                                     NO. 07-02-0237-CR

                               IN THE COURT OF APPEALS

                        FOR THE SEVENTH DISTRICT OF TEXAS

                                        AT AMARILLO

                                           PANEL C

                                     JULY 1, 2003
                           ______________________________

                                  KERRY LEN BRADFORD,

                                                            Appellant

                                                v.

                                  THE STATE OF TEXAS,

                                                 Appellee
                         _________________________________

               FROM THE 242ND DISTRICT COURT OF HALE COUNTY;

                     NO. B14371-0203; HON. ED SELF, PRESIDING
                         _______________________________

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

       Kerry Len Bradford, appellant, appeals his conviction for the unauthorized use of

a motor vehicle. Through two points of error, he contends that the evidence was both

legally and factually insufficient to support the verdict of guilty and that the trial court erred

in admitting into evidence the testimony of a particular witness. We affirm the judgment.

                                         Background

       Appellant drove a semi-truck tractor for Jeff Harrell (Harrell). In addition to allowing

appellant to drive the semi-truck tractor, Harrell also allowed him to use a white Chevy
pickup truck belonging to Harrell’s father. The latter approved of the arrangement.

However, Harrell informed appellant that the truck was to be his (appellant’s) responsibility

and was to be used to conduct personal errands (such as for traveling to the store to buy

groceries for himself) while he was not driving the semi-truck tractor. So too did Harrell

expressly forbid appellant from loaning the vehicle to others.

       After returning from a work assignment one day, appellant drove the pickup to town.

He was to return the next day in time for another haul; that is, he was scheduled to drive

a shipment to Kansas. He did not return, however. Nor did he cause the pickup to be

returned or return the phone calls placed to him on the cellular phone loaned to him by

Harrell. Instead, appellant stated that he loaned the vehicle to a companion, despite

Harrell’s admonition against that. Additionally, this companion purportedly failed to return

with it. Appellant also informed the police (after his arrest) that a “couple of days later,”

he found the vehicle in a vandalized state. Items also were missing from it. Those items

included an air compressor (which had been affixed to the pickup), tools, a two-way radio

and a cellular phone.

       Given that the items were missing, the State offered the testimony of an individual

named Neal illustrating how they were disposed of and who disposed of them. Neal

testified that appellant and two other individuals appeared before him in a white pickup

truck and offered to sell items from it which included tools and an air compressor. Neal

allegedly inquired into the ownership of the items, and appellant replied that his employer

(who supposedly lived in Oklahoma) authorized their sale.




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         The local police force eventually found the pickup after being contacted by a

wrecker. The latter found it abandoned.                 It had “pretty well been stripped . . . .”

Approximately one month later, the State indicted appellant, charging him with the

unauthorized use of a motor vehicle.

                           Issue One - Sufficiency of the Evidence

         Appellant initially contends that the evidence was both legally and factually

insufficient to support his conviction. This is purportedly so because he had the consent

of the owner to use it during the periods involved. We overrule the issue.

         The applicable standards of review are well-settled and need not be reiterated. It

is sufficient to cite the parties to Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979), and Zuliani v. State, 97 S.W.3d 589 (Tex. Crim. App. 2003), for their

explanation.

         Next, to convict one of the unauthorized use of a motor vehicle, the State must

prove, beyond reasonable doubt, that the accused “intentionally or knowingly operate[d]

another’s . . . motor-propelled vehicle without the effective consent of the owner.” TEX .

PENAL CODE ANN . §31.07(a) (Vernon 2003). One operates a vehicle, for purposes of the

statute, when he “[takes] action to affect the functioning of his vehicle in a manner that

would enable the vehicle’s use.”1 Denton v. State, 911 S.W.2d 388, 390 (Tex. Crim. App.

1995).



         1
          We acknowledge that the definition is quite broad. Yet, it is the one adopted by the Court of
Criminal Appeals, and we must follow it. See Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d
580, 585 (Tex. 2002) (requiring an intermediate court of appeal to apply the law as declared by the highest
courts in the Texas judiciary).

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       As to consent, it is clear that consent to operate a vehicle for specific purposes does

not encompass the authorization to do so for all purposes. See Dodson v. State, 800

S.W.2d 592, 593-94 (Tex. App.–Houston [14th Dist.] 1991, pet. ref’d) (holding that the

evidence was sufficient to sustain conviction since the appellant had permission to drive

and leave the car in a specific parking lot so the owner could retrieve it, but not to “drive

around in the car until [appellant] was ready to return it”). In short, operating the vehicle

outside the parameters demarcated by the owner may result in use without the owner’s

effective consent. See id.

