                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

         _________________________

              No. 06-12-00049-CR
        ______________________________


       RICKEY TAVALES LEWIS, Appellant

                          V.

         THE STATE OF TEXAS, Appellee



   On Appeal from the 124th Judicial District Court
                Gregg County, Texas
              Trial Court No. 40721-B




     Before Morriss, C.J., Carter and Moseley, JJ.
       Memorandum Opinion by Justice Carter
                                  MEMORANDUM OPINION

       Rickey Tavales Lewis was convicted by a jury of unauthorized use of a vehicle, a state

jail felony. Lewis appeals his conviction and resulting sentence of fourteen months‘ confinement

in state jail on the ground that the evidence was legally insufficient to support the judgment. We

affirm the trial court‘s judgment, finding the evidence legally sufficient to establish Lewis‘

unauthorized use of a vehicle.

I.     Factual Background

       Gary Wayne Gilbert owned a car dealership called Gilbert & Cash Motor Company. He

enlisted the services of Hands On Detail, a car detailing shop owned by Lewis. Lewis assured

Gilbert that he would have a white Chevy Trailblazer detailed and ready ―by Friday,‖ April 22,

2011. Gilbert recorded the vehicle‘s mileage at 177,912 when it was delivered to the shop on

April 20, 2011.

       The vehicle was not returned on April 22, and Gilbert noticed that Hands On Detail was

closed. He ―called all the next week and all the next week and never got an answer,‖ despite

leaving several voicemails on Lewis‘ cell phone. The business remained closed during this time.

Gilbert testified that he ―went by there every day‖ and left notes at Hands On Detail, but that

―[t]hey would be tore off, gone, but nobody was ever in there.‖

       After two weeks of waiting to hear from Lewis, Gilbert tracked the vehicle using a

Global Positioning System (GPS). The GPS tracking system showed that the vehicle had been at

Lewis‘ shop in Gladewater, Texas, until May 6, 2011. Thereafter, GPS located the vehicle in the



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Texas cities of West, Marshall, and Ore City. Gilbert reported the missing car, along with its last

known address, to the police. The car was at Lewis‘ girlfriend‘s home in Marshall.

         Lewis was at the residence when the vehicle was recovered by Gilbert. ―It had 178,225

miles on it,‖ ―313 more miles than when it had‖ first been left in Lewis‘ care. Lewis ―sunk his

head‖ when he was confronted by the GPS printout. He told Gilbert that he had picked up the

car at a time when it was in Ore City. Gilbert testified that even though Lewis was ―act[ing] like

he was trying to get it detailed so he [could] get it back to me,‖ the car ―had wrappers and stuff

thrown all over the inside, and half-eaten food and it needed to go to the detail shop, again.‖

         Gilbert affirmed that Lewis ―did not have authorization to drive that car anywhere but

between my car lot and his place, which is two-and-a-half miles.‖ Gilbert testified that Lewis‘

―car was broke down; he had nothing to drive. And it looks like he just—I thought he just took

mine.‖

         Officer Kenneth Phillips testified that Lewis was the only person at the residence when

the vehicle was located. According to Phillips, Lewis claimed that he ―had left it at the business

for another worker to finish,‖ had ―tried to contact Mr. Gilbert a couple of times,‖ and had

actually spoken with him ―on a certain date.‖ Lewis told Phillips he was going to return the car

the following week.

         During testimony from defense witnesses, differing versions of what could have

happened to the car were presented. Marlon Dewayne Gordon, an employee of Lewis‘ shop,

testified that Gilbert had entrusted the vehicle to another employee, Elijah Morrow. In an

attempt to explain why the vehicle might have been tracked to Ore City, Gordon testified that

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Morrow did not have a car and that he lived ―[a]round the Ore City area.‖ Gordon also

confirmed that Lewis‘ car was broken down1 and claimed that he was out of town in

Mississippi.

            Turner testified that Lewis had never come to her house in a vehicle from the detail shop

during their three-year relationship. She told the jury that Lewis was out of town in Mississippi

for the purpose of moving his brother. According to Turner, Lewis left on May 2, 2011, and

rented a car from Hertz Rent-a-Car to make the drive. Turner testified that she picked Lewis up

from the Longview Hertz on May 8 and was surprised to find ―a white SUV in [her] yard.‖

            During cross-examination, it was established that Gilbert‘s vehicle was actually in Ore

City during the day and time that Turner testified it was in front of her house. Turner stated she

was there with Lewis when he rented a car from Hertz. Greg Bowens, branch manager of the

Longview Hertz Rent-a-Car, testified that Lewis‘ name did not show up in the Hertz system in

May 2011. Turner then testified that the car was rented by Lewis‘ uncle Stanley O‘quinn;

however, Bowens confirmed that a search for O‘quinn‘s name only produced a rental in the

month of February.2

II.         Legally Sufficient Evidence Showed that Lewis Operated Gilbert’s Vehicle

            In evaluating legal sufficiency, we review all of the evidence in the light most favorable

to the jury‘s verdict to determine whether any rational jury could have found the essential

elements of unauthorized use of a vehicle beyond a reasonable doubt. Brooks v. State, 323


1
    Lewis‘ girlfriend, Daria Turner, testified that Lewis had a ―[19]83 pickup and a Town Car.‖
2
    O‘quinn testified that he rented a vehicle for Lewis and that he remembered seeing Turner there.

