John David Herrick v. The State of Texas--Appeal from 361st District Court of Brazos County

AFFIRMED

MAY 10, 1990

NO. 10-89-276-CR

Trial Court

# 17,485-361

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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JOHN DAVID HERRICK,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 361st Judicial District Court

Brazos County, Texas

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O P I N I O N

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On June 26, 1987, Appellant pleaded guilty to the offense of terroristic threats. See TEX. PENAL CODE ANN. 22.07(a)(4) (Vernon 1989). The court deferred adjudication of guilt and placed him on probation for two years. See TEX. CODE CRIM. PROC. ANN. art. 42.12(3) (Vernon Supp. 1990). On May 4, 1989, a hearing was held and the court determined that Appellant had failed to comply with the conditions of his probation. Appellant was sentenced to two years in jail, which were probated for two years. On August 24, Appellant was arrested and charged with the unauthorized use of a vehicle. See TEX. PENAL CODE ANN. 31.07(a) (Vernon 1989). The court held a hearing on November 29, revoked Appellant's probation, and sentenced him to two years in jail. The judgment will be affirmed.

Appellant's only point is that the court abused its discretion when it revoked his probation. He claims the evidence was insufficient to support a finding of "true" to the charge of unauthorized use of a vehicle because the State failed to prove that: (1) he intentionally and knowingly operated the vehicle in question; (2) he knew that he did not have the effective consent of the vehicle's owner; and (3) the offense occurred in Harris County.

The state has the burden of proving every element of the offense relied on as a basis for revocation of probation by a preponderance of the evidence. Cross v. State, 586 S.W.2d 478, 481 (Tex. Crim. App. 1979). When the sufficiency of the evidence is challenged, the evidence is viewed in the light most favorable to the court's findings. Garrett v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. [Panel Op.] 1981). Furthermore, the court is the judge of the credibility of the witnesses and the weight to be given their testimony. Id.

Appellant argues that Officer Lehmiller did not actually see him drive the vehicle, and that, thus, the evidence was insufficient to show that he operated the vehicle. Lehmiller testified that when he approached the car, which had been reported stolen, Appellant was sitting in the driver's seat and the engine was running. He said Appellant admitted that he "brought the car down from Bryan." Circumstantial evidence is sufficient to prove any issue in a criminal case. See Taylor v. State, 508 S.W.2d 393, 397 (Tex. Crim. App. 1974). This evidence was sufficient to establish that Appellant operated the vehicle in question.

Appellant claims the State failed to prove that he knew he did not have the owner's consent to operate the vehicle. He alleges that Johnny Lampo, the vehicle's owner, gave him a set of keys and told him he could use the car whenever he desired. Lampo testified that Appellant was required to ask permission each time he used the vehicle; that on several occasions he had refused Appellant's request to use the vehicle; that he did not give Appellant a set of keys to the vehicle; and that Appellant did not receive his effective consent to operate the vehicle on August 24. This evidence was sufficient to support the finding that Appellant did not have Lampo's consent to operate the vehicle.

When the evidence is viewed in the light most favorable to the court's findings, the State met its burden of proving by a preponderance of the evidence that Appellant "violated the laws of this State, some other state, or the United States." See Williams v. State, 591 S.W.2d 873, 876 (Tex. Crim. App. [Panel Op.] 1979). Therefore, the court did not abuse its discretion when it revoked Appellant's probation. Point one is overruled. The judgment is affirmed.

BOB L. THOMAS

DO NOT PUBLISHChief Justice