Opinion issued July 24, 2014.




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-13-00439-CR
                            ———————————
                      NETTRA R. WILLIAMS, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 184th District Court
                           Harris County, Texas
                       Trial Court Case No. 1355432


                          MEMORANDUM OPINION

      A jury found Nettra R. Williams guilty of the unauthorized use of a motor

vehicle,1 and the trial court ordered her to serve 150 days’ confinement and placed


1
      See TEX. PENAL CODE ANN. § 31.07 (West 2011) (criminalizing intentionally or
      knowingly operating another’s motor-propelled vehicle without effective consent
      of owner).
her on community supervision for five years. In two issues, Williams contends that

(1) there was insufficient evidence to support her conviction and (2) the trial court

erred by instructing the jury on the law of parties. We affirm.

                                    Background

      Williams had worked for a Houston airport rental car company for less than

one year when she was fired from her job as an exit-booth employee. As an exit-

booth employee, Williams logged the entry and exit of rental cars. One day,

Williams filed an exit log for a Dodge Charger, noting that it was owned by

another rental company and that the vehicle had been returned to the wrong

location. Shortly thereafter, Williams’s employer filed a missing vehicle report

with the Houston Police Department for the Dodge Charger. The report stated that

Williams was the last person to see the missing vehicle.

      The rental car company hired a private investigator who eventually located

the missing Charger in a Wal-Mart store parking lot. The investigator reported the

car to the police, and Houston Police Sergeant E. Blankenship went to the store to

investigate. Upon arriving at the store, Blankenship conducted surveillance of the

stolen car for over an hour. When Blankenship did not see anyone enter or exit the

vehicle, he concluded that it had been abandoned and requested video surveillance

footage of the parking lot from the store’s asset protection manager, Laura

Martinez.


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      According to Blankenship, the videos showed the stolen vehicle being

parked in the store parking lot, Williams exiting the vehicle from the driver’s side

of the vehicle, Williams meeting a group of people in the parking lot, and the

group entering the store. Blankenship also reviewed the photographs of Williams

entering the store and making a purchase. From the videos and photographs,

Blankenship testified that the same woman who had exited the stolen vehicle later

appeared inside of the store making a purchase. According to Blankenship, the

rental car company’s private investigator later relied on the videos and still

photographs to positively identify Williams as the person who exited the stolen

vehicle and made a purchase inside of the store.

      Williams was charged by indictment with the unauthorized use of a motor

vehicle. At trial, the jury heard testimony from Sergeant Blankenship, Martinez,

and Scott Vereb, the rental car company Risk Manager. Their testimony provided

evidence that Williams did not have consent to drive the Charger and that Williams

drove the Charger in the store parking lot.

      In her defense, Williams offered evidence that she was not the driver. Her

friend, Don Davis, testified that Williams had arranged for him to test drive and

purchase the Charger from another person.

      At the conclusion of William’s defense, the trial court told both parties on

the record that she planned to add the law of parties to the charge because Davis


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had “admitted [that] he was driving the vehicle and that [Williams] arranged for

him to meet the person who had the car that he thought was for sale.” The trial

court also stated that Davis’s testimony presented some circumstantial evidence

that Davis “would have known the car was stolen” because “normally people don’t

just give you a car to drive.” The trial court included the law-of-parties instruction

over Williams’s objection.

      The jury found Williams guilty of the unauthorized use of a motor vehicle

and assessed punishment at 395 days’ confinement, but it recommended that the

trial court suspend her sentence and place her on community service. The trial

court ordered Williams to serve 150 days’ confinement as a condition of a five-

year term of community supervision.

      This appeal followed.

                             Sufficiency of the Evidence

      In her first issue, Williams contends that there was insufficient evidence to

prove that she was guilty of the unauthorized use of the Charger as a principal

actor or under the law of parties. The State responds that there was sufficient

evidence of her guilt under either theory.

A.    Standard of review

      We review Williams’s challenge to the sufficiency of the evidence under the

standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S. Ct. 2781,


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2788–89 (1979). See Brooks v. State, 323 S.W.3d 893, 894–913 (Tex. Crim. App.

