Jessie Allen Wilborn v. The State of Texas--Appeal from 241st District Court of Smith County

NO. 12 06 00258 CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

JESSIE ALLEN WILBORN, APPEAL FROM THE 241ST

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE SMITH COUNTY, TEXAS

MEMORANDUM OPINION

Jessie Allen Wilborn appeals his conviction for unauthorized use of a motor vehicle. Appellant raises four issues. We affirm.

Background

Global Foods employed sales people, including Appellant, to sell meat door to door in its refrigerated vans. Every morning the sales employees would leave the business s premises in Gregg County in a company van containing a refrigeration unit filled with meat. Sales employees would then peddle their wares wherever they chose throughout a two hundred mile radius. At the end of the sales day, they were to return the vehicles to the business premises, where the sales supervisor, David Cook, would meet them. Cook testified that the company policy of returning the vehicles every evening was explained to the employees, and that the policy was understood by the employees.

On January 23, 2006, Appellant left in a company vehicle at about ten in the morning to begin another day of selling meat door to door. Appellant failed to return at the end of the day. Cook waited for Appellant to return until nine that evening. Cook returned to the office the next morning, but Appellant still had not returned the vehicle. Nor had Appellant contacted Cook or anyone else to advise of any problems or to explain why he had not returned the vehicle. Cook contacted his supervisor, who told him to report the missing vehicle to the police. Cook made a report, and the City of Longview officer who took the report entered a stolen vehicle report into state and national police computer databases.

A City of Tyler police officer found the vehicle parked at a Tyler hotel at about 10:00 a.m. the next day. The officer spoke to the hotel employees and was told that Appellant had checked into the hotel at 2:00 a.m. that morning. The officer went to Appellant s hotel room and knocked on the door. Appellant opened the door and identified himself. The officer asked Appellant if he knew why they were there, and Appellant responded, [P]robably because [I] didn t bring the van back. The officers arrested Appellant and searched the hotel room. They recovered a crack pipe from the bathroom, a Chore Boy, which is a copper scouring pad that is used as a filter for a crack pipe, and two rocks of crack cocaine.

A Smith County grand jury indicted Appellant for the felony offense of unauthorized use of a motor vehicle. The grand jury also alleged in the indictment that Appellant had twice before been convicted of felony offenses. Appellant pleaded not guilty, and a jury trial was held. The jury found Appellant guilty. In a separate punishment hearing, the jury found the two enhancement paragraphs to be true, and assessed punishment at twenty years of incarceration. This appeal followed.

Sufficiency of the Evidence

In his first and second issues, Appellant contends the evidence was legally and factually insufficient to support the conviction for unauthorized use of a motor vehicle.

Standard of Review

  Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315 16, 99 S. Ct. 2781, 2786 87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App. San Antonio 1999, pet. ref d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Sanders v. State, 119 S.W.3d 818, 820 (Tex. Crim. App. 2003); Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the light most favorable to the jury s verdict. Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.

We review the factual sufficiency of the evidence to determine whether, considering all the evidence in a neutral light, the evidence supporting the conviction is too weak to withstand scrutiny or the great weight and preponderance of the evidence contradicts the jury s verdict to the extent that the verdict is clearly wrong and manifestly unjust. See Watson v. State, 204 S.W.3d 404, 414 15, 417 (Tex. Crim. App. 2006). We then consider all of the evidence that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).

Our role is that of appellate review, and the fact finder is the judge of the weight and credibility of a witness s testimony. Wesbrook v. State, 29 S.W.3d 103, 111 12 (Tex. Crim. App. 2000). The fact finder may choose to believe all, some, or none of a witness s testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). When we review the factual sufficiency of the evidence, we are authorized to disagree with the jury s determination, even if probative evidence exists that supports the verdict. See Clewis v. State, 922 S.W.2d 126, 133 (Tex. Crim. App. 1996). But our evaluation should not substantially intrude upon the jury s role as the judge of the weight and credibility of witness testimony. See Santellan, 939 S.W.2d at 164.

Analysis

A person commits the offense of unauthorized use of a motor vehicle, as applicable here, if he intentionally or knowingly operates a motor propelled vehicle without the effective consent of the owner. Tex. Penal Code Ann. 31.07 (Vernon 2006). Effective consent includes consent by a person legally authorized to act for the owner. Tex. Penal Code Ann. 1.07(a)(19) (Vernon 2006).

