                                                                                   PD-1594-14
                                                                  COURT OF CRIMINAL APPEALS
                                                                                   AUSTIN, TEXAS
                                                                 Transmitted 2/1/2015 8:42:31 PM
                                                                   Accepted 2/5/2015 8:33:51 AM
                                                                                    ABEL ACOSTA
                               No. PD-1594-14                                               CLERK

                                   IN THE

                   Court of Criminal Appeals
                            At Austin
                                __________

                    ANTONIO BRAVO,
                                Appellant
                                      v.

                   THE STATE OF TEXAS
                                Appellee
                                _________
                           Cause number 1375810
                     In the 183rd Judicial District Court
                       Cause number 01-13-00899-CR
            In the Court of Appeals for the First Judicial District
                                _________

Appellant’s Petition for Discretionary Review
                                 __________

                                            KELLY ANN SMITH
                                            Texas Bar No. 00797867
                                            Kelly.A.Smith.06@gmail.com
February 5, 2015                            P.O. Box 10751
                                            Houston, TX 77206
                                            281-734-0668

                                            Counsel for Appellant
                      IDENTITY OF PARTIES AND COUNSEL


The Appellant has provided a complete list of all interested parties’ names below,

under TEX. R. APP. P. 68.4.

       The appellant or convicted person:
               Antonio Bravo              Appellant


       Counsel for the appellant:
            Kelly Ann Smith               Counsel on appeal
                                           PO Box 10751
                                           Houston, Texas 77206
                                           281-734-0668
               Ray Castro                 Counsel at trial
                                           12 Greenway Plaza, Suite 1100
                                           Houston, Texas 77046
                                           Phone: 713.940.0643


Counsel for the State:
               Devon Anderson             District Attorney of Harris County
                                           Harris County Criminal Justice Center
               Goran Krnaich              Assistant District Attorney at trial
               Jamie Felicia               Harris County Criminal Justice Center
                                           1201 Franklin, Suite 600
                                           Houston, Texas 77002
                                           Telephone: 713•755•5800

Trial Judge:
               Hon. Leslie Yates Presiding Judge of the 183rd District Court




                                                  i
                             Ground For Review


      The court of appeals ignored its own precedent and relied upon
      the indictment and the jury charge as evidence of the
      complainant’s identity by holding the evidence was legally
      insufficient to support the appellant’s unauthorized-use-of-a-
      vehicle conviction when no evidence established the vehicle
      operated by the appellant was the same vehicle reported stolen
      by the complainant



                 Statement Regarding Oral Argument

Because this case involves important issues regarding due process the appellant

submits that oral argument would benefit this Court and pursuant to TEX. R. APP. P.

68.4 (c), requests the opportunity to present oral argument.




                                              ii
                                  No. PD-1594-14

                                      IN THE

                     Court of Criminal Appeals
                              At Austin
                                   __________

                       ANTONIO BRAVO,
                                   Appellant
                                         v.

                    THE STATE OF TEXAS
                                   Appellee
                                   _________
                              Cause number 1375810
                        In the 183rd Judicial District Court
                          Cause number 01-13-00899-CR
               In the Court of Appeals for the First Judicial District
                                   _________

  Appellant’s Petition for Discretionary Review
TO THE COURT OF CRIMINAL APPEALS OF TEXAS:

      The appellant, by and through undersigned counsel, files this Petition for

Discretionary Review and urges this Court to grant discretionary review in this case

and in support demonstrates the following.




                                              iii
                                               Table of Contents
                                                                                                                        Page

IDENTITY OF PARTIES AND COUNSEL .......................................................................... I
GROUND FOR REVIEW................................................................................................ II
STATEMENT REGARDING ORAL ARGUMENT .............................................................. II
INDEX OF AUTHORITIES.............................................................................................. V
STATEMENT OF THE CASE ...........................................................................................2
STATEMENT OF THE PROCEDURAL HISTORY ...............................................................2
GROUND FOR REVIEW .................................................................................................3
REASONS FOR REVIEW ................................................................................................3
    I.      Summary of the argument ................................................................................ 3

    II.     Facts surrounding the offense ........................................................................... 4

    III.    The court of appeals erred by ignoring its own precedent
            and holding the evidence was sufficient and citing to the
            jury charge and the indictment as evidence of the
            complainant’s identity. ...................................................................................... 5

PRAYER .......................................................................................................................8
CERTIFICATE OF COMPLIANCE & SERVICE .............................................................8




                                                                   iv
                                           INDEX OF AUTHORITIES

Cases
Hooper v. State,
  788 S.W.2d 24 (Tex. App.--Houston [1st Dist.] 1987, no pet.) ...................................... 4

