                                   NO. 07-07-0151-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                    AUGUST 5, 2008

                         ______________________________


                         ARMANDO GONZALES, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                       _________________________________

           FROM THE 286TH DISTRICT COURT OF HOCKLEY COUNTY;

              NO. 05-11-6126; HONORABLE HAROLD PHELAN, JUDGE

                         _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                               MEMORANDUM OPINION


      Following a plea of not guilty, Appellant, Armando Gonzales, was convicted by a jury

of unauthorized use of a motor vehicle. Punishment was assessed by the trial court at

fifteen months confinement. Presenting a sole point of error, Appellant maintains the trial

court erred in denying his requested charge on the defense of mistake of fact. We reverse

and remand.
                                   Background Facts


       On October 22, 2005, the Hockley County Sheriff’s Office was participating in an

auction to sell some patrol cars and seized vehicles. Although the auction was conducted

by Floyd Nesbitt, Sheriff David Kinney put Lieutenant Gordon Bohannon in charge of

supervising the sale of the vehicles. Bohannon informed Nesbitt that the vehicles were to

be sold “as is” with no test driving allowed. The vehicles had the keys in them. While

Bohannon was gone for lunch, Appellant got into a red Dodge Neon and casually drove

away from the auction. The Neon was reported missing and officers were notified to be

on the lookout for it.


       Officer Justin Ty Land testified that he received a call concerning a possible stolen

vehicle and approximately ten minutes later located the Neon at a Dollar General Store.

When Land approached Appellant, who was inside the store, Appellant politely turned the

keys over to him and explained that he had been given permission to test drive the Neon

by a large Hispanic male at the auction.


       Bohannon arrived at the scene and as Appellant was being placed in the patrol car,

he heard him holler and scream that he was merely test driving the vehicle. Bohannon

testified that the Neon was parked in front of the store and in no way hidden. Appellant

was charged with unauthorized use of a vehicle.




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       By his sole point of error, Appellant maintains the trial court erred in denying his

requested charge on the defense of mistake of fact. We agree. During the charge

conference, defense counsel objected to the court’s failure to include an instruction of

mistake of fact and requested three alternative instructions which the trial court denied.


                                        Discussion


       A person commits the offense of unauthorized use of a vehicle if he intentionally or

knowingly operates another’s . . . motor-propelled vehicle without the effective consent of

the owner. Tex. Penal Code Ann. § 31.07(a) (Vernon 2003).1 The offense of unauthorized

use of a vehicle encompasses two distinct conduct elements: (1) proof of the forbidden

conduct (i.e. whether the defendant intentionally or knowingly operated a motor vehicle),

and (2) proof of the attendant circumstances of the crime (i.e. whether the defendant knew

his use was without the effective consent of the owner). McQueen v. State, 781 S.W.2d

600, 603 (Tex.Crim.App. 1989). See also Gardner v. State, 780 S.W.2d 259, 262

(Tex.Crim.App. 1989) (Emphasis in original).


       It is a defense to prosecution of an offense if the actor, through mistake, formed a

reasonable belief about a matter of fact if his mistaken belief negated the kind of culpability

required for commission of the offense. See § 8.02(a). It is a defense to prosecution of

the offense of unauthorized use of a vehicle if the actor, through mistake, formed a


       1
        Unless otherwise indicated, this and all future section references are references
to the Texas Penal Code (Vernon 2003).

                                              3
reasonable belief that he had the consent of the owner to operate the vehicle. McQueen,

781 S.W.2d at 603.


       If there is some evidence presented raising the issue of mistake of fact, a defendant

is entitled to an instruction on the issue. See Woodfox v. State, 779 S.W.2d 434, 435-36

(Tex.Crim.App. 1989), citing Lynch v. State, 643 S.W.2d 737, 738 (Tex.Crim.App. 1983)

(rejecting the State’s contention that unauthorized use of a motor vehicle was a strict

liability criminal offense). It is not necessary that the defendant offer direct personal

testimony in order to be entitled to an instruction on mistake of fact. Woodfox, 779 S.W.2d

at 435.


       In the case at issue, Kinney and Bohannon both testified that neither had given

Appellant permission to drive the Neon. However, Land and Bohannon both testified that

Appellant claimed he had been given permission by a large Hispanic male to test drive the

vehicle. Appellant also presented evidence through a friend, whom he had picked up while

driving the Neon, that he had represented to his friend that he was merely test driving the

vehicle.


       Nesbitt testified that none of the people helping him with the auction were identified

by particular clothing or name tags. A novice attending an auction might not have known

whom to approach with questions nor been aware of procedures and policies. Additionally,

both Land and Bohannon testified that no follow-up investigation was conducted to

determine if Appellant’s story was credible. In fact, in response to questioning from

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defense counsel, Bohannon testified he “wouldn’t have cared” and didn’t think it was

important to investigate whether someone had given Appellant permission to test drive the

vehicle because he believed Appellant was lying. However, when asked to place himself

in Appellant’s position, he conceded he would have been angry if no one had followed up

on the allegation.


       Relying on Bruno v. State, 845 S.W.2d 910 (Tex.Crim.App. 1993), the State

maintains that the evidence that Appellant had permission to test drive the vehicle was

insufficient to entitle him to an instruction on mistake of fact. We distinguish Bruno. In

Bruno, the appellant claimed that the true owner of the vehicle gave him permission to use

her vehicle. Although a defensive instruction on mistake of fact was given, the appellant

complained that doing so incorrectly placed the burden of proof on him. The Court of

Criminal Appeals found that the charge as given properly placed the burden on the State,

but went on to find that the instruction was not necessary in the first place because a

mistake of fact instruction was not proper when the issue was whether or not the true

owner did or did not give permission to operate the vehicle.


       We find the underlying facts to be closer to those in Gardner v. State, 780 S.W.2d

259 (Tex.Crim.App. 1989), which involved a third party whom the actor believed had

authority to give him consent to operate a vehicle. Id. at 260. The Court found that a

mistake of fact instruction was proper because the jury could have believed that both: (1)

the defendant believed that he had the consent of the third party to use the vehicle and (2)


                                             5
that the true owner of the vehicle had not given him permission. Id. at 262-63. In Bruno,

the jury could not believe both the testimony of the true owner of the vehicle and the

testimony of the appellant as it could in Gardner. Bruno, 845 S.W.2d at 913. In Bruno, the

mistake of fact instruction was unnecessary because only one of the incompatible stories

could have been believed. Id.


       The State did not present any evidence that Appellant believed that the large

Hispanic male was the true owner of the Neon. As an auction attendee, Appellant could

have believed that a third party with authority to give consent to test drive the Neon had

done so. Land, Bohannon, and Appellant’s friend testified that Appellant claimed to have

been given permission to drive the Neon by a large Hispanic male. Thus, under Woodfox,

there was at least some evidence entitling Appellant to a defensive instruction on mistake

of fact because the jury could have believed that both (1) Appellant believed he had the

consent of a third party to drive the Neon and (2) the true owner of the vehicle had not

given him permission. We conclude the trial court erred in denying Appellant’s requested

instruction. Point of error one is sustained.


       Accordingly, the trial court’s judgment is reversed and the cause is remanded to the

trial court for further proceedings.




                                                    Patrick A. Pirtle
                                                        Justice
Do not publish.


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