Opinion filed August 7, 2014
In The
Eleventh Court of Appeals
__________
No. 11-12-00239-CR
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MARGARET COLLEEN FOSTON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 142nd District Court
Midland County, Texas
Trial Court Cause No. CR37076
MEMORANDUM OPINION
The jury convicted Margaret Colleen Foston of four counts of the offense of
credit card abuse. The jury assessed her punishment at confinement for two years
and a $500 fine for each of the four counts. The trial court sentenced Appellant
accordingly, with the periods of confinement to run concurrently. In one issue,
Appellant challenges the sufficiency of the evidence to support her convictions.
We affirm.
I. The Charged Offenses
Appellant was charged by indictment with four counts of credit card abuse.
A person commits the offense of credit card abuse if, with the intent to obtain a
benefit fraudulently, she presents or uses a credit card with knowledge that the card
has not been issued to her and is not used with the effective consent of the
cardholder. TEX. PENAL CODE ANN. § 32.31(b)(1)(A) (West 2011). The offense is
a state jail felony. Id. § 32.31(d).
II. The Evidence at Trial
Debra White testified that she noticed some unauthorized charges to Eskimo
Hut on her credit card bill for the month of June 2009. The credit card was a
Coldwater Creek card issued through Chase Bank. White had given the card to her
son, Jacob, to use for souvenirs and emergencies while he was on a mission trip to
Africa. White asked Jacob whether he made the purchases at Eskimo Hut, and
Jacob denied that he ever went there. White admitted that she occasionally
purchased alcohol from Eskimo Hut but said that she always paid with cash, not a
credit card. According to White, the last time she saw the credit card was when
she handed it to Jacob before he got on the plane to go on the mission trip. Jacob
never returned the card to White. After speaking with Jacob, White called the
credit card company and the police station and reported the card stolen.
As part of White’s report to the credit card company, she filled out and
signed an Affirmation of Unauthorized Use form in which she identified the
transactions that were unauthorized on her credit card account. White identified
multiple unauthorized transactions that occurred early in June 2009, including the
two unauthorized transactions from the Eskimo Hut in Midland and several from
an H-E-B grocery store.
As part of White’s report to the police department, White filled out and
signed an Affidavit of Unauthorized Use. In the affidavit, White identified the
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following unauthorized transactions from H-E-B: (1) three transactions on June 1,
2009, for the amounts of $30.23, $2.17, and $24.35; (2) one transaction on June 2,
2009, for the amount of $14.50; (3) two transactions on June 3, 2009, for the
amounts of $24.83 and $38.73; and (4) one transaction on June 4, 2009, for the
amount of $28.87. Four of these H-E-B transactions formed the bases for
Appellant’s convictions. White testified that she had never met Appellant or
anyone with the same name as Appellant and that she had not given anyone
consent to use the credit card except for her son, Jacob, for use on his mission trip
and to purchase a membership to Gold’s Gym upon his return. White also
indicated that she had seen photographs of a person making the unauthorized
purchases at H-E-B, and White identified Appellant as the person in the
photographs.
Jacob White testified that he used the credit card on his travels to Africa
during May 2009 and then used the card to purchase a Gold’s Gym membership on
May 31, 2009. Jacob testified that he did not drink alcohol and definitely did not
make the purchases at Eskimo Hut. In addition, Jacob said that he did not do a lot
of grocery shopping while he was at home in Midland because his mother did that.
Jacob said that he did not make the purchases that were made on the card during
June 2009 and that he did not know who made them. Jacob did not know where
the credit card was; he did not remember ever giving the card back to his parents or
retaining the card in his possession after the Gold’s Gym membership purchase.
Jacob said that he did not give the card to anyone else or give anyone else
permission to use the card, and he did not know anyone with Appellant’s name.
