07-18-00022-CR                                                                               ACCEPTED
SEVENTH COURT OF APPEALS
AMARILLO, TEXAS
6/1/2018 10:42 AM
Vivian Long, Clerk




                              IN THE COURT OF APPEALS FOR THE
                           SEVENTH DISTRICT OF TEXAS AT AMARILLO
                                                                             FILED IN
                                                                      7th COURT OF APPEALS
              ANTHONY PRESCOTT,               §                         AMARILLO, TEXAS
                APPELLANT                     §                       6/1/2018 10:42:57 AM
                                              §                            VIVIAN LONG
                                                                              CLERK
                  v.                          §             No. 07-18-00022-CR
                                              §
              THE STATE OF TEXAS,             §
                APPELLEE                      §
                     ___________________________________________________

                                            STATE’S BRIEF
                           ___________________________________________________
                        FROM THE 16TH JUDICIAL DISTRICT COURT
                               DENTON COUNTY, TEXAS
                           TRIAL CAUSE NUMBER F15-1942-211
                   THE HONORABLE SHERRY SHIPMAN, JUDGE, PRESIDING

                                                 PAUL JOHNSON
                                                 Criminal District Attorney
                                                 Denton County, Texas

                                                 CATHERINE LUFT
                                                 Assistant Criminal District Attorney
                                                 Chief, Appellate Division
              Oral argument is requested
              only if Appellant is               ANDREA R. SIMMONS
              requesting argument.               Assistant Criminal District Attorney
                                                 State Bar No.24053478
                                                 1450 East McKinney, Suite 3100
                                                 Denton, Texas 76209
                                                 (940) 349-2600
                                                 FAX (940) 349-2751
                                                 andrea.simmons@dentoncounty.com
                                                 MICHELLE DOBSON
                                                 RACHEL NICHOLS
                                                 Assistant Criminal District Attorneys
                                 TABLE OF CONTENTS


INDEX OF AUTHORITIES .................................................................... iii
STATEMENT OF THE CASE .................................................................. 1
STATEMENT OF FACTS ......................................................................... 2
SUMMARY OF THE STATE’S ARGUMENTS ........................................ 5
STATE’S RESPONSE TO APPELLANT’S ISSUE ONE
(JURY CHARGE) ...................................................................................... 6
   Appellant’s Contention ......................................................................... 6
   State’s Reply ......................................................................................... 6
   Argument And Authorities ................................................................... 6
       The Trial Judge Did Not Err by Denying
       the Requested Charge ...................................................................... 6
           Standard of Review – Jury Charge Error ................................... 6
           Applicable Jury Charge Law ....................................................... 7
           Affirmative Defense of Temporary Use....................................... 9
           There Is No Evidence Raising the
           Affirmative Defense ..................................................................... 9
STATE’S RESPONSE TO APPELLANT’S ISSUE TWO
(SUFFICIENCY) ..................................................................................... 13
   Appellant’s Contention ....................................................................... 13
   State’s Reply ....................................................................................... 13
   Argument And Authorities ................................................................. 13
       Standard of Review – Sufficiency .................................................. 13
       The Evidence is Sufficient to
       Prove Appellant’s Intent ................................................................ 14
CONCLUSION AND PRAYER ............................................................... 19


                                                     i
CERTIFICATE OF COMPLIANCE ........................................................ 20
CERTIFICATE OF SERVICE................................................................. 20




                                            ii
                                  INDEX OF AUTHORITIES


Statutes, Codes, and Rules                                                                                 Page
3 Texas Annotated Penal Statutes 434-35
  (Branch’s 3d ed. 1974) ........................................................................................9

Tex. Code Crim. Proc. Ann. art. 36.13 (West 2007) .......................................7

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) .......................................8

Tex. Penal Code Ann. §29.02(a)(2) (West 2006) ...........................................14

Tex. Penal Code Ann. §31.01(2)(A) (West 2006) ...........................................14

