Cration Jr., L.C. v. The State of Texas--Appeal from 9th District Court of Waller County

Affirmed; Memorandum Opinion of August 26, 2003, Withdrawn and Substitute Memorandum Opinion filed December 11, 2003

Affirmed; Memorandum Opinion of August 26, 2003, Withdrawn and Substitute Memorandum Opinion filed December 11, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00393-CR

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L.C. CRATION, JR., Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 9th District Court

Waller County, Texas

Trial Court Cause No. 01-08-10,801

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S U B S T I T U T E M E M O R A N D U M O P I N I O N

We withdraw the opinion issued in this case on August 26, 2003, and we issue the following opinion in its place.

Appellant L.C. Cration, Jr. appeals his conviction for unauthorized use of a motor vehicle, arguing that: (1) the trial court erroneously admitted extrinsic evidence of the complainant s prior inconsistent statement; and (2) the evidence is legally and factually insufficient to support appellant s conviction. We affirm.

I. Factual and Procedural Background

Appellant was arrested after police noticed he was driving a truck that had been reported stolen. The truck belonged to the Reverend Ben Arrington, the complainant.

A jury found appellant guilty. The trial court assessed appellant s punishment at six years confinement in the Texas Department of Criminal Justice, Institutional Division.

II. Issues Presented

  Appellant presents the following issues for review:

(1) Did the trial court reversibly err by admitting extrinsic evidence of a prior inconsistent statement when the witness unequivocally admitted that he made the statement?

(2) Is the evidence legally and factually sufficient to prove appellant did not have the effective consent of the owner to use the truck?

III. Admissibility of Evidence

  We review a trial court s decision to admit or exclude evidence for an abuse of discretion. Mozon v. State, 991 S.W.2d 841, 846 47 (Tex. Crim. App. 1999). In determining whether the trial court abused its discretion, we consider whether the court acted without reference to guiding rules and principles that is, whether the court acted arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App.1993). We must uphold the trial court s ruling so long as it is within the zone of reasonable disagreement. Wheeler v. State, 67 S.W.3d 879, 888 (Tex. Crim. App. 2002).

  In his first issue, appellant challenges the trial court s admission of Reverend Arrington s written statement that he had not given appellant permission to use his pick-up truck. At trial, the State called Reverend Arrington as a witness and he testified that appellant did not need permission to use the truck at the time relevant to this case. However, in response to the prosecutor s inquiry, Reverend Arrington admitted he had filed a written report with the Grimes County Sheriff s Department on June 12, 2001, stating appellant did not have permission to use his truck. Although Reverend Arrington admitted to making the written statement, he testified that he was sick at the time of trial and did not know whether appellant had permission to use the truck.[1] The trial court admitted Reverend Arrington s written statement into evidence. Appellant maintains that in doing so, the trial court violated Texas Rule of Evidence 613, which prohibits admission of an extrinsic writing to prove a prior inconsistent statement when the witness whose testimony is being impeached unequivocally admits to having made the prior inconsistent statement. See Tex. R. Evid. 613; McGary v. State, 750 S.W.2d 782, 787 (Tex. Crim. App. 1988).

  Assuming arguendo that the trial court erred by admitting extrinsic evidence of Reverend Arrington s prior inconsistent statement, we find any error in its admission harmless. Overruling an objection to the admission of evidence will not result in reversal when evidence of the same facts was admitted elsewhere. See Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998); Heidelberg v. State, 112 S.W.3d 658, 664 (Tex. App. Houston [1st Dist.] 2003, pet. filed) (holding alleged error in admitting evidence was rendered harmless by admission of same evidence elsewhere and by appellant s failure to complain on appeal about the admission of this other evidence). The record shows that Officer Helms of the Grimes County Sheriff s Department testified that Reverend Arrington reported to him that appellant had taken the truck without permission on the day in question. Because the evidence appellant challenges on appeal was also admitted through Officer Helms s testimony, any error in this challenged ruling by the trial court is harmless. See Leday, 983 S.W.2d at 718; Heidelberg, 112 S.W.3d at 664.

During the relevant part of the State s direct examination of Officer Helms, the trial court overruled objections by appellant s trial counsel to Officer Helms s testimony that Reverend Arrington told Officer Helms appellant had taken the truck without permission. Appellant has not assigned error or otherwise complained on appeal about the trial court s overruling of those objections. Therefore, we need not and do not address these trial objections by appellant to Officer Helms s testimony. See Wright v. State, 28 S.W.3d 526, 536 n.9 (Tex. Crim. App. 2000). Under the general rule, alleged error in admitting evidence is rendered harmless by admission of same evidence elsewhere. See Heidelberg, 112 S.W.3d at 664. There is no sound reason why it should matter whether the same evidence was admitted without trial objection or whether the same evidence was admitted over appellant s trial objections that were not carried forward on appeal by assignment of error. See id. Accordingly, we overrule appellant s first issue.

IV. Legal and Factual Sufficiency

In his second and third issues, appellant challenges the legal and factual sufficiency of the evidence to support his conviction. Our consideration of these challenges is governed by familiar standards of review.

In evaluating a legal-sufficiency challenge, we view the evidence in the light most favorable to the verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The verdict may not be overturned unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury, as the trier of fact, is the sole judge of the credibility of witnesses and of the strength of the evidence. Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). The question is not whether a rational jury could have entertained a reasonable doubt of guilt, but whether it necessarily would have done so. Swearingen v. State, 101 S.W.3d 89, 96 (Tex. Crim. App. 2003).

