No. 05-02-00882-CR
Opinion Filed July 8, 2003 Do Not Publish
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F02-39872-SK. AFFIRM as MODIFIED
Before Justices BRIDGES, O'NEILL, and FITZGERALD.
Opinion By Justice FitzGerald.
Lewis Wayne James appeals his conviction for unauthorized use of a motor vehicle. After finding appellant guilty, the trial court assessed appellant's punishment at two years in the state jail and placed appellant on community supervision for three years. Appellant brings four points of error contending the evidence is legally and factually insufficient to support his conviction. We modify the trial court's judgment to delete a fine improperly included in the judgment, and we affirm the trial court's judgment as modified.
FACTUAL BACKGROUND
In June 2001, appellant worked for Adesa Auto Auction, which was managed by Michael Burleson. One of appellant's duties was to drive automobiles consigned to auction to Adesa. One car, however, a 2000 Mazda Protege consigned for auction by AmeriCredit, did not arrive at Adesa. Burleson testified he did not know which of the many drivers working at Adesa was supposed to drive that car. Dallas Police Officer Thomas Peterson testified that on January 21, 2002, he was driving past a house where a drug raid had been conducted, and he saw the 2000 Mazda Protege in front of the house. Officer Peterson "ran the tag and it came back stolen." Appellant was sitting in the front seat of the car, the keys were in the ignition, the engine was running, and the brake lights were on indicating appellant had his foot on the brake pedal. Officer Peterson and his partner arrested appellant. Appellant testified that in June 2001, he was assigned by Adesa to drive the 2000 Mazda Protege to Adesa. On the way back to Adesa, appellant stopped at his house to pick up medicine for his rheumatoid arthritis. He testified he left the engine running and the keys in the ignition while he went inside the house. When he came back outside, the car was gone. Appellant did not report to Adesa what happened to the car. Appellant testified he began his own investigation into the theft and, by January 21, 2002, he had learned who had taken the car and where it was. Appellant testified he went to the location and saw it parked with the engine running and the keys in the ignition in front of the drug house. Appellant got into the car and was about to drive it back to Adesa when Officer Peterson stopped him. Burleson testified that appellant's employment with Adesa was terminated two weeks before January 21, 2002. Appellant was fired because he was sent to pick up a car from a dealership and drive it directly to Adesa. However, appellant drove the car to someone's house before driving it to Adesa. SUFFICIENCY OF THE EVIDENCE
Appellant's first and third points of error contend the evidence is legally insufficient to support his conviction. When reviewing the legal sufficiency of the evidence, this Court must examine the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). In making this determination, the reviewing court considers all the evidence admitted including improperly admitted evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001); Holberg v. State, 38 S.W.3d 137, 139 (Tex.Crim.App. 2000). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App. 1998); Whitaker v. State, 977 S.W.2d 595, 598 (Tex.Crim.App. 1998). The standard of review in a circumstantial evidence case is the same as in a direct evidence case. King v. State, 895 S.W.2d 701, 703 (Tex.Crim.App. 1995). Appellant's second and fourth points of error contend the evidence is factually insufficient to support his conviction. In analyzing whether the evidence was factually sufficient to support the conviction, we must determine "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000) (adopting the complete civil factual sufficiency standard of review). We must set the verdict aside only if it is so factually insufficient or against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Id.; Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In conducting this analysis, the appellate court must defer to the trier of fact's determination concerning the weight given contradictory evidence. Johnson, 23 S.W.3d at 8; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Santellan v. State, 939 S.W.2d 155, 164-65 (Tex.Crim.App. 1997). The reviewing court is not free to reweigh the evidence and set aside a guilty verdict merely because the reviewing judges feel that a different result is more reasonable. Clewis, 922 S.W.2d at 135. Rather, the purpose of this analysis is to allow an appellate court, in the exercise of its fact jurisdiction, to prevent a manifestly unjust result. Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. In his first and second points of error, appellant contends the evidence is legally and factually insufficient to prove Burleson was the owner of the vehicle as alleged in the indictment. "Owner" is defined in the penal code as a person who "has title to the property, possession of the property, whether lawful or not, or a greater right to possession of the property than the actor." Tex. Pen. Code Ann. § 1.07(35)(A) (Vernon 2003). Appellant argues the evidence is legally and factually insufficient to show Burleson was the "owner" of the vehicle on January 21, 2002, the date alleged in the indictment, because "nothing in the record shows or even suggests that the consignment agreement . . . extended to the date alleged in the indictment." The record shows AmeriCredit turned over the car to Adesa in June 2001 for it to be put through Adesa's auction process. However, nothing in the record shows Burleson, as manager of Adesa, did not have the right to possession until the car was auctioned. Because the car was not auctioned by January 21, 2002, Burleson still had the right to possession of the car; appellant, however, had no right to possession of the car on January 21, 2002 because he no longer worked for Adesa. We hold the evidence is legally and factually sufficient to show Burleson was the owner of the car as alleged in the indictment. We overrule appellant's first and second points of error. In his third and fourth points of error, appellant contends the evidence is legally and factually insufficient to prove appellant operated the motor vehicle on January 21, 2002. For the State to prove appellant operated the vehicle, "the totality of the circumstances must demonstrate that the defendant took action to affect the functioning of his vehicle in a manner that would enable the vehicle's use." Denton v. State, 911 S.W.2d 388, 390 (Tex.Crim.App. 1995). Officer Peterson testified the keys were in the ignition, the engine was running, and appellant's foot was on the brake. Neither the State nor appellant asked Officer Peterson if the car was in gear. Appellant cites one case in support of his argument, Anthony v. State, 628 S.W.2d 151 (Tex.App.-Houston [14th Dist.] 1982, no pet.). In that case, the officer saw the defendant sitting in a parked car. Id. at 152. The defendant walked away and, because the car was stolen, the officer arrested the defendant. Id. at 152-53. The defendant had keys to the car in his pocket; however, no one had seen him drive the car. Further investigation showed the car was out of gas "making it impossible for appellant to operate the vehicle at the time of his arrest." Id. at 153. The court of appeals held the evidence was insufficient to prove the defendant operated the car. Id. In this case, however, appellant was in the driver's seat of the car and his foot was on the brake. Unlike in Anthony, the engine was running, indicating the car was operable. We conclude Anthony is distinguishable. Considering the totality of the circumstances and all the evidence, we conclude the evidence is both legally and factually sufficient to show appellant operated the motor vehicle on January 21, 2002. We overrule appellant's third and fourth points of error. The judgment entered by the trial court shows the trial court assessed a fine of $500 against appellant. The reporter's record, however, shows the trial court did not orally pronounce a fine at sentencing. When there is a variance between the oral pronouncement of sentence and its written memorialization, the oral pronouncement controls. Coffey v. State, 979 S.W.2d 326, 328 (Tex.Crim.App. 1998); Abron v. State, 997 S.W.2d 281, 282 (Tex.App.-Dallas 1998, pet. ref'd). Therefore, it appears the judgment contains a clerical error. We may modify a judgment to correct a clerical error when we have the necessary information to do so. See Tex.R.App.P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27 (Tex.Crim.App. 1993); Asberry v. State, 813 S.W.2d 526, 529 (Tex.App.-Dallas 1991, pet. ref'd). Accordingly, we modify the trial court's judgment to delete the fine. We affirm the trial court's judgment as modified.