Tex. Penal Code Ann. §31.03(a) (West 2006) ................................................14

Cases
Almanza v. State
 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g) ...............................7

Baum v. State
 848 S.W.2d 808 (Tex. App.—Houston [14th Dist.] 1993, no pet.)..........17

Blackburn v. State
 44 Tex. 457 (1876) ...............................................................................................9

Booth v. State
 679 S.W.2d 498 (Tex. Crim. App. 1984) .........................................................8

Brooks v. State
 323 S.W.3d 893 (Tex. Crim. App. 2010) ................................................ 13, 18

Cortez v. State
 469 S.W.3d 593 (Tex. Crim. App. 2015) .........................................................6




                                                        iii
Delgado v. State
 235 S.W.3d 244 (Tex. Crim. App. 2007) .........................................................8

Draper v. State
 539 S.W.2d 61 (Tex. Crim. App. 1976) .........................................................15

Flores v. State
 888 S.W.2d 187 (Tex. App.—Houston [1st Dist.] 1994, pet. ref’d).........17

Galloway v. State
 71 S.W.2d 871 (Tex. Crim. App. 1934) .........................................................10

Griffin v. State
 614 S.W.2d 155 (Tex. Crim. App. 1981) ............................................... passim

Guevara v. State
 152 S.W.3d 45 (Tex. Crim. App. 2004) .........................................................14

Jackson v. Virginia
 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) ....................... 13, 14

Kuczaj v. State
 848 S.W.2d 284 (Tex. App.—Fort Worth 1993, no pet.)...........................15

Lee v. State
 415 S.W.3d 915 (Tex. App.—Texarkana 2013, pet. ref’d)......................7, 8

Lugo v. State
 667 S.W.2d 144 (Tex. Crim. App. 1984) .........................................................8

Nava v. State
 415 S.W.3d 289 (Tex. Crim. App. 2013)........................................................7

Ngo v. State,
 175 S.W.3d 738 (Tex. Crim. App. 2005) .........................................................6

Price v. State
 457 S.W.3d 437 (Tex. Crim. App. 2015) .........................................................7


                                               iv
Roberson v. State
 821 S.W.2d 446 (Tex. App.—Corpus Christi 1991, pet. ref’d) ................14

Rowland v. State
 744 S.W.2d 610 (Tex. Crim. App. 1988) .......................................................18

Thomas v. State
 753 S.W.2d 688 (Tex. Crim. App. 1988) .......................................................14

Walters v. State
 247 S.W.3d 204 (Tex. Crim. App. 2007) ...................................................8, 11

Warren v. State
 565 S.W.2d 931 (Tex. Crim. App. 1978) .........................................................8

Williams v. State
 Nos. 01-03-01295-CR, 01-03-01296-CR,
 2005 Tex. App. LEXIS 2059
 (Tex. App.—Houston [1st Dist.] March 17, 20015,
 pet. ref’d) (not designated for publication) ..................................................17




                                                v
                IN THE COURT OF APPEALS FOR THE
             SEVENTH DISTRICT OF TEXAS AT AMARILLO


ANTHONY PRESCOTT,                                  §
  APPELLANT                                        §
                                                   §
        v.                                         §                     No. 07-18-00022-CR
                                                   §
THE STATE OF TEXAS,                                §
  APPELLEE                                         §


             ___________________________________________________

                              STATE’S BRIEF
             ___________________________________________________


TO THE HONORABLE COURT OF APPEALS:


                             STATEMENT OF THE CASE

The Charges................................... Robbery (Count I); Robbery (Count II)
                                                                          (C.R. at 8)
                                                            Tex. Penal Code § 29.02

The Pleas ................................................................................... Not Guilty
                                                                         (4 R.R. at 6; C.R. at 89)

The Verdicts (Jury)........................................................................... Guilty
                                                            (5 R.R. at 25-26; C.R. at 89)

