Sosa, Rosalio v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROSALIO SOSA, )

) No. 08-01-00242-CR

Appellant, )

) Appeal from the

v. )

) 243rd District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 990D01815)

)

O P I N I O N

Appellant, Rosalio Sosa, was convicted of knowingly providing false and incorrect information on a document required by the Texas Department of Transportation, a third-degree felony.[1] The trial court sentenced him to 2 years= imprisonment, but suspended the sentence and ordered 5 years= community supervision and a fine of $1,000. Appellant now raises seven issues on appeal. We will reverse and render.

BACKGROUND

Cynthia Porras was a customer of Rio Rosas Auto Sales in El Paso, Texas. On April 22, 1998, Ms. Porras purchased a red, 1996 model Ford Mustang automobile from the Rio Rosas car lot. At the time of the sale, Ms. Porras was informed the vehicle had been wrecked previously, but she was unaware of the specific repairs performed or parts replaced. She was not given permanent license plates for the automobile. She was told to return later for the permanent plates. She was later introduced to Appellant, who was supposed to assist her in obtaining permanent license plates for her Mustang.

Some time later, Ms. Porras met with Appellant at Rio Rosas in an effort to obtain her permanent license plates. It was then she was told the car would have to be inspected by the Department of Public Safety before the permanent plates would be issued. Appellant gave Ms. Porras a number of documents and told her to take the car and the documents to the Department of Public Safety for inspection. Appellant also told Ms. Porras to sign one of the documents and she did so. Ms. Porras later testified that she did not fill out the document nor did she fully understand what was written on the form.[2]

Following Appellant=s instructions, Ms. Porras presented the car and the documents to the Department of Public Safety for inspection. Sergeant Manuel Lozano, an investigator with the Motor Vehicle Theft Service Section, met with Ms. Porras, conducted an initial inspection, and told her the person who sold her the vehicle had to be present for the inspection.

Ms. Porras returned to the Department of Public Safety with Appellant on a later date. Appellant presented the paperwork to Sergeant Lozano and told him that he had been responsible for repairing the vehicle and had sold it to Ms. Porras. He also said he was the owner of Rio Rosas Auto Sales. Upon inspection, Sergeant Lozano discovered several problems with the automobile and the required documentation. Three particular vehicle parts were noted as problematic. First, the documents indicated the deck lid (Atrunk@) had not been replaced. However, the deck lid did not have a special high-theft label, which is required by federal law. The lack of the label indicated the trunk had been replaced. Second, the documents claimed the left-front fender had been replaced with a new part from All Makes Auto Parts Store. However, the high-theft label bearing the VIN number[3] for that part had been scratched off of the fender. This indicated the part was not new. Sergeant Lozano testified that All Makes Auto Parts Store does not sell used parts with the required labels destroyed. Appellant provided Sergeant Lozano with receipts for parts from All Makes Auto Parts Store.[4] One receipt listed a left-front fender, but an investigation revealed the part on the Mustang was not the same part as described by the receipt. Third, the documents stated the right-front fender had not been replaced. However, the high-theft label bearing the VIN number for that part had also been scratched off. This indicated the part was not new and had been replaced.

When questioned by Inspector Lozano, Appellant maintained the information on the documentation was correct. Because of the discrepancies in documents, receipts, and actual parts on the automobile, the vehicle failed inspection. New parts with the proper labels and documentation had to be obtained for the vehicle. The car was returned to Ms. Porras after proper licensing approximately three weeks later.

Appellant was subsequently indicted and convicted for knowingly providing false and incorrect information on a document required by the Texas Department of Transportation. At trial, the State presented five witnesses as well as the documents and receipts presented by Appellant to the Department of Public Safety.

Sergeant Lozano testified at length about salvage vehicles. He told the jury a salvage vehicle is one that has been involved in a wreck or was stolen and recovered. He explained the term Asalvage vehicle@ is commonly used by insurance companies and law enforcement agencies. Such vehicles are issued special Areconditioned@ titles, known as salvage titles, by the Texas Department of Transportation. In order to obtain a salvage title, a vehicle must pass a Department of Public Safety inspection and account for all parts that were used in the repairs.

