payment
from appellant.  Appellant and Jennifer Thomas, however, both testified that
appellant paid Thomas $200.  Appellant testified that he paid the $200 to Thomas
prior to the signing of the affidavit, and Jennifer Thomas testified that appellant paid
Thomas the money on the day the affidavit was signed.
	Appellant was tried before a jury in July 2006.  The State subpoenaed Thomas
to testify as its key witness.  Deputy Eldridge also testified for the State.  Appellant
testified on his own behalf, and Jennifer Thomas also testified on appellant's behalf. 
The jury found appellant guilty, and the trial judge assessed punishment at
imprisonment for 12 months with credit for time served.  This appeal followed.
Standard of Review
	When an appellant challenges both the legal and factual sufficiency of the
evidence, we must first determine whether the evidence was legally sufficient to
support the verdict.  Harmond v. State, 960 S.W.2d 404, 406 (Tex. App.--Houston
[1st Dist.] 1998, no pet.).  We review the legal sufficiency of the evidence by viewing
the evidence in the light most favorable to the verdict to determine whether any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). 
Although our analysis considers all the evidence presented at trial, we may not
re-weigh the evidence and substitute our judgment for that of the fact finder.  Id.
	Factual sufficiency analysis is broken down into two prongs.  First, we must
ask whether the evidence introduced to support the verdict, although legally
sufficient, is so weak that the jury's verdict seems clearly wrong and manifestly
unjust.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006) (quoting
Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000)).  Second, we must ask
whether, considering the conflicting evidence, the jury's verdict, although legally
sufficient, is nevertheless against the great weight and preponderance of the evidence. 
Id. at 415.  In conducting this review, we view all of the evidence in a neutral light. 
Id. at 414.  We are also mindful that a jury has already passed on the facts, and that
we cannot order a new trial simply because we disagree with the verdict.  Id.  What
weight to give contradictory testimonial evidence is within the sole province of the
jury because it turns on an evaluation of credibility and demeanor.  Cain v. State, 958
S.W.2d 404, 408-09 (Tex. Crim. App. 1997). Therefore, we must defer appropriately
to the fact finder and avoid substituting our judgment for its judgment, and we may
find evidence factually insufficient only when necessary to prevent manifest injustice. 
Id. at 407; see also Johnson, 23 S.W.3d at 12.
Analysis
 Effective Consent
	In his first and second issues, appellant argues that the evidence was legally
and factually insufficient to convict him of intentionally or knowingly operating a
motor vehicle without the effective consent of its owner because appellant believed
Thomas gave him consent to use the vehicle without any limitations.
	A person is guilty of unauthorized operation 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. Pen. Code Ann. § 31.07(a)
(Vernon 2003).  Effective consent includes "consent by a person legally authorized
to act for the owner."  Id. § 31.01(3) (Vernon Supp. 2007).  Thus, 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); Edwards v. State, 178 S.W.3d 139, 144 (Tex. App.--Houston [1st Dist.] 2005,
no pet.).  Testimony that the car owner did not give consent to operate his vehicle can
be sufficient to support a finding that an appellant knew he did not have consent to
operate the vehicle.  McQueen, 781 S.W.2d at 604-05; Edwards, 178 S.W.3d at 145. 
When an appellant asserts a mistake-of-fact defense concerning the circumstances
surrounding the operation of the vehicle, the finder of fact is free to reject the
evidence.  McQueen, 781 S.W.2d at 604-05; see also Sharp v. State, 707 S.W.2d 611,
614 (Tex. Crim. App. 1986) (holding that trier of fact is exclusive judge of facts,
credibility of witnesses, and weight to be given to testimony).
	The evidence was legally sufficient to show beyond a reasonable doubt that
appellant intentionally or knowingly operated Thomas's car without effective
consent.  Thomas testified at trial that he told appellant to return the car by 5:00 p.m.
and that appellant's use of the car after that time was without consent.  This testimony
was sufficient to establish that appellant knew he no longer had consent to operate the
vehicle after 5:00 p.m.  See McQueen, 781 S.W.2d at 604-05; Edwards, 178 S.W.3d
at 145.  The jury was free to believe Thomas's testimony in spite of contrary
testimony from appellant and Jennifer Thomas.  See McQueen, 781 S.W.2d at
604-05; Sharp, 707 S.W.2d at 614.  Therefore, viewing the evidence in the light most
favorable to the verdict, we hold that the evidence was legally sufficient for a rational
trier of fact to find that appellant intentionally or knowingly operated the vehicle
without Thomas's effective consent.  See King, 29 S.W.3d at 562.
	The evidence is also factually sufficient.  Appellant testified that Thomas did
not limit his consent to a certain time frame.  Although Jennifer Thomas was not
present when Thomas loaned appellant the car, she testified that Thomas had loaned
appellant the car for the limited purpose of looking for a job and getting the car
washed, but that Thomas had not mentioned a time for the car's return.  Appellant
also presented the contradiction between Thomas's affidavit of non-consent, in which
Thomas said that he did not give anyone permission to use his car, and the affidavit
of non-prosecution, in which Thomas said that there was a misunderstanding between
himself and appellant over when appellant was to return the car.
	The State introduced the testimony of Thomas and of Deputy Eldridge that
Thomas's permission to appellant was limited in nature.  The State also introduced
evidence that appellant exceeded that consent by keeping the car much longer than
he was supposed to and eventually abandoning it at a car wash in Beaumont instead
of returning it to Thomas in Winnie.
	Because the evidence relied on by both appellant and the State is almost
exclusively testimonial and directly contradictory, the outcome depends on whose
testimony seems most credible.  Therefore, we must defer to the jury in this case.  See
Cain, 958 S.W.2d at 407.  The jury was free to reject appellant's evidence that there
was a mistake or misunderstanding regarding when he was to return the car.  See
McQueen, 781 S.W.2d at 604-05.  Viewing all the evidence in a neutral light, we
cannot say that the jury's verdict was against the great weight and preponderance of
the evidence.  See Watson, 204 S.W.3d at 415.  Likewise, the conflicting evidence
presented by appellant at trial does not show the jury's verdict to be contrary to the
great weight of the evidence.  See id. at 415.
	We overrule appellant's first and second issues.
 Venue
	In his third and fourth issues, appellant argues that the evidence was legally
and factually insufficient to establish that Chambers County was the proper venue. 
Venue for the prosecution of an unauthorized use of a motor vehicle case is proper
either "where the unauthorized use occurred or in the county in which the vehicle was
reported stolen."  Tex. Code Crim. Proc. Ann. art. 13.23 (Vernon 2003).  An
objection to venue must be raised in the trial court, or venue will be presumed proven
at trial unless the record affirmatively shows the contrary.  Tex. R. App. P. 44.2(c)(1).
	Here, appellant did not object to venue at trial, nor does the record
affirmatively show that venue was not proper in Chambers County.  In fact, the record
establishes that the State introduced evidence that the vehicle was reported stolen in
Chambers County, where the trial took place.  Therefore, we must presume that the
State met its burden proving venue was proper in Chambers County.  See id.
	We overrule appellant's third and fourth issues.
Conclusion
	We affirm the judgment of the trial court.






