*1 our state s laws. above, See Tex.Gov’t Code Ann. For the reasons stated (Vernon 1988) 323.001 seq. et (statutory §§ against contracting that the bar with the program, revision requiring review re- III, state or its counties contained in article organization statutes).3 all Texas applies section 18 of the Texas Constitution codification, effort repeal, necessitates the only to current and not to former members revision and literally reenactment of hun- legislature. We thus hold that the dreds of single legislative statutes in a bill. County contract Brazoria between and the See, e.g., 621, S.B. 1979 Tex.Gen. Laws Heard, Blair, firm Goggan, law Williams 2217, ch. (repealing approximately 600 Harrison, & is not violative of the Texas statutory provisions and adopting new Constitution. We reverse the Property Tax replacement); Code in S.B. court of and affirm that of the 797, 3242, (re- 1985 Tex.Gen. Laws ch. 959 trial court. placing approximately repealed stat- utes with the Civil Practice and Remedies
Code). interpretation urged by respon-
dent Cornett would work a serious disin-
centive to this streamlining much-needed
our legislature laws. The would be hesi-
tant to consider voluminous enactments if passage
their impose would a lifetime bar to contracting its members with the state McQUEEN, Ray Appellant, Michael pursuant or its counties to the affected nothing statutes. We find to indicate this result was by intended the framers of arti- Texas, Appellee. The STATE of III, cle section 18 or the by voters whom No. 979-86. provision was ratified. acknowledge Appeals Texas,
We Court of Criminal that the framers of arti- III, cle attempting pre- section 18 were En Banc. improper
vent gain by financial members Nov. 1989. legislature. joins This court in that Rehearing Denied Dec. 1989. highest desire to ensure the standards of by public ethical conduct officials. We can- agree however, respondent,
not with place framers meant a lifetime every
“mark of Cain” on citizen who is
willing serving benefit our state legislature. highly While it is desirable improper personal gain by bar former
legislators, we believe that this concern can effectively through ap-
be more addressed
propriate legislation rather than an over- judicial interpretation
broad of the constitu-
tion.4 Similarly, years following employ- the Texas Sunset Act calls for the to two termination of agency enabling review and revision of state ment with the commission. Tex.Rev.Civ.Stat. seq. statutes. Tex.Gov’tCode Ann. §§ 325.001 et (Vernon 6(i) Supp.1989). Ann. art. 1446c § (Vernon 1988). legislation prescribe Similar could certain con- retiring legislators dealings duct of in their legislature
4. The has available to it several the state and its subdivisions. Another mecha- designed mechanisms better than a lifetime bar nism, members, applicable only now to current prevent legislators privately to efiting former from ben- require is to financial disclosure to assist in past public example, service. For identifying possible unethical behavior. See Regulatory Utility the Public Utility Act bars Public (Vernon Tex.Rev.Civ.Stat.Ann. art. 6252-9b employ- Commissioners and commission Supp.1989). employment by public utility up ees from
601 degree guilty of the third the verdict of guilty judgment of felony, entered a misdemeanor, Class appellant to sentenced in the Tarrant days’ confinement twelve Jail, credit for County gave appellant and Ap- Appellant gave Notice of time served. peal. published opin
The court of ion, appellant’s and affirmed conviction required that held prove only State vehicle, motor-propelled vehicle, and knew was appellant operated the vehicle without McQueen State, v. the owner’s consent. (Tex.App. Worth 714 S.W.2d — Fort 1986). The decision the court Musgrave v. upon was based (Tex.Cr.App.1980) (Opinion S.W.2d Rehearing). petition his for In discretion review, ary appellant contends the court of that, in an appeals erred in unau ease, use the State is thorized of a required not that a defendant operation of the motor vehicle knew Ap without the consent of the owner. appeals’ pellant maintains that the court of holding Musgrave and are in conflict with holding in our granted appel (Tex.Cr.App.1983). We petition perceived lant’s to resolve the con Lynch. flict between and We Butcher, Worth, appel- Allan K. Port for affirm of the court of will lant. appeals. Curry, Atty., Tim Dist. C. Chris Marshall facts are as follows. At relevant Dickson, Attys., and V. Paul Asst. Dist. trial, not plea guilty entered Worth, Huttash, Atty., Fort Robert State’s stipulated evidence. The and was tried on Austin, State. attorney agreed prosecutor appellant’s and stipulated that the vehicle ridden leading to his arrest for unautho-
