Caro v. State

• Court: Texas Court of Appeals
• Writing for the Court: ROWE
• Citation: Caro v. State, 761 S.W.2d 488 (Tex. App. 1988)
• Decision Date: 17 November 1988
• Docket Number: No. 05-87-01366-CR,05-87-01366-CR
• Petition History: writ ref'd
• Parties: Michael Tony CARO, Appellant, v. The STATE of Texas, Appellee.

Page 488

761 S.W.2d 488

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

No. 05-87-01366-CR.

Court of Appeals of Texas Dallas.

Nov. 17, 1988.

Discretionary Review Refused March 8, 1989.

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

Patricia Poppoff Noble, Dallas, for appellee.

Before STEPHENS, STEWART and ROWE, JJ.

ROWE, Justice.

After a jury trial, Michael Tony Caro was convicted of unauthorized use of a vehicle. The jury sentenced Caro to eight years' confinement and assessed a fine of $2,500.00. In his three points of error, Caro argues that the trial court erred: (1) in denying Caro's oral motion to quash the indictment for failing to set forth the proper culpable mental state; (2) in denying Caro's motion to suppress evidence as a result of an illegal search; and (3) in denying Caro's motion for directed verdict because there is insufficient evidence to sustain the conviction.

The Indictment

The relevant portion of the indictment alleges that Caro did "knowingly and intentionally operate a motor-propelled vehicle, namely: a station wagon, without the effective consent of VICTOR RODRIGUEZ, the owner thereof." Caro argues that the indictment is defective because it does not separately set forth a culpable mental state modifying the language "without the effective consent of VICTOR RODRIGUEZ." Citing Gardner v. State, 736 S.W.2d 179 (Tex.App.--Dallas 1987, pet. granted). The State replies that the indictment avers the elements of the offense in terms of the statute and therefore gives Caro adequate notice of the offense charged.

When reviewing the sufficiency of an indictment, the rule is that the indictment should charge an offense in plain and intelligible words with such certainty as to enable the accused to know 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); Gaines v. State, 501 S.W.2d 315, 317 (Tex.Crim.App.1973). Ordinarily, an indictment is sufficient if it charges an offense in the terms of the statute. Reynolds v. State, 547 S.W.2d 590, 592 (Tex.Crim.App.1976); Baldwin v. State, 538 S.W.2d 109, 111 (Tex.Crim.App.1976). The statute defining the offense of unauthorized use of a vehicle provides:

(a) 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 (Vernon 1974).

In Allen v. State, the Court of Criminal Appeals upheld an indictment alleging that the appellant did "intentionally and knowingly operate a motor vehicle owned by A.R. Price, hereafter styled Complainant, without the effective consent of the Complainant." 549 S.W.2d 5, 6 (Tex.Crim.App.1977); see also Mears v. State, 557 S.W.2d 309, 310 (Tex.Crim.App.1977) (upholding similar language). The Allen court noted that the indictment charged the offense in terms of the statute and gave adequate notice of the charged offense to the accused. Allen, 549 S.W.2d at 6. 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 "operates a motor-propelled vehicle" as well as "without the effective consent of the owner." Gardner, 736 S.W.2d at 181-82.

The indictment in this case tracks section 31.07 in plain and intelligible language. The indictment charges the offense of unauthorized use of a vehicle with enough certainty as to enable Caro to know what he was required to defend against. Accordingly, we overrule Caro's first point of error.

The Search

In his second point of error, Caro complains about the legality of a search. Police arrested Caro while he was in possession of another stolen car. Officer Cecil D. Watson testified that at the time of the arrest he seized a driver's license and two traffic citations from Caro's billfold. Officer Watson testified that he recovered the billfold either from Caro's pocket or from the passenger compartment of the stolen car that Caro was in. Officer Watson also stated that he did not further search the stolen car.

A lawful custodial arrest authorizes a contemporaneous search without a warrant of the person arrested and of the area within the immediate control of the arrestee. Chimel v. California, 395 U.S. 752, 762-63, 89 S.Ct. 2034, 2039, 23 L.Ed.2d 685 (1969); Gauldin v. State, 683 S.W.2d 411, 414 (Tex.Crim.App.1984). When a police officer makes a lawful custodial arrest of the occupant of an automobile, the officer may search the passenger compartment of that automobile as a contemporaneous incident of the arrest. New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981); Osban v. State, 726 S.W.2d 107, 111 (Tex.Crim.App.1986). The officer may also examine the contents of any containers, whether open or closed, found within the passenger compartment. Belton, 453 U.S. at 460-61, 101 S.Ct. at 2864.

Here, police arrested Caro after watching him enter and drive a stolen vehicle. Caro does not contest the lawfulness of his arrest. Incident to that arrest, police were entitled to search Caro's person and the passenger compartment of the automobile. Although Officer Watson's testimony does not establish precisely where he found the billfold, it does limit the location to either Caro's person or the passenger compartment of the stolen car. Since Officer Watson could lawfully search both of these locations, we hold that the search was a legal contemporaneous search incident to a lawful custodial arrest. We therefore overrule Caro's second point of error.

Sufficiency of the Evidence

In his third point of error, Caro attacks the sufficiency of the evidence by arguing that there is insufficient evidence to establish beyond a reasonable doubt that he operated Rodriguez's station wagon. The record reflects that as Rodriguez was leaving Red Bird Mall a little before 3:00 p.m. on September 18, 1987, Caro approached Rodriguez's station wagon. Caro showed Rodriguez a badge and told him that Rodriguez was suspected of shoplifting from J.C. Penney. Caro asked Rodriguez to follow him back into the store and to wait while Caro called his supervisor. Ostensibly to prevent Rodriguez from fleeing, Caro told Rodriguez to...