The Punishments (Jury) ............................. 10 years; ID-TDCJ (Count I);
.............................................. 10 years; ID-TDCJ (Count II); concurrently
                                                               (7 R.R. at 4-5; C.R. at 89)



                                                   1
                        STATEMENT OF FACTS

      On June 2, 2015, Keeley Taylor was staying at the La Quinta Inn

in Denton, Texas, with her mother, Tamera Tanner, and her stepfather,

Robert Tanner (4 R.R. at 16-17, 30-31, 90). The family was visiting

Denton for a high school graduation (4 R.R. at 18, 30).

      After the graduation, the family drove back to the hotel with Robert

driving, Tamera in the front passenger seat, and Keeley seated in the

rear (4 R.R. at 19, 32, 91). Keeley got out of the car first (4 R.R. at 19, 32,

91-92). Appellant walked up to Keeley and asked her to give him the car

keys (4 R.R. at 19). Keeley tapped on her mom’s window as Appellant

grabbed Keeley’s arm (4 R.R. at 20-21, 26). He told Keeley, “give me the

keys or I will hurt you” (4 R.R. at 21). His other hand was behind his back

(4 R.R. at 21).

      Robert told his wife to get out of the car, and then he reached for

his gun (4 R.R. at 34, 43-44). But the gun was in the hotel room (4 R.R.

at 43-44). Robert told Appellant he could have the car if he would just let

Robert’s family go (4 R.R. at 34-35, 95-96, 100). As Robert got out of the

car, Appellant and Keeley walked around the backside of the car to the

driver’s side (4 R.R. at 22, 34). Appellant told Robert, “give me your



                                      2
fucking keys to your car or I’m going to hurt your daughter” (4 R.R. at 33,

93, 95, 100). After Robert gave Appellant the keys, Appellant started to

get inside the car, but Robert slammed the car door on him (4 R.R. at 22,

26, 36, 40, 97). Appellant asked Robert why he was trying to hurt his

family, said something about his family being in the hotel or being held

hostage by the police, then threw the car keys and ran away (4 R.R.

at 26-27, 40-42, 98, 100).

      Robert and some bystanders chased Appellant and yelled for him to

come back to the hotel (4 R.R. at 24, 37, 85, 87). Appellant ran to the

backside of the hotel, then the front, and then went inside the hotel lobby

(4 R.R. at 37, 41, 91, 101).

      Nathan Fenner, front desk receptionist for the hotel, testified that

prior to the robbery, hotel residents had complained that Appellant was

kicking and banging on doors and yelling “let me in, let me in” (4 R.R.

at 47, 55). Next, Nathan saw Appellant harass a lady that just got out of

her car (Keeley), and put his hands on her (4 R.R. at 50-51). The woman

was terrified (4 R.R. at 51). And after the altercation at the car, Appellant

ran away, followed by three or four men (4 R.R. at 51, 58). When

Appellant returned to the hotel, he entered the lobby, and went behind



                                     3
the front desk and began answering telephone calls and hanging up on

people (4 R.R. at 52, 59). Appellant asked Nathan if the coffee was hot

before returning to his hotel room on the third floor (4 R.R. at 53, 59-61).

When officers arrived, Nathan opened Appellant’s hotel room door (4 R.R.

at 54, 69, 109-10). Appellant was in the room with his wife and two

children (4 R.R. at 78). Appellant told officers that his family had been

kidnapped by police and held in the hotel against their will (4 R.R. at 76,

115, 122).

     Appellant was charged with two counts of robbery (C.R. at 8). His

counsel requested a jury instruction on “temporary use,” arguing that

Appellant lacked the intent to permanently withhold the vehicle from the

owner (4 R.R. at 28; 5 R.R. at 14-19). The trial court denied the request,

and the jury found Appellant guilty as to both counts (4 R.R. at 134;

5 R.R. at 6-7, 25-26; C.R. at 89).




                                     4
            SUMMARY OF THE STATE’S ARGUMENTS

State’s Reply To Appellant’s Issue One

     The trial judge did not err by denying Appellant’s request for a jury

instruction as to “temporary use” because the affirmative defense was not

raised by any testimony or evidence at trial.

