By
Robert O. Dawson
Bryant Smith Chair in Law
University of Texas School of Law
2001 Case Summaries 2000 Case Summaries 1999 Case Summaries
Error, but harmless, not to sever two counts
of unauthorized use of motor vehicle (99-3-31)
On August 4, 1999, the Waco Court of Appeals held the juvenile court erred
in not granting the juvenile’s motion to sever two charges of unauthorized use
of a motor vehicle because in separate trials of those two charges evidence of
one would not have been admissible in the trial of the other. However, the error
was harmless.
99-3-31. In the Matter of C.P., ___ S.W.2d ___, No. 10-98-035-CV, 1999 WL
567093, 1999 Tex.App.Lexis ___ (Tex.App.-Waco 8/4/99)[Texas Juvenile Law (4th
Edition 1996)].
Facts: A jury found Appellant, C.P., a juvenile, guilty of two counts of
unauthorized use of a motor vehicle, two counts of debit card abuse, and one
count of making a false report to an employee of a law enforcement agency. See
Tex. Pen.Code Ann. §§ 31.07, 32.31(b), 37.08 (Vernon 1998). The trial court
subsequently committed her to the Texas Youth Commission for an indeterminate
sentence. See Tex. Fam.Code Ann. § 54.04 (Vernon 1998); Tex. Hum. Res.Code Ann.
§ 61.084(e) (Vernon 1998).
C.P. presents four issues on appeal in which she claims that: (1) and (2) the
evidence is legally and factually insufficient to support her two adjudications
for debit card abuse; (3) the evidence is legally and factually insufficient to
support her adjudication for the July 7, 1997, unauthorized use of a motor
vehicle; and (4) the trial court abused its discretion when it did
not grant a severance for the July 7, 1997, count of unauthorized use of a motor
vehicle.
C.P.'s father, Jack Purcell, testified that on July 7, 1997, he went to drive
his car and noticed that the driver's seat was pulled "uncomfortably
close" to the steering wheel. Purcell testified that he saw cigarette butts
in the car. Purcell stated that he immediately suspected that C.P. drove his car
without his permission and that he then asked C.P. whether she drove his car
without his permission. Purcell testified that C.P. initially denied the
accusation but eventually admitted that she did drive his car to some friends'
houses in Copperas Cove.
Purcell further testified that during November 1997, he and his wife noticed
that the balance in their checking account was substantially lower than what it
should have been. Purcell testified that his bank records indicated that several
unauthorized withdrawals were made in Copperas Cove and El Paso, Texas, and
several cities in California. Purcell testified that the unauthorized
withdrawals were made in cities located alongside I-10, an interstate that leads
directly toward California. He stated that the sum of these unauthorized
withdrawals totaled approximately $2,400.
Purcell testified that prior to these unauthorized withdrawals, his wife
received a new ATM card. Purcell testified that he and his wife had only one ATM
card for their account and that his wife kept the card in her purse. Purcell
stated that soon after they noticed the unauthorized withdrawals, that they
discovered that their ATM card was missing. Purcell testified that his wife kept
the Personal Identification Number for their ATM card on the sleeve of their ATM
card and that this was most likely the way that C.P. obtained access to their
checking account.
Purcell stated that during the period of the unauthorized withdrawals, C.P. ran
away from home. He testified that she was subsequently located in California and
returned home. Purcell testified that he did not directly ask C.P. whether she
made the unauthorized withdrawals but asked C.P. what she used the money for and
she replied that she used the money for clothes. Purcell further testified that
the missing ATM card was not found on C.P. or her personal effects when she
returned to Texas. Purcell testified that neither he nor his wife have ever
recovered their missing ATM card. Purcell testified that he reported the
offenses, the unauthorized use of his car in July 1997 and the unauthorized
withdrawals and use of his debit card, to the police in November 1997.
The State also charged C.P. with one count of unauthorized use of a motor
vehicle that occurred on September 30, 1997. The State presented evidence that
C.P., along with two friends, R.J. and M.C., drove R.J.'s parents' van without
their permission. At trial, R.J. testified that she took the van from her
parents without their permission. R.J. further testified that she, M.C., and C.P.
took turns driving the van and drove for approximately three days throughout
Texas before they wrecked the van.
DEBIT CARD ABUSE
C.P.'s first and second issues on appeal claim that the evidence was legally and
factually insufficient to support her two adjudications for debit card abuse
because there was no evidence of the identity of the cardholder. Although these
are two offenses, they are identical on appeal and we will discuss them
together.
Although juvenile proceedings are considered to be civil in nature, an
adjudication of delinquent conduct requires proof beyond a reasonable doubt.
