                                  NO. 07-01-0144-CR
                                  NO. 07-01-0145-CR
                                  NO. 07-01-0146-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                   JANUARY 9, 2002

                         ______________________________


                    LINDA ELIZABETH ARNHEITER, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE


                       _________________________________

        FROM THE COUNTY CRIMINAL COURT NO. 5 OF HARRIS COUNTY;

     NOS. 1025562, 1025563, 1025564; HONORABLE E. JANICE LAW, JUDGE

                         _______________________________

Before BOYD, C.J., and REAVIS and JOHNSON, JJ.


      Appellant Linda Elizabeth Arnheiter brings this appeal from three convictions for

failure to maintain motor vehicle title records as required by a special statute applicable

to Harris County. Finding merit in the second of appellant’s three issues, we reverse.


       In an effort to curb what was perceived as a serious problem with fraudulent

documents and transactions involving motor vehicle titles, the Harris County Tax Assessor
and Houston Police Department supported the passage of the Troy Blando Motor Vehicle

Theft Prevention Act of 1999 (the Act). 76th Leg., R.S., Ch. 1478, sec. 2, 1999 Tex.Gen.

Laws 5091. It was codified as Chapter 520 of the Transportation Code and became

effective on September 1, 1999. The Act requires anyone who operates a “motor vehicle

title service” in Harris County to obtain a license from the county tax assessor, comply with

record keeping requirements, and permit inspection of their records without a warrant.

Section 520.057.1 Section 520.061 makes violation of the chapter, or a rule adopted by

the county tax assessor,2 a Class A misdemeanor offense.




       1
           Section 520.057 provides:

       (a) A holder of a motor vehicle title service license shall maintain records as
       required by this section on a form prescribed and made available by the
       county tax assessor-collector for each transaction in which the license holder
       receives compensation. The records shall include:

       (1) the date of the transaction;

       (2) the name, age, address, sex, driver’s license number, and a legible
       photocopy of the driver’s license for each customer; and

       (3) the license plate number, vehicle identification number, and a legible
       photocopy of proof of financial responsibility for the motor vehicle involved.

       (b) A motor vehicle title service shall keep:

       (1) two copies of all records required under this section for at least two years
       after the date of the transaction;

       (2) legible photocopies of any documents submitted by a customer; and

       (3) legible photocopies of any documents submitted to the county tax
       assessor-collector.
       2
       Compliance with rules promulgated by the tax assessor are not at issue here and
we need not address whether the legislature improperly delegated its power to define
criminal offenses to that official.

                                              2
It is undisputed that appellant operates a motor vehicle title service in Harris County and

that she obtained a license in December 1999. On October 4, 2000, Detective William

Smith of the Harris County Sheriff’s Department inspected the records maintained by

Arnheiter, doing business under the name Servicios Latino Americanos. Smith found a

form which indicated Arnheiter transferred the titles on three vehicles for which she did not

maintain all of the records required by the statute. Specifically, Smith could not find any

records showing the name, age, address, sex or drivers’ license number of these

customers. On October 11, 2000, appellant was charged by separate instruments with

failure to maintain motor vehicle records on each of the three vehicles.


       At her jury trial, appellant admitted she did not have the additional records, but

testified she was not aware she was required to keep that information. She admitted that

she knew additional record keeping requirements were imposed on motor vehicle title

services about December 1999 when she obtained her license. She also admitted seeing

posters in the tax office about the new rules and receiving a letter from the tax assessor

announcing a meeting to discuss application of the statute. She discarded the letter

because it arrived the day after the meeting. The State presented the testimony of a

deputy clerk named Diana Aguilar in the tax office, who stated it was her practice to inform

each person who applied for a license of the record keeping requirements of the statute

and provide them with a copy of it. She did not have specific recollection of doing this with

appellant.


                                             3
       The jury found her guilty in each case and punishment was assessed by the trial

court at eight days confinement in the Harris County Jail. Appellant timely perfected

appeal from each judgment and now presents three issues for our review. They are

whether 1) there was legally sufficient evidence to support the conviction when the State

failed to prove the tax assessor-collector prescribed and made available a form to maintain

the records required under Section 520.057(a); 2) the evidence was legally sufficient to

sustain her conviction when the form made available by the tax assessor-collector does

not request all of the information required by the statute, and 3) the trial court erred in

setting out the provisions of Section 520.057(b) in its charge when appellant was not

charged with violating that subsection.


       Appellant’s first challenge is to the legal sufficiency of the evidence. She argues

there was no evidence that the Harris County Tax Assessor-Collector created and made

available a form as required by the Act. In considering a legal insufficiency challenge, we

are required to view the evidence in a light most favorable to the prosecution and then

determine if any rational trier of fact could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789,

61 L.Ed.2d. 560 (1979).


       At trial, the State admitted the document entitled Harris County Title Service

Transaction Form as its exhibit number six. Deputy Clerk Aguilar identified the form and

stated “they have to present this form every time they conduct business within our office.”