State’s Reply To Appellant’s Issue Two

     Based upon his words and actions, the evidence was sufficient to

prove that Appellant intended to permanently deprive the owner of

his property.




                                    5
       STATE’S RESPONSE TO APPELLANT’S ISSUE ONE
                            (JURY CHARGE)

Appellant’s Contention

     The evidence supported that Appellant only had the intent to

temporarily use the property at issue; the trial court erred when it denied

Appellant’s request for a jury instruction as to “temporary use.”

State’s Reply

     The trial judge did not err by denying Appellant’s request for a jury

instruction as to “temporary use” because the affirmative defense was not

raised by any testimony or evidence at trial.

Argument And Authorities

The Trial Judge Did Not Err by Denying the Requested Charge

     1. Standard of Review – Jury Charge Error

     Alleged jury charge error is reviewed in two steps. Cortez v. State,

469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, the appellate court

determines whether error exists in the charge. Id. Secondly, if there is

error, the appellate court reviews the record to determine whether the

error caused sufficient harm to warrant reversal. Id.; Ngo v. State,

175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). In assessing the degree

of harm, the appellate courts look at “the entire jury charge, the state of


                                    6
the evidence (including the contested issues and the weight of the

probative evidence), the arguments of counsel, and any other relevant

information revealed by the record of the trial as a whole.” Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013) (citing Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g)).

     If the error was preserved by objection, as in this case, any error

that is not harmless will constitute reversible error. Price v. State,

457 S.W.3d 437, 440 (Tex. Crim. App. 2015); see also Almanza,

686 S.W.2d at 171 (if error in the jury charge was subject of timely

objection in the trial court, reversal is required if there is “some harm to

the accused from the error”). The record must disclose “actual rather than

theoretical harm,” and the error must have affected the very basis of the

case, deprived the defendant of a valuable right, or vitally affected a

defensive theory. Id.

     2. Applicable Jury Charge Law

     “[T]he jury is the exclusive judge of the facts, but it is bound to

receive the law from the court and be governed thereby.” Tex. Code

Crim. Proc. Ann. art. 36.13 (West 2007). “A trial court must submit a

charge setting forth the ‘law applicable to the case.’” Lee v. State,



                                     7
415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref’d) (quoting

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007)). “The purpose of the

jury charge . . . is to inform the jury of the applicable law and guide them

in its application.” Id. (quoting Delgado v. State, 235 S.W.3d 244, 249

(Tex. Crim. App. 2007)).

     Under Texas law, the judge must provide the jury with “a written

charge distinctly setting forth the law applicable to the case; not

expressing any opinion as to the weight of the evidence, not summing up

the testimony, discussing the facts or using any argument in his charge

calculated to arouse the sympathy or excite the passions of the jury.”

Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). This law requires the

trial judge to instruct the jury on statutory defenses, affirmative

defenses, and justifications whenever they are raised by the evidence,

regardless of whether the evidence is strong, feeble, unimpeached, or

contradicted, and even when the trial court thinks that the testimony

is not worthy of belief. Walters v. State, 247 S.W.3d 204, 208-09

(Tex. Crim. App. 2007) (citing Booth v. State, 679 S.W.2d 498 (Tex.

Crim. App. 1984); Lugo v. State, 667 S.W.2d 144 (Tex. Crim. App. 1984);

Warren v. State, 565 S.W.2d 931 (Tex. Crim. App. 1978)).



