John W. Granger v. State ( 1992 )

Granger v. State IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-91-494-CR





JOHN W. GRANGER,

APPELLANT

vs.





THE STATE OF TEXAS,

APPELLEE

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 40,385, HONORABLE JOE CARROLL, JUDGE

PER CURIAM

A jury found appellant guilty of unauthorized use of a motor vehicle. Tex. Penal Code Ann. § 31.07 (1989). After finding that appellant had been previously convicted of four felony offenses, the jury assessed punishment at incarceration for seventy-five years. We will affirm the conviction.

The complainant, Gary Lohman, worked selling cars at a Chevrolet dealership in Temple. On May 11, 1991, appellant and a woman drove into the dealership in a Ford Bronco. Appellant inquired about buying a Chevrolet pickup truck. Appellant wanted Lohman to estimate the trade-in value of his Bronco while he test-drove the truck. Because appellant was unfamiliar with the area, Lohman gave him directions for driving around the block. He gave appellant the truck keys and watched appellant, accompanied by the woman, drive away in the truck. Lohman testified that when he gave appellant the keys, he did not give appellant permission to take the truck for more than a test-drive. Appellant never returned with the truck.

In points of error one through four, appellant argues that the trial court erroneously allowed the State to present an opening statement and evidence that revealed an extraneous offense. In point five, appellant argues that the court erroneously refused to grant a mistrial when the State argued based on the same evidence. The matters of which appellant complains show that three days before this offense, appellant and a woman drove into a car dealership in Palestine, asked to test-drive a Ford Bronco, and drove the Bronco away without returning it. Appellant drove this Bronco to the Chevrolet dealership in Temple; he left the Bronco there when he drove away in the dealership's pickup truck.

Events do not occur in a vacuum, and the jury may have the offense placed in its proper setting so that it can realistically evaluate the evidence. Mann v. State, 718 S.W.2d 741 (Tex. Crim. App. 1986); Albrecht v. State, 486 S.W.2d 97 (Tex. Crim. App. 1972). Also admissible, even though it shows an extraneous offense, is evidence that shows a continuing course of conduct or a common plan or scheme. Tex. R. Crim. Evid. Ann. 404(b) (Pamph. 1992); Etchieson v. State, 574 S.W.2d 753 (Tex. Crim. App. 1978); Collins v. State, 548 S.W.2d 368 (Tex. Crim. App. 1976). Evidence in this case that appellant drove the Bronco from the Palestine dealership and left it at the Temple dealership places the offense in context and shows that the offense was part of a continuing scheme or plan. Because the probative value of this evidence outweighs the danger of prejudice, the trial court properly admitted it. Tex. R. Crim. Evid. Ann. 403 (Pamph. 1992). Therefore, the trial court did not err in allowing the State to make an opening statement based on the evidence. Any impropriety in the State's argument that the Bronco was not appellant's car was cured by the court's instruction to disregard. We overrule points one through five.

In point of error six, appellant complains of the trial court's refusal to give his requested charge on mistake of fact. To convict appellant of unauthorized use of a motor vehicle, the State had to prove that appellant knew he did not have Lohman's effective consent to operate the truck. Tex. Penal Code Ann. § 31.07 (1989); Gardner v. State, 780 S.W.2d 259 (Tex. Crim. App. 1989). If appellant through mistake reasonably believed that Lohman had consented to his use of the truck, he was entitled to an instruction on mistake of fact. Tex. Penal Code Ann. § 8.02 (1974); Gardner, 780 S.W.2d at 263.

Lohman testified that appellant wanted to test-drive the pickup truck around the block while he estimated the trade-in value of the Bronco. Because the dealership was on a one-way street, Lohman explained how to drive around the block in either direction. Although Lohman did not give appellant a specific time within which to return the truck, he communicated to appellant that he should go for a short ride and be right back. Lohman understood the arrangement between him and appellant to be that he was giving appellant the keys only to drive the truck around the block. Lohman's testimony does not constitute any evidence that appellant reasonably believed Lohman consented to his taking the truck for more than a test-drive. We overrule point six.

In point of error seven, appellant contends that the trial court erred in refusing to grant a mistrial after allegedly improper jury argument. During her argument to the jury the prosecutor stated: "So please Ladies and Gentlemen, look at the common sense approach. Don't get in that mud and that cragmire [sic] and that swamp over there [defense counsel] has created -- ." The trial court sustained appellant's objection that the comment struck at appellant over counsel's shoulder and instructed the jury to disregard.

The context of the prosecutor's argument shows that she was asking the jury to consider only the evidence relating to the elements of the offense. Appellant's counsel had previously argued that the State had not proven that the pickup truck recovered in Sulphur Springs was the same truck that appellant had driven from the Temple dealership. We believe the prosecutor made the statement in answer to appellant's argument. Gorman v. State, 480 S.W.2d 188 (Tex. Crim. App. 1972). Any improper argument was cured by the trial court's instruction that the jury disregard it. We overrule point seven.

The judgment of conviction is affirmed.

  [Before Chief Justice Carroll, Justices Aboussie and B. A. Smith; Chief Justice Carroll

Not Participating]

Affirmed

Filed:  May 6, 1992

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