Bennie Bernard Johnson v. The State of Texas--Appeal from 272nd District Court of Brazos County

IN THE

TENTH COURT OF APPEALS

No. 10-02-160-CR

BENNIE BERNARD JOHNSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 272nd District Court

Brazos County, Texas

Trial Court # 29,077-272

O P I N I O N

A jury found Bennie Bernard Johnson guilty of the unauthorized use of a motor vehicle. After finding two enhancement paragraphs to be true, the jury assessed punishment at 15 years in prison. Johnson brings two issues on appeal. We affirm.

Background

William Melcher, a student at Blinn College in Bryan/College Station, Texas, awoke one school morning to find his 1994 Chevrolet pickup missing from its parking space at his apartment complex. In its place, he found broken glass. Two days later, the pickup was located. Johnson was driving it. The driver s side window had been broken out and the majority of the glass hidden under the floor mats. The custom racing steering wheel had been replaced by a vice grip. Exterior trim was missing and the frame was bent. The insurance company declared the pickup a total loss.

Continuance

In his first issue, Johnson contends the trial court erred in denying his oral motion for continuance during trial when his subpoenaed witness, Faye Sweeps, did not appear. The Court of Criminal Appeals has held that when an unsworn, oral motion for continuance is made, even mid-trial, it preserves nothing for review. Matamoros v. State, 901 S.W.2d 470, 478 (Tex. Crim. App. 1995); see also Potter v. State, 74 S.W.3d 105, 110 (Tex. App. Waco 2002, no pet.). Johnson presented an oral, unsworn motion for continuance during his trial. He has preserved nothing for review. Thus, his first issue is overruled.

Sufficiency of the Evidence

In his second issue, Johnson contends the evidence is legally insufficient to support his conviction. Specifically, he argues that the State did not prove he knew he did not have the owner s consent to drive the pickup.

Law

A "legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence." Margraves v. State, 34 S.W.3d 912, 917 (Tex. Crim. App. 2000) (citing Cardenas v. State, 30 S.W.3d 384, 389 (Tex. Crim. App. 2000)). Instead, a legal-sufficiency review calls upon the reviewing court to view the relevant 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 crime beyond a reasonable doubt. Id. See also Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979) (emphasis in original); Mason v. State, 905 S.W.2d 570, 574 (Tex. Crim. App. 1995).

One of the elements to be proven by the State in a prosecution for the unauthorized use of a motor vehicle is the defendant s knowledge that he did not have the consent of the owner to operate the vehicle in question. Gardner v. State, 780 S.W.2d 259, 263 (Tex. Crim. App. 1989). From a legal sufficiency standpoint, the owner s testimony that he did not give anyone consent to operate his vehicle proves that a defendant knew he did not have the owner s consent. McQueen v. State, 781 S.W.2d 600, 604-05 (Tex. Crim. App. 1989). If the defendant raises evidence of a mistake of fact concerning the circumstances surrounding his operation of a vehicle, i.e., that he believed the owner to be someone else and had that person s permission to operate the vehicle, the factfinder is free to reject this evidence. Id. at 605.

Evidence

On appeal, Johnson does not dispute that Melcher was the owner of the pickup in which Johnson was apprehended. Melcher testified that he did not give Johnson or anyone else permission to drive his pickup. Johnson contests that the State proved he knew he did not have Melcher s permission to drive the pickup.

Johnson contended at trial that he thought Faye Sweeps was the owner of the pickup and that he had no reason to doubt her authority to loan him the pickup so he could attend a scheduled appointment with his parole officer. He also contended he had no reason to suspect the pickup was stolen.

In the light most favorable to the verdict, the evidence established that Johnson did not have an appointment with his parole officer on October 9, the day he was stopped. He had already missed his appointment scheduled for October 2. Johnson also had Melcher s credit card in his wallet.

Johnson initially named Lawana Martinez as the owner of the pickup. He later told the police that Sweeps told him Juan Martinez owned the pickup. He told the trial court judge in a letter that Sweeps said she owned the pickup. He made a query to the judge whether Sweeps knew who the owner was.

Sweeps was a known drug user and was said to be unreliable. She also had a reputation for driving other person s vehicles and had a long criminal history. Johnson had a previous conviction for burglary of a habitation, two convictions for burglary of a motor vehicle, and a conviction for possession of a controlled substance/tampering or fabricating evidence.

At the time Johnson borrowed the pickup, it had no steering wheel-- a vice grip served as its replacement, and the driver s side window was missing. Shards of broken glass were still visible in the upper window frame. Bits of glass were prevalent in the pickup cab, but the majority of the glass was covered by floor mats. The steering column was broken. Johnson could start the pickup without a key but was told not to completely shut it off or it could not be started again.

Application

The evidence was sufficient to support a finding that Johnson knew he was operating the pickup without the owner s consent. The jury was free to reject Johnson s explanation. His second issue is overruled.

Conclusion

The trial court s judgment is affirmed.

TOM GRAY

Justice

Before Justice Vance,

Justice Gray, and

Senior Justice Hill (Sitting by Assignment)

Affirmed

Opinion delivered and filed August 20, 2003

Do not publish

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