                                     8
     3. Affirmative Defense of Temporary Use

     The defense of temporary use has been recognized for over one

hundred years, as has a defendant’s right to an affirmative instruction,

when the evidence raises the issue. Griffin v. State, 614 S.W.2d 155, 159

(Tex. Crim. App. 1981) (citing Blackburn v. State, 44 Tex. 457,

463-64   (1876);    3   Texas    Annotated     Penal    Statutes    434-35

(Branch’s 3d ed. 1974)).

     4. There Is No Evidence Raising the Affirmative Defense

     Here, Appellant argues that he raised the affirmative defense of

temporary use by questioning witnesses which resulted in testimony that

Appellant was confused, erratic, aimless, and unstable on the evening of

the robbery (Appellant’s Brief at 12). Several witnesses testified that

Appellant was “mumbling about his family being kidnapped and held

hostage by the police in a room at the hotel” (Appellant’s Brief at 12-13).

Appellant asserts that because he argued that he was having a “mental

health episode,” Appellant was “only thinking in temporary terms,” and

wanted only to use the victim’s vehicle to “escape the hotel with his

family” (Appellant’s Brief at 13). Thus, Appellant argues that the

evidence warranted a jury instruction on the affirmative defense of

temporary use.

                                    9
     Appellant relies on Galloway v. State to support his argument that

an instruction on temporary use is appropriate when the facts support

that the taking of a vehicle from the owner is not a robbery when the sole

reason for taking the vehicle was for a different reason (i.e., transporting

illegal beers). 71 S.W.2d 871 (Tex. Crim. App. 1934). However, the facts

don’t support such a theory in this case. In Galloway, the appellants told

the owner of the vehicle that they knew he was transporting illegal beer

and then took the car only after they verified that the beer was inside.

Id. The facts of that case indicate that it was not the car that the

appellants sought, but rather what was inside the car. To the contrary,

in this case, Appellant threatened to hurt the driver’s daughter if he did

not give Appellant the vehicle. And although some witnesses testified

that Appellant mumbled about his family being held hostage by police

inside the hotel, there is no relevant connection between Appellant’s

reference to his family and the victim’s vehicle.

     Thus, the facts of this case are distinguishable from those in

Galloway (cited by Appellant). Appellant’s words and actions in this case

were aimed solely at the taking of the vehicle without a reason for his




                                    10
actions. Unlike the facts of Galloway, there was no evidence to justify or

support a jury instruction as to “temporary use” in this case.

     Finally, Appellant’s argument that the trial judge refused the

jury instruction because he did not believe Appellant’s theory fails.

(Appellant’s Brief at 12, 14). Appellant’s citation to the trial judge’s

statements is misconstrued (Appellant’s Brief at 15). The prosecutor

informed the trial judge that the instruction as to temporary use was only

appropriate if the instruction was raised by the evidence (4 R.R. at 131).

Appellant then discussed what facts he felt supported the instruction by

arguing that Appellant was trying to “assist” his family by taking the

vehicle (4 R.R. at 131-32). The trial judge summarized Appellant’s theory

and then asked the State for a response; the trial judge did not

summarize the facts and make a finding that he did not believe the facts,

as argued by Appellant (4 R.R. at 132; Appellant’s Brief at 15). In fact,

the trial judge specifically held that, “I do not believe that the evidence

has supported an instruction on temporary use” (4 R.R. at 134). Texas

law requires the trial court to instruct the jury on an affirmative defense

when it is raised by the evidence. See Walters, 247 S.W.3d at 208-09.




                                    11
     Because there is no evidence or testimony raising Appellant’s

requested jury instruction as to temporary use, the trial court did not err

in refusing to instruct on such. This issue should be overruled.




                                    12
       STATE’S RESPONSE TO APPELLANT’S ISSUE TWO
                              (SUFFICIENCY)

Appellant’s Contention

      The jury erred when it found Appellant guilty of two counts of

Robbery because the State failed to prove beyond a reasonable doubt that

Appellant had the intent to deprive the victim of his vehicle permanently.

