Harris v. State

• Decision Date: 11 February 1993
• Docket Number: No. 01-92-00579-CR,01-92-00579-CR
• Citation: 846 S.W.2d 960
• Parties: Richard Paige HARRIS, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 960

846 S.W.2d 960

Richard Paige HARRIS, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00579-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 11, 1993.

Discretionary Review Refused April 7, 1993.

James M. Leitner, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Karen A. Clark, Jeff Strange, Asst. Dist. Attys., Houston, for appellee.

Before DUGGAN, HEDGES and O'CONNOR, JJ.

OPINION

O'CONNOR, Justice.

A jury found the appellant, Richard Paige Harris, guilty of unauthorized use of a motor vehicle. The trial court found an enhancement paragraph to be true and sentenced appellant to confinement of 15 years and one day. We affirm.

The appellant was indicted for the unauthorized use of a truck identified at trial as a white GMC Jimmy bearing the vehicle identification number (VIN) 1GKCS13Z4N2512531. The Jimmy was actually owned by Lester Goodson Pontiac-Honda-GMC, but the indictment alleged the owner of the truck to be John Sorenson, Lester Goodson's inventory control manager.

Sufficiency of the evidence

In point of error one, the appellant asserts that the evidence was insufficient to sustain a conviction for the offense of unauthorized use of a motor vehicle with John Sorenson alleged as the owner. Specifically, he contends that the record is devoid of evidence to prove that John Sorenson had title to the Jimmy, possession of the Jimmy, or a greater right to possession of the Jimmy than the appellant. Viewing the evidence in the light most favorable to the verdict, we must decide whether any 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, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex.Crim.App.1990).

A person commits an offense if he intentionally or knowingly operates another's boat, plane, or motor-propelled vehicle without the effective consent of the owner. TEX.PENAL CODE ANN. § 31.07(a) (Vernon 1989). The Texas Penal Code defines "owner" 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.PENAL CODE ANN. § 1.07(a)(24) (Vernon Supp.1993). "Possession" means actual care, custody, control or management. TEX.PENAL CODE ANN. § 1.07(a)(28) (Vernon 1974). Ownership may be proved in one of three ways: title, possession, or a greater right to possession than the defendant. Alexander v. State, 753 S.W.2d 390, 392 (Tex.Crim.App.1988); Compton v. State, 607 S.W.2d 246, 250 (Tex.Crim.App.1979).

When a corporation is the owner of the property that has been stolen, it is the preferable pleading practice to allege "special" ownership in a natural person acting for the corporation. Simpson v. State, 648 S.W.2d 1, 2 (Tex.Crim.App.1983); Compton, 607 S.W.2d at 250; see also Sowders v. State, 693 S.W.2d 448, 451 (Tex.Crim.App.1985). The employment relationship determines whether a given individual is an "owner" within the meaning of section 1.07(a)(24). Dingler v. State, 705 S.W.2d 144, 149 (Tex.Crim.App.1984) (op. on reh'g); Compton, 607 S.W.2d at 250; see also Jones v. State, 714 S.W.2d 138, 140-41 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd). Under the Penal Code, any person with a greater right to the actual care, custody, control, or management of the property than the defendant can be alleged as the "owner." Alexander, 753 S.W.2d at 392.

In Dingler, the defendant was convicted of burglary of a motor vehicle. The vehicle was owned by the Louis Shanks Corporation, which operated retail furniture stores. The indictment alleged that the owner of the vehicle was an individual by the name of White. White testified that he was the manager of one of the corporation's stores. He did not testify about his relationship to the burglarized vehicle or his job duties. He did not testify that he had care, custody, control, or management of the vehicle at the time in question. White did testify that he did not know the defendant and that "we did not give him permission to break into the vehicle." White did not testify he was a "special owner" of the vehicle. The burglary occurred at the company's warehouse, not at the store managed by White. The Court of Criminal Appeals held that the evidence was more than sufficient to prove that White was the "special owner" of the vehicle, and that the proof adequately showed that White had a greater right to possession than the defendant. Dingler, 705 S.W.2d at 150.

In Jones, the defendant tried unsuccessfully to rob a Church's Fried Chicken store. The indictment alleged ownership of the property to be in Lidia Marquez, an employee whose duties included preparing and serving food and cleaning tables. Marquez did not know how to open the cash register and was unable to comply when the defendant, brandishing a gun, ordered her to do so. Jones, 714 S.W.2d at 139. The State introduced no evidence to show that Marquez had either title to or actual care, custody, control, or management of the cash register's contents. This Court rejected the defendant's assertion that some control over the property in question is essential to establish ownership. We stated:

Legally, the fact that Marquez was an employee of Church's gave her a "greater right to possession" of the property than appellant. The jury so found factually.... [T]he evidence, when viewed in the light most favorable to the prosecution, was sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Marquez, though without fiscal or managerial responsibilities, had a greater right of possession of Church's property than appellant.

Id. at 140-41 (citations omitted).

In the case before us, Sorenson testified that as inventory control manager, one of his responsibilities was to "physically inventory all of the new cars and used cars that are owned by Lester Goodson Pontiac." He testified that the Jimmy was the property of Lester Goodson and that he did not give the appellant permission to use the Jimmy on March 21, 1992. He further testified that State's exhibit one was a certified copy of the manufacturer's certificate of origin for the Jimmy recovered from the impound yard, and that the certificate reflected vehicle identification number 1GKCS13Z4N2512531. We hold that based on Sorenson's employment relationship with Lester Goodson Pontiac, the evidence was clearly sufficient to prove that Sorenson had a greater right to possession of the vehicle than the appellant. We overrule point of error one.

Business records

In point of error two, the appellant contends that the trial court erred by allowing the State to enter into evidence the manufacturer's certificate of origin from General Motors Corporation as a business record of Lester Goodson Pontiac-Honda-GMC. Specifically, he argues that State's exhibit one, the certificate of origin, does not comply with the requirements of TEX.R.CRIM.EVID. 803(6), and is therefore inadmissible hearsay.

Rule 803(6) provides that the following is not excluded by the hearsay rule:

Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

The certificate of origin is signed by Sandra J. Donovan, the authorized representative of the "Truck and Bus Group, General Motors Corporation." The certificate provides in pertinent part:

I, the undersigned authorized representative of the company, firm or corporation named below, hereby certify that the new vehicle described above is the property of the said company, firm or corporation and is transferred on the above date and under the Invoice Number indicated to the following distributor or dealer.

The vehicle is described in the certificate as a 1992 GMC Jimmy, Vehicle Identification No. 1GKCS13Z4N2512531. The certificate indicates that the Jimmy was transferred to Goodson Pontiac-GMC-Honda on November 22, 1991.

The State asked Sorenson a series of questions to comply with the business records exception to the hearsay rule, and then offered the record. The appellant objected and took the witness on voir dire. On voir dire, defense counsel established that Sorenson did not know whether Sandra Donavan, the employee of General Motors who signed the certificate, had personal knowledge of the information contained in the certificate. The trial court overruled defense counsel's objection to the record and admitted the record into evidence.

The predicate for admissibility under the business records exception requires, among other things, that the party offering the evidence prove the record was made by, or from information transmitted by, a person with knowledge, and that the record be kept in the course of a regularly conducted business activity. See Crane v. State, 786 S.W.2d 338, 351 (Tex.Crim.App.1990)....