Rules
TEX. R. APP. P. 68.4.............................................................................................................. i




                                                                      v
TO THE HONORABLE COURT OF CRIMINAL APPEALS:

                           STATEMENT OF THE CASE

      The State accused the appellant of unauthorized use of a vehicle (CR 9). The

indictment alleged that the appellant knowingly and intentionally operated an

automobile owned by Laura Merino without her consent (CR 9). The appellant pled

not guilty to the indictment’s allegations, and the case was tried before a jury and the

Honorable Leslie Yates, presiding judge of the 183rd District Court in Harris County

Texas. The jury found the appellant guilty of unauthorized use of a vehicle and then

assessed his punishment at confinement for five years in prison (CR 75, 84; 89-90).

                STATEMENT OF THE PROCEDURAL HISTORY

      The First Court of Appeals affirmed the appellant’s conviction in Antonio Bravo

v. The State of Texas, No. 01-13-00899-CR, (Tex. App.—Houston [1st Dist.] October

23, 2014). Neither party filed a motion for rehearing.




                                              2
                              GROUND FOR REVIEW

      The court of appeals ignored its own precedent and relied upon
      the indictment and the jury charge as evidence of the
      complainant’s identity by holding the evidence was legally
      insufficient to support the appellant’s unauthorized-use-of-a-
      vehicle conviction when no evidence established the vehicle
      operated by the appellant was the same vehicle reported stolen
      by the complainant

                              REASONS FOR REVIEW


I.    Summary of the argument

      The court of appeals erred by holding the evidence was legally insufficient to

support the appellant’s unauthorized-use-of-a-vehicle conviction when no evidence

established the vehicle operated by the appellant was the same vehicle reported stolen

by the complainant. The court of appeals misrepresented the record. In its opinion,

the court stated that the arresting officer “testified at trial that he called Merino [the

complainant] and that she confirmed she was the owner of the vehicle” Slip op. at 2.

But the arresting officer actually testified that he communicated with the maroon

Toyota’s owner and confirmed she was the maroon Toyota’s owner. But the officer

did not provide the jury with the owner’s name (RR Vol. IV at 21-2). Nor did he

testify that the appellant did not have the owner’s consent to operate the maroon

Toyota. The State failed to prove that the vehicle operated by the appellant was the

same vehicle reported stolen by the complainant, Laura Merino. The court of appeals



                                               3
ignored this evidence and ignored its own precedent in holding the evidence was

sufficient. See Hooper v. State, 788 S.W.2d 24, 26 (Tex. App.--Houston [1st Dist.] 1987,

no pet.).


II.      Facts surrounding the offense


         On January 31, 2013, Houston police officer Moises Saldana noticed a vehicle

with a malfunctioning taillight (RR Vol. IV at 9-10). Officer Saldana ran the vehicle’s

license plate through the computer and learned that someone had reported the vehicle

as stolen (RR Vol. IV at 11, 25-6). Although Officer Saldana told the jury he input

the vehicle’s license plate number into the computer, he never indicated what that

number was.       Further, Officer Saldana did not indicate any other identifying

information for the vehicle other than noting it was a maroon Toyota (RR Vol. IV at

13-4).

         Eventually, Officer Saldana activated his lights, the maroon Toyota stopped,

and the appellant got out (RR Vol. IV at 17-9). After a foot chase, Officer Saldana

arrested the appellant (RR Vol. IV at 20-1). Officer Saldana told the jury that he

communicated with the maroon Toyota’s owner and confirmed she was the maroon

Toyota’s owner. But Officer Saldana did not provide the jury with the owner’s name

(RR Vol. IV at 21-2). Nor did he testify that the appellant did not have the owner’s

consent to operate the maroon Toyota.




                                              4
       Laura Merino’s Toyota Camry disappeared from her apartment sometime at

night towards the end of January; but she wasn’t really sure when other than it was a

Monday (RR Vol. IV at 34, 43). Merino did not give anyone permission to drive her

car and telephoned the police to report it missing (RR Vol. IV at 35-6). Merino

didn’t know the appellant and had never seen him before (RR Vol. IV at 36, 39, 43).

Merino lost the key to her Toyota Camry a couple of days before it disappeared (RR

Vol. IV at 36-7).

       A few days after her Toyota Camry disappeared, police telephoned Merino and

told her they had recovered her vehicle (RR Vol. IV at 44-45). Merino declined to

retrieve her vehicle and instructed the police to tow the Toyota Camry to an impound

lot (RR Vol. IV at 46-7). Merino’s parents retrieved her Toyota Camry from the

impound lot then sold the vehicle shortly thereafter. Merino never had anything to

do with the Toyota Camry again (RR Vol. IV at 53).


