HERBERT CARLOS HUNTER, Appellant v. THE STATE OF TEXAS, Appellee

Affirm and Opinion Filed September 11, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-01456-CR
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HERBERT CARLOS HUNTER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court No. 3
Dallas County, Texas
Trial Court Cause No. F06-61153-HJ
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OPINION
Before Justices Wright, Richter, and Lang
Opinion By Justice Wright
        Herbert Carlos Hunter appeals his conviction for unauthorized use of a motor vehicle. After the trial judge found appellant guilty and two enhancement pargraphs true, the trial judge assessed punishment at eight years' imprisonment. In two issues, appellant contends the evidence is legally and factually insufficient to sustain the conviction. We overrule appellant's issues and affirm the trial court's judgment.
Background
 
        On January 12, 2006, William Deckelman decided to stop at a convenience store on his way to work. Deckelman parked his vehicle, a Jeep Grand Cherokee, about thirty feet from the side entrance and left it running while he went into the store. As Deckelman picked up donuts and walked towards the counter to pay for his purchase, he saw the jeep backing out of the parking space. Deckelman ran outside, but the person driving the vehicle sped away. Deckelman called the police, then went to work. An officer came to Deckelman's office about an hour later and talked with him. Deckelman testified he received a ticket for leaving his vehicle running and unattended. Later that same day, the police located the jeep.
        Deckelman testified he arrived at the store at about 7:30 a.m. He did not see anyone outside the store except appellant. As Deckelman pulled up to the side entrance, he saw appellant “hanging around” outside. Then appellant went into the store, walked around “a little,” and met Deckelman at the door. Appellant held the door open as Deckelman entered. Appellant did not have anything in his hands. Deckelman testified he could not see who was driving his jeep because the windows were tinted. When he picked up the jeep the next day, it was “completely trashed” and was missing the spare tire. Deckelman further testified he did not give anyone permission to drive the jeep.
        On January 12, 2006, Officer Mark Villarreal was working on a narcotics task force investigating complaints of drug activity at a suspect house. Villarreal testified that when he went to the suspect house, he saw a black Jeep Grand Cherokee parked there. Villarreal saw appellant walk from the jeep towards the house as he pulled up in a marked patrol car. Villarreal testified he did not actually see appellant driving the jeep. When appellant saw the patrol car, he “walked quickly” to the front porch and tried to go inside the house. While Villarreal followed appellant, his partner checked the license plate number on the jeep and found it was reported stolen. Villarreal testified he saw one individual on the porch before appellant got there, and the front door was standing open, giving the people in the living room, sitting on several couches, a clear view of the outside. Appellant walked through the door and into the living room. Villarreal stopped at the doorway and ordered appellant outside. Villarreal testified he saw a set of car keys on the floor just inside the door. He did not see appellant drop the keys, but they were located near appellant. When Villarreal asked appellant if he was driving the jeep, appellant responded, “No.” Villarreal testified he and his partner questioned three witnesses separately at the house. Sherri Felps told Villarreal she saw appellant driving the jeep, and that appellant arrived at the house in the jeep one minute before the officers arrived. Both Patrick Singleton and Danny Maxey also told Villarreal they saw appellant driving the jeep.
        At the end of Villarreal's testimony, the trial judge stated that during the previous break, the prosecutor and appellant's counsel agreed to allow Villarreal to testify about the statements made by the three witnesses at the scene. Appellant did not testify or present any evidence at the trial.
Applicable Law
 
        In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to be given to contradictory testimony. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000).
        The State was required to prove beyond a reasonable doubt that appellant intentionally or knowingly operated a motor-propelled vehicle, an automobile, without the effective consent of William Deckelman, the owner. See Tex. Pen. Code Ann. § 31.07(a) (Vernon 2003).
Discussion
 
        Appellant argues the evidence is legally and factually insufficient because nothing shows appellant operated the vehicle. Appellant asserts that because the alleged eyewitnesses were at a crack house when they made statements to police officers, their statements were not credible and should not be considered as evidence. The State responds that the evidence is legally and factually sufficient to support appellant's conviction.
        Because appellant did not present any evidence at trial, we consider only the evidence presented by the State. In this case, the State presented circumstantial evidence from which the fact finder could infer appellant intentionally operated Deckelman's jeep without his consent. Deckelman testified he did not give anyone permission to drive his jeep. Although Deckelman did not see who drove away from the store in his jeep, he testified appellant was the only person he saw outside the store when he arrived and went into the store. Later that same day, police officers found Deckelman's jeep parked outside a suspected drug house. Villarreal testified he saw appellant walking from the jeep, appellant ran into the house when he saw the police, and the keys to the jeep were found in close proximity to appellant at the house. Villarreal further testified three witnesses inside the house said appellant drove the jeep to the house.
        As the fact finder in this case, the trial court is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. See Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.); see also Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). Viewed under the proper standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. See Roberts, 220 S.W.3d at 524; Lane, 151 S.W.3d at 191-92. We resolve appellant's issues against him.         We affirm the trial court's judgment.
 
 
 
                                                          
                                                          CAROLYN WRIGHT
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
061456F.U05