State’s Reply

      Based upon his words and actions, the evidence was sufficient to

prove that Appellant intended to permanently deprive the owner of

his property.

Argument And Authorities

Standard of Review – Sufficiency

      In assessing the legal sufficiency of the evidence, all of the

evidence is viewed in the light most favorable to the verdict in order to

determine whether any rational jury could have found the essential

elements of the offense beyond a reasonable doubt. Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia,

443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The reviewing

court must give deference to “the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw

                                      13
reasonable inferences from the basic facts to ultimate facts.” Jackson,

443 U.S. at 318-19. On appeal, the same standard of review is used for

both circumstantial and direct evidence cases. Guevara v. State,

152 S.W.3d 45, 49 (Tex. Crim. App. 2004).

The Evidence is Sufficient to Prove Appellant’s Intent

     A person commits robbery if, in the course of committing theft and

with intent to obtain or maintain control of the property, he intentionally

or knowingly threatens or places another in fear of imminent bodily

injury or death. Tex. Penal Code Ann. §29.02(a)(2) (West 2006). In a

robbery prosecution, “intent to deprive the owner of property” is

an   element of    theft   which the     State   must    prove.   See Tex.

Penal Code Ann. §31.03(a) (West 2006); Griffin, 614 S.W.2d at 158.

“Deprive” means “to withhold property from the owner permanently

or for so extended a period of time that a major portion of the

value or enjoyment of the property is lost to the owner.” Tex.

Penal Code     Ann. §31.01(2)(A) (West 2006);           Thomas v. State,

753 S.W.2d 688, 691 (Tex. Crim. App. 1988); Roberson v. State,

821 S.W.2d 446, 447-48 (Tex. App.—Corpus Christi 1991, pet. ref’d).




                                    14
     However, deprivation is not the crucial element that the State must

prove. See Draper v. State, 539 S.W.2d 61, 68 (Tex. Crim. App. 1976);

Kuczaj v. State, 848 S.W.2d 284, 289 (Tex. App.—Fort Worth 1993,

no pet.). Rather, the State must prove the defendant’s intent to deprive

at the time of the taking. Draper, 539 S.W.2d at 68; Kuczaj, 848 S.W.2d

at 289. The intent to deprive is determined from the words and acts of

the defendant. Griffin, 614 S.W.2d at 159. The defense of temporary use

is available in a robbery prosecution. Id.

     In this case, Appellant walked up to Keeley and asked her to give

him the car keys (4 R.R. at 19). Keeley tapped on her mom’s window as

Appellant grabbed Keeley’s arm (4 R.R. at 20-21, 26). Appellant told

Keeley, “give me the keys or I will hurt you” (4 R.R. at 21). His other hand

was behind his back (4 R.R. at 21).

     Robert told his wife to get out of the car, and then he reached for

his gun (4 R.R. at 34, 43-44). But the gun was in the hotel room (4 R.R.

at 43-44). Robert told Appellant he could have the car if he would just let

Robert’s family go (4 R.R. at 34-35, 95-96, 100). As Robert got out of the

car, Appellant and Keeley walked around the backside of the car to the

driver’s side (4 R.R. at 22, 34). Appellant told Robert, “give me your



                                      15
fucking keys to your car or I’m going to hurt your daughter” (4 R.R. at 33,

93, 95, 100). After Robert gave Appellant the keys, Appellant started to

get inside the car, but Robert slammed the car door on him (4 R.R. at 22,

26, 36, 40, 97). Appellant aborted his efforts at this point, however “the

fact that the deprivation later became temporary does not automatically

mean there was no intent to deprive permanently . . .” Griffin, 614 S.W.2d

at 159.

     In the Griffin case, the appellant hailed a taxi cab driven by the

victim and got inside, became upset at the victim, pointed a gun at the

victim, and then the victim exited the cab and ran away. Griffin,

614 S.W.2d at 156. Appellant drove away in the cab and was arrested

about fifteen minutes later; the car had been parked about a mile away.

