Donald Steven Childs v. The State of Texas--Appeal from 361st District Court of Brazos County

AFFIRMED 26 APRIL 1990

NO. 10-89-262-CR

Trial Court

# 18,833-361

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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DONALD STEVEN CHILDS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

* * * * * * * * * * * * *

From 361st Judicial District Court

Brazos County, Texas

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O P I N I O N

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This is an appeal by defendant Childs from conviction for Unauthorized Use of a Motor Vehicle, for which he was assessed 5 years confinement in the Institutional Division of the Texas Department of Criminal Justice; with imposition of sentence suspended; probation for 2 years; and a $500 fine.

Defendant was indicted for unauthorized use of a motor vehicle, alleged to have occurred on June 9, 1989, "without the effective consent of the owner Chadwick Bohne." Defendant initially plead guilty, but during trial withdrew his plea of guilty and plead not guilty. Trial to a jury resulted as noted above.

Defendant appeals on 1 Point: "The evidence is insufficient to sustain a conviction for unauthorized use of a motor vehicle."

The evidence shows that on June 9, 1989, defendant was arrested in a car that had been reported stolen. The vehicle had an altered vehicle identification number. The police determined the car belonged to Chad Bohne. Bohne testified the last time he had seen the vehicle was in February 1989; that he had given no one permission to operate the vehicle on June 9, 1989; and that if anyone was driving the vehicle on June 9, 1989, it was without his effective consent.

On cross-examination, Bohne testified the car disappeared in mid-February 1989; that in April 1989, a settlement was had with his insurance carrier; that title to the vehicle was transferred to the insurance carrier; and that he was not the owner on June 9, 1989.

On redirect examination Bohne testified that he had a greater right to possession of the vehicle than did defendant on June 9, 1989.

Section 31.07 Texas Penal Code provides: "Unauthorized Use of a Motor Vehicle (a) a person commits an offense if he intentionally or knowingly operates another's * * , motor propelled vehicle without the effective consent of the owner."

Defendant contends that because Bohne was not the owner of the vehicle on June 9, 1989, his lack of consent was ineffectual and that the evidence is insufficient to sustain the conviction.

The indictment is not fundamentally defective and was not otherwise excepted to. Bogany v. State, CA (Houston 1), 646 S.W.2d 534.

Defendant's point, "the evidence is insufficient to sustain a conviction for unauthorized use of a motor vehicle," is not broad enough to cover a complaint that the allegations of the indictment are at variance with the proof concerning ownership of the vehicle, and indeed defendant makes no such complaint.

The facts of this case show: (1) defendant was driving a stolen vehicle when he was arrested on June 9, 1989; (2) the VIN on the vehicle had been changed; (3) Bohne was the owner in mid-February at the time the vehicle was stolen; (4) Bohne did not give consent to defendant to operate the vehicle; (5) Bohne's insurance carrier paid Bohne for the vehicle in April 1989, took title to the vehicle, and was owner of the vehicle on June 9, 1989.

On appeal the reviewing court must consider the evidence in the light most favorable to the verdict. Griffin v. State, Ct.Crim.Appls, 614 S.W.2d 155; Girard v. State, Ct.Crim.Appls, 631 S.W.2d 162.

Gardner v. State, Ct.Crim.Appls, 780 S.W.2d 259, holds that in a prosecution under Section 31.07, the State must prove that defendant had knowledge that he did not have the consent of the owner to operate the vehicle in question.

In this case defendant was arrested in possession of a recently stolen vehicle. Defendant's unexplained possession of the stolen vehicle gave rise to a presumption of knowledge the vehicle was stolen; that he did not have consent of the owner to operate the vehicle; and of the guilty knowledge necessary to convict defendant under Section 31.07 of the Penal Code. There is nothing in this record to rebut such presumption. Proctor v. State, CA (Dallas) DR Ref, 767 S.W.2d 473.

Under the foregoing authorities, the evidence is sufficient for a rational trier of fact to conclude that the defendant had knowledge that he was operating the vehicle on June 9, 1989, without consent of the owner insurance company.

The evidence is sufficient to sustain the conviction.

Point 1 is overruled.

AFFIRMED

FRANK G. McDONALD

DO NOT PUBLISHChief Justice (Retired)

[Participating: Chief Justice Thomas, Justices Hall and Means and Chief Justice McDonald (Retired)]