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Chapter 31

Charges

Chapter 31

Theft

31.9  Instruction—Unauthorized Use of Vehicle

LAW SPECIFIC TO THIS CASE

The state accuses the defendant of having committed the offense of unauthorized use of a vehicle.

Relevant Statutes

A person commits the offense of unauthorized use of a vehicle if the person intentionally or knowingly operates another’s motor-propelled vehicle without the effective consent of the owner.

Definitions

Intentionally Operate Motor-Propelled Vehicle Owned by Another

A person intentionally operates a motor-propelled vehicle owned by another if the person has the conscious desire to operate a motor-propelled vehicle that the person is aware is owned by another.

Knowingly Operate Motor-Propelled Vehicle Owned by Another

A person knowingly operates a motor-propelled vehicle owned by another if the person is aware that the person is operating a motor-propelled vehicle that the person is aware is owned by another.

Knowing Owner Did Not Effectively Consent to Operation of Vehicle

A person knows the owner does not effectively consent to the person’s operation of the owner’s vehicle if he is aware that the owner does not effectively consent to this operation of the vehicle.

Owner

“Owner” means a person who has—

  1. title to the property; or
  2. possession of the property, whether lawful or not; or
  3. a greater right to possession of the property than the defendant.

Possession

“Possession” means actual care, custody, control, or management.

Effective Consent of Owner

Consent is effective consent of the owner if both—

  1. the consent is given by the owner or a person legally authorized to act for the owner; and
  2. the consent is not rendered ineffective because—
    1. it was induced by deception or coercion; or
    2. it was given by a person the defendant knew was not legally authorized to act for the owner; or
    3. it was given by a person who by reason of youth, mental disease or defect, or intoxication is known by the defendant to be unable to make reasonable property dispositions; or
    4. it was given by a person who by reason of advanced age is known by the defendant to have a diminished capacity to make informed and rational decisions about the reasonable disposition of property.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—

  1. the defendant, in [county] County, Texas, on or about [date], intentionally or knowingly operated a motor-propelled vehicle owned by [name]; and
  2. [name], the owner of the vehicle, did not effectively consent to the defendant’s operation of the vehicle; and
  3. the defendant knew [name], the owner, did not effectively consent to the defendant’s operation of the vehicle.

You must all agree on elements 1, 2, and 3 listed above.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 listed above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, each of the three elements listed above, you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC 2.1, the general charge.]

Comment

Unauthorized use of a vehicle is prohibited by and defined in Tex. Penal Code § 31.07. The definitions of culpable mental states are derived from Tex. Penal Code § 6.03. The definition of “owner” is from Tex. Penal Code § 1.07(a)(35). The definition of “possession” is from Tex. Penal Code § 1.07(a)(39). The definition of “effective consent” is from Tex. Penal Code § 31.01(3).

Texas Penal Code section 31.07(a) requires that the offense of unauthorized use of a vehicle be committed intentionally or knowingly. Tex. Penal Code § 31.07(a). The elements to which this culpable mental state applies have been addressed by the case law:

In McQueen, this Court held that a culpable mental state applies to both the “operate a motor-propelled vehicle” and the “without the effective consent of the owner” elements of the offense.

Bruno v. State, 845 S.W.2d 910, 912 (Tex. Crim. App. 1993) (citing McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989)). See Battise v. State, 264 S.W.3d 222, 227 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d) (operating vehicle is unlawful only if accused is aware that operation of vehicle is without owner’s consent).

Because the defendant’s awareness of the lack of consent is frequently a major issue in these prosecutions, the Committee concluded that knowledge of this circumstance is appropriately set out in the instructions as a distinguishable element of the offense.

No definition of the critical term operate is included. Denton v. State, 911 S.W.2d 388 (Tex. Crim. App. 1995), appeared to formulate a definition of the term as it is used in Tex. Penal Code § 31.07(a) and in Tex. Penal Code § 49.04 (driving while intoxicated). A driving while intoxicated instruction incorporating this definition, however, was held to be a prohibited comment on the weight of the evidence. Kirsch v. State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012). Kirsch’s rationale and holding undoubtedly apply to prosecutions under section 31.07(a), and therefore no definition of “operate” is included in these instructions.

This instruction may be modified for use in cases involving the unauthorized use of a boat or airplane. See Tex. Penal Code § 31.07(a).