Lynch v. State, 01-81-0624-CR

• Court: Texas Court of Appeals
• Writing for the Court: DYESS
• Citation: Lynch v. State, 635 S.W.2d 172 (Tex. App. 1982)
• Decision Date: 06 May 1982
• Docket Number: No. 01-81-0624-CR,01-81-0624-CR
• Parties: Carlton LYNCH, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)

Page 172

635 S.W.2d 172

Carlton LYNCH, Appellant, v. The STATE of Texas, Appellee.

No. 01-81-0624-CR.

Court of Appeals of Texas, Houston (1st Dist.).

May 6, 1982.

Stanley Kirk, Houston, for appellant.

Ray Elvin Speece, Houston, for appellee.

Before SMITH, BASS and DYESS, JJ.

OPINION

DYESS, Justice.

This is an appeal from a conviction of unauthorized use of a motor vehicle where the appellant was indicted for the theft of a motor vehicle as well as for unauthorized use of a motor vehicle. While on the stand, the appellant admitted that he had been convicted on two prior occasions and sent to the penitentiary for the two crimes alleged in the indictment for enhancement. With this admission before him, the trial judge dismissed the jury and assessed punishment himself, despite the appellant's request that the jury assess the punishment.

A brief factual background includes the following:

The appellant's version includes his denial of having stolen the van in question or having knowledge that the van was stolen when he drove it. According to the appellant, he borrowed the van from an acquaintance with whom he played basketball; it was his intention to use the van just long enough to pick up his motorcycle at a repair shop. In fact, the appellant claims that he was returning from such shop when he was stopped by the police.

The State's case included evidence tending to show that the appellant stole the van on October 15th, that he had a wreck while driving the van on October 16th, that he was finally apprehended on November 1st. A woman, the driver of the adverse vehicle in the wreck, was positive in her identification of the appellant as the driver of the van. She testified that they talked at the scene for at least thirty minutes.

By his first ground of error, the appellant claims that no evidence was presented at the trial to prove that the van was a "motor-propelled vehicle," such as the van described in the indictment. The appellant goes further in taking the position that a van can be either motor-propelled, horse drawn, or ox drawn.

While the appellant is correct in asserting that the State offered no direct evidence tending to prove that the van was motor-propelled, the State did offer sufficient circumstantial evidence on that issue.

Terry D. Lucas, the supervisor of property for Durham Temporaries, Inc., and the named complainant in the indictment, testified in behalf of the State. He testified that on October 16, 1980, a 1979 Dodge van was taken from the company garage. The State contends that it is a matter of common knowledge that Dodge is a division of Chrysler Corporation, and, as such, manufactures motor-propelled trucks, vans, and automobiles.

Mr. Lucas also testified that no one, other than the regular driver, Bruce Edwards, had permission to drive "that car" on that day. We likewise agree with the State's further contention that the word "car" is one of common usage meaning a motor-propelled vehicle. There was also evidence that the duties of Bruce Edwards, the regular driver of the vehicle, included maintenance of the van, service for it and putting fuel in the van. When the van was stolen, it was at an Exxon gas station for refueling. The jury could deduce reasonably from the testimony concerning the fueling of the vehicle that the vehicle was motor-propelled.

Another State's witness, Wilma Seacrease, testified concerning a collision in which she was involved with a brown van, driven by the appellant, on October 17, 1980, the day after the theft of the van. She identified the van by the license plate number QL 9598. On recall to testify, Terry Lucas stated that the license number of the van stolen on October 16, 1980 was QL 9598; likewise, Officer R. L. West, one of the arresting officers, testified that the appellant was driving a van bearing license number QL 9598 at the time of his arrest.

The fact that the van in question was a motor-propelled vehicle could be proven by circumstantial evidence. See Prescott v. State, 610 S.W.2d 760 (Tex.Cr.App.1981), wherein the court, speaking through Justice Teague, observed:

... proof of lack of consent to entry in a prosecution for burglary with intent to commit rape may be made by circumstantial evidence the same as any other issue in a criminal case may be proved by circumstantial evidence. Id., at 763. (Emphasis added.)

We also note that the jury was given a charge on circumstantial evidence.

We overrule the appellant's ground of error one.

By his grounds of error two and four, the appellant complains that the trial court erred in failing to have a bifurcated trial as required by Tex.Code Crim.Pro.Ann. article 37.07 (Vernon 1974), also, that the trial court erred in assessing the appellant's punishment at life because there was no evidence of prior convictions introduced or re-introduced by the State after the jury verdict at the guilt/innocence stage of the trial.

Following the return of the jury's verdict of guilty, the trial court excused the jury because the appellant, during the guilt/innocence phase of the trial, admitted that he had been convicted previously as alleged in the enhancement paragraphs. It was the court's conclusion that the punishment was fixed by law and that there was no fact issue for the jury's determination. Thus, the trial court assessed the appellant's punishment, based upon a finding that the enhancement allegations of the indictment were true in light of the appellant's admissions during his testimony at the guilt/innocence phase of the trial. This was done without any...