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Click here for the full text of this decision FACTS:Gary Gray Roy dated Elizabeth Norris, a former Thrifty Car Rental employee. Norris’ sister, Gwen Papillion, called Thrifty a couple of times to tell them of a scheme between Roy, Norris and two Thrifty employees to use Thrifty vehicles without paying for them. Thrifty’s director of security and fraud, Russell Atkin, responded to one of those calls on Dec. 26, 2001, the same day Papillion also called the police. Though police questioned Roy, no charges were filed. Atkin determined that a silver Ford Expedition was missing from Thrifty’s inventory, so he notified police and began surveillance at Norris’ and Roy’s house. When Atkin saw Roy leave the house in the Expedition, Atkin followed him. The police soon joined in and stopped Roy. After Roy was arrested for unauthorized use of a motor vehicle, he gave Atkin a piece of paper with the names and phone numbers of three people who he was instructed to call if he had any problems. Two of the names on the list were Thrifty employees, Nina Nguyen and Charles Stanford. Atkin interviewed Stanford, who cried while admitting to his involvement. While Roy was in jail, he had Norris arrange a three-way call between the two of them and Papillion. During the call, Norris put down the receiver while Roy and Papillion argued and, according to Papillion, Roy threatened to kill her. Papillion went next door to Norris’ houses and the two began arguing. Norris called the police, and later testified that Papillion was upset when she came over because Roy had threatened her, though Norris hadn’t actually heard the threats. Roy was subsequently charged with retaliation, in addition to the unauthorized use charge. Roy was convicted on both counts. HOLDING:Affirmed. The court reviews the factual sufficiency of the evidence supporting the unauthorized use charge. The state was required to prove Roy intentionally or knowingly operated another’s vehicle without the effective consent of the owner. Thus, the state was required to show not only that Roy intentionally or knowingly operated the vehicle, but that he knew he did not have the consent of the owner. Stanford testified at trial that he arranged for Roy to pick up Thrifty vehicles in exchange for money and tickets. Roy never had a rental agreement with Thrifty, and the piece of paper he handed to Atkin included Nguyen’s name and number. Roy meanwhile denied any involvement, denied that he knew Stanford, and said he found the piece of paper in the vehicle. The court says it cannot find that the evidence of guilt, viewed by itself, is too weak to support the finding of guilt beyond a reasonable doubt, or that the contrary evidence is strong enough that the standard of proof could not be met. Roy also questions the factual sufficiency of the evidence to support the jury’s implicit rejection of his mistake-of-fact defense. The court points out that the Court of Criminal Appeals has recently modified the standard for review of factual sufficiency challenges in Zuniga v. State, No. 539-02, 2004 WL 840786 (Tex.Crim.App. Apr. 21, 2004), but it did not address whether the new standard applied when a defendant challenged the rejection of a defense. The Zuniga court said it wanted to resolve any conflicts in the standard of review for factual sufficiency by: 1. linking the burden of proof at trial to the standard of review on appeal and 2. avoiding language that suggested a lower burden of proof was required. Consequently, the court takes both factors into account to decide what standard of review applies when the issue challenged is the reject of a defense. The court interprets Zuniga as also modifying the standard of review for rejection of a defense: “Accordingly, we adopt the Zuniga modification for the standard of review when the defendant challenges the rejection of a defense. Thus, when the defendant challenges the rejection of a defense on factual insufficiency grounds, we view all the evidence in a neutral light and determine whether (1) the evidence supporting the rejection of the defense, when considered by itself, is too weak to support the rejection beyond a reasonable doubt or (2) contrary evidence, if present, is strong enough that the beyond-a-reasonable-doubt standard could not be met.” In this case, aside from the evidence already mentioned, Norris said that she gave Roy consent to drive the Expedition, but as Norris was not a Thrifty employee , she had no authority to grant consent. Applying the Zuniga standard, then, the court finds the evidence was factually sufficient to support the implicit rejection of Roy’s mistake-of-fact defense. The court then reviews the factual and legal sufficiency of the retaliation verdict. Retaliation is defined as intentionally or knowingly harming or threatening to harm another by an unlawful act in retaliation for, or on account of, the service or status of another as an informant. The court finds enough evidence to support finding that Papillion was an informant who directly communicated information about the theft of Thrifty vehicles to the police. And, based on Papillion’s and Norris’ testimony, there was enough evidence to support the finding that Roy threatened Papillion. Finally, the court addresses whether the trial court erroneously admitted hearsay testimony concerning Atkin’s interview with Stanford. The court finds Stanford’s testimony was properly admitted under the statement against interest exception to the hearsay rule. Stanford’s admission that what he did was wrong could have subjected him to criminal liability for unauthorized use of a motor vehicle, as well as civil liability to Thrifty. Furthermore, corroborating circumstances existed, such as Papillion’s implication of Stanford before Roy was even arrested, that Stanford worked in the area where the Expedition went missing from and that Stanford and Norris ha a close relationship. And, Atkin’s testimony that Stanford cried was not inadmissible hearsay because the statement was not offered to prove the truth of the matter asserted. OPINION:Anderson, J. Yates, Anderson and Hudson.

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