*1 involved; in 21a were TEX.R.CIV.P. appeal, con- us in this
the case before circum-
trolling is whether under the issue
stances, trial-setting to defen- notice of the prior attorney to the time
dants’ relieved and released as attor-
that he was notice to defen-
ney of record constituted for the case was set
dants that Peralta, Fourth:
August review; way
appeal of bill by way of writ appeal case the requirements and error; procedures, appeal in an bill review
avenues are appeal by
in an writ of error different. carefully considered defen-
We have rehearing. for We adhere
dants’ motion decision, original opinion judgment
our rehearing is The motion for this case.
denied. is af-
The of the trial court
firmed. PROCTOR, Appellant,
Ervin Dewitt Texas, Appellee. STATE
No. 05-88-00316-CR.
Court
Dallas. Dallas, Nation, appellant. for Noble, Atty., Dist. Asst. Poppoff
Patricia Dallas, appellee. for HOWELL, Before McCLUNG ROWE, JJ.
HOWELL, Justice.
trial,
court con-
the trial
After a bench
unautho-
Ervin Dewitt Proctor
victed
*2
pleaded
rized
of a vehicle. Appellant
quested
use
and obtained a one-week recess in
true
paragraphs,
to two enhancement
order
testimony.
and
to secure Ross’s
When
reconvened, however,
trial court
thirty-five
sentenced him
case
appellant
years’
error,
confinement. In
called no
points
further witnesses.
appellant
(1)
argues that:
the evidence is
In
appellant
his first
conviction;
(2)
insufficient to sustain a
prove
contends that the State
that
is fundamentally
operated
possessed
as he
he
it does
include a
he
that
did not have the consent
element of the offense. For the reasons
defining
owner.
below,
discussed
we
points
overrule both
offense of unauthorized
of a
error
and affirm the trial court’s
provides:
(a)
person
A
commits
offense if
Insufficiency
the Evidence
operates
or
knowingly
an-
trial, Gregorio
At
testified
that
boat, airplane, motor-propelled
other’s
or
working
at La Tosca restaurant on
vehicle without the effective consent of
finishing
December
After
his
approximately
shift at
11 p.m., Martinez
(Vernon
TEX.PENAL CODE
31.07
ANN. §
outside,
went
started his
then
1974). The elements of the offense under
punch
went back inside
his time
(1)
(2)
person
section 31.07 are:
a
intention
returned,
card. When Martinez
his car
(3)
ally
knowingly
operates
airplane,
or
gone.
immediately reported
was
He
boat,
(4)
motor-propelled
or
vehicle without
police.
incident to the
Martinez said that
the effective consent of the owner. appellant,
he did not know
and that he had
grave v.
given
appellant
anyone
or
else consent Crim.App.1980)(op.
reh’g);
on
operate
his car on the
date was stolen. (Tex.App.-
180-81
1987, pet. granted). Relying
Dallas
on
Officer
B. Rucker testified
James
that
argues
appellant
that
order to
patrol
morning
while
early
hours
him,
culpa
convict
the State
a
30, 1987,
prove
must
of December
he received a broad-
ble mental
as to the
state
fourth element of
describing
Shortly
cast
a stolen vehicle.
the offense—without the effective consent
broadcast,
after
saw a
Rucker
car
of the owner. See
2d Ordinari enable know what he was quired against. ly, an indictment is if to defend sufficient The omission the term offense in “another” not rise to the the terms of the level statute. State, error. 590, We overrule Reynolds S.W.2d 547 592 lant’s second State, Baldwin v. (Tex.Crim.App.1976); 111 We AFFIRM the court’s State, In Allen v. the Court of Criminal ROWE, J., concurring opinion. files alleging an indictment the defendant did and know ROWE, Justice, concurring. a motor vehicle only. I concur in the result I differ with Price, styled Complainant, A.R. hereafter part majority opinion of the which effective consent Com overrules of error plainant.” Allen v. S.W.2d distinguishing 736 S.W. (Tex.Crim.App.1977). The Allen court not (Tex.App. pet. grant 2d 179 - Dallas ed that the offense ed). Appellant urges expressly under *4 gave adequate in terms statute carried the that the State to the notice accused of of he knew the establish that Id. in Mears Similarly, fense. driving was stolen and that the State the Court Criminal burden. majority, to meet this alleged “in indictment that following step analysis Gard in tentionally knowingly operate[d] a mo ner, although as in concludes that Eagle, R. tor with burden, had this out his effective consent.” Mears v. case, unlike that is suffi cient to For establish scienter. those upheld recently, More this Court an indict Gardner, I assigned my sons dissent in stating ment that the accused “know would hold that not have such State did intentionally operate motor-pro burden, I not address the suffi and would vehicle, namely: wagon, a station pelled ciency complaint. of evidence the effective consent of Victor majority’s opinion adopt I in full the with Rodriguez, the owner thereof.” Caro v. State, disposition (Tex.App . -Dal point of error. (not las, n.p.h.) yet reported). the offense of unauthorized use intelligible language. a vehicle acknowledge although the indict verbatim, does not track
ment COMPANY, LOYD every regard ELECTRIC closely follows the statute INC., Appellant, specifical one. The fails to allege is “anoth ly the automobile er’s,” clearly but it states wife, Equate Henry MILLETT and Lee While we is “the owner thereof.” Millett, Appellees. Lee “another” and agree with No. 04-87-00466-CV. 31.07 are not the “owner” under section always person, we note that in the same Court of alleging that Mar they By cases are. Antonio. most San thereof,” the indict was “the owner tinez the name of the implicitly ment asserts Rehearing March Denied Grego constituting “another” was that the indict rio Martinez. We conclude charges the offense of unauthorized enough specificity to of a vehicle