According to Sergeant Lozano=s testimony, a person or business must obtain a salvage dealer license from the State of Texas in order to sell salvaged vehicles. A licensed salvage dealer cannot sell a salvage vehicle to the general public until the vehicle is repaired and a reconditioned title is obtained. Rio Rosas was a used-car dealership that maintained a salvage dealer license.

ISSUES ON APPEAL

Appellant now raises seven issues on appeal: (1) whether the indictment is constitutionally void and thus fails to convey jurisdiction on the trial court; (2) whether the evidence was legally sufficient; (3) whether the evidence was factually sufficient; (4) whether an erroneous jury charge permitted conviction on a theory not alleged; (5) whether the trial court erred by not including a requested instruction on the defense of mistake of fact in the jury charge; (6) whether the trial court erred in allowing certain portions of testimony to be read back to the jury in violation of Texas Code of Criminal Procedure art. 36.28; and (7) whether the judgment in this case is constitutionally infirm. Because we find it to be dispositive of the case, we will begin by considering Appellant=s second issue related to the legal sufficiency of the evidence.

Legal Sufficiency

With his second issue, Appellant contends the evidence was legally insufficient to support the conviction. He raises three sub-issues to support this contention. First, he argues there is no evidence or legally insufficient evidence that he provided false or incorrect information on the Salvage Vehicle Inspection Affidavit and Application. Second, he argues there was legally insufficient evidence that the document in question was required by the Texas Department of Transportation. Third, he maintains the document at issue, the Salvage Vehicle Inspection Affidavit and Application, is not a document Anecessary to the transfer of ownership of a motor vehicle,@ as required by the Transportation Code provision. We will first consider Appellant=s second sub-issue.

In reviewing the legal sufficiency of the evidence, this Court views the evidence in the light most favorable to the judgment to determine whether any rational trier of fact could find the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991); Rivera v. State, 885 S.W.2d 581, 583 (Tex.App.--El Paso 1994, no pet.). We are not charged with determining whether evidence establishes guilt beyond a reasonable doubt. Stoker v. State, 788 S.W.2d 1, 6 (Tex.Crim.App. 1989), cert. denied, 498 U.S. 951, 111 S. Ct. 371, 112 L. Ed. 2d 333 (1990); Dwyer v. State, 836 S.W.2d 700, 702 (Tex.App.--El Paso 1992, pet. ref=d). We do not resolve any conflict in fact, weigh any evidence, nor evaluate the credibility of any witnesses. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Rivera, 885 S.W.2d at 583. Accordingly, the fact-finding results of a criminal jury trial are given great deference. Rivera, 885 S.W.2d at 583. This Court=s sole duty is to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 421-22. Any inconsistencies in the evidence are resolved in favor of the verdict. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App. 1988). Finally, claims of evidentiary insufficiency, such as the one before us today, are measured against the elements of the offense as defined by the hypothetically correct jury charge applicable to the case. Malikv. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997); Mast v. State, 8 S.W.3d 366, 368-69 (Tex.App.--El Paso 1999, no pet.). A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily restrict the State=s theories of liability or unnecessarily increase the State=s burden of proof, and adequately describes the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240; Humphries v. State, 993 S.W.2d 826, 832 (Tex.App.--El Paso 1999, pet. ref=d).

In this case, the indictment crafted by the State provided in part:

ROSALIO SOSA, hereinafter referred to as Defendant, did then and there knowingly provide false and incorrect information, to-wit: that the right front fender and deck lid on a 1996 Ford Mustang had not been replaced, on a document required by the Texas Department of Public Safety, to-wit: a Salvage Vehicle Inspection Affidavit and Application.[5] [Emphasis added].

The reference in the indictment language to the Texas Department of Public Safety was in error. The indictment should have referred to a document required by the Texas Department of Transportation. See Tex.Transp.Code Ann. ' 501.155(a)(5)(Vernon 1999). The jury charge in this case also erroneously referred to the Texas Department of Public Safety in the application paragraph. The application paragraph of the charge followed the language of the indictment:

Now if you find from the evidence beyond a reasonable doubt that on or about July 2, 1998, in El Paso County, Texas, the defendant, ROSALIO SOSA, did then and there, knowingly provide false or incorrect information, to wit: that the right front fender and deck lid on a 1996 Ford Mustang had not been replaced, on a document required by the Texas Department of Public Safety, to wit: a Salvage Vehicle Inspection Affidavit and Application, then you will find the defendant guilty as charged in Count I of the indictment. [Emphasis added].