III.   The court of appeals erred by ignoring its own precedent
       and holding the evidence was sufficient and citing to the
       jury charge and the indictment as evidence of the
       complainant’s identity.

       The court of appeals erred by holding the evidence is legally sufficient because

there was no evidence to link the vehicle reported stolen by the complainant, Laura

Merino, with the vehicle Officer Saldana observed the Appellant operate.




                                              5
      Other than car owner’s, Laura Merino’s general description of a Toyota Camry

stolen sometime in late January there are no other identifiers provided by the car

owner to link her vehicle with the maroon Toyota observed by the officer. The

officer failed to testify that the license plate he checked belonged to the car owner’s

vehicle and that both the license plate and vehicle belonged to Laura Merino.

Further, Laura Merino failed to particularly describe her vehicle. She merely said it

was an old Toyota Camry. This evidence was legally insufficient to link the vehicle

described by Laura Merino to the maroon Toyota Officer Saldana observed the

appellant operate.

      In Hooper v. State, 788 S.W.2d 24, 26 (Tex. App.--Houston [1st Dist.] 1987, no

pet.), the State’s evidence established only that the victim's car was a Buick Regal and

that the vehicle driven by the defendant when he was arrested was a Buick Regal. See

788 S.W.2d at 25-26. There was no evidence of either Buick Regal's identification

number. Further, the owner testified that his car was returned to him by police prior

to the date the defendant was arrested. For these reasons, the court of appeals

reversed for insufficient evidence. See id.       Like Hooper, in this case, the State’s

evidence established that Laura Merino’s car was a Toyota and the appellant was

driving a Toyota when he was arrested. But in this case, the model of the Toyota that

the appellant was driving was unknown. The state’s evidence established only that the

Toyota was maroon.



                                              6
         This case was similar to Hooper, which was ignored by the court of appeals.

Here, Laura Merino identified her car by make and model: a Toyota Camry. She

testified that her car disappeared sometime in late January from outside her

apartment. She did not identity her car by license plate number, vehicle identification

number, year, color or in any other manner. Further, she did not retrieve the car

when police informed her they had recovered her car. In fact, she never saw the car

again.

         Officer Saldana identified the car he observed the appellant operating as a

maroon Toyota. He further testified that he had verified through police dispatch that

the car’s owner had reported the car stolen, and he contacted the car’s owner. But

Officer Saldana did not identify the car’s owner or further identify the car. Nothing in

the record establishes the maroon Toyota driven by the appellant—even if he did not

have the owner’s consent—was the same Toyota Camry reported stolen by Laura

Merino. Thus, the State did not prove the facts alleged in the indictment.

         The court of appeals erred by holding the evidence was sufficient merely

because Officer Saldana testified that he contact “ the complainant” and the

indictment and jury charge—which are not evidence and which were not read in

Officer Saldana’s presence—identified the complainant as Laura Merino.




                                              7
                                        PRAYER

The appellant respectfully urges this Honorable Court to grant the Appellant’s

Petition for Discretionary Review.


                                                   ______ /s /___________________
                                                   KELLY ANN SMITH
                                                   Texas Bar No. 00797867


               CERTIFICATE OF COMPLIANCE & SERVICE

      Under TEX. R. APP. P. 9.4, 9.5 & 68.11, this certifies that this document contains

2962 words and the undersigned served a copy of this petition on the State of Texas and

the State Prosecuting Attorney at the following addresses:


      Devon Anderson                            Lisa C. McMinn
      Harris County District Attorney           P.O. Box 13046
      1201 Franklin, Suite 600                  Capitol Station
      Houston, Texas 77002                      Austin, Texas 78711
                                                (512) 463-1660




                                                 ______ /s /___________________
                                                 KELLY ANN SMITH
                                                 Texas Bar No. 00797867
                                                 P.O. Box 10752
                                                 Houston, TX 77206
                                                 281-734-0668




                                               8
Opinion issued October 23, 2014




                                     In The
                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-13-00899-CR
                           ———————————
                        ANTONIO BRAVO, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1375810


                         MEMORANDUM OPINION

      Appellant, Antonio Bravo, was charged by indictment with unauthorized use

of a vehicle.1   Appellant pleaded not guilty. The jury found him guilty and




1
      See TEX. PENAL CODE ANN. § 31.07(a) (Vernon 2011).


                                            2
assessed punishment at 5 years’ confinement. In one issue on appeal, Appellant

argues the evidence is insufficient to support his conviction.

      We affirm.

