Martinez, Ricardo v. The State of Texas--Appeal from of County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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RICARDO MARTINEZ, ) No. 08-00-00473-CR

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Appellant, ) Appeal from

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v. ) 409th District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20000D00846)

O P I N I O N

Ricardo Martinez was charged by indictment with unauthorized use of a motor vehicle. A jury found him guilty and the court assessed punishment at confinement in a state jail facility for eighteen months. On appeal, Appellant contends that the evidence was legally insufficient to prove venue and that the trial court erred in failing to instruct the jury on the proper mental state of the offense. We affirm.

FACTUAL SUMMARY

Appellant was charged by indictment for unauthorized use of a motor vehicle.[1] The indictment alleged that Appellant Adid then and there intentionally and knowingly operate a motor-propelled vehicle, to-wit: a Ford Bronco automobile, without the effective consent of Franco Ligorio, the owner thereof.@ At trial, Officer Omar Lujan testified that the offense occurred in El Paso County. He did not testify whether the offense occurred in Texas or another state. After the State rested, Appellant unsuccessfully moved for a directed verdict on the issue of effective consent. The charge of the court stated in pertinent part:

Our law provides that a person commits an offense if he intentionally or knowingly operates another=s motor-propelled vehicle without the effective consent of the owner.

. . .

You are instructed that it is a defense to prosecution that a person through mistake, formed a reasonable belief about a matter of fact if his mistaken belief negated the kind of culpable state of mind required for commission of the offense.

. . .

So, if you find from the evidence in this case that at the time Ricardo Martinez took the vehicle in question, he acted under a mistake of fact, that the vehicle belonged to David Ligorio, and that David Ligorio effectively consented for Ricardo Martinez to operate said vehicle, or if you have a reasonable doubt thereof, you will find Ricardo Martinez not guilty.

Now, if you find from the evidence beyond a reasonable doubt that on or about the 11th day of September 1999, in El Paso County, Texas, the defendant, Ricardo Martinez, did then and there, intentionally or knowingly operated another=s motor-propelled vehicle, to-wit, A Ford Bronco, owned by Franco Ligorio, without the effective consent of Franco Ligorio, then you will find the defendant guilty of the felony offense as alleged in the indictment. (VERDICT FORM G-UNAUTHORIZED USE OF A MOTOR VEHICLE).

Appellant=s brief presents eight points of error. However, due to the procedural background of this case, which is discussed below, we reach only the merits of the first two. In Point of Error No. One, Appellant argues the evidence was insufficient as a matter of law to support his conviction. Specifically, he contends that the State failed to establish that the alleged offense occurred in the State of Texas. In Point of Error No. Two, he claims the trial court committed reversible error by failing to instruct the jury on the requisite mental state for the offense of unauthorized use of a motor vehicle.

LEGAL SUFFICIENCY

In determining the legal sufficiency of the evidence used to support a criminal conviction, we view the evidence in the light most favorable to the verdict 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, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 156-57 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000); Hernandez v. State, 946 S.W.2d 108, 110-11 (Tex.App.--El Paso 1997, no pet.). We do not resolve conflicts of fact or assign credibility to witnesses, as it is the function of the trier of fact to accept or reject any, part, or all of any witness=s testimony. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Lucero v. State, 915 S.W.2d 612, 614 (Tex.App.--El Paso 1996, pet. ref=d). We determine only if the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence in a light most favorable to the verdict. See Lucero, 915 S.W.2d at 614. Any inconsistencies in the evidence are resolved in favor of the verdict. Id. If we sustain a legal sufficiency challenge, we must render a judgment of acquittal. Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996).

Appellant maintains that there was insufficient evidence to establish venue in El Paso County, Texas. Failure to prove venue in the county of prosecution is reversible error. Valdez v. State, 993 S.W.2d 346, 349 (Tex.App.--El Paso 1999, pet. ref=d). We presume that venue is proved in the trial court unless the record affirmatively shows otherwise or unless venue is made an issue below. Id. An issue is raised in the trial court by a motion for instructed verdict challenging proof of venue. Id. Venue need not be proven beyond a reasonable doubt, but rather by a preponderance of the evidence. Id. This is because venue is not a Acriminative fact,@ and thus not a constituent element of the offense. Id. Proof of venue may be established by direct or circumstantial evidence and, as the trier of fact on the issue of venue, the trial court may draw reasonable inferences from the evidence. Id. Here, Officer Lujan testified that the offense occurred in El Paso County, but he did not state that the offense occurred in Texas. However, Appellant failed to bring a motion for instructed verdict challenging the proof of venue; his motion was based solely on the issue of effective consent. Moreover, the record does not affirmatively demonstrate that the offense occurred somewhere other than El Paso County, Texas. Consequently, we may presume that venue was proper and infer that El Paso County is located within the State of Texas. We overrule Point of Error No. One.