       Here, evidence appears of record illustrating that though Harrell allowed appellant

to use the vehicle for personal errands, the grant of authority was restricted. He was told

not to allow others to drive it. Despite this, appellant gave the vehicle to a companion for

use. That exceeded the scope of authority granted by Harrell. Furthermore, that he

allowed the companion to use the vehicle also demonstrates that appellant took action to

affect the functioning of the vehicle in a manner that would enable the vehicle’s use. That

is, his voluntary action of delivering the vehicle to the companion for use enabled the

subsequent use of the vehicle; thus, he could be considered as operating it when it was

delivered.

       Also, and as acknowledged by appellant in his brief, evidence of record illustrates

that appellant was granted authority to use the pickup until it came time to haul another

load for the Harrells. Furthermore, appellant took the pickup for the last time on January

21st and was scheduled to haul a delivery to Kansas the next day, i.e. the 22nd. Thus, a

rational factfinder could reasonably deduce that his permission to use the vehicle expired


                                              4
on the 22nd. Yet, appellant did not return with the vehicle on that day. Nor did he return

to work. Instead, and rather than abide by the limits placed on its use, he and his

companions used the pickup to contact Neal with an offer to sell stolen property, i.e. the

vehicle’s contents. Selling the contents as well as using the vehicle to transport those

contents is evidence manifesting appellant’s intent to exceed or ignore the bounds of

authority granted him by Harrell. That is, it along with the evidence that he allowed third

parties to use the pickup and then failed to return the vehicle at the allotted time is

evidence upon which one could reasonably infer that appellant no longer felt bound by and

exceeded the scope of the consent granted him by Harrell. No longer was he using the

vehicle for the legitimate purposes approved by Harrell but instead was using it to pursue

an illegitimate end.

       Again, the consent granted by the owner delineates the operator’s sphere of

authority. And, if one is to heed common sense, then one must conclude that when X

allows Y (and only Y) to use a car only for personal errands such as buying groceries, the

authority granted Y does not encompass permission to allow Z to drive the car for personal

errands or to allow Y to sell its contents and then opt not to return what is left of the

stripped vehicle. Nor does it encompass the authority to use the vehicle as a means of

conducting illegal activity, that being the transport of items converted from Harrell and sold

to others.

       In short, evidence appears of record upon which a factfinder could conclude,

beyond reasonable doubt, that appellant operated the vehicle without the effective consent

of the owner. Furthermore, such a determination would not be so contrary to the great


                                              5
weight of the evidence as to be clearly wrong or supported by evidence so weak as to

render the finding clearly wrong or manifestly unjust.

                              Issue Two – Admission of Evidence

        Next, appellant complains of the admission of Neal’s testimony. The trial court

allegedly erred in admitting it because 1) the State used Neal to impeach testimony that

it offered (namely appellant’s written statement alleging that the companion took the

vehicle) and 2) its probative value was substantially outweighed by its danger of unfair

prejudice.2 We overrule the point.

        As to the matter of impeaching one’s own testimony, that basis for objection went

unmentioned below. There, appellant simply contended that the evidence was irrelevant

and that its probative value failed to outweigh its prejudicial effect. Given that this ground

of objection went unmentioned below, it was waived. Wilson v. State, 71 S.W.3d 346, 349

(Tex. Crim. App. 2002) (holding that the objection raised on appeal must comport with that

asserted below to be preserved).

        As to the remaining ground for objection, appellant’s argument is founded upon the

belief that the testimony had no value since it was irrelevant. We disagree. At the very

least, it served to illustrate appellant’s intent to exceed and that he actually exceeded the

authority extended by Harrell. As previously discussed, the transaction with Neal evinced

not only that appellant was selling the contents of the pickup (which contents he

converted) but also using the pickup to transport those contents to prospective buyers.


        2
         Under Rule of Evidence 403, relevant evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury,
or by considerations of undue delay, or needless presentation of cumulative evidence.

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Neither fell within the purpose for which Harrell allowed him to operate the vehicle. So,

the evidence was quite relevant to the elements of operating the pickup without the

effective consent of the owner.

       The evidence also served to rebut the defense appellant built into his confession,

the defense being that someone else took and stripped the vehicle. And, while it depicted

extraneous misconduct, we cannot say that the trial court abused its discretion in

concluding that its probative value was not substantially outweighed by its danger of undue

prejudice. See Montgomery v. State, 810 S.W.2d 372, 378-79 (Tex. Crim. App. 1991)

(holding that the decision whether to admit or exclude evidence under Rule of Evidence

403 falls within the trial court’s discretion).

       Accordingly, the judgment is affirmed.



                                                        Brian Quinn
                                                           Justice

Do not publish.




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