appellant, vehicle, Bobby belonged rized use APPELLANT’S PETITION OPINION ON Akin, approxi- Akin stolen from but was FOR REVIEW DISCRETIONARY mately day prior arrest. MILLER, Judge. dictated into the record prosecutor also given testimony would have been Appellant in a was convicted trial before arresting officer and the detective by the degree felony the court the third offense Ap- appellant. took a statement from V.T.C.A., who use vehicle. of unauthorized of a introduced pellant’s statement was then to an Sec. 31.07. Pursuant by the It stated State. prosecutor ap- into agreement between the counsel, pertinent pellant’s the trial set aside McQueen (sic)
“I compleeted Lynch, Michael R. read, grade additionally prove the 11th and do that a defendant write and State to english language. of the vehicle operation understand the I am that the giving any prom- this statement without without the consent of the effective *3 being ise or given appeals Lynch threats made or to me. The court of found the deci- I inapplicable present walked to Tim Eden’s house I think the the sion to case be- jury address is 7021 Circle Wood. The house cause it involved a trial and because is near Freddies in Fast Woodhaven. the was Lynch issue in whether the evi- (black motorcycle Tim told the me that 84 dence of raised the issue mistake of fact 522) Honda Tx Lie. 4ZW that he came jury and to a entitled the defendant issue (sic) ridding up on was his and it had time, ground. on that the same At how- (sic) been in parants Oklahoma where his ever, the court noted that of had shops just had two donut and he brought appellant’s jury, case tried to a been it back to He told I Texas. me could ride an would have been entitled to affirmative and I if I asked him could take it to the concerning submission of an issue mistake (Cowtown Country) bar I where was holding Lynch. of fact under See drinking right I before wrecked the bike McQueen, 714 at 143. In his S.W.2d sole I really out. not know what I do was ground review, appellant maintains that doing just on Lane. I Jane know I lost decided, Lynch if properly was the State motorcycle control of the and the bike appellant necessarily prove oper- rolling and I went out into the field. I knowing ated the motor such thought Tim be if thing would mad operation was the owner’s effec- happened bike so I walking. to his went agree. tive consent. We open I found a with the Datsun door and factually The case similar got sleep. inside of it and went to The to the The instant case. defendant thing police next I waking know were Lynch presented evidence that his use of up jail. me me to I and took did not steal permission the vehicle was with of an (sic). cycle only the motor borrowed it acquaintance given him keys who had to from Tim to ride Eden around....” the vehicle. The defendant used the ve guilty trial found on pick up motorcycle hicle to from re the basis of this evidence. pair shop. that such We held evidence The court of accord with Mus- fact,2 mistake raised the defense of grave, 608 S.W.2d held that the State the defendant entitled to an was affirma proof. had met its burden tive submission of defense raised by to the State three elements stated in Lynch, evidence. As we su support under conviction Sec. pra at 738: to wit: presented “... Here evidence (1) that a defendant a motor- van that his use was with the vehicle; propelled permission gave who of the him (2) operating that he he was keys apparently and who au- vehicle; and thorized to use the vehicle. to consent permission that he without the did so use is no To hold such innocent defense of the owner. 31.07, supra, See. would be to make liability appeals expressly disagreed The court of strict offense. raised the issue whether contention that our (a) prosecution V.T.C.A. It is a 1. We note under defense through formed a 1.07(a)(24), actor mistake reasonable be- many be there can “owners" of the fact if his lief about a matter of mistaken belief effect of same vehicle. The this fact will be negated culpability required the kind for com- opinion. addressed further in this on offense, (emphasis supplied) mission of the culpability” means We have held that “kind provided
2. for in
defense is
State,
Beggs
"culpable
See
v.
mental state.”
states in relevant
(Tex.Cr.App.1980).
Alvarado,
at 39
704 S.W.2d
that result.
of fact....”
under mistake
Lugo-Lugo, 650 S.W.2d
child);
added)3
(injury to a
(emphasis
Kelly v.
(murder);
748 S.W.2d
at 81
The mistake of fact was the defendant’s
elderly
an
(injury to
(Tex.Cr.App.1988)
the owner’s
erroneous
that he had
belief
in
Likewise,
otherwise
individual).
where
a mistake
consent to use the vehicle. Since
because
criminal
becomes
nocent behavior
if it ne-
only
defense is
of fact
available
under which
circumstances
culpable
required
mental state
gates the
required as
done,
mental state is
culpable
of-
underlying
for the commission of the
circumstances.
those
2, infra,
fense,
requisite
note
such
(Tex.Cr.
McClain
pertain
the defen-
mental state must
(theft).
