State v. Al Jones, Ann Jones and Kevin Jones

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-93-453-CV AND NO. 3-93-454-CV





STATE OF TEXAS,

APPELLANT

vs.





AL JONES, ANN JONES AND KEVIN JONES,

APPELLEES

FROM THE COUNTY COURT OF TOM GREEN COUNTY

NOS. 14,256 & 14,257, HONORABLE WILLIAM R. MOORE, JUDGE PRESIDING

PER CURIAM

Appellant State of Texas appeals from judgments of the county court of Tom Green County that awarded possession of two pickup trucks to appellees Al Jones, Ann Jones and Kevin Jones. In one point of error, the State complains of the sufficiency of the evidence to support the trial court's determination that appellees are the owners of the trucks. Because the evidence is sufficient, we will affirm the trial-court judgments.

In March 1992, a Texas Department of Public Safety investigator seized a red and black pickup truck and a brown and tan pickup truck in Tom Green County. Certificate of Title Act, Tex. Rev. Civ. Stat. Ann. art. 6687-1, § 49(c) (West Supp. 1995) ("Certificate of Title Act"). ⁽¹⁾ The State filed a petition and an amended petition for forfeiture in the justice court of Tom Green County stating that the State could not determine the rightful owner and asking that title to the vehicles be delivered to the district attorney for Tom Green County. See Act of June 18, 1987, 73d Leg., R.S., ch. 542, § 1, 1987 Tex. Gen. Laws 2210 (Tex. Code Crim. Proc., art. 47.01a, since amended) ("Art. 47.01a"); ⁽²⁾ Certificate of Title Act, § 49(d), (e) (West Supp. 1995). ⁽³⁾ After a hearing, the justice court determined that appellees were the owners of the two trucks and ordered the State to return them to the appellees.

The State appealed the justice-court judgment to the county court. Tex. R. Civ. P. 571. After a bench trial, the county court found that appellees owned the two trucks and ordered them returned to appellees. This judgment underlies the State's appeal to this Court. See Bretz v. State, 508 S.W.2d 97, 98 (Tex. Cr. App. 1974); Nelms v. State, 761 S.W.2d 578, 579 (Tex. App.--Fort Worth 1988, no writ) (appeals under chapter 47 are civil in nature).

In one point of error, the State contends that the trial court erred in directing a verdict because the evidence that appellees are the owners of the vehicles is insufficient as a matter of law. Because this was a nonjury trial, we understand that appellees moved for judgment, and not for a directed verdict, after the State presented its evidence. See Qantel Business Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 303-5 (Tex. 1988); Moore v. Office of the Attorney Gen., 820 S.W.2d 874, 876 (Tex. App.--Austin 1991, no writ). Because a trial court may review both the factual and legal issues at the close of the plaintiff's case in a bench trial, an appellant may challenge the sufficiency of the evidence to support the judgment as in any nonjury case. Qantel Business Sys, 761 S.W.2d at 304; Moore, 820 S.W.2d at 876.

The State argues that the evidence is insufficient as a matter of law to support the finding that appellees are the owners of the vehicles and, therefore, raises only a legal-sufficiency challenge. By filing the petition, the State put the question of the right to possession of the vehicles in issue. Art. 47.01a(a). In reviewing a legal-sufficiency point that attempts to overcome an adverse fact finding, we first consider only the evidence and inferences tending to support the trier of fact and disregard all evidence and inferences to the contrary. If no evidence supports the finding, we examine the entire record to see if the contrary proposition is established as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex. 1989); Holley v. Watts, 629 S.W.2d 694, 696 (Tex. 1982); but see Peterson v. White, 877 S.W.2d 62, 63 (Tex. App.--Tyler 1994, no writ); Mann v. NCNB Tex. Nat'l Bank, 854 S.W.2d 664, 667 n.2 (Tex. App.--Dallas 1992, no writ) (because trial court rendered judgment on motion for judgment, appellate court considers only evidence and inferences most favorable to appellant).

