MARIO ARENAS, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion Filed November 30, 2010
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-09-00766-CR
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MARIO ARENAS, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 265th Judicial District Court
Dallas County, Texas
Trial Court Cause No. F08-34199-IR
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OPINION
Before Chief Justice Wright and Justices Bridges and Maloney   See Footnote 1 
Opinion By Justice Maloney
        The trial court convicted Mario Arenas of unauthorized use of a motor vehicle (UUMV), assessed a sentence of two years in the state jail, suspended the jail sentence, and placed appellant on community supervision for four years. In addition, the trial court assessed $240 in court costs and $7000 in restitution. In two issues, appellant complains the evidence is legally and factually insufficient. We affirm the trial court's judgment.
BACKGROUND
 
        Appellant was involved in three different accidents while driving a company car assigned to his father. Although appellant had previously worked for the same company as his father, at the time of the accidents, appellant was employed by a subcontractor that worked for his father's employer.
SUFFICIENCY OF THE EVIDENCE
 
        Appellant argues the State did not present legally or factually sufficient evidence to sustain the conviction. Specifically, appellant contends that although the indictment alleged Tobin Smithey as the owner of the pickup truck in question, the State produced no evidence to show that Smithey was either an “owner” or a “special owner” at the time of the alleged offense. Rather, appellant argues that his father was the “special owner” and had given him permission to drive the company car.
        The State responds even if appellant's father had given him permission to drive the pickup truck at one point, no evidence shows that he had permission to drive on the date in question. Additionally, the State contends appellant knew his father did not have authority to act for the owner.
THE EVIDENCE
1. Jussuf Oladunni        
 
        Oladunni testified that he had stopped his vehicle at a red traffic light when he saw a speeding pickup truck trying to weave around the vehicle in front of him. The driver lost control and “came straight” at Oladunni's vehicle. After striking Oladunni's vehicle, the other driver sped away. As Oladunni attempted to follow the speeding pickup truck, another vehicle approached that was following the same pickup truck that had just hit Oladunni.   See Footnote 2  Because of the damage to Oladunni's vehicle, he could not keep up the chase. It was then that he stopped and called the police. Jason Healer responded to Oladunni's telephone call.
        While interviewing Oladunni, Healer received a dispatch about a subsequent accident involving a vehicle that resembled the description of the pickup truck that hit Oladunni's vehicle. Oladunni overheard the dispatch and he, too, went to the scene of the new accident. There, Oladunni identified appellant as the driver of the pickup truck that hit his vehicle.
2. Jason Healer
 
        Healer, an Irving Police Officer, testified that he was dispatched to an accident where he met with Oladunni. While there, Dispatch broadcasted another accident which involved a vehicle that matched the description of the pickup truck that hit Oladunni's vehicle. Healer went to the scene of that accident and saw a pickup truck resting in a fence. Healer later learned that an earlier accident involving the same pickup had occurred. When Healer saw Oladunni at the scene of this last accident, he asked Oladunni if that was the same pickup truck and driver that had hit Oladunni. Oladunni identified appellant as the same driver who had hit his vehicle.
        The police arrested appellant for driving while intoxicated and leaving the scene of an accident and took him to the police station. After speaking with Tobin Smithey, Healer filed the UUMV charge.
3. Tobin Smithey
 
        Smithey, a vice-president of Greater Dallas L.P., testified he had care, custody and control of the pick up truck that was involved in this accident. Greater Dallas, a roofing company, has company pickup trucks that are under his control as vice-president. Greater Dallas assigns company pickup trucks to specific employees and only those company employees who named on the insurance policy are allowed to drive that assigned pickup truck-appellant was not named on their insurance policy. After work, Greater Dallas allows employees to take their assigned pickup trucks home. The company requires the employee to park the assigned pickup at home, where it stays until the employee returns to work the next day. Greater Dallas employed appellant's father, Jose Arenas, as a supervisor and named him on the insurance policy. Appellant does not work for Greater Dallas, rather he works for Jose Vasquez, a subcontractor of Greater Dallas.
        Smithey learned of appellant's use of Greater Dallas's pickup truck when Jose Arenas telephoned him about the accident. Smithey telephoned the police department and reported the pickup truck stolen. Smithey and Jose Arenas went together to the police department and both gave sworn statements to the police.
        On cross-examination, Smithey testified Jose Arenas had care, custody, and control of the company pickup truck at the time of the accident for employment purposes. Smithey explained that the original police report was for theft.
4. Appellant
 
        Appellant confirmed that Greater Dallas owned the pickup truck in question. His father never told him he could not drive the pickup truck. Actually, his father had given him permission to drive this same pickup truck two or three times before the accident. A year or a year-and-a-half before the accident, Smithey himself allowed appellant to drive another company pickup truck “for a job.”
        