App.1985)
the owner’s effective
dant’s belief about
*4
only logical
consent. This is the
conclusion
the offense
Section 31.07 describes
Lynch
consistent with
which we believe
as
of a motor vehicle
unauthorized use
Therefore,
correctly decided.
follows:
that,
in
unauthorized use of a motor
an
a)
an offense if he
commits
case,
applies
culpable
vehicle
mental state
operates an-
intentionally
knowingly
or
defendant
his use of
to whether the
boat,
motor-propelled
airplane, or
other’s
the motor vehicle was without the effective
the effective consent
vehicle without
consent of
the owner.
than a
holding
Our
is based on more
motor-propelled
operating another’s
Since
logic
in
simple exercise
that results from
very
its
nature
vehicle is not criminal
Lynch, however. We
upholding
sup-
find
offense is not a “nature
conduct”
this
port
holding
culpa-
in the scheme of
for our
type
“result”
type offense. Nor is it a
prescribed by Chapter 6
ble mental states
prohibit
the statute does not
offense since
of the Penal Code and in a common-sense
operation.
any specific result of such
analysis of the offense itself.
the conduct unlawful is that
What makes
with,
begin
consistently
To
we have
rec-
circumstances,
i.e.,
under certain
is done
V.T.C.A.,
Code,
ognized that
Penal
Sec.
permission. There-
the owner’s
6.03 delineates three “conduct elements”
fore,
unauthorized use of a motor ve-
(1)
may
in
which
be involved
an offense:
offense,
type
hicle is a “circumstances”
conduct; (2)
the nature of the
the result of
“knowingly”
culpable mental state of
conduct;
the circumstances sur-
surrounding circum-
apply to those
must
rounding the conduct. Lugo-Lugo v.
expressed in
Judge
As
Roberts
stances.
(Tex.Cr.App.1983);
concurring opinion Musgrave,
in
Musgrave,
(concurring
Further consent to or else operate motorcycle proved, comes from from a 1.02(4), objectives standpoint by of the sufficiency basic and as reflected verdict, the the Penal Code: fact finder’s that pertinent knowledge 4. Sec. consent of all 31.01. reads in dant’s the lack of possible prove (a) at a owners. State must offense if commits an he unlaw- fully appropriates property with the he lacked intent to de- minimum that defendant knew prive property. the owner of the the owner or named in consent of owners (b) Appropriation property is However, unlawful if: the evidence indictment. if it without the owner’s effective con- presented by the State raises defendant or the sent ... effective con- an issue that defendant received owners, a reasonable sent from additional mentioned in fn. are aware there As we that issue the defendant doubt on the may multiple ques- be owners the vehicle in 2.03(d). acquitted. be V.A.P.C. Sec. impose tion. Our should not be read to upon proving State the burden defen- Akin’s consent. As knew he did not have mistake concerning the circumstances sur-
fact operation mo-
rounding appellant’s of.the i.e.,
torcycle, believed motorcycle was Tim Eden and
owner of operate had Tim Eden’s consent to
that he vehicle, was, pointed trial as court reject
out the court of free McQueen, supra, 714
this evidence.
S.W.2d at 143. court of affirmed.
therefore
McCORMICK, P.J., CLINTON,
J., concur in the result.
BERCHELMANN, Justice, concurring. majority opinion, I au- join
While emphasize that I
thor this concurrence stipulated testimony that
treat the owner’s one had consent to use his motor vehicle
no appel-
as sufficient evidence to he did not have the owner’s
lant knew compare See and
consent.
Gardner
(Tex.Cr.App.1989)
(Berchelmann, dissenting). ability
Appellant’s to have his mistake of
fact defense as to this element of 31.07 § negates any
considered the trier of fact
unfounded concern that 31.07 is a “strict § liability” Lynch v. statute. Id. See also Sickel, Canton, Ray, Richard L. John A. (Tex.Cr.App.
1983). appellant. for emphasized, join majority With Cornelius, Atty., T. Dist. and Jef- Robert opinion. Canton, Atty., Massey, Asst. Dist. fie J. Austin, Huttash, Atty., State’s
Robert the State. HOLLOWAY, Appellant, Mark
Ronald OPINION PER CURIAM. Texas, Appellee. STATE denying an order appeal is an No. 70955. I, Article Sec. 11a pursuant to bail Texas, Appeals of Criminal Court of Texas. On of the State Constitution En Banc. 6, 1989, arrested appellant was September Dec. later, the district week for murder. hearing at
court convened the district request, after which State’s filed a writ of Appellant denied bail. court