Tex. Fam.Code Ann. s 54.03(f) (Vernon 1998); R.X.F. v. State, 921 S.W.2d 888,
899 (Tex.App.--Waco 1996, no writ). Therefore, when reviewing the legal
sufficiency of the evidence for a juvenile adjudication, we must apply the
criminal standard of review because the State bears the same burden of proof as
it does in criminal cases. See R.X.F., 921 S.W.2d at 899 (holding that civil
standard of review does not provide constitutionally sufficient review of the
legal sufficiency of the evidence for an appeal from a juvenile adjudication
proceeding); see also In re E.P., 963 S.W.2d 191, 193 (Tex.App.--Austin 1998,
no. pet.); In re A.S., 954 S.W.2d 855, 858 (Tex.App.--El Paso 1997, no pet.); In
re A.C., 949 S.W.2d 388, 390, n. 1 (Tex.App.--San Antonio 1997, no pet.); In re
M.S., 940 S.W.2d 789, 791-92, n. 2 (Tex.App.--Austin 1997, no pet.). In so
doing, we review the evidence in the light most favorable to the State and
determine whether, based on that evidence and all reasonable inferences
therefrom, 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, 2788-89, 61 L.Ed.2d 560 (1979); Alvarado v. State, 912 S.W.2d
199, 207 (Tex.Crim.App.1995); Sandoval v. State, 946 S.W.2d 472, 476 (Tex.App.--Corpus
Christi 1997, pet. ref'd). The jury is the exclusive judge of the credibility of
the witnesses and the weight to be given their testimony. Whitaker v. State, 977
S.W.2d 595, 598 (Tex.Crim.App.1998), cert. denied, --- U.S. ----, 119 S.Ct. 878,
142 L.Ed.2d 777 (1999). When the court determines that the evidence is legally
insufficient, the case should never have been submitted to a jury. Clewis v.
State, 922 S.W.2d 126, 132- 33 (Tex.Crim.App.1996).
Before we begin our examination of C.P's factual sufficiency complaint, we must
determine what standard of review to use for a factual sufficiency review of a
juvenile adjudication. In the past, some courts favored the civil standard of
review for factual sufficiency questions because juvenile proceedings are
theoretically civil in nature. See In re J.P.O., 904 S.W.2d 695, 699-700 (Tex.App.--Corpus
Christi 1995, writ denied); In re G.F.O., 874 S.W.2d 729, 731-32 (Tex.App.--Houston
[1 st Dist.] 1994, no writ).
Recently, the Court of Criminal Appeals harmonized the standards of review for
both civil and criminal factual sufficiency questions. See Clewis, 922 S.W.2d at
129; see also, e.g. Chesnut v. State, 959 S.W.2d 308, 310 (Tex.App.--El Paso
1997, no pet.). Accordingly, when we review the factual sufficiency of a
juvenile adjudication, we must view the evidence without the prism of "in
the light most favorable to the prosecution" and set aside the verdict only
if the verdict is so contrary to the overall weight of the evidence to be
clearly wrong and unjust. Clewis, 922 S.W.2d at 129; see also In re V.M.D., 974
S.W.2d 332, 347 (Tex.App.--San Antonio 1998, pet. denied); D.R.H. v. State, 966
S.W.2d 618, 622 (Tex.App.--Houston [14 th Dist.] 1998, no pet.); In re A.S., 954
S.W.2d 855, 860 (Tex.App.--El Paso 1997, no pet.); In re A.C., 949 S.W.2d 388,
389-90 (Tex.App.--San Antonio 1997, no pet.); R.X.F. v. State, 921 S.W.2d 888,
900 (Tex.App.--Waco 1996, no writ). We must review all of the evidence and
consider it as a whole, not just viewing it in the light most favorable to the
other party. Cain v. State, 958 S.W.2d 404, 407 Tex.Crim.App.1997). When
performing our review, we must give appropriate deference to the jury's
assessment of the weight and credibility of the evidence. Whitaker, 977 S.W.2d
at 598. If we reverse an adjudication based upon factual insufficiency grounds,
we must detail the evidence relevant to the issue in consideration and state why
the jury's finding is factually insufficient as to be manifestly unjust. Cain,
958 S.W.2d at 407; Clewis, 922 S.W.2d at 135-36 (quoting Pool v. Ford Motor Co.,
715 S.W.2d 629, 635 (Tex.1986)). If we determine that the evidence is factually
insufficient to support an adjudication, we must reverse and remand the case to
the trial court. Clewis, 922 S.W.2d at 135.