The State's only witness was Cliff Babbitt, an investigator with the Texas Department of Public Safety, assigned to the motor vehicle theft division. Babbitt testified that, in March 1992 during the course of an unrelated investigation, he inspected a red and black pickup truck that displayed a vehicle identification number ("VIN") plate for a 1982 model. The VIN number on the vehicle was 2GCDCI4H6C1159841. Because the VIN plate appeared suspicious, Babbitt checked for the federal safety certificate, or Nadar sticker, and load data sticker, which also show the VIN. These two stickers had been removed. He then inspected the engine, which appeared to be a 1988 or 1989 model engine. The number that corresponds to the VIN was not on the engine. Instead, Babbitt observed deep grinds in the metal; he testified the engine "was obviously ground to remove the number." He also testified that the truck was repainted.

Several days later, Babbitt seized a brown and tan pickup truck that the license plate number and VIN showed to be a 1984 model. The VIN was 1GCHC33J6ES134796. The Nadar sticker with the same VIN appeared to have been removed and reattached; the load data sticker was missing. This truck did not have an engine number but had grind marks where the number should have been. The VIN identified a truck with a diesel engine; however, the engine was not a diesel. Welds on the frame suggested that the piece with the frame number had been replaced to show a number that matched the VIN and the Nadar sticker.

At best the preceding evidence and inferences drawn from the evidence raise a presumption that the trucks may have been stolen vehicles. See Certificate of Title Act, § 49(c), (g) ⁽⁴⁾ (West Supp. 1995). On cross-examination of Babbitt, appellees offered, and the trial court admitted, certificates of title and related documents that show that appellees have title to trucks, purchased from automobile dealers, with the above VIN numbers. The State offered no evidence to rebut this proof. Because the evidence supports the judgments that award possession to appellees, we overrule the State's point of error. See American Fire & Indem. Co. v. Jones, 828 S.W.2d 767, 770 (Tex. App.--Texarkana 1992, writ denied) (testimony about numbers on truck and title history showing title in appellant conclusively established appellant as truck owner).

The judgments of the trial court are affirmed.

Before Justices Jones, Kidd and B. A. Smith

Affirmed on Both Causes

Filed: January 18, 1995

Do Not Publish

1. ¹ A peace officer may seize any vehicle . . . without a warrant if the officer has probable cause to believe the vehicle . . .

(2) has had the serial number, the motor number, or the manufacturer's permanent vehicle identification number or derivative number removed, altered, or obliterated.

Certificate of Title Act, § 49(c) (West Supp. 1995).

2. ² The applicable version of article 47.01a provided:

(a) If a criminal action relating to allegedly stolen property is not pending, a magistrate of the county or city in which the property is being held may hold a hearing to determine the right to possession of the property, upon the petition of an interested person, a county, a city, or the state. The magistrate shall order the property delivered to whoever has the superior right to possession . . . or the magistrate may remand the property to the custody of the peace officer . . . .

Act of June 18, 1987, 73d Leg., R.S., ch. 548, § 1, 1987 Tex. Gen. Laws 2210. The recent amendments to section 47.01a apply to allegedly stolen property that came into the custody of a peace officer after August 30, 1993. Act of June 18, 1993, 73d Leg., R.S., ch. 860, § 3, 1993 Tex. Gen. Laws 3372, 3373.

3. ³ Section 49(d) and (e) provide:

(d) A vehicle . . .seized under this section may be treated as stolen property for purposes of custody and disposition of the vehicle . . . .

(e) The Department may issue a title to a government agency if a vehicle . . . is:

(1) forfeited to the government agency . . . .

Certificate of Title Act, § 49(d), (e).

4. ⁴ Section 49(g) provides a procedure by which a person whom a court has determined to be the rightful owner of a motor vehicle that has had the VIN removed to apply for and receive a VIN. Certificate of Title Act, § 49(g) (West Supp. 1995).