Appellant concedes that Cook was the owner of the vehicle for the purpose of this prosecution. He argues that the State failed to prove that he exceeded the authority Cook had given him to use the vehicle because Cook was at times unwilling to say that Appellant knew all the rules about when he could keep the car and because the rules regarding return of the company vehicles were not written.

In a related argument, Appellant contends that the State s evidence fails because there was no evidence that Appellant operated the vehicle after the effective consent ended. Specifically Appellant argues there is no evidence that he operated the vehicle, or operated it in Smith County, after the effective consent to drive the vehicle ended.

There was evidence to show that there were limits on Appellant s use of the vehicle and that those limits had been communicated to Appellant. Appellant s supervisor, Cook, testified that he had told Appellant that, although there was no specific time to return the vehicle, he was to return the vehicle that evening when [he] finished selling. Cook testified that he waited at the business location in case Appellant came in late, or called in because of mechanical trouble. Cook went to work the next morning, and Appellant still had not returned and had not called. Cook stated that Appellant had Cook s cell phone number and that Appellant had not called him. Cook testified that Appellant did not have permission to keep the vehicle overnight and that Appellant never called him to report a problem and did not return the vehicle.

The consent given to Appellant to drive a vehicle owned by Global Foods was not open ended. The clear rule was to return the vehicle to the Global Foods site in Gregg County at the close of the day. Global Foods allowed the drivers to use their vehicles to sell Global Foods products, not for personal excursions. Further, if there was mechanical trouble preventing the return of the vehicle, a driver could call the office, or could call Cook on his cell phone. Therefore, the consent Global Foods gave its drivers ended in the evening, and the consent was limited to allowing the drivers to pursue Global Foods business interests.

When Appellant deviated from the parameters of Global Foods consent to use the vehicle to sell their products, and chose to drive elsewhere for other purposes, he exceeded the authority given to him to use the vehicle. Appellant recognized this when he told the police that he thought they were there for him because he didn t bring the van back.

With respect to Appellant s argument that the evidence did not show he operated the vehicle in Smith County after the effective consent expired, we think it a reasonable inference from the evidence that a person who checks into a hotel at 2:00 a.m. drove the vehicle that he had previously been driving at or about the time he checked into the hotel. The hotel was in Smith County, and the consent given to operate the vehicle had expired by 2:00 a.m. in the morning, so it was reasonable for the jury to conclude that Appellant operated the vehicle in Smith County after his permission to do so had expired.

With respect to our factual sufficiency review, there is some evidence that could contradict the verdict. That evidence includes Cook s later equivocation as to exactly when Appellant was told of the rules requiring him to return the vehicle, as well as Cook s being unable to unequivocally state he was certain he had forwarded the office s calls to the main office when he left the night Appellant failed to return the vehicle. However, the jury s role is to weigh the evidence and resolve inconsistencies of testimony. There was no evidence directly contradicting Cook s testimony that the employees knew when to return the vehicles, nor was there evidence contradicting the inference that Appellant operated the vehicle in Smith County after his permission to do so had expired. The jury evidently believed Cook s testimony that Appellant knew to return the vehicle that night. Their resolution of these issues is reasonable and is not clearly wrong or manifestly unjust.

Considering the evidence in light of the appropriate standards of review, we conclude the evidence is both legally and factually sufficient to support Appellant s conviction. Appellant s first and second issues are overruled.

Ineffective Assistance of Counsel

In his third issue, Appellant contends that his trial attorney s performance fell below prevailing professional norms and that his trial counsel s ineffective assistance contributed to his conviction.

Standard of Review

The standard for testing claims of ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and adopted for Texas constitutional claims in Hernandez v. State, 726 S.W.2d 53, 56 57 (Tex. Crim. App. 1986). To prevail on his claim of ineffective assistance, an appellant must show that his attorney s representation fell below the standard of prevailing professional norms, and that there is a reasonable probability that, but for the attorney s deficient performance, the result of the trial would have been different. Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

Our review of counsel s representation is highly deferential, and we indulge a strong presumption that counsel s conduct falls within a wide range of reasonable representation.Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Tong, 25 S.W.3d at 712. We will not use hindsight to second guess counsel s trial strategy, nor will the fact that another attorney might have pursued a different course support a finding of ineffectiveness. Blott v. State, 588 S.W.2d 588, 592 (Tex. Crim. App. 1979); Harner v. State, 997 S.W.2d 695, 704 (Tex.App. Texarkana 1999, no pet.). Finally, any allegation of ineffectiveness must be firmly founded in the record, and the record must affirmatively demonstrate the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999).