STANDARD OF REVIEW
        The Texas Court of Criminal Appeals has recently directed that the Jackson v. Virginia legal sufficiency standard is the only standard that a reviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. See Brooks v. State, No. PD-0210-09, 2010 WL 3894613, at *1 (Tex. Crim. App. Oct. 6, 2010) (referring to Jackson v. Virginia, 443 U.S. 307 (1979)). This single standard requires the reviewing court to determine whether, considering all of the evidence in the light most favorable to the verdict, the jury was rationally justified in finding guilt beyond a reasonable doubt. Id. at *5 (citing Jackson, 443 U.S. at 319). We defer to the jury's determinations of the witnesses' credibility and the weight to be given their testimony because the jury is the sole judge of those matters. Id. Accordingly, we will consider the argument appellant raises regarding factual sufficiency as supplementary to his legal sufficiency issue.
APPLICABLE LAW
        Anyone who operates another's motor vehicle without the effective consent of the owner commits unauthorized use of a motor vehicle. Tex. Penal Code Ann. § 31.07 (a) (West 2003). Effective consent includes any person legally authorized to act for the owner; consent is not effective if given by a person the actor knows is not legally authorized to act for the owner. Tex. Penal Code Ann. § 1.07(19)(B) (West Supp. 2010). Texas defines “an owner” as one who has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor. Id. § 1.07(35)(A). When a business owns property, the “preferable pleading practice [is] to allege ownership in a natural person acting for the corporation.” See Harris v. State, 846 S.W.2d 960, 962 (Tex. App.-Houston [1st Dist.] 1993, pet. ref'd), (citing Simpson v. State, 648 S.W.2d 1, 2 (Tex. Crim. App [Panel Op.] 1983)). The employment relationship determines whether a given individual is an owner within the meaning of section 1.07. Id. The indictment may allege any person who has a greater right to the actual care, custody, control, or management of the property than the defendant as the “owner.” See id. (citing Alexander v. State, 753 S.W.2d 390, 392 (Tex. Crim. App. 1988)).
 
 
                        APPLICATION of LAW to the FACTS
        Appellant limits his appeal on sufficiency to contending the State failed to prove he drove the pickup truck “without the effective consent of the owner.” Appellant argues that Smithey may have had care of the pickup truck, but he did not have possession, and the State did not prove that Smithey, rather that appellant's father, was the proper owner because his father had a greater right of possession to the pickup truck at the time of the accident. Therefore, his father qualifies as the “special owner.” We take this to mean appellant's father had the greater right of possession than Greater Dallas or its agent.
        It is not contested that Greater Dallas authorized only those employees listed on the insurance policy to drive a company pickup truck; rather, appellant argues that appellant's father had “care, custody, and control” of the company pickup truck at the time of the accident. The testimony shows that although the company authorized appellant's father to take the company pickup truck home, park it, and drive it back to work, it never authorized him to let another drive its pickup truck. Appellant testified his father had allowed him to drive the company's pickup truck before, but he did not testify that anyone gave him permission to drive the company's pickup truck on the day of the accident. The evidence also shows appellant's father and Smithey went to the police station together to report and file affidavits that the company pickup truck was stolen.
        Smithey testified that although Greater Dallas owns the company pickup trucks, as a vice- president of Greater Dallas, the pickup trucks fall under his care. He did not give appellant permission to drive this company pickup truck.
        According to appellant, the indictment should have alleged appellant's father, not Smithey, as the owner.   See Footnote 3  Appellant cites this Court to case law regarding “special ownership” as well as the same testimony cited above to show that his father had a greater right to possession of the company car than Smithey. No evidence shows appellant had a greater right of possession than Smithey. We look to who had a greater right of possession than appellant---Smithey had a greater right to possession than appellant. See Harris, 960 S.W.2d at 962.
        Viewing the evidence in the light most favorable to the verdict, we conclude any reasonable fact finder could have found the essential elements of the offense beyond a reasonable doubt. We overrule appellant's sufficiency issue.
        We affirm the trial court's judgment.
 
 
 
 
                                                          
                                                          FRANCES MALONEY
                                                          JUSTICE, ASSIGNED
Do Not Publish
Tex. R. App. P. 47
 
Footnote 1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.
Footnote 2 Apparently, the fleeing driver had hit another vehicle before he had hit Oladunni's vehicle.
Footnote 3 Although appellant argues “special ownership” as factual insufficiency, we address this argument under the legal sufficiency standard of Brooks v. State, supra..