The elements for debit card abuse are: (1) a person with intent to obtain a
benefit fraudulently; (2) presents or uses a debit card; (3) with knowledge that
the card has not been issued to her; and (4) and is not used with the effective
consent of the cardholder. Tex. Pen.Code Ann. § 32.31(b)(1)(A) (Vernon 1998).
"Cardholder" is defined as the person named on the face of the debit
card to whom or for whose benefit the card is issued. Tex. Pen.Code Ann. s
32.31(a)(1) (Vernon 1998).
C.P. claims that because neither the actual debit card nor a copy of the debit
card was introduced into evidence and because there was no testimony concerning
what name appeared on the debit card, that the evidence was legally and
factually insufficient as to the identity of the cardholder and thus, was
insufficient to support her adjudications. C.P. claims that no rational trier of
fact could conclude that either Jack or Shirley Purcell were the
"cardholder."
There is no requirement that the actual credit or debit card or a copy of the
credit or debit card be admitted into evidence in order to prove the identity of
the cardholder. See Harrell v. State, 852 S.W.2d 521, 523 n. 2
(Tex.Crim.App.1993); Colley v. State, 893 S.W.2d 298, 300 n. 2 (Tex.App.--
Houston [1st Dist.] 1995, pet. ref'd). In Colley, neither the actual credit card
nor its monthly statements were admitted into evidence. Colley, 893 S.W.2d at
300 n. 2. Rather, the only evidence of the identity of the cardholder was the
testimony of the victim. Id. at 300.
The evidence established that either Purcell or his wife was the
"cardholder." Purcell testified that he and his wife only had one ATM
card for their joint checking account. Purcell also testified that their ATM
card was missing during the same time period of the unauthorized withdrawals.
Purcell further testified that he and his wife did not give their consent to C.P.
to use their ATM card to make any withdrawals from their checking account. The
jury could have found that Purcell's testimony was sufficient to prove that
either he or his wife was the cardholder. Therefore, the evidence is legally and
factually sufficient.
We overrule C.P.'s first and second issues.
UNAUTHORIZED USE OF A MOTOR VEHICLE
C.P.'s third issue on appeal claims that the evidence is legally and factually
insufficient to support her adjudication for unauthorized use of a motor vehicle
on July 7, 1997, because there is no evidence, other than her extrajudicial
confession, that the offense occurred.
As mentioned previously, an adjudication of delinquency requires proof beyond a
reasonable doubt. Tex. Fam.Code Ann. § 54.03(f) (Vernon 1998). Because the
State bears the same burden of proof in a juvenile adjudication as it does in a
criminal proceeding, we review a juvenile adjudication with the same standards
as we would a criminal proceeding. See, e.g., R.X.F., 921 S.W.2d at 899. A
defendant's extrajudicial confession alone is not sufficient to support a
conviction. Williams v. State, 958 S.W.2d 186, 190 (Tex.Crim.App.1997); Emery v.
State, 881 S.W.2d 702, 705 (Tex.Crim.App.1994). There must be other evidence
independent of the confession that tends to prove the corpus delicti. [FN2]
Williams, 958 S.W.2d at 190; Gribble v. State, 808 S.W.2d 65, 70
(Tex.Crim.App.1990). The independent evidence of the corpus delicti does not
need to connect the defendant to the crime, be sufficient by itself to prove the
crime nor be a great quantum of evidence; it only needs to be some evidence
which renders the corpus delicti more probable than it would be without the
evidence. Williams, 958 S.W.2d at 190; Emery, 881 S.W.2d at 705; Chambers v.
State, 866 S.W.2d 9, 16 (Tex.Crim.App.1993); Gribble, 808 S.W.2d at 70. When
determining whether the evidence tends to prove the corpus delicti of a crime
more probable than not, we consider "all the record evidence, other than
[the defendant's] extrajudicial confession," in the light most favorable to
the jury's verdict. Fisher v. State, 851 S.W.2d 298, 303 (Tex.Crim.App.1993);
see also Mestiza v. State, 923 S.W.2d 720, 726 (Tex.App.--Corpus Christi 1996,
no pet.).
A person commits the offense of unauthorized use of a motor vehicle when she
intentionally or knowingly operates a motor vehicle without the effective
consent of the owner. Tex. Pen.Code Ann. § 31.07 (Vernon 1998). The corpus
delicti of unauthorized use of a motor vehicle is the fact that a motor vehicle
was driven without the owner's consent. Purcell testified that on July 7, 1997,
his car's seat was moved so that it was "uncomfortably close" to the
steering wheel and that there were cigarette butts in the car. This is some
evidence which tends to prove the corpus delicti of the crime more probable than
it would be without the evidence. We overrule C.P.'s third issue.
