Interesting argument made today. Defendant accused of unauthorized use of vehicle claims to have purchased the vehicle thinking he was acquiring title. He ultimately does not dispute that vehicle must have been stolen by another (from the true owner) and that his seller had no title to transfer (although Defendant did receive an original title to a vehicle). His attorney argues, however, that his client may, in fact, be considered an owner, since that term includes the possessor of property "whether lawful or not." The second definition of owner in 1.07(a) (35) seems to conflict with the other definitions in this situation. What is the purpose of the "or not" provision? Part of the answer is found in Brown, 56 S.W.3d 919 (involving the theft of cocaine).

Epps, 24 S.W.3d at 876 says the statute has never been construed to allow a stranger to be the owner of another's property (presumably referring to the titled owner). In Hertz, No. 13-99-310-CR, the court said a bailee who received property from a thief had a greater right to possession and therefore was the owner vis-a-vis the defendant even though the bailee's possession was unlawful.

We proved O had the title to the vehicle and retained a greater right to possession than D. Thus, to me it makes no sense that D could claim to be the owner, but maybe he was under the possessor definition if literally applied (since we also proved he was in possession of the car subsequent to the initial appropriation). Anyone run across this before? Fortunately, the jury was not impressed or confused, but we did not see the argument coming. Normally this is not a problem since we are talking about who was in possession at the time the defendant appropriated property. But, at least with respect to unauthorized use, we focus on ownership at the time of operation of the vehicle.

[This message was edited by Martin Peterson on 02-21-07 at .]

I believe I found the answer to the question. The idea was to protect "a deprivation of another's title in the property whether or not the owner possesses the property." Inglehart, 837 S.W.2d at 132. So the new question is, do you disregard any part of the definition that would frustrate protection of the title owner? In other words, the argument was objectionable.

If a hypothetical third person stole the vehicle from the defendant, and you were unable to locate the actual owner, could the third person be indicted as having stolen the vehicle from the defendant?

Also, at the time of the purchase, did the Defendant know that the seller was not authorized to act for the actual owner?

If a hypothetical owner of property falls down in the woods, and no one is there to hear it, does it make any noise?

Well, GG, seems like that might depend in part on the hypothetical ownership and use of the wooded real property onto which he hypothetically fell. What if, for example, he hypothetically fell while trespassing on property hypothetically used for a deer lease in which he was neither the owner nor the lessee of said hypothetical property, but rather was merely sneaking around in hopes of finding a deer to hypothetically, ah, "misuse", dead or alive?

Or, Ms.Foley, what if he hypothetically fell due to hypothetical sherry intoxication by Brazoria County manner and means while enroute to do some hypothetical noodling on a river or navigable stream adjacent to said hypothetical woods, and if he did accidentally fall, would that mishap be accompanied by a banjo soundtrack? That, indeed, is the question.

The answer my friend, is blowing in the [hypothetical] wind...

It appears to me that a person can be an owner under the penal code, and thus protected by the theft statute, even if he is not an owner for purposes of the transportation code.

I cannot tell, Greg. Does your answer mean you agree that the argument should have been objected to (or at least was objectionable as a misstatement of the law) or that you think I cannot see the forest because . . . . The vehicle was being driven in Dallas, so I think the noodling issue is not present. But, then, maybe the Trinity was nearby. Now I am really getting confused.

No Marvin, your legal reasoning, as usual, is flawless. You always amaze me with your postings about matters of law. You are a tremendous asset to this forum and I often find myself using your postings when I search the past postings of the forum for the issue de jour.

You, JB, JAS and the Chicken Man, as well as many others, provide much needed help, guidence and most importantly, legal citations for those of us needin' help. And usually needing help fast!

Seriously.

If there is anyone who often can't see the forest, it's me. I was just poking fun at another poster.

I first saw noodling as a young teen, and that is probably what is responsible for silly postings like this. IT WAS actually on the Trinity River, but quite a ways downstream at the Lake Livingston Dam. I saw guys pulling immense catfish from holes in the rocks with their bare hands being lowered headfirst by their buddy into the riprap below the dam when the flow had been greatly curtailed.

However, other than the noodling incident, AP and Scott Brumley are solely responsible for any further scarring upon my psyche.

If we are going to get serious again, I find I must ask another question. The situation described points out to me once again the issue of submitting part of the law in the charge which has no application to the facts. The only ownership law involved in the case was who had title or greater right to possession. Thus, probably, the "possessor" part of the definition should likely have just been omitted from the charge. Usually, I try to submit to the jury only the law applicable to the case for this very reason (in line with the cases limiting the definitions of "knowingly" or "intentionally" as appropriate to the case). Arguably, the argument was not contrary to the charge (or law as submitted). Rather, the problem originated in the charge. Particularly with respect to definitions (or alternative manners of commission of an offense), I think we needlessly run the risk of confusing a jury by giving them more information than is needed to resolve the case in front of them.