Id. The Court of Criminal Appeals found evidence of intent to deprive

sufficient to support the conviction. Id. at 159. The Court also noted that

the issue of intent was contested and the appellant might have been

entitled to an instruction on temporary use, but he failed to request one.

Id. at 160. But the facts of Griffin are distinguishable because the vehicle

was a taxi, which is generally a vehicle of temporary usage, and the




                                    16
appellant’s words and actions indicated that he sought to use the cab for

that sole purpose.

     In this case, however, Appellant’s reference to his family was vague

and did not support Appellant’s argument on appeal that he only needed

the vehicle temporarily to assist his family. Rather, Appellant sought to

take a personal vehicle from the victim, and threatened to hurt the

victim’s daughter if the victim did not give him the keys. Thus, the record

contains no evidentiary support that Appellant sought only the

temporary use of the vehicle. “Based on appellant’s actions and conduct

at the time, including his use of physical force, the jury would have had

ample evidence from which to infer that appellant intended to

permanently deprive [the victim] of his car.” Williams v. State,

Nos. 01-03-01295-CR, 01-03-01296-CR, 2005 Tex. App. LEXIS 2059,

at *25 (Tex. App.—Houston [1st Dist.] March 17, 20015, pet. ref’d) (not

designated for publication) (citing Flores v. State, 888 S.W.2d 187, 191

(Tex. App.—Houston [1st Dist.] 1994, pet. ref’d) (noting that “intent

to deprive” element of auto theft is not proved when all evidence

presented indicates it was taken for temporary use); Baum v. State,

848 S.W.2d 808, 809 (Tex. App.—Houston [14th Dist.] 1993, no pet.);



                                    17
also citing Rowland v. State, 744 S.W.2d 610, 613 (Tex. Crim. App. 1988)

(noting intent to permanently deprive can be inferred from manner in

which property is taken)); Griffin. 614 S.W.2d at 155 (holding evidence

sufficient to prove intent to permanently deprive, where defendant stole

taxicab at gunpoint, despite fact that defendant only drove a few miles).

     In conclusion, when viewed in the light most favorable to the

verdict, Appellant’s actions and words were sufficient evidence from

which a rational trier of fact could have inferred an intent to permanently

deprive the victim of his property. See Brooks, 323 S.W.3d at 912. This

issue should be denied.




                                    18
                   CONCLUSION AND PRAYER

     Appellant’s trial was without reversible error. The State prays that

Appellant’s conviction and sentence be affirmed.


                                  Respectfully submitted,

                                  PAUL JOHNSON
                                  Criminal District Attorney
                                  Denton County, Texas

                                  CATHERINE LUFT
                                  Assistant Criminal District Attorney
                                  Chief, Appellate Division


                                  /s/ Andrea R. Simmons
                                  ANDREA R. SIMMONS
                                  Assistant Criminal District Attorney
                                  State Bar No. 24053478
                                  1450 East McKinney, Suite 3100
                                  Denton, Texas 76209
                                  (940) 349-2600
                                  FAX (940) 349-2751
                                  andrea.simmons@dentoncounty.com




                                   19
                CERTIFICATE OF COMPLIANCE

     The State certifies that the State’s Brief in the instant cause

contained a word count of 3177, said count being generated by the

computer program Microsoft Word that was used to prepare the

document.


                                    /s/ Andrea R. Simmons
                                    ANDREA R. SIMMONS


                   CERTIFICATE OF SERVICE

     A true copy of the State’s brief has been sent by electronic service

through efile.txcourts.gov notification, to counsel for Appellant,

Grace Wren, LAW OFFICE OF TIM POWERS, 215 West Oak, Denton,

Texas 76201, at grace@timpowers.com, on this, the 1st day of June 2018.


                                    /s/ Andrea R. Simmons
                                    ANDREA R. SIMMONS




                                   20