                                    Background

      A day or two before January 31, 2013, Laura Merino reported her car was

stolen. She identified the vehicle at trial as a Toyota Camry. Late at night on

January 31, Officer M. Saldana saw a maroon Toyota with its tail light out. He

reported the license plate number to police dispatch. The dispatch notified him

that the car had been reported as stolen.

      Officer Saldana called for back-up police assistance. When they arrived,

Officer Saldana turned on the emergency lights on his car. Appellant, the driver of

the car, pulled over and parked in a hotel parking lot. After parking, Appellant got

out of the car and began to run.        Officer Saldana and other officers pursued

Appellant. A short distance later, Appellant submitted to the police.

      Officer Saldana testified at trial that he called Merino and that she confirmed

she was the owner of the vehicle Appellant had been driving. Merino testified that

she could not recover the vehicle at the time the police contacted her and opted to

have the car taken to an impound lot. Her parents later recovered the car from an

impound lot along with her possessions from inside the car. They subsequently

sold the car. Merino never saw the car again after it was stolen.



                                            2
                           Sufficiency of the Evidence

      In his sole issue on appeal, Appellant argues the evidence is insufficient to

support his conviction.

A.    Standard of Review

      We review the sufficiency of the evidence establishing the elements of a

criminal offense for which the State has the burden of proof under a single

standard of review. Matlock v. State, 392 S.W.3d 662, 667 (Tex. Crim. App. 2013)

(citing Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010)).           This

standard of review is the standard enunciated in Jackson v. Virginia, 443 U.S. 307,

319, 99 S. Ct. 2781, 2789 (1979). Winfrey v. State, 393 S.W.3d 763, 768 (Tex.

Crim. App. 2013). Pursuant to this standard, evidence is insufficient to support a

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

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

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

319, 99 S. Ct. at 2789; In re Winship, 397 U.S. 358, 361, 90 S. Ct. 1068, 1071

(1970); Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009); Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We can hold evidence to be

insufficient under the Jackson standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an element

of the offense, or (2) the evidence conclusively establishes a reasonable doubt. See



                                         3
Jackson, 443 U.S. at 314, 318 & n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; see

also Laster, 275 S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The sufficiency-of-the-evidence standard gives full play to the responsibility

of the fact finder to resolve conflicts in the testimony, to weigh the evidence, and

to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App.

2007). An appellate court presumes that the fact finder 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. In viewing

the record, direct and circumstantial evidence are treated equally; circumstantial

evidence is as probative as direct evidence in establishing the guilt of an actor, and

circumstantial evidence alone can be sufficient to establish guilt. Clayton, 235

S.W.3d at 778. Finally, the “cumulative force” of all the circumstantial evidence

can be sufficient for a jury to find the accused guilty beyond a reasonable doubt.

See Powell v. State, 194 S.W.3d 503, 507 (Tex. Crim. App. 2006).

B.    Analysis

      A person commits the offence 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(a) (Vernon 2011). Operating a vehicle is only unlawful if the defendant is



                                          4
actually aware that he 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.).

      Appellant argues that the State failed to establish that he was driving the

vehicle without the owner’s consent because it failed to establish that he was

driving Merino’s car.   We disagree.     At the end of the State’s examination of

Officer Saldana, the following exchange occurred:

      Q.     Now, did you also contact the complainant in this case
             regarding the car?

      A.     I did.

      ....

      Q.     All right. And did you confirm she was the owner of the
             vehicle?

      A.     Yes.

Officer Saldana only testified about one vehicle. At the start of trial, the State

arraigned the defendant in front of the jury. In that process, Merino was identified

as the complainant.      Likewise, the jury charge identified Merino as the

complainant. Merino testified that she had not authorized anyone to use her car.

      Appellant identifies two cases in which courts have found a gap in the

evidence failing to connect the car the defendant was driving to the car that was

reported stolen. See Winn v. State, 828 S.W.2d 284, 285–86 (Tex. App.—Houston



                                         5
[14th Dist.] 1992, no pet.) (police described car defendant was pulled over in as

blue and brown Chevy Astro van; owner testified her Chevy Astro van was blue

and grayish); Hooper v. State, 788 S.W.2d 24, 25 (Tex. App.—Houston [1st Dist.]

1987, no pet.) (license plate of owner’s car was different from license plate of car

defendant found in; owner’s car returned before defendant’s arrest). These cases

are distinguishable by the simple fact that, in this case, there is evidence

establishing that Appellant was driving Merino’s car.

      We hold the evidence is sufficient to support the judgment of conviction.

We overrule Appellant’s sole issue.

                                      Conclusion

      We affirm the judgment of the trial court.




                                               Laura Carter Higley
                                               Justice

Panel consists of Justices Higley, Bland, and Sharp.

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




                                           6
