# Gardner v. State

> Court of Criminal Appeals of Texas · November 8, 1989 · 780 S.W.2d 259

URL: https://www.frixlaw.com/law-library/cases/9768829

## Case

- **Full name:** Jackie Vestal GARDNER, Appellant, v. the STATE of Texas, Appellee
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** November 8, 1989
- **Citations:** 780 S.W.2d 259; 1989 Tex. Crim. App. LEXIS 198; 1989 WL 133773
- **Precedential status:** Published
- **Opinion:** Dissent by Berchelmann
- **Judges:** Campbell, Berchelmann, McCormick, Davis, White
- **Cited by:** 59 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9768829

## How later opinions describe it (automated extraction)

- holding that the accused must be aware that the operation of the vehicle is without the owner’s consent

## Opinion text

BERCHELMANN, Judge,
dissenting.
I dissent. I agree, however, with the majority that the State must establish a defendant’s knowledge of the owner’s lack of consent as an element of the offense in unauthorized use of a motor vehicle prosecutions. Tex.Penal Code Ann. § 31.07. I likewise agree with the majority that § 31.07 is not a “strict liability” statute.
I write this dissent because I believe a majority of this Court wrongly upholds the Court of Appeals’ reversal of appellant’s conviction. Specifically, I cannot agree that the “posture” of the State’s petition for discretionary review fails to “join the issue” of sufficiency in this case. Gardner v. State, at 263 n. 3. In fact, sufficiency was “the sole point of error” presented in the Court of Appeals. Gardner v. State, 736 S.W.2d 179 (Tex.App.—San Antonio 1987). Simply put, we now unequivocally state that a defendant’s knowledge of an owner’s lack of consent is an element of a prosecution under § 31.07. This inextricably intertwines the sufficiency issue, necessitating a sufficiency review.
My review of the record reflects that the State sufficiently proved this and the other elements of § 31.07. I would, therefore, overrule the Court of Appeals’ decision and affirm the judgment of the trial court.
The record is replete with evidence that appellant knew he did not have the owner’s consent to operate the motor vehicle. First, appellant did not, in fact, have the owner’s consent. I would characterize this alone as circumstantial evidence sufficient to support that appellant knew he did not have the owner’s consent. Butler v. State, 769 S.W.2d 234 (Tex.Cr.App.1989). See also Jackson v. Virginia, 443 U.S. 307, 318-19 , 99 S.Ct. 2781, 2788-89 , 61 L.Ed.2d 560 (1979). Such an analysis does not make § 31.07 a strict liability statute, however, for the defendant is entitled to submission and consideration of a defensive charge where supported by the record. This distinction is clearly stated in Lynch v. State, 643 S.W.2d 737, 738 (Tex.Cr.App.1983), wherein we stated that a defendant is entitled to a mistake of fact defense in § 31.07 prosecutions for “to hold such innocent use is no defense would be to make Sec. 31.07, supra, a strict liability offense.” Were § 31.07 a strict liability statute, mistake of fact regarding an element of the *264 offense would be irrelevant, as in, for example, a statutory rape prosecution.
In the case at bar, there is additional evidence, beyond that which I would require to find evidentiary sufficiency, that appellant knew he did not have the owner’s consent. The stolen vehicle’s license plates were found in appellant’s vehicle. Appellant’s story that he was “borrowing” the stolen car for transportation to an auto parts store is contradicted by the direction in which appellant was traveling. There is, undoubtedly, ample evidence upon which a rational trier of fact could have found the element of knowledge of lack of consent beyond a reasonable doubt. Butler, 769 S.W.2d 234 . Because sufficiency is squarely before us, as it was the only issue before the Court of Appeals, I believe we should address the sufficiency issue and affirm the judgment of the trial court.
WHITE, J., joins.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9768829. Public record. Not legal advice.