Nathaniel Childers v. The State of Texas--Appeal from 54th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-93-264-CR

NATHANIEL CHILDERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 54th District Court

McLennan County, Texas

Trial Court # 93-238-C

O P I N I O N

Nathaniel Childers appeals his conviction for unauthorized use of a motor vehicle. // A jury found him guilty, and the court assessed punishment, enhanced by one prior felony conviction, at fifteen years in prison. In two points of error, Childers attacks the sufficiency of the evidence to support his conviction and argues that the trial court committed fundamental error in failing to instruct the jury on mistake of fact. We affirm.

In point one Childers contends that the evidence is legally insufficient to sustain his conviction for unauthorized use of a motor vehicle. In reviewing the legal sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. // Specifically, Childers argues that there was insufficient evidence to establish that he knew he did not have the consent of the owner to operate the vehicle he was driving at the time of his arrest.

The offense of unauthorized use of a motor vehicle encompasses two conduct elements. // The offense not only requires "forbidden conduct," but also knowledge of the "attendant circumstances" of the offense. // The "forbidden conduct" is the knowing operation of the vehicle. // In order to have knowledge of the "attendant circumstances", the defendant must be aware that the operation of the vehicle is without the owner's consent. // As a result, we must review the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found, beyond a reasonable doubt, that Childers knew he did not have the effective consent of the owner to operate the vehicle. //

Russell Giles, a used car dealer in Waco, testified that she purchased a Pontiac Grand Prix on September 9, 1992. Giles sent the vehicle to a nearby detail shop but had to tow the car back to her lot that afternoon because the keys "turned up missing" while the vehicle was being cleaned. According to Giles, the car was left locked inside the fenced car lot that evening. The next morning, after receiving a call from the Waco Police Department, she went to check on her car lot. She found that the fence had been cut from top to bottom with wire cutters and the Grand Prix was gone. When the vehicle was returned to her by the police, it had a set of keys in it, but Giles could not remember whether they worked in the Grand Prix. According to Giles, the turn signal switch was torn off the steering column. Giles testified that she did not give Childers or anyone else permission to drive the Grand Prix on either September 9 or 10. Finally, she testified that she had seen Childers "hang out" at detail shops, including the one across the street from her office.

Officer Gilberto Limon, a Waco police officer, testified that in the early morning hours of September 10 he saw a vehicle with an expired vehicle registration sticker being driven by a man who was not wearing a seat belt. He activated his overhead lights and stopped the vehicle. According to Limon, as he got out of his patrol car, both the driver, whom he identified as Childers, and the passenger got out of the Pontiac Grand Prix and started to approach him. Childers was talking loudly to the officer. Limon testified that he saw a glove on Childers' right hand, which was holding a white piece of paper. After two other officers arrived, Limon asked Childers what he was holding in his hand. Childers then "bolted and ran." The officers caught Childers after chasing him for a block-and-a-half down an alleyway. According to Limon, when he asked Childers whether he owned the car, Childers responded that he had purchased it the day before, and that he had the title to the vehicle, but it was not with him. Limon also testified that Childers initially gave him a fictitious name. Furthermore, Childers claimed that he did not know the identify of his passenger, who had disappeared by the time they returned to the scene. Limon found two screw drivers in the vehicle. Also, the steering column was "partially busted, as if somebody was tampering with" it. Additionally, the keys in the ignition switch did not work on the vehicle. On cross-examination Limon testified that the car was probably started with the two screw drivers and the keys in the ignition switch were there to avoid suspicion in case a police officer came.

Stephen January, an officer with the Waco Police Department, testified that he assisted Limon in Childers' arrest. According to January, Childers was holding something that looked like a white cloth in his hand. Although January could not tell whether Childers had something wrapped in the cloth, he could have possibly concealed a pair of wire cutters in it. January also testified that the keys in the ignition switch did not operate the vehicle.

Unlike the facts of the case in Herbert v. State, // the attendant circumstances surrounding Childers' operation of the vehicle, as well as his claimed ownership of the vehicle and his attempt to conceal his true identity, were such that any rational trier of fact could have found beyond a reasonable doubt that Childers knew he did not have the effective consent of the owner to operate the vehicle. // Accordingly, we overrule point of error one.

In point two Childers contends that the trial court committed fundamental error in failing to instruct the jury on mistake of fact. According to Childers, his trial counsel's strategy was directed at raising the mistake-of-fact defense. Childers' called Carl Daniel to testify that on September 10 he saw a man "turn over the vehicle" to Childers at the Parkside apartments. The man wanted Childers to rent the Grand Prix, and Daniel saw Childers drive off in the vehicle. On cross-examination Daniel testified that he would not rent a car from someone he had never seen before. He also acknowledged that there are a number of stolen cars around the Parkside apartments and that "they get rented out a lot." Because it is not uncommon for a person who lives at Parkside to rent a car from someone else who lives there, Daniel did not think anything unusual about Childers renting such a car.

Clifton Rivers, a resident of the Parkside apartments, testified that he saw Childers rent the Pontiac Grand Prix for twenty dollars and drive off. According to Rivers, the vehicle's engine was already running when Childers got in. When asked on cross-examination whether one "can rent stolen cars pretty easy in that area," Rivers responded, "They come by all the time."

Finally, Childers called Ruby Diles, also a resident of Parkside, to testify that it is a common practice to rent cars from other people at Parkside. On cross-examination, Diles testified that she had no idea whether "a lot of those cars that are rented out there are stolen."

Defense counsel expressly stated that he had no objection to the court's charge to the jury. On appeal, however, Childers argues that the trial court's error in failing to instruct the jury on mistake of fact was so egregious and created such harm that it denied him the right to a fair and impartial trial. // A mistake of fact instruction may be proper in an unauthorized use of a motor vehicle case when it relates to the "attendant circumstances" of the crime. // Specifically, such an instruction is deemed proper when the defendant alleges that he has been given permission to operate the vehicle by a third party he believes to be the owner. // In Gardner, the appellant testified that he borrowed the stolen vehicle from a friend and that he believed the friend was the true owner of the vehicle. // Furthermore, the arresting officer in Gardner testified that, when questioned about the vehicle, the appellant claimed to have borrowed it from a friend. // In this case, however, Childers did not testify or offer any other evidence that he believed the vehicle belonged to the person from whom he obtained the vehicle. More importantly, the arresting officer testified that Childers claimed to be the titled owner of the vehicle, a claim not supported by the three defense witnesses. Finally, we note that the testimony of the witnesses called on Childers' behalf failed to raise any evidence that he formed a reasonable belief that the man from whom he rented the vehicle was the true owner. Two of the witnesses acknowledged that it was common practice in that area to rent stolen vehicles, and the third said that she had no idea whether such cars were stolen. We hold that, because the defense of mistake of fact was not raised by the evidence, the trial court did not err in refusing to instruct the jury on it. // However, even if the charge was erroneous, the error was not so egregious nor did it create such harm that Childers did not have a fair and impartial trial. Both parties' closing arguments were consistent with the proposition that the State had to prove that Childers knew he did not have the effective consent of the owner to operate the vehicle in order to obtain a conviction. // Accordingly, we overrule point of error two.

We affirm the judgment.

BOBBY L. CUMMINGS

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 8, 1994

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