Opinion
No. 05-11-01035-CR No. 05-11-01036-CR
02-08-2012
KING DAVID PEREZ, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and AFFIRM as MODIFIED and Opinion Filed February 8, 2012
On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause Nos. F09-24411-I, F10-39966-I
MEMORANDUM OPINION
Before Justices Bridges, O'Neill, and Fillmore
Opinion By Justice Fillmore
King David Perez appeals from his convictions for engaging in organized criminal activity and unauthorized use of a motor vehicle (UUMV). In two issues, Perez contends the written judgment in the organized criminal activity case should be modified to recite the correct name for the State's attorney, and the evidence in the UUMV case is legally insufficient to support the conviction. We modify and affirm as modified the trial court's judgment in the organized criminal activity case, and we affirm the trial court's judgment in the UUMV case. The background of these cases and the evidence admitted at trial are well known to the parties, and we therefore limit recitation of the facts. We issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4 because the law to be applied in the case is well settled. Background
Perez waived a jury and pleaded guilty to engaging in organized criminal activity. See Tex. Penal Code Ann. § 71.02(a) (West 2011). Pursuant to a plea agreement, the trial court deferred adjudicating guilt, placed Perez on ten years' community supervision, and assessed a $2,500 fine. The State later moved to adjudicate guilt, alleging Perez violated several conditions of community supervision. The trial court found the allegations true, adjudicated Perez guilty, and assessed punishment at ten years' imprisonment, probated for ten years.
Subsequently, the State moved to revoke Perez's community supervision, alleging Perez violated his community supervision by committing a new offense, UUMV. During a joint revocation and plea hearing, Perez pleaded not true to the allegation in the motion to revoke and pleaded not guilty to UUMV. See id. § 31.07(a).
Testimony of Tim Murnan
Tim Murnan, rental manager for Penske Truck Leasing, testified that on October 15, 2010, Perez signed a one-day rental contract for a vehicle. The contract specified the return date as October 16, 2010. According to Murnan, sales clerks typically write rental contracts for the amount of time requested by the customer, and the date of return can be altered at the time the renter takes possession of the vehicle, if necessary. Perez did not return the vehicle on October 16, 2010, as required by the contract. When the credit card Perez used to rent the vehicle was declined for an additional day's fee, the company's computer system automatically issued a certified demand letter asking for the vehicle's return. Murnan testified he had telephone conversations with Perez on three separate occasions over the next several days attempting to regain possession of the vehicle. In one conversation, Murnan advised Perez that a demand letter for the return of the vehicle had seen sent to the address Perez provided when he rented the vehicle. According to Murnan, Perez promised to return the vehicle. At no time did Perez indicate he wanted to keep the vehicle beyond the return date specified in the contract. Murnan testified he did not know whether Perez had rented a vehicle from the company before October 15, 2010. When the vehicle was not returned, Murnan reported it stolen to the police. In another conversation with Perez, Murnan told Perez he reported the vehicle as stolen to the police, and again asked Perez to return the vehicle. Perez stated he was afraid to drive the vehicle back to the company because it had been reported stolen. Murnan testified the vehicle was eventually towed from a location in South Dallas after being abandoned.
Testimony of King David Perez
Perez testified he never “had any criminal intent” to take the vehicle, and he believed he was authorized to keep the vehicle beyond the contractual return date because he had done so in the past. Perez testified that between 2007 and October 2010, he rented vehicles from Penske Truck Leasing on over forty occasions. He used a prepaid debit card that he “loaded with money” to rent the vehicles, and the sales clerk always allowed him to pay for the vehicle later if he kept it beyond the contractual return date. Perez acknowledged he rented the vehicle for one day, but said the sales clerk told him to call the company if he wanted to keep the vehicle longer. According to Perez, the sales clerk also said the vehicle was scheduled for a subsequent rental in “a couple of weeks.” Perez admitted he did not timely call the company to ask to extend the rental period and did not return the vehicle as specified in the contract.
Perez testified that he talked with Murnan on the telephone on three occasions and told Murnan he wanted to extend the rental period. According to Perez, Murnan agreed to the extension if Perez could pay the additional charges when he returned the truck. Perez admitted that Murnan told him the truck had been reported stolen because the “credit card didn't go through.” Perez intended to return the vehicle the following weekend when he had gathered sufficient funds to pay charges related to the extended rental period. After Perez learned the vehicle was reported stolen, he did not want to drive it.