In discussing the processing of applications for title services, she stated that she would


                                              4
explain to title services “what they have to do with that transaction sheet . . .” (emphasis

added). Viewing the evidence in the light most favorable to the verdict, as we must, from

this testimony, and the text of the form itself, a rational trier of fact could find that State’s

exhibit number six was a form promulgated by the tax assessor pursuant to the Act. We

overrule appellant’s first issue.


       Appellant’s second issue assumes, for the purpose of argument, that State’s exhibit

six, entitled “Harris County Title Service Transaction Form,” is a form prescribed by the tax

assessor pursuant to the Act. That form contains blanks for date of sale, vehicle year,

make, vehicle identification number and purchaser’s name. It does not contain a place for

the recordation of a customer’s age, sex, driver’s license number, or the vehicle’s license

plate number. Appellant argues there was no evidence “that the . . . tax assessor-collector

prescribed and made available a form that could be used to maintain all the records

required by Section 520.057(a). Therefore it was impossible for the State to establish that

appellant failed to maintain records on a form prescribed by the tax assessor-collector.”

After reciting the evidence introduced at trial, the State’s argument in support of the jury’s

verdict consists of a single conclusory sentence that the evidence is sufficient to support

a finding that appellant failed to maintain the information on the tax assessor’s form. It

contains no discussion of how a licensee could record this information on the form

provided.


       Resolution of this issue requires construction of section 520.057. A court’s primary

objective in construing a statute is to determine and give effect to the legislative intent.


                                               5
Liberty Mutual Insurance Company v. Garrison Contractors, Inc., 966 S.W.2d 482, 484

(Tex. 1998). That purpose is accomplished by first looking at the plain and common

meaning of the statute’s words, unless the plain meaning would produce an absurd result.

Bridgestone/Firestone, Inc. v. Glyn-Jones, 878 S.W.2d 132, 134 (Tex. 1994). By statute

we are also instructed that in our construction, we are to presume that the entire statute

is intended to be effective, to create a just and reasonable result, and one feasible of

execution. Tex. Govt. Code Ann. § 311.021 (Vernon 1998).


         Here, a literal reading of section 520.057(a)(2) and (3) would require that the title

service company photocopy customers’ drivers’ licenses and proof of financial

responsibility directly onto the form promulgated by the tax assessor. The State takes the

position that this is what is required of title service companies without offering any

explanation of how this could be accomplished on the form provided. However, we

perceive this to be an absurd result and question whether it would be feasible of execution.

The intent of the legislature appears clear; that title service companies obtain photocopies

of customers’ drivers’ licenses as proof of financial responsibility. The failure to provide

space on the tax assessor’s form for those copies does not excuse performance of that

statutory duty, and appellant has provided no authority supporting the conclusion that it

would.


         Appellant also argues that the absence of the items on the tax assessor’s form is

determinative because the court’s charge only alleged she failed to maintain the




                                               6
information on the prescribed form, not that she failed to keep the required information.

The application paragraph of the court’s charge provided:


      Now, if you find from the evidence beyond a reasonable doubt that on or [sic]
      October 4, 2000, in Harris County Texas, the Defendant . . . did unlawfully,
      while the holder of a motor vehicle title service license, intentionally or
      knowingly fail to maintain records for each transaction in which the
      defendant received compensation, on the form prescribed and made
      available by the Harris County tax assessor-collector, as required by section
      520.057 . . . namely, a transaction for [listing specific vehicle], then you will
      find the defendant guilty.


In Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997), the Court of Criminal

Appeals held that the sufficiency of the evidence must be measured by the elements of the

offense as defined by a hypothetically correct jury charge. Id. at 240. A hypothetically

correct jury charge for a case would be one that accurately sets out the law, is authorized

by the indictment, does not unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried. Id. at

239-40.


       Applying the teachings of Malik to this case requires us to determine whether the

phrase “on the form” in the application paragraph of the court’s charge was surplusage.

Our holding that the legislature did not intend to require title services to photocopy onto

the tax assessor’s form dictates a finding that the phrase “on the form” is surplusage as

to the items that are required to be photocopied. As to the other information, specifically




                                             7
the vehicle license plate number, customer’s address and, for individual customers,3 their

age, sex, and driver’s license number, the phrase would not be surplusage. Therefore,

where the evidence clearly showed the tax assessor’s form did not allow for the entry of

those items, no rational factfinder could find appellant intentionally or knowingly failed to

maintain that information “on the form prescribed” by the tax assessor.


       We sustain appellant’s second issue. This disposition obviates the need to address

appellant’s third issue. Because we find the evidence legally insufficient, we reverse the

judgment of the trial court and render a judgment of acquittal in each case.



                                                  John T. Boyd
                                                   Chief Justice

Do not publish.




       3
        Although not raised by appellant, we note the Act does not define the term
“customer.” This is significant because the purchasers of two of the vehicles at issue are
shown to be Astrodome Auto Sales. We presume this is a corporation, which clearly would
not have a driver’s license, precluding appellant from obtaining a copy of that document.
However, a corporation would have an address, proof of financial responsibility, and the
vehicle license plate number.

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