Michael Mohammed Elawar v. State

Opinion filed December 15, 2005

Opinion filed December 15, 2005

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00132-CR

                                                    __________

                         MICHAEL MOHAMMED ELAWAR, Appellant

                                                             V.

                                        STATE OF TEXAS, Appellee

                                         On Appeal from the 358th District Court

                                                           Ector County, Texas

                                                 Trial Court Cause No. D-30,999

                                                                   O P I N I O N

The jury convicted Michael Mohammed Elawar of unauthorized use of a vehicle and assessed his punishment at confinement in a state jail facility of the Texas Department of Criminal Justice for a term of 180 days.  Appellant raises two points of error on appeal.  We affirm.

Charles Edward Shelton Jr., the owner of Apple Electrical Contractors in Odessa, testified that the gate to the business=s equipment yard appeared to have been left open when he arrived to work during the early morning hours of June 24, 2003.  He subsequently determined that someone had driven through the gate.  He also discovered that a one-ton Chevrolet pickup owned by the business had been taken from the yard.  The vehicle had a utility bed and several markings bearing the name AApple Electrical Contractors.@

A computer check conducted by Deputy Houston Hester of the Ector County Sheriff=s Department revealed that the vehicle had been stopped in the early morning hours of June 24, 2003,  in Hobbs, New Mexico.  Patrolman Byron Wester of the New Mexico State Police testified that he stopped the vehicle at approximately 1:00 a.m. Mountain Time on June 24, 2003, for a taillight violation.^[1]  Appellant was driving the vehicle at the time of the stop.  Patrolman Wester issued citations to appellant for not having taillights and for not having a valid driver=s license.  Patrolman Wester subsequently recovered the vehicle from appellant=s residence in Hobbs later that day.

Appellant testified on his own behalf at trial.  He stated that he, his wife, and two of their children traveled to Odessa from Hobbs on June 23, 2003, to pay some bills.  Appellant and his wife had an argument as they began to leave Odessa for the return trip to Hobbs that evening.  As a result of the argument, appellant got out of their car. Appellant testified that he walked to Earl=s Lounge while his wife and children drove to Hobbs in their car.  He stated that a man at the bar named AFabian@ loaned him the vehicle to drive to Hobbs. He further testified that another man robbed him of his pants prior to his departure for Hobbs.

In his first point of error, appellant contends that the trial court erred in allowing evidence to be admitted that appellant was not wearing pants when Patrolman Wester stopped him in Hobbs.  He argues that this evidence was not relevant to the issue of guilt.  A trial court=s decision to admit or exclude evidence is reviewed under an abuse of discretion standard.  Burden v. State, 55 S.W.3d 608, 615 (Tex. Crim. App. 2001). An appellate court will not reverse a trial court=s ruling unless that ruling falls outside the zone of reasonable disagreement. Burden, 55 S.W.3d at 615.  Evidence is relevant if it has any tendency to make the existence of a fact of consequence to the determination of the action more or less probable than it would be without the evidence.  Tex. R. Evid. 401.            The evidence regarding appellant=s lack of attire consisted of the officer=s oral testimony at trial and a videotape depicting the officer=s stop of the vehicle.  When Patrolman Wester asked appellant why he was not wearing any pants, he replied by saying that it was Aa long story.@  Patrolman Wester did not issue a citation to appellant for not wearing pants because he was not visible by others while inside of the vehicle.  The videotape lasted approximately thirty minutes in length.^[2]  It contained most of the dialogue between Patrolman Wester and appellant, including the discussion regarding his lack of attire.  At one point late in the stop, Patrolman Wester requested appellant to exit the vehicle for the purpose of conducting a field sobriety test.  The videotape depicted the fact that appellant was not wearing any pants.  However, the videotape did not reveal any portions of appellant=s body which would be considered offensive under the Penal Code.  See Tex. Pen. Code Ann. ' 42.01(a)(10) (Vernon Supp. 2005).