2010); Ervin v. State, 331 S.W.3d 49, 52–56 (Tex. App.—Houston [1st Dist.]

2010, pet. ref’d). “Under the Jackson standard, evidence is insufficient to support a

conviction if, considering all the record evidence in the light most favorable to the

verdict, no rational factfinder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt.” See Jackson, 443 U.S. at

317–19, 99 S. Ct. at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.

App. 2009). We consider both direct and circumstantial evidence and all

reasonable inferences that may be drawn from the evidence in making our

determination. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).

      The Jackson standard defers to the factfinder to resolve any conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from “basic

facts to ultimate facts.” Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89;

Clayton, 235 S.W.3d at 778. An appellate court presumes that the factfinder

resolved any conflicts in the evidence in favor of the verdict and defers to that

resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). The

State need not disprove all reasonable alternative hypotheses that are inconsistent

with the defendant’s guilt. Wise, 364 S.W.3d at 903.




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      Evidence can be insufficient when (1) the record contains no evidence

probative of an element of the offense; (2) the record contains a mere “modicum”

of evidence probative of an element of the offense; (3) the evidence conclusively

establishes a reasonable doubt; or (4) the acts alleged do not constitute the criminal

offense charged. See Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786,

2789 & n.11; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750

(Tex. Crim. App. 2007). If an appellate court finds the evidence insufficient under

this standard, it must reverse the judgment and enter an order of acquittal. See

Tibbs v. Florida, 457 U.S. 31, 41, 102 S. Ct. 2211, 2218 (1982).

B.    Whether the evidence was sufficient to prove that Williams committed
      unauthorized use of a motor vehicle

      A person commits an unauthorized use of a vehicle if she “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 2012).

      Williams was charged as follows:

      [O]n or about June 28, 2012, did then and there, unlawfully,
      intentionally, and knowingly operate a motor-propelled vehicle,
      namely, an automobile, owned by Scott Vereb, hereafter styled the
      Complainant, without the effective consent of the Complainant.

Williams contends that the State failed to prove beyond a reasonable doubt that she

actually drove the stolen vehicle.




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      Effective consent includes “consent by a person legally authorized to act for

the owner,” and consent is not effective when “given by a person the actor knows

is not legally authorized to act for the owner . . . .” Id. § 31.01(3)(B) (West 2012).

Operating a vehicle is only unlawful if the defendant is actually aware that she

operates the vehicle without the owner’s consent. Gardner v. State, 780 S.W.2d

259, 262–63 (Tex. Crim. App. 1989); Edwards v. State, 178 S.W.3d 139, 144–45

(Tex. App.—Houston [1st Dist.] 2005, no pet.)

      A vehicle owner’s testimony that he did not give the defendant consent to

drive his vehicle can be sufficient to support a finding that the defendant knew that

she did not have consent to operate the vehicle. McQueen v. State, 781 S.W.2d

600, 604–05 (Tex. Crim. App. 1989); Battise v. State, 264 S.W.3d 222, 227 (Tex.

App.—Houston [1st Dist.] 2008, pet. ref’d).

      Aside from whether Williams had effective consent, Williams contends that

there is insufficient evidence that she actually drove the Charger because every

State witness “admitted that they did not see who was driving the [stolen car].” But

evidence that a defendant exited the driver’s side of a vehicle is sufficient to prove

intentional or knowing operation of that vehicle. Duenez v. State, 735 S.W.2d 563,

566 (Tex. App.—Houston [14th Dist.] 1987, pet. ref’d); see also Dickson v. State,

642 S.W.2d 185, 189 (Tex. App.—Houston [14th Dist.] 1982, pet. ref’d).




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      In Duenez, there was sufficient evidence that the defendant had operated a

stolen vehicle when a police officer testified that, while he did not see the

defendant’s face while driving, he did see the defendant exit the vehicle from the

driver’s side of the vehicle “within seconds” after the vehicle came to an “abrupt

halt.” 735 S.W.2d at 566. Viewing this evidence in the light most favorable to the

verdict, the appellate court concluded that the jury accepted the officer’s version of

the facts and that the defendant offered “no reasonable hypothesis other than guilt”

to explain the officer’s testimony. Id.

