Caro v. State

• Court: Texas Court of Appeals
• Writing for the Court: THOMAS
• Citation: Caro v. State, 771 S.W.2d 610 (Tex. App. 1989)
• Decision Date: 08 May 1989
• Docket Number: No. 05-88-00081-CR,05-88-00081-CR
• Parties: Michael Tony CARO, Appellant, v. The STATE of Texas, Appellee.

Page 610

771 S.W.2d 610

Michael Tony CARO, Appellant, v. The STATE of Texas, Appellee.

No. 05-88-00081-CR.

Court of Appeals of Texas Dallas.

May 8, 1989.

Joe H. Loving, Jr., Dallas, for appellant.

Patricia Poppoff Noble, Dallas, for appellee.

Before WHITHAM, BAKER and THOMAS, JJ.

THOMAS, Justice.

Michael Tony Caro appeals a jury conviction for unauthorized use of a motor vehicle for which the trial court assessed punishment at twelve years' confinement. In seven points of error, Caro contends that: (1) the indictment fails to properly allege the requisite mental state; (2) the indictment fails to properly describe the automobile; (3) evidence seized during an illegal search was improperly admitted; (4) extraneous offense evidence was improperly admitted; (5) his requested jury charge pertaining to the culpable mental state should have been submitted; (6) the jury should have assessed punishment despite his tardy request; and (7) the evidence is insufficient to support the conviction. We disagree and affirm the trial court's judgment.

FACTUAL BACKGROUND

On September 21, 1987, Terry Knox was getting gas at a self-service Stop 'N Go convenience store in Duncanville, Texas. She was approached by a man, identified at trial as Michael Tony Caro. In making a description to the police, she described a neatly dressed black man, standing five feet, ten inches tall, weighing 175 to 180 pounds, who was not wearing glasses. Caro asked her the name of a near-by street and then he went inside the convenience store. Knox also went inside to pay for her gasoline, leaving her purse and keys in her unlocked 1986 Mustang automobile, license number 222 NVX. She saw Caro, the only other customer in the store, looking at merchandise. When Knox went outside, her car was gone and so was Caro. While Knox did not see Caro leave the store, she heard someone leave while she was paying the clerk. Knox later recovered her car from the City of Dallas pound and her purse from the manager of a Deluxe Inn.

The following day, Dallas Police Officer Cecil Watson and a partner were on routine patrol in the southwest area of Dallas, approximately one-half mile from Duncanville. As they drove past a Deluxe Inn, Officer Watson, on a "whim" conducted a computerized license plate check on a 1986 Mustang, license number 222 NVX, parked in the motel parking lot. The check indicated that the car had been reported stolen. After the dispatcher confirmed the report with the Duncanville police, two undercover officers set up covert surveillance of the car. A short time later, Caro entered the car and was stopped by the undercover officers as he was backing out. In response to questioning, Caro identified himself as David Lover. Officer Watson had known Caro prior to this arrest and had reason to believe that David Lover was not his true name. Following the arrest, the officer found a wallet which contained a driver's license in the name of David Lover and a toy badge. It was later confirmed that the wallet was stolen.

The State also introduced testimony that on the same day the Mustang was stolen, Caro drove the car to Computer Craft in far North Dallas where he made a purchase and paid for it with a check bearing the same name and address that was found on David Lover's stolen driver's license. As further identification, the manager and salesman noted the car's license number 222 NVX, on the check. Caro told the computer salesman that he was using or borrowing the Mustang while his BMW was being repaired.

Caro took the stand and denied having been at the Stop 'N Go on the morning of September 21, 1987. He claimed that he had a window tinting business and that on the afternoon of the theft, an acquaintance, Stanley Smith, drove the Mustang to the Deluxe Inn and asked him to tint the windows. Caro denied knowing the car was stolen. During cross-examination, Caro admitted that on July 10, 1987, he was convicted of unauthorized use of a motor vehicle and received a four-year sentence. According to Caro, he had returned to Dallas from Huntsville approximately one week before this incident. He also testified that he did not steal the billfold in which David Lover's license was found and that it was already in the car when he received it from Smith. Caro further stated that he had extremely poor vision and wore glasses at all times.

In addition to his own testimony, Caro offered the testimony of Glen Johnson. Johnson testified that he was present on a day when Stanley Smith came by and that he saw Smith give some keys to Caro. The key ring seemed to have both house keys and car keys on it. Johnson did not know whether the car keys were to the Mustang in question.