MOTION TO SEVER
C.P.'s fourth issue on appeal claims that the trial court abused its discretion
when it denied her motion to sever the July 7, 1997, offense of unauthorized use
of a motor vehicle from the September 30, 1997, offense of unauthorized use of a
motor vehicle. C.P. claims that the two offenses were not part of the same
transaction or episode and did not involve the same facts or issues. C.P. claims
that if the trial court granted her motion and tried the July 7, 1997, offense
separately, that evidence of the September 30, 1997, offense would not be
admissible under Texas Rule of Evidence 404(b) and vice versa. Thus, the trial
court's denial of her motion to sever was unduly prejudicial. Texas Rule of
Civil Procedure 41 states that "[a]ny claim against a party may be severed
and proceeded with separately." See Tex. Fam.Code Ann. § 51.17 (Vernon
1998) (Texas Rules of Civil Procedure govern juvenile adjudications). Severance
of claims under Rule 41 rests within the sound discretion of the trial court.
Tex.R. Civ. P. 41; Liberty Nat'l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629
(Tex.1996); Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,
658 (Tex.1990). The controlling reasons why a trial court grants a severance are
to do justice, avoid prejudice, and further convenience. Guaranty, 793 S.W.2d at
658.
A trial court properly exercises its discretion in severing claims when: (1) the
controversy involves more than one cause of action; (2) the severed claim is one
that could be asserted independently in a separate lawsuit; and (3) the severed
actions are not so interwoven with the other claims that they involve the same
facts and issues. Liberty, 927 S.W.2d at 629; Guaranty, 793 S.W.2d at 658. When
all the facts and circumstances of the case require separate trials in order to
prevent manifest injustice, when there is no fact or circumstance that supports
or tends to support a contrary conclusion, and when the legal rights of the
parties will not be prejudiced thereby, then there is no room for the exercise
of discretion. In re Foremost Ins. Co., 966 S.W.2d 770, 771 (Tex.App.--Corpus
Christi 1998, no pet.); Texas Farmers Ins. Co. v. Stem, 927 S.W.2d 76, 78-79 (Tex.App.--Waco
1996, no pet.). The rule then imposes upon the court a duty to order a separate
trial. Texas Farmers Ins., 927 S.W.2d at 79; See Foremost, 966 S.W.2d at 771.
We must first examine whether evidence of the September 30, 1997, offense would
be admissible during C.P.'s trial for the July 7, 1997, offense. If the
September 30, 1997, offense would be admissible during C.P.'s trial for the July
7, 1997, offense, then it is likely that the trial court's refusal to sever the
two offenses was not an abuse of discretion. See In re Foremost Ins. Co., 966
S.W.2d at 772 (trial court abused its discretion when it denied severance
because a simultaneous trial would result in the admission of evidence for one
claim that would normally not be admissible as to the other claim); cf. Liberty
Nat'l Fire Ins. Co., 927 S.W.2d at 630 (trial court did not abuse its discretion
when it denied severance because claims were so interwoven and most of the
evidence was admissible as to both claims).
Texas Rule of Evidence 404(b) states that "[e]vidence of other crimes,
wrongs or acts is not admissible to prove the character of a person in order to
show action in conformity therewith." However, the State may seek to admit
the evidence for "other purposes," such as those outlined in Rule
404(b). "Other purposes" include proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident. Tex.R.
Evid. 404(b). The Court of Criminal Appeals has held that background evidence is
an "other purpose" and an exception to Rule 404(b). Mayes v. State,
816 S.W.2d 79, 86 (Tex.Crim.App.1991). Before background evidence is admissible
under 404(b), it must be relevant under Rule of Evidence 401. Rogers v. State,
853 S.W.2d 29, 32 (Tex.Crim.App.1993). If relevant, then the issue is whether
the background evidence should be admitted as an exception to Rule 404(b). Id.
The Court of Criminal Appeals has categorized background evidence into two
categories: (1) same transaction contextual evidence and (2) background
contextual evidence. Mayes, 816 S.W.2d at 86-87; Rogers, 853 S.W.2d at 32. Same
transaction contextual evidence is admissible as an exception to Rule 404(b)
where "several crimes are intermixed, or blended with one another, or
connected so that they form an indivisible criminal transaction, and full proof
by testimony, whether direct or circumstantial, of any one of them cannot be
given without showing the others." Mayes, 816 S.W.2d at 86-87 n. 4. Same
transaction contextual evidence should only be admitted when the facts and
circumstances of the instant offense would make little or no sense without also
bringing in this evidence. Rogers, 853 S.W.2d at 33. On the other hand,
background contextual evidence "fill[s] in the background of the narrative
and give[s] it interest, color, and lifelikeness." Mayes, 816 S.W.2d at 87;
DeLeon v. State, 937 S.W.2d 129, 135 (Tex.App.--Waco 1996, pet. ref'd). This
type of evidence is admitted because of its "salutary effect on the jury's
comprehension of the offense in question." Mayes, 816 S.W.2d at 87.