Discussion

Appellant contends that his trial counsel s representation was ineffective because of one flaw. Specifically, Appellant argues that it was ineffective assistance of counsel for his attorney to ask the arresting officer if Appellant had given a reason for not returning the vehicle. As a result of that question, the trial court permitted the State, under Rule of Evidence 806,1 to introduce Appellant s prior convictions.2 However, other than two short paragraphs complaining of trial counsel s action, Appellant provides no legal argument or case law supporting his position. Therefore, the issue is waived. See Tong, 25 S.W.3d at 710 ( In failing to provide any relevant authority . . . we find the issue to be inadequately briefed. );Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000); see also Tex. R. App. P. 38.1(h).

Even had Appellant not waived this issue due to inadequate briefing, he would not prevail. The Strickland standard of reviewing trial counsel encompasses two relevant considerations. First, we evaluate trial counsel s performance under a totality of the representation standard, rather than for an isolated act or omission. Second, appellate review of trial counsel s representation is highly deferential and presumes that counsel s actions fell within the wide range of reasonable and professional assistance. We will defer to counsel s decisions where there is the possibility that the conduct could have been grounded in legitimate trial strategy. See Strickland, 466 U.S. at 689, 104 S. Ct. at 2052; Chambers v. State, 903 S.W.2d 21, 32 33 (Tex. Crim. App. 1995)( [A] a court must indulge a strong presumption that counsel s conduct falls within the wide range of reasonable professional assistance; that is the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. ).

In the present case, Appellant s trial attorney explained during trial that he asked the question because the State had asked a similar question, which he believed had opened the door for him to further inquire without allowing the State to respond under Rule 806. This was sound trial strategy in the heat of a hard fought trial. Appellant has not sustained his burden to show that counsel s actions deviated from prevailing norms. Appellant s third issue is overruled.

Admission of Evidence

In his fourth issue, Appellant argues that the trial court erred when it admitted evidence of illegal drugs and drug paraphernalia found in Appellant s motel room during his arrest because, he argues, the evidence was not relevant. Appellant cites no case law in support of this contention. Therefore, the issue is waived. See Tong, 25 S.W.3d at 710 ( In failing to provide any relevant authority, . . . we find the issue to be inadequately briefed. );Wyatt, 23 S.W.3d at 23 n.5; see also Tex. R. App. P. 38.1(h).

Even if the issue is not waived, the trial court did not reversibly err. We review a trial court s ruling on the admission of evidence for an abuse of discretion. See Montgomery v. State, 810 S.W.2d 372, 386 87 (Tex. Crim. App. 1991) (op. on reh g). The evidence was seized by the arresting officers contemporaneously with Appellant s arrest during the initial contact with Appellant in his motel room, in plain sight, or as a result of his arrest and subsequent search. The trial court determined that the evidence was relevant and that the probative value of the evidence outweighed its prejudicial impact. Tex. R. Evid 401, 403. This ruling is not outside the zone of reasonable disagreement. See id. at 391. We overrule Appellant s fourth issue.

Disposition

Having overruled Appellant s four issues, we affirm the judgment of the trial court.

SAM GRIFFITH

Justice

Opinion delivered August 22, 2007.

Panel consisted of Worthen, C.J., Griffith, J., Hoyle, J.

(DO NOT PUBLISH)

1 Rule 806. Attacking and Supporting Credibility of Declarant

When a hearsay statement, or a statement defined in Rule 801(e)(2)(C), (D), or (E), or in civil cases a statement defined in Rule 801(e)(3), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, offered to impeach the declarant, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross examination. Tex. R. Evid. 806.

2 Appellant s counsel asked the officer if Appellant had said anything about mechanical problems with the vehicle. This was a narrowing question based on an earlier question from the State as to whether Appellant had offered an explanation for not returning the vehicle. The officer said that he did not recall any statement. Appellant s counsel then asked if such a statement may have been made. The officer testified I don t know. It could have happened. It was on this basis that the trial court determined that a statement by Appellant had been admitted, and that his criminal history became admissible to impeach his credibility. Appellant does not argue that the trial court ruling is in error.