							Evelyn V. Keyes
							Justice
 

Panel consists of Justices Nuchia, Jennings, and Keyes.

Justice Jennings, dissenting.

Publish.  Tex. R. App. P. 47.2(b).
1. See Tex. Pen. Code Ann. § 31.07(a) (Vernon 2003).  
2. This affidavit was a pre-printed form from Chambers County Sheriff's Department,
and the entire text reads, "I, Thomas, Hubert Otis Jr., the undersigned affiant, do
solemnly s[w]ear that I did not give anyone any permission, consent[,] or authority to
take from my possession at . . . 547 N. McDaniel, Winnie, TX 77665 in Chambers
County, Texas, the following described property[:] . . . 1998 Lincoln Town[]Car . . .[,]
[value listed at $11,000,] which offense occurred on or about the 3rd day of February,
2005."  Thomas also designated that the property had not yet been recovered.
3. The pertinent part of this affidavit stated, "When I signed the form stating [that] I did
not give [appellant] consent to use my 1998 Lincoln Town[][C]ar, I[,] in good faith[,]
believed that [appellant] was deliberately disobeying my instructions as to when to
return my car.  After talking with family members and remembering how I had loaned
other cars to [appellant] for long trips over long periods of time, and after learning
from my sister that, after I signed the non-consent form, [appellant] did call her and
tell my sister where I could find my car, I[,] in good faith[,] have come to believe that
[appellant] and I had a mutual misunderstanding as to where [appellant] was
permitted to go with my car and when [appellant] was to return my car.  I[,] in good
faith[,] believe that this matter should be settled in a civil court of law rather than in
a criminal court of law."