To determine whether evidence of the September 30, 1997, offense would be
admissible as an exception to Rule 404(b) during the trial of the July 7, 1997,
offense, it must first be relevant. Rogers, 853 S.W.2d at 32. Relevant evidence
is evidence that has a tendency to make the existence of any fact more probable
or less probable than it would be without the evidence. Tex.R. Evid. 401. In
other words, it is evidence that is of consequence to the determination of the
action in question. Mayes, 816 S.W.2d at 84. In this case, there is no
similarity or connection between the two crimes other than the fact that they
are two counts of the same offense. The two crimes occurred more than two and a
half months apart and alleged the unauthorized use of two different vehicles,
owned by two different owners. The circumstances surrounding the September 30,
1997, crime, in which C.P. and her friends took R.J.'s parents' van and joy-rode
throughout Texas, do not make the existence of her July 7, 1997, crime, in which
she drove her parents' car to some friends' houses, more probable than not.
Consequently, evidence of the September 30, 1997, crime is not relevant to the
July 7, 1997, crime. Because evidence of the September 30, 1997, crime is not
relevant, there is no need to determine whether the evidence would fit within an
exception to Rule 404(b).
Keeping in mind the factors enunciated in Liberty National Fire Insurance Co.
and the controlling principles behind severance, we hold that the trial court
abused its discretion when it denied C.P.'s motion to sever. First, C.P.'s two
counts of unauthorized use of a motor vehicle arose from two separate
transactions that were not part of the same criminal episode. Second, the State
could have easily tried the July 7, 1997, offense in an independent trial. The
July 7, 1997, offense did not involve the same witnesses as the September 30,
1997, offense. Lastly, the two offenses were not so interwoven with each other
that it would be impossible to try the two offenses separately. Each offense
required the determination of different facts and issues. There is no apparent
reason why the State needed to try both offenses simultaneously. All the facts
and circumstances dictate that the trial court should have severed the offenses
and ordered separate trials. Because there are no reasons why a simultaneous
trial would further justice and neither the State nor C.P. would be prejudiced
by a separate trial, we hold that the trial court abused its discretion when it
denied C.P.'s motion to sever.
We must now determine whether the trial court's error was harm that requires
reversal. We apply the test as found in Rule 44.1(a) and disregard any error
that did not probably cause the rendition of an improper judgment. Tex.R.App. P.
44.1(a); In re D.V., 955 S.W.2d 379, 380 (Tex.App.--San Antonio 1997, no pet.)
(use civil harm analysis when the State proceeds with indeterminate sentencing);
In re G.M.P., 909 S.W.2d 198, 210 (Tex.App.-- Houston [14th Dist.] 1995, no
pet.) (civil standard for harmless error applies to juvenile delinquency
adjudications).
After examining the entire record, we cannot say that the simultaneous trial
caused the rendition of an improper judgment. It is true that the simultaneous
trial allowed the State to introduce evidence that otherwise would not be
admissible during a separate trial on the July 7, 1997, offense. However, the
State presented legally sufficient and factually sufficient evidence to support
each individual adjudication of unauthorized use of a motor vehicle. Further, it
is unlikely that the inclusion of one additional offense of unauthorized use of
a motor vehicle affected the trial court's decision to commit C.P. to the Texas
Youth Commission for an indeterminate sentence. Excluding C.P.'s adjudication of
the July 7, 1997, offense, the jury adjudicated C.P. guilty of two counts of
debit card abuse, one count of making a false statement to an employee of a law
enforcement agency, and the September 30, 1997, offense of unauthorized use of a
motor vehicle. Therefore, we hold that the trial court's error did not cause the
rendition of an improper judgment.
We overrule C.P.'s fourth issue.
FN2. The corpus delicti of a crime consists of the fact that the crime in
question has been committed by someone. McDuff v. State, 939 S.W.2d 607, 614
(Tex.Crim.App.1997) (en banc), cert. denied, --- U.S. ----, 118 S.Ct. 125, 139
L.Ed.2d 75 (1997).