Trial Court Judgment
The trial court found the probation violation allegation true and also found Perez guilty of UUMV. After revoking Perez's community supervision, the trial court assessed punishment at ten years' imprisonment for engaging in organized criminal activity. The judge sentenced Perez to two years' confinement in a state jail for the UUMV offense.
Modification of Judgment
In his first issue, Perez contends the judgment revoking community supervision in cause no. 05-11-01035-CR should be modified to reflect the correct name for the State's attorney. The State agrees the judgment should be modified as requested by Perez.
The record shows Christopher David Young represented the State at the revocation hearing. The trial court's judgment revoking community supervision, however, recites the State's attorney as Rachael Jones. Thus, the judgment is incorrect. We sustain Perez's first issue. We modify the trial court's judgment revoking community supervision to show Christopher David Young as the attorney for the State. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
We note that the trial court's judgment revoking community supervision recites Perez pleaded true to the allegations in the motion to revoke. The record, however, shows Perez entered a plea of not true to the allegations in the motion to revoke. On our own motion, we modify the judgment revoking community supervision to show Perez pleaded not true to the motion to revoke. Id. Insufficient Evidence
In cause no. 05-11-01036-CR, Perez contends the evidence is legally insufficient to support the UUMV conviction because he believed he was authorized to operate the vehicle. Perez asserts he did not intentionally or knowingly operate the vehicle without the owner's consent, and there is no evidence he did not have the owner's consent. The State responds that the evidence is legally sufficient to support the UUMV conviction.
In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lucio v. State, 351 S.W.3d 878, 894-95 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326.
The State was required to prove beyond a reasonable doubt that Perez intentionally or knowingly operated another's motor vehicle without the effective consent of the owner. Tex. Penal Code Ann. § 31.07(a). Thus, the State was required to show not only that Perez intentionally or knowingly operated the vehicle, but that Perez knew he did not have the owner's consent. McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989).
Testimony that the owner did not give consent to operate his vehicle can be sufficient to support a finding that an appellant knew he did not have consent to operate the vehicle. Id. at 604-05. When an appellant asserts a mistake-of-fact defense concerning the circumstances surrounding the operation of a vehicle, the fact finder is free to reject the evidence. Id.; see also Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (holding trier of fact is the judge of facts, credibility of witnesses, and weight to be given testimony).
Here, the trial court heard Murnan's testimony that Perez signed a contract for a one-day truck rental, and Perez failed to return the vehicle on the date specified in the contract. According to Murnan, he had several telephone conversations with Perez during which he requested that Perez return the vehicle and Perez failed to indicate he wanted to extend the rental return date. When Murnan informed Perez a demand letter for the return of the vehicle was mailed to the address Perez previously provided, Perez stated he would return the vehicle. Sometime later, Murnan informed Perez that he had reported the vehicle stolen. Perez still did not return the vehicle.
Perez, conversely, testified he told Murnan he wanted to extend the rental return date, and that when he initially rented the vehicle, the sales clerk told Perez he could call the company and extend the rental return date if needed. Perez testified he did not intentionally or knowingly use the vehicle without Murnan's consent, but acknowledged he did not timely call the company and ask that the rental return date be extended. Perez also testified he knew he would be required to pay the additional charges when he returned the vehicle. Perez took “full responsibility for any and all delinquent charges owed to Penske” due to his failure to communicate with the company, admitting he had failed to pay the additional charges on the truck.
It was the trial court's role, as the fact finder in this case, to reconcile conflicts in the evidence and judge the witnesses' credibility. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); Lee v. State, 952 S.W.2d 894, 897 (Tex. App.-Dallas 1997, no pet.) (en banc). We conclude the evidence is sufficient to support Perez's UUMV conviction. We resolve Perez's second issue against him. Conclusion
In cause no. 05-11-01035-CR, we modify the trial court's judgment to correct the name of the attorney who represented the State and to show a plea of not true to the motion to revoke, and affirm as modified. In cause no. 05-11-01036-CR, we affirm the trial court's judgment.
ROBERT M. FILLMORE
JUSTICE
Do Not Publish
Tex. R. App. P. 47
111035F.U05