      Like Duenez, the evidence was sufficient to show beyond a reasonable doubt

that Williams intentionally or knowingly operated Vereb’s vehicle without his

consent. See McQueen, 781 S.W.2d at 604–05 (holding that factfinder may reject

defendant’s testimony and choose instead to believe other evidence that defendant

drove vehicle). Vereb testified that, as risk manager, he had ownership or

possession of the Dodge Charger and the authority to grant access to the vehicle.

He further testified that neither he, nor any other authorized employee, had given

Williams consent to drive the Charger. See id. (noting vehicle owner’s testimony

that he did not give anyone consent to drive vehicle was sufficient to prove that

defendant did not have consent to drive that vehicle).

      The State also presented evidence that Williams exited the driver’s side of

the stolen car immediately after it was parked, supporting its reasonable conclusion


                                          8
that Williams drove the stolen vehicle. See Duenez, 735 S.W.2d at 566; Dickson,

642 S.W.2d at 189. Sergeant Blankenship and Martinez, the store’s asset protection

manager, both testified that the store’s video surveillance footage showed the

stolen Dodge Charger pulling into the parking lot and a woman exiting from the

driver’s side of the vehicle. According to their testimony, the same woman who

exited the Charger entered the store, made a purchase, and left the store with a

group of people. According to Blankenship, the car rental company’s private

investigator positively identified Williams as the woman in the video.

      Williams counters that the State failed to prove beyond a reasonable doubt

that she drove the Charger because Davis offered conflicting evidence that he

drove the vehicle and that Williams rode to the store in another vehicle.

      The State has no obligation to disprove every plausible theory to account for

the evidence that Williams appeared outside of the stolen car just moments after

the car was parked. Wise, 364 S.W.3d at 903; Cantu v. State, 395 S.W.3d 202, 207

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). We presume that the jury

reconciled any conflicts in testimony, determined the weight that should be given

to the evidence, and made reasonable inferences drawn from the facts. Williams,

235 S.W.3d at 750. Accordingly, we conclude that, when viewed in the light most

favorable to the verdict, the evidence was sufficient to support the jury’s




                                          9
conclusion that Williams drove the Charger and, therefore, was guilty of the

unauthorized use of a motor vehicle.2

                                     Jury Charge

      Williams next contends that the trial court erred in instructing the jury on the

law of parties over her objection.

A.    Standard of review

      A trial court has a duty and responsibility to instruct the jury on “the law

applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). An

erroneous jury charge requires reversal when the defendant has properly objected

to the charge and we find “some harm” to his rights. Almanza v. State, 686 S.W.2d

157, 171 (Tex. Crim. App. 1984); McIntosh v. State, 297 S.W.3d 536, 542 (Tex.

App.—Houston [1st Dist.] 2009, pet. ref’d).

B.    Harmlessness of charge error, if any

      Because we have concluded that there was sufficient evidence that Williams

committed the offense of unauthorized use of a motor vehicle as a principal actor,

even assuming that the law-of-parties instruction was erroneous, any error was

harmless. See Ladd v. State, 3 S.W.3d 547, 564 (Tex. Crim. App. 1999); Nelson v.

State, 405 S.W.3d 113, 126 (Tex. App.—Houston [1st Dist.] 2013) (holding that


2
      We do not reach the issue of whether there was sufficient evidence that Williams
      was guilty of the unauthorized use of a vehicle under the law of parties because we
      conclude that there was sufficient evidence of her guilt as a principal actor.
                                          10
any charge error in instruction related to law of parties was harmless because there

was sufficient evidence to support defendant’s guilt as principal actor).

      Accordingly, we overrule Williams’s second issue.

                                    Conclusion

      Having overruled both of Williams’s issues, we affirm.




                                                Harvey Brown
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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