REQUISITE MENTAL STATE

In his second point of error, Appellant contends that the trial court erred in failing to properly instruct the jury that they could not find him guilty unless he knew that he was operating the vehicle without the effective consent of the owner, Franco Ligorio. The culpable mental states of Aintentionally@ and Aknowingly@ have been held to apply to both the Aoperate a motor-propelled vehicle@ and the Awithout the effective consent of the owner@ elements of the offense. See McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App. 1989); Bruno v. State, 845 S.W.2d 910, 911-12 (Tex.Crim.App. 1993). The charge instructed the jury to convict only if the State had proven, beyond a reasonable doubt, that Appellant knowingly or intentionally operated Ligorio=s automobile and that he knowingly acted without Ligorio=s effective consent. Because the trial court did not err in denying the requested instruction, Appellant=s second point is overruled.

THE ANDERS BRIEF

As stated, the procedural history of this case requires some elaboration. Appellant=s original brief filed with this court included two points of error, including those we have now overruled. Following the filing of that brief, counsel for Appellant moved to withdraw as attorney on appeal. We granted the motion. Appellant then retained another attorney who also withdrew as attorney of record. Thereafter, the trial court appointed yet another attorney to represent Appellant. Still another filed his entry of appearance as co-counsel. These attorneys filed a supplemental brief, which assigned eight points of error.[2] The supplemental brief is an attempt to fulfill the requirements of Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, reh. denied, 388 U.S. 924, 18 L. Ed. 2d 1377, 87 S. Ct. 2094 (1967). However, it does not entirely meet the requirements of an Anders brief. While it advances contentions which counsel suggest might arguably support the appeal,[3] it also presents two points of error that were previously urged in Appellant=s initial brief. We have addressed those complaints as Points of Error Nos. One and Two above. We have reviewed the record and agree that Points of Error Nos. Three through Eight are wholly frivolous and without merit. A further discussion of these grounds would add nothing to the jurisprudence of this state. The trial court=s judgment is affirmed.

August 15, 2002

ANN CRAWFORD McCLURE, Justice

Before Panel No. 4

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

(Do Not Publish)

[1] The Texas Penal Code provides that a person commits the offense of unauthorized use of a vehicle Aif he intentionally or knowingly operates another=s boat, airplane, or motor-propelled vehicle without the effective consent of the owner.@ Tex.Pen.Code Ann. ' 31.07(a)(Vernon 1994).

[2] Appellant=s initial brief included a claim that the indictment and the court=s charge required that the State prove that he drove the vehicle without the consent of the owner, Franco Ligorio, while the reporter=s record stated that the alleged owner was Franco Longoria. Appellant thus contended that the evidence was legally insufficient to support his conviction because no one named AFranco Ligorio@testified that he owned the Bronco and that it was operated without his permission. We abated this appeal and directed the trial court to conduct a hearing to determine the accuracy of the reporter=s record. At the hearing, the court reporter testified that she had incorrectly transcribed the name ALigorio@ as ALongoria.@ The complaining witness, Franco Ligorio, testified that the correct spelling of his name was L-I-G-O-R-I-O and that he testified at trial that his name was AFranco Ligorio.@ Following the hearing, the trial court entered written findings that the reporter=s record contained inaccuracies and should contain the name ALigorio@ instead of ALongoria. @ It also ordered the court reporter to certify and file with this court a revised version of the reporter=s record to reflect the correction. Because the error in the reporter=s record was no longer an issue at the time the supplemental brief was filed, the supplement does not re-urge the complaint.

[3] See High v. State, 573 S.W.2d 807 (Tex.Crim.App. 1978); Currie v. State, 516 S.W.2d 684 (Tex.Crim.App. 1974); Jackson v. State, 485 S.W.2d 553 (Tex.Crim.App. 1972); Gainous v. State, 436 S.W.2d 137 (Tex.Crim.App. 1969).