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S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref‘d) (citing

Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency

review focuses on the quality of the evidence presented.        Brooks, 323 S.W.3d at 917–18

(Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks

opinion, while keeping in mind that the credibility of witnesses is the sole province of the jury

and that we ―must give deference to ‗the responsibility of the trier of fact to fairly resolve

conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts

to ultimate facts.‘‖ Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson

443 U.S. at 318–19); see Ehrhardt v. State, 334 S.W.3d 849, 857 (Tex. App.—Texarkana 2011,

pet. ref‘d).

        Legal sufficiency of the evidence is measured by the elements of the offense as defined

by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.

1997). The hypothetically correct jury charge ―sets out the law, is authorized by the indictment,

does not unnecessarily increase the State‘s burden of proof or unnecessarily restrict the State‘s

theories of liability, and adequately describes the particular offense for which the defendant was

tried.‖ Id.

        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.‖ TEX. PENAL CODE ANN. § 31.07 (West 2011). The indictment in this

case alleged that Lewis intentionally or knowingly operated an automobile owned by G. Gilbert

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without his consent.    In his briefing, Lewis appears to challenge whether the vehicle was

operated. However, there is no question that the vehicle was operated since it was driven

through several Texas cities during the time it was missing. Rather, Lewis only challenges

whether the State proved that he was the person who operated the vehicle.

        The law does not require that each fact ―point directly and independently to the guilt of

the appellant, as long as the cumulative effect of all the incriminating facts is sufficient to

support the conviction.‖ Hooper, 214 S.W.3d at 13; see Powell v. State, 194 S.W.3d 503, 507

(Tex. Crim. App. 2006). With circumstantial evidence, as long as ―the verdict is supported by a

reasonable inference, it is within the province of the fact[ ]finder to choose which inference is

most reasonable.‖ Laster v. State, 275 S.W.3d 512, 523 (Tex. Crim. App. 2009.).

       Here, Gilbert testified that Lewis was the person initially entrusted with the vehicle.

After Lewis failed to timely return the vehicle, Gilbert made several attempts to contact Lewis on

his cell phone. Gilbert noticed that Lewis‘ shop was closed over the next two weeks and that

notes he left at the shop had disappeared. There was testimony that Lewis‘ vehicles were

inoperable. GPS tracking confirmed that the car had been driven to several Texas cities and was

finally located outside Lewis‘ girlfriend‘s home. According to Phillips, Lewis was there alone at

the time the car was located and told Phillips that he had ―tried to contact Mr. Gilbert a couple of

times‖ to return the car. When Gilbert arrived at Turner‘s home, Lewis made a statement that he

had picked up the car on a day when GPS revealed it to be in Ore City. The jury‘s finding that

Lewis was the person who operated Gilbert‘s vehicle while it was missing was a reasonable

inference deduced from the evidence at trial.

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       ―The jury is the exclusive judge of the credibility of witnesses and of the weight to be

given their testimony.‖ Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000). Likewise,

―reconciliation of conflicts in the evidence is within the exclusive province of the jury.‖ Id.

Although there was some testimony from Lewis‘ girlfriend, uncle, and employee that Lewis may

have been in Mississippi, the jury was free to give less weight to this evidence as it turned on

credibility and demeanor. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008).

       Operation of the vehicle without the owner‘s consent must be intentional or knowing.

Intent may be inferred from circumstantial evidence, such as the defendant‘s acts, words, or

conduct. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).      Gilbert testified that

Lewis was to return the vehicle on April 22, that Lewis told Gilbert he picked up the car during

the time it was missing, and that Lewis failed to return Gilbert‘s telephone calls and written

notes. Phillips testified to statements made by Lewis indicating that he was going to return the

car—in other words, that Lewis knew that the car did not belong to him.      The vehicle, which

Lewis was supposed to detail, contained food wrappers and other garbage when it was located,

and it had been driven 313 miles. Gilbert testified that Lewis ―sunk his head‖ when he was

confronted by the GPS printout. The evidence was legally sufficient for the jury to determine

that the operation of the vehicle was intentional or knowing.

       In order to constitute unauthorized use, operation of the vehicle must be without consent.

After permission to use a vehicle is given, operation of the vehicle is without consent if it

exceeds the scope of consent. See Battise v. State, 264 S.W.3d 222, 227 (Tex. App.—Houston

[14th Dist.] 2008, pet. ref‘d); Dodson v. State, 800 S.W.2d 592, 593–94 (Tex. App.—Houston

                                                7
[14th Dist.] 1991, pet. ref‘d).   Lewis was entrusted with the vehicle for the sole purpose of

detailing it and returning it to Gilbert on April 22, 2011. The evidence was sufficient for the jury

to find that the operation of the vehicle beyond that scope was without Gilbert‘s consent.

       We find the evidence legally sufficient for a jury to find that Lewis intentionally or

knowingly operated Gilbert‘s vehicle without Gilbert‘s effective consent.

III.   Conclusion

       We affirm the trial court‘s judgment.



                                                     Jack Carter
                                                     Justice

Date Submitted:        November 26, 2012
Date Decided:          December 13, 2012

Do Not Publish




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