We disagree with appellant=s relevancy contention.  The general rule in Texas is that the State is entitled to show the circumstances surrounding an arrest.  Maddox v. State, 682 S.W.2d 563, 564 (Tex. Crim. App. 1985). However, when such evidence is inherently prejudicial and has no relevance to any issue in the case, the general rule does not apply.  Maddox, 682 S.W.2d at 564.  As a circumstance related to his use of the pickup, appellant=s lack of attire was relevant to the question of whether or not his use of the vehicle was or was not authorized.   The evidence from Patrolman Wester and the videotape actually bolstered appellant=s version of what transpired after he and his wife parted ways in Odessa.  The audio portion of the videotape was particularly relevant because it contained evidence that appellant had driven from Odessa, the county seat of Ector County. The audio portion of the videotape was also relevant to the extent that appellant made no mention to Patrolman Wester about  borrowing the pickup from a friend or being robbed of his pants.  To the contrary, appellant told Patrolman Wester that he had been working in Odessa.  The trial court=s decision to admit this evidence did not fall outside of the zone of reasonable disagreement.  Appellant=s first point of error is overruled.

In his second point of error, appellant complains of a charging error which he preserved at trial.  When a defendant complains of charge error on appeal, we must first determine whether there is any error in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996).  If we conclude that there is error, we must determine if the error caused sufficient harm to warrant reversal. Hutch v. State, supra at 170‑71. The degree of harm necessary for reversal is controlled by whether the error was properly preserved at trial.  Hutch v. State, supra at 171.  Where the defendant properly objected to the error at trial, we reverse only if the error is Acalculated to injure the rights of the defendant,@ which means that there must be some harm to the accused from the error.  Tex. Code Crim. Pro. Ann. art. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).

The trial court submitted the following instruction to the jury:

It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution=s proof excludes all Areasonable doubt@ concerning the Defendant=s guilt.

Appellant requested the trial court to include the words Athat is, doubt that is based upon speculation or fancy,@ into the instruction so that it would provide as follows: 

It is not required that the prosecution prove guilt beyond all possible doubt, that is, doubt that is based upon speculation or fancy.  It is required that the prosecution=s proof excludes all Areasonable doubt@ concerning the Defendant=s guilt.  (Emphasis added)

Appellant contends that without the addition of the words he requested the jury was permitted to convict him while still having a doubt as to the State=s proof of the elements of the crime.  We disagree.  The First Court of Appeals approved the use of the exact instruction given in this case in Carriere v. State, 84 S.W.3d 753, 759 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d).  The court stated as follows in Carriere:

[T]he trial court instructed the jury Ait is not required that the prosecution prove guilt beyond all doubt.@ This instruction does not lessen the State=s burden of proof, especially in light of the second sentence which correctly repeats the State=s burden that, Ait is required that the prosecution=s proof excludes all reasonable doubt concerning the defendant=s guilt.@  The charge was proper because it did not define reasonable doubt‑‑it merely instructed the jury that appellant=s guilt must be proved beyond a reasonable doubt, not beyond all possible doubt.

We agree with the court=s rationale in Carriere.  The submission of this instruction did not constitute error.  See O=Canas v. State, 140 S.W.3d 695, 702 (Tex. App.CDallas 2003, pet. ref=d); Ochoa v. State, 119 S.W.3d 825, 828-29 (Tex. App.CSan Antonio 2003, no pet.); Torres v. State, 116 S.W.3d 208, 211-12 (Tex. App.CEl Paso 2003, no pet.); Minor v. State, 91 S.W.3d 824, 828‑29 (Tex. App.CFort Worth 2002, pet. ref=d); Carriere, 84 S.W.3d at 759. Appellant=s second point of error is overruled.

The judgment of the trial court is affirmed.

AUSTIN McCLOUD

SENIOR JUSTICE

December 15, 2005

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J., and

McCall, J., and McCloud, S.J.^[3]

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     ^[1]Shelton testified that the utility bed on the stolen vehicle had recently been installed.  The taillights to the vehicle were not operational because the installation had not yet been completed.

     ^[2]Patrolman Wester=s stop of appellant was delayed by the difficulty Patrolman Wester had in confirming appellant=s identity.

     ^[3]Austin McCloud, Retired Chief Justice, Court of Appeals, 11th District of Texas at Eastland sitting by assignment.