  When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence without the prism of in the light most favorable to the prosecution and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000). This concept embraces both formulations utilized in civil jurisprudence, i.e., that evidence can be factually insufficient if (1) it is so weak as to be clearly wrong and manifestly unjust or (2) the adverse finding is against the great weight and preponderance of the available evidence. Id. at 11. Under this formulation, we essentially compare the evidence which tends to prove the existence of a fact with the evidence that tends to disprove that fact. Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996). In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 648. Our evaluation should not intrude upon the fact finder s role as the sole judge of the weight and credibility given to any witness s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must consider and address the appellant s main argument for a finding of insufficiency. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Id. We find the evidence factually insufficient only when necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407.

When reviewing the legal and factual sufficiency of the evidence, the standards of review are the same for circumstantial and direct evidence. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999). Circumstantial evidence alone may be sufficient to support the jury s verdict. Id.

Appellant contends the evidence is legally and factually insufficient to prove he used Reverend Arrington s truck without consent. In support of these issues, appellant argues the State did not present any direct evidence that appellant lacked Reverend Arrington s consent. According to appellant, Reverend Arrington s written prior inconsistent statement, which was admissible only for impeachment purposes, was the only evidence that appellant lacked Reverend Arrington s consent to operate the truck.

A person commits the offense of unauthorized use of a motor vehicle if he intentionally or knowingly operates another s motor-propelled vehicle without the effective consent of the owner. Tex. Pen. Code 31.07(a). As set forth above, Reverend Arrington gave inconsistent testimony as to whether appellant had permission to use his truck. Initially, he testified that appellant did not need permission to use the truck on the day in question, and that appellant used the truck from time-to-time to transport and sell vegetables. Later in his testimony, however, Reverend Arrington testified that he did not know whether appellant had permission to use his truck at the time in question.

Reverend Arrington testified that he is 85 years old and has a bad memory. On cross-examination, Reverend Arrington admitted he reported to the police that appellant had taken his truck without permission. However, Reverend Arrington stated he mistakenly made the police report because he had forgotten that he had given appellant permission to use his truck.

The record shows that appellant served as a deacon at St. Martinville Baptist Church, where Reverend Arrington served as pastor. Appellant and Reverend Arrington also resided in the same neighborhood. During cross-examination, Reverend Arrington testified that he did not want to bring charges against appellant. He also conceded that he is very dependent on appellant and testified he was specifically dependent on appellant for help selling Reverend Arrington s produce, as well as for transportation and for help making some financial decisions. Reverend Arrington, however, stated that he was not trying to protect appellant by providing favorable testimony.

Contrary to appellant s argument that the State presented no evidence that appellant lacked effective consent, Officer Helms testified that Reverend Arrington told him appellant did not have permission to use the truck. Moreover, according to Officer Helms, Reverend Arrington did not give any indication that appellant had blanket permission to use the truck. Officer Helms testified that Reverend Arrington appeared to be of sound mind when he made the report. Although upset at the time, Reverend Arrington provided Officer Helms with a description of the truck and its license-plate number. Officer Helms testified that Reverend Arrington said appellant had absconded in the truck in the morning, but Reverend Arrington waited until evening to report the truck stolen to the police because he wanted to give appellant the benefit of the doubt.

In addition to Officer Helms s testimony, Officer Quigley of the Hempstead Police Department testified that Reverend Arrington reported the same truck stolen in Hempstead three days after reporting the truck stolen to Officer Helms. Officer Quigley testified that Reverend Arrington was clear-headed when he made his report in Hempstead. Reverend Arrington described his truck, provided its license-plate number, and told Officer Quigley in detail about the report he already had filed with Officer Helms in Grimes County. Reverend Arrington also reported that he believed the truck was parked in the parking lot of Brags, a Hempstead bar. Officer Quigley agreed to investigate this lead. Soon after speaking with Reverend Arrington, Officer Quigley saw appellant driving Reverend Arrington s truck on Highway 6.[2] Officer Quigley initiated a traffic stop and arrested appellant.

It was the jury s duty to resolve conflicting evidence in this case. See Anderson v. State, 701 S.W.2d 868, 872 73 (Tex. Crim. App. 1985); see also Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995) ( Reconciliation of conflicts in the evidence is within the exclusive province of the jury ). The jury had before it all of the relevant information concerning whether appellant had permission to use Reverend Arrington s truck. As fact finder, the jury had the duty to determine the credibility of the witnesses testimony and to decide the weight to be given the evidence. See Garza v. State, 633 S.W.2d 508, 514 (Tex. Crim. App. 1981); see also Carr v. State, 694 S.W.2d 123, 128 (Tex. App. Houston [14th Dist.] 1985, pet. ref d). Having carefully reviewed the record, we conclude there is sufficient evidence in the record from which a rational jury could have found beyond a reasonable doubt that appellant intentionally or knowingly used Reverend Arrington s truck without Reverend Arrington s effective consent. Accordingly, we reject appellant s challenge to the legal sufficiency of the evidence and overrule appellant s second issue. Moreover, because the jury reasonably could have concluded from the testimony of Reverend Arrington, Officer Helms, and Officer Quigley that appellant was using Reverend Arrington s truck without Reverend Arrington s effective consent, we cannot say the jury s finding to that effect is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Accordingly, we also reject appellant s challenge to the factual sufficiency of the evidence and overrule appellant s third issue.

Having overruled all of appellant s issues, we affirm the trial court s judgment.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Substitute Memorandum Opinion filed December 11, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

Do Not Publish Tex. R. App. P. 47.2(b).

[1] The record shows Reverend Arrington was elderly and in frail health at the time of trial.

[2] Officer Quigley testified that the truck was motor-propelled.