The State urges this Court to follow the guidance of Malik and substitute ATexas Department of Transportation@ for ATexas Department of Public Safety@ in order to ascertain the hypothetically correct jury charge for this case. We will do so. Thus, the hypothetically correct charge for this case would authorize a jury to return a verdict of guilty if it found from the evidence beyond a reasonable doubt that Appellant knowingly provided false or incorrect information on a document required by the Texas Department of Transportation, namely the Salvage Vehicle Inspection Affidavit and Application. See Malik, 953 S.W.2d at 239; Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002).

Section 501.155 of the Texas Transportation Code provides:

(a) A person commits an offense if the person knowingly provides false or incorrect information or without legal authority signs the name of another person on:

(1) an application for a certificate of title;

(2) an application for a certified copy of an original certificate of title;

(3) an assignment of title for a motor vehicle;

(4) a discharge of a lien on a title for a motor vehicle; or

(5) any other document required by the department or necessary to the transfer of ownership of a motor vehicle.

(b) An offense under this section is a felony of the third degree.

Tex.Transp.Code Ann. ' 501.155. Appellant argues the State failed to provide sufficient evidence that the document at issue was actually required by the Department of Transportation. At oral argument, the State conceded that no testimonial or documentary evidence was presented at trial directly establishing the document at issue to be one required by the Texas Department of Transportation. However, the State relies on portions of testimony by Sergeant Lozano and certain statutory provisions in its assertion that there was sufficient evidence to support this element of the offense.

Sergeant Lozano testified that a Texas Salvage Certificate was a document produced by the Texas Department of Transportation. However, neither he nor any other witness ever testified that either the Salvage Certificate or the Salvage Vehicle Inspection Affidavit and Application were required by the Department of Transportation. Instead, the officer testified the affidavit was required to be submitted to the Texas Department of Public Safety at the time one presents a salvage vehicle for inspection. This testimony does not establish the document to be one required by the Texas Department of Transportation.

The State also argues the document at issue is clearly one required by the Texas Department of Transportation under Texas law. The State cites to Sections 501.0922 and 501.0923 of the Transportation Code as evidence of the requirement. Having reviewed these sections of the Code, we agree the Salvage Vehicle Inspection Affidavit and Application is a document required by the Department of Transportation. However, the State did not present any evidence related to these statutory provisions at trial. The State did not enter copies of the statute into evidence or question any witness about the statute or its requirements. The existence of a statutory provision is not, in and of itself, evidence of an element of an offense unless it is proved to the fact finder in some manner. In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970); Weaver v. State, 87 S.W.3d 557, 560 (Tex.Crim.App. 2002).

Viewing all the evidence in the light most favorable to the verdict, we are unable to find sufficient evidence that the document at issue was required by the Department of Transportation. Jackson, 443 U.S. at 318-19; Rivera, 885 S.W.2d at 583. We cannot conclude that any rational trier of fact could have found that this essential element was proven beyond a reasonable doubt. Rivera, 885 S.W.2d at 583. We sustain this portion of Appellant=s second issue on appeal. Because this issue is dispositive of the appeal, we need not address the remaining sub-issues and issues on appeal.

Because the evidence presented was legally insufficient to establish a substantive element of the offense under the Transportation Code, we are compelled to reverse the judgment of the trial court. Adelman, 828 S.W.2d at 421-22. Accordingly, we render judgment of acquittal.

April 24, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

(Do Not Publish)

[1] The judgment of the trial court erroneously lists the offense as providing false information to a peace officer in violation of Section 37.08 of the Texas Penal Code.

[2] Ms. Porras testified through a Spanish-language interpreter at trial. The document was written in English.

[3] The VIN number describes all the characteristics that are given or incorporated into the vehicle from the factory.

[4] These receipts were admitted into evidence as State=s Exhibit No. 5.

[5] Appellant was originally indicted for two counts of knowingly providing false and incorrect information on a document required by the Texas Department of Public Safety. The second count is not mentioned here, nor at issue before us, because the trial court granted Appellant=s motion for a directed verdict with respect to that count.