GRADY GASTON, Appellant v. THE STATE OF TEXAS, Appellee

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AFFIRMED; Opinion issued December 27, 2006
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00067-CR
............................
GRADY GASTON, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the F05-51153-N
Dallas County, Texas
Trial Court Cause No. 195th Judicial District Court
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MEMORANDUM OPINION
Before Justices Whittington, Moseley, and O'Neill
Opinion By Justice Whittington
        Grady Gaston appeals his conviction for unauthorized use of a motor vehicle. After finding appellant guilty as charged, the jury assessed punishment, enhanced by two prior felony convictions, at eight years' confinement. In three issues, appellant contends the evidence is legally and factually insufficient to support his conviction and that the prosecutor erred in commenting during jury argument on appellant's failure to testify. We affirm the trial court's judgment.
        When reviewing challenges to the legal sufficiency of the evidence, we apply well- established standards. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Garcia v. State, 57 S.W.3d 436, 441 (Tex. Crim. App. 2001). We view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005); Escamilla v. State, 143 S.W.3d 814, 817 (Tex. Crim. App. 2004), cert. denied, 544 U.S. 950 (2005); Simmons v. State, 109 S.W.3d 469, 472 (Tex. Crim. App. 2003). The jury, as sole judge of the witnesses' credibility and the weight to be given their testimony, is free to accept or reject any or all of the evidence presented by either side. See Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). In circumstantial evidence cases, it is unnecessary for every fact to point directly and independently to appellant's guilt; it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. See Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993) (citing Russell v. State, 665 S.W.2d 771, 776 (Tex. Crim. App. 1983)).
        In a factual sufficiency review, we view all of the evidence in a neutral light and ask whether a jury was rationally justified in finding guilt beyond a reasonable doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). To reverse a case on a factual sufficiency challenge, we must be able to say, with some objective basis in the record, that the great weight and preponderance of evidence contradicts the jury's verdict. Watson, 204 S.W.3d at 417. We cannot conclude a conviction is “clearly wrong” or “manifestly unjust” simply because we would have voted to acquit. Watson, 204 S.W.3d at 417. In examining a factual sufficiency challenge, we also defer to the factfinder's determination of the credibility of the evidence. Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).
        A person commits an offense if he intentionally or knowingly operates another's motor- propelled vehicle without the effective consent of the owner. Tex. Pen. Code Ann. § 31.07 (Vernon 2003). Circumstantial evidence may be used to establish a defendant intentionally or knowingly operated another's motor-propelled vehicle without the owner's effective consent. Coleman v. State, 802 S.W.2d 394, 395 (Tex. App.-Dallas 1990, no pet.).
        Although appellant claims there is no evidence showing he knew the car was stolen, we disagree. Officer Christopher Williams testified he and his partner, Officer Rawleigh Williams, were on patrol around 5:00 a.m. on April 3, 2005, when they spotted appellant driving a 1993 black Mazda 626 in the Deep Ellum area. Appellant and the other occupants of the car looked back repeatedly at the officers in the squad car, raising the officers' suspicion. The officers entered the license plate number in the computer and learned the car had been reported stolen. Appellant stopped the car in front of a house and jumped out. The officers chased appellant. Officer Christopher Williams returned to the stolen car and stopped two of the occupants from fleeing the scene; a third occupant escaped. Although there was no key in the ignition, the car was running. There was no car registration or insurance information found in the car. According to Officer Christopher Williams, it was after he and his partner identified themselves as police officers and drew their guns that appellant fled. Officer Rawleigh Williams testified to similar facts.
        Tiffany Temples testified she parked her 1993 black Mazda 626 car in front of her mother-in- law's house and had gone out with a friend. When she returned later, the car was gone. Temples reported the car stolen because she did not give anyone permission to take her car. The car recovered by police was her car. Temples also testified she did not know or recognize appellant and did not give him permission to take her car.
        From these facts, we conclude a rational jury could infer appellant intentionally or knowingly operated Temples's car without her effective consent. See Tex. Pen. Code Ann. § 31.07. After viewing the evidence in the light most favorable to the verdict, we conclude the evidence is legally sufficient to support appellant's conviction for unauthorized use of a motor vehicle. We overrule his first issue.         Furthermore, after reviewing all the evidence in this case and giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we cannot conclude the great weight and preponderance of evidence contradicts the jury's verdict. See Watson, 204 S.W.3d at 417; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). Because the jury was rationally justified in finding guilt beyond a reasonable doubt, we conclude the evidence is factually sufficient to support appellant's conviction. See Watson, 204 S.W.3d at 417. We overrule appellant's second issue.
        In his third issue, appellant contends that, during closing argument, the prosecutor improperly commented on appellant's failure to testify. A defendant waives his right to complain on appeal if he fails to make a timely, specific objection to a prosecutor's comment about the defendant's failure to testify. Griffin v. State, 181 S.W.3d 818, 823 (Tex. App.-Houston [14th Dist.] 2005, pet. ref'd); Berrett v. State, 152 S.W.3d 600, 603 (Tex. App.-Houston [1st Dist.] 2004, pet. ref'd) (citing Johnson v. State, 629 S.W.2d 953, 954 (Tex. Crim. App. 1982) (failure to object to prosecutor's comment on defendant's failure to testify preserved nothing for appellate review)). In this case, appellant did not object to the prosecutor's argument. Therefore, nothing is preserved for our review. We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          MARK WHITTINGTON
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060067F.U05
 
 

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