



 









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



DISSENTING OPINION
	I agree with the majority that the evidence is legally sufficient to support the
conviction of appellant, Ruscel Lovel Battise, of the offense of unauthorized use of
a vehicle. (1)  However, the majority misapplies the standard of review for determining
the factual sufficiency of the evidence.  It then erroneously concludes that the
evidence in this case is factually sufficient to support the jury's implied finding that
appellant operated the complainant's car "without the complainant's effective
consent."  Accordingly, I respectfully dissent. 
	In his second point of error, appellant argues that the evidence is factually
insufficient to support his conviction because the evidence "did not prove that [he]
knew that his operation of [the complainant's car] was without the effective consent
of [the complainant]." 	In a factual sufficiency review, an appellate court must view all the evidence
in a neutral light, both for and against the finding, and set aside the verdict if the
proof of guilt is so obviously weak as to undermine confidence in the jury's
determination, i.e., that the verdict seems "clearly wrong and manifestly unjust," or
the proof of guilt, although legally sufficient, is nevertheless against the great weight
and preponderance of the evidence.  Watson v. State, 204 S.W.3d 404, 414-15 (Tex.
Crim. App. 2006).  
	It is true, as emphasized by the majority, that we should always be "mindful"
that a jury is in the best position to pass on the facts and that we should not order a
new trial "simply because [we] disagree" with the verdict.  See id. at 414.  However,
being mindful of these principles does not end our analysis.  If so, appellate courts
could never reverse a trial court judgment on the ground that evidence is factually
insufficient to support it.  As explained by the Texas Court of Criminal Appeals,
	It is in the very nature of a factual-sufficiency review that it authorizes
an appellate court, albeit to a very limited degree, to act in the capacity
of a so-called "thirteenth juror."  Indeed, it is this characteristic of a
factual-sufficiency review that justifies the conclusion that a reversal on
the basis of factually insufficient evidence has no jeopardy
consequences.  

Id. at 416-17.  Thus, when an appellate court can "say, with some objective basis in
the record, that the great weight and preponderance of the (albeit legally sufficient)
evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate
fact jurisdiction to order a new trial."  Id. at 417.  
	A person commits the offense of unauthorized use of a vehicle if he
"intentionally or knowingly" operates a vehicle "without the effective consent of the
owner."  Tex. Penal Code Ann. § 31.07(a) (Vernon 2003).  "[W]hat separates
lawful operation of another's motor vehicle from unauthorized use is the actor's
knowledge of a 'crucial circumstance surrounding the conduct'-that such operation
is done without the effective consent of the owner."  McQueen v. State, 781 S.W.2d
600, 604 (Tex. Crim. App. 1989).  Thus, the State had the burden to prove to the jury
that appellant was actually aware that his operation of the complainant's car was
without the complainant's effective consent.  See id.
	Here, a neutral review of the record reveals that the complainant, Hubert
Thomas, testified that on February 3, 2007, he loaned his car to appellant, who had
been dating Thomas's sister, Jennifer, for several years.  Appellant was to wash the
car and return it to Thomas by 5:00 p.m.  When appellant failed to return the car,
Thomas reported the car stolen at about 10:30 p.m.  Chambers County Sheriff's
Deputy S. Eldridge testified that he met with Thomas, who told Eldridge that he had
loaned the car to appellant with instructions to wash it and return it.  
	However, Thomas did not tell Deputy Eldridge that he instructed appellant to
return the car by a certain time.  Thomas actually told Eldridge that he only gave
appellant permission to take the car to a car wash in Winnie, Texas.  More
importantly, Thomas testified in an affidavit, on a form provided to him by Eldridge,
that,
 I, [Thomas], 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.

(Emphasis added).  The preprinted form was apparently used by the Chambers
County Sheriff's Office to make sure that its law enforcement authority was not used
by individuals to resolve what are essentially civil, and not criminal, disputes. 
Although Thomas had just told Eldridge that he in fact loaned his car to appellant,
Eldridge, inexplicably,  accepted Thomas's sworn affidavit to the contrary and then
reported the car "stolen." 
	Under any objective standard, based upon the complainant's perjured (2)
testimony in his affidavit to Deputy Eldridge, a criminal case against appellant should
never have been filed in the first place.  Moreover, after appellant's arrest, the
complainant, in an affidavit of non-prosecution, further testified,
	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.

(Emphasis added).  The complainant's testimony that he and appellant had a "mutual
misunderstanding" as to where appellant was permitted to go with the complainant's
car and when appellant was to return the car went uncontradicted at trial.  
	The majority, emphasizing that we "must defer to the jury in this case," holds
that the jury's verdict was not against the great weight and preponderance of the
evidence.  In doing so, the majority allows the principle that we must normally defer
to the jury's fact-finding role to trump any objective assessment of the evidence
before the jury.  Under the majority's reasoning, as noted above, an appellate court
could never reverse a judgment on the ground that the evidence is factually
insufficient to support it.
	The bottom line is that the State had the burden to prove beyond a reasonable
doubt that appellant was actually aware that his operation of the complainant's car
was without the complainant's effective consent.  See McQueen, 781 S.W.2d at 604. 
Although the State, through the complainant, presented some evidence to support
such an implied finding, an objective review of the record reveals two vital facts that
logically preclude such a finding:  (1) the complainant, himself, testified that he and
appellant had a "mutual misunderstanding" as to where appellant was permitted to go
with the complainant's car and when appellant was to return the car, and (2) the
complainant committed perjury in his initial affidavit to Deputy Eldridge when he
testified that he "did not give anyone any permission, consent[,] or authority" to take
his car when he, in fact, had done exactly that.  
	I would hold that the great weight and preponderance of the evidence
contradicts the jury's implied finding that appellant was aware that his operation of
the complainant's car was without the complainant's effective consent.  See Watson,
204 S.W.3d at 417 (explaining when appellate court has "objective basis in the
record[,] that the great weight and preponderance of the (albeit legally sufficient)
evidence contradicts the jury's verdict[,] . . . it is justified in exercising its appellate
fact jurisdiction to order a new trial").  The jury's finding that appellant was so aware
is clearly wrong and manifestly unjust.  Accordingly, I would reverse the judgment
of the trial court and remand the case for a new trial.  The majority's holding to the
contrary and affirmance of the trial court's judgment are in serious error. 




							Terry Jennings
							Justice
 
Panel consists of Justices Nuchia, Jennings, and Keyes.

Justice Jennings, dissenting.

Publish.  Tex. R. App. P. 47.2(b).
1.  	See Tex. Penal Code Ann. § 31.07(a) (Vernon 2003).  
2. 	A person commits the Class A misdemeanor offense of perjury if, "with intent to
deceive and with knowledge of the statement's meaning[,] . . . he makes a false
statement under oath."  Tex. Penal Code Ann. § 37.02(a) (Vernon 2003).  