In rebuttal, the State called Victor Rodriguez who testified that on September 18, 1987, he was shopping at Redbird Mall which is located approximately one mile from the Deluxe Inn. As he was leaving the mall and getting into his car, a man approached and identified himself as a security guard. The man, whom Rodriguez identified as Caro, flashed a badge and asked Rodriguez to return to the mall in order to discuss a shoplifting incident. Caro escorted Rodriguez to the entrance of J.C. Penney's and took Rodriguez's keys, explaining that he needed them to keep Rodriguez from leaving while Caro telephoned his supervisor. When Caro failed to return, Rodriguez went outside to discover that his car was gone. When first describing the "apparent" security guard to police, Rodriguez stated that the man, at five feet, ten inches or six feet tall, was much taller than he was. In a demonstration for the jury, it was revealed that Rodriguez is taller than Caro. Rodriguez also testified that Caro was not wearing glasses. Rodriguez's car was later recovered in Duncanville, parked in a lot approximately eighty feet behind the Stop 'N Go where Terry Knox's car was taken. ¹

CULPABLE MENTAL STATE

In three points of error, Caro attacks alleged deficiencies in the indictment, the jury charge and the proof as it concerns the culpable mental state. Caro contends that the State was required to indict, charge and prove that he knowingly and intentionally operated a motor vehicle knowing that he did not have the consent of the owner. Caro relies upon this Court's opinion in Gardner v. State, 736 S.W.2d 179 (Tex.App.--Dallas 1987, pet. granted). In Gardner, we held that the evidence in that unauthorized use of a motor vehicle case was insufficient because the State failed to prove that the defendant knew that he was using the vehicle without the owner's consent. Id. at 181-82. It has been suggested that Gardner improperly adds an element to the State's burden that is not authorized by the statute and is contrary to Musgrave v. State, 608 S.W.2d 184 (Tex.Crim.App.1980) (on rehearing). We need not resolve the conflict, if any, because this case is clearly distinguishable from Gardner.

The Indictment

In the first point of error, Caro contends that the trial court erred in denying his motion to quash the indictment for failing to set forth the proper culpable mental state. The relevant portion of the indictment alleges that Caro did "knowingly and intentionally operate a motor-propelled vehicle, namely, an automobile, without the effective consent of TERRY KNOX, the owner thereof." The indictment tracks the language of the statute. Caro argues, in reliance upon Gardner, that the indictment is defective because it does not separately set forth a culpable mental state modifying the language "without the effective consent of TERRY KNOX."

An indictment should charge an offense in plain and intelligible words with such certainty as to enable the accused to determine what he will be called upon to defend against and to enable him to plead any judgment in bar of further prosecution for the same offense. Wilson v. State, 520 S.W.2d 377, 379 (Tex.Crim.App.1975); Caro, 761 S.W.2d at 489. Ordinarily, an indictment is sufficient if it charges an offense in the terms of the statute. See Reynolds v. State, 547 S.W.2d 590, 592 (Tex.Crim.App.1976); Caro, 761 S.W.2d at 489.

The statute defining the offense of unauthorized use of a vehicle provides: "A person commits an offense if he intentionally or knowingly operates another's boat, airplane, or motor-propelled vehicle without the effective consent of the owner." TEX.PENAL CODE ANN. § 31.07(a) (Vernon 1974). In Allen v. State, 549 S.W.2d 5 (Tex.Crim.App.1977), the court of criminal appeals upheld an indictment alleging that the defendant did "intentionally and knowingly operate a motor propelled vehicle owned by A.R. Price, hereafter styled the Complainant, without the effective consent of the Complainant." Id. at 5. The Allen court noted that the indictment charged the offense in terms of the statute and gave adequate notice of the offense to the accused. Allen, 549 S.W.2d at 6.

Caro, relying on Gardner, raised this identical complaint in Caro, 761 S.W.2d 488. We rejected that argument noting that Gardner is distinguishable: "Gardner does not require a different result. In Gardner, this court concluded that the culpable mental states as set forth in section 31.07 modify both 'operate a motor vehicle' as well as 'without the effective consent of the owner.' " Caro, 761 S.W.2d at 490. Thus, an indictment which tracks the language of the statute obviously sets out a mental state which modifies both "operate a motor vehicle" and "without the effective consent of the owner." We conclude that the indictment is sufficient to give adequate notice of the offense charged and overrule the first point.

The Jury Charge

In his fifth point of error, Caro urges that the trial court erred in failing to instruct the jury that the State was required to prove that he drove the car "knowing it to be operated without the effective consent of Terry Knox, the owner thereof." The application paragraph read as follows:

Now if you find and believe from the evidence beyond a reasonable doubt that in ...