Ernest Gamez works for H-E-B Grocery Company as an area loss prevention
manager. Gamez, as part of his job, performs internal investigations and also
works with police regarding outside investigations. Gamez provides videos,
photograph stills, and receipts as they are needed in the investigations. Gamez
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covers loss prevention over the H-E-B store in Midland where the unauthorized
transactions occurred. Gamez testified that the Midland H-E-B has a security
system that records images of the checkout counters. Through Gamez’s testimony,
the State admitted four photographs from the recording system that depicted a
person making a purchase at a checkout station (State’s Exhibits 2, 3, 4, and 5), as
well as four receipts that represented some of the unauthorized transactions (State’s
Exhibits 2A, 3A, 4A, and 5A). Gamez explained that the H-E-B security system
was capable of matching the time stamp from the receipts to the photographs that
came from the security system and that, based on his review of the State’s
Exhibits, each photograph accurately reflected the transactions from the four
corresponding receipts.
Cody Reeves testified that he owns and operates the Eskimo Hut in Midland.
Reeves identified Appellant as a “regular” and testified that she came in his store
on a daily basis. Reeves testified that he provided police with copies of receipts
made from certain purchases at the Eskimo Hut that corresponded with the
allegedly unauthorized transactions from White’s credit card. Reeves pinpointed
the receipts from transactions made at his store according to the timeframe and the
amount of each transaction.
Reeves testified that he knew who made the purchases even before the
police asked him because Appellant was the only person who was buying
Hurricane High Gravity drinks from his store at that time. In addition, Reeves
viewed the photographs in State’s Exhibits 2, 3, 4, and 5, and he identified
Appellant as the person depicted in the photographs at the checkout counter in
H E-B. Reeves knew what Appellant looked like because she was a regular in his
store and because Reeves had once given her a ride from his store to her apartment
when it was raining outside. According to Reeves, Appellant was wearing a
Whataburger uniform in the photographs in State’s Exhibits 2 and 3. Reeves stated
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that he believed Appellant was working at Whataburger in 2009 because he had
seen her there before and because Appellant had worn her Whataburger uniform
when she came into the Eskimo Hut.
Rosie Rodriguez, a Detective in the Midland Police Department, testified
that she was assigned to the credit card case at issue in July 2009. Detective
Rodriguez obtained White’s credit card statement and her signed Affidavit of
Unauthorized Use. Detective Rodriguez testified that four transactions from the
affidavit matched the receipts in State’s Exhibits 2A, 3A, 4A, and 5A. During the
investigation, Detective Rodriguez reviewed the credit card statement and
contacted Reeves at the Eskimo Hut. Based on her conversation with Reeves,
Detective Rodriguez identified Appellant as a suspect.
Detective Rodriguez reviewed the surveillance video recording from a
7-Eleven store where another unauthorized transaction occurred and was able to
identify Appellant based on a photograph obtained from the Midland County
Sheriff’s Office. Detective Rodriguez then contacted Appellant, who cooperated
with the investigation. Appellant admitted purchasing Hurricane drinks from the
Eskimo Hut, but she denied that she used White’s credit card to make any of those
purchases. Appellant also admitted that she was the person in the 7-Eleven
surveillance video, but she denied that she used White’s credit card to make the
purchase. Detective Rodriguez did not question Appellant about the H-E-B
purchases because Detective Rodriguez had not yet obtained the information from
those transactions. When Detective Rodriguez viewed the photographs
from H-E-B in State’s Exhibits 2, 3, 4, and 5, she identified Appellant as the
person at the checkout counter and identified Appellant’s Whataburger uniform in
State’s Exhibits 2 and 3.
Appellant testified that in June 2009, she lived in the Coventry Pointe
Apartments by the Midland H-E-B grocery store. Appellant said that she was
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working in private health care at the time and was not working at Whataburger,
although she had worked at Whataburger from October 2008 to February 2009.
Appellant testified that she had never met White or Jacob and that she had never
worked at Gold’s Gym. Appellant denied using anyone’s credit card without
authorization and said that she had no way of getting access to a credit card
belonging to someone else. Appellant said that she did not have a credit card of
her own but that she might have used her friend’s credit card at the 7-Eleven.
Appellant admitted to making purchases at the H-E-B by her apartment but said
that she always paid cash for her purchases. In addition, Appellant admitted to
making purchases at Eskimo Hut, but she said that she purchased and drank Steel
Reserve 211 drinks, not Hurricane drinks.
When Appellant was shown State’s Exhibits 2, 3, 4, and 5, she denied that
she was the person in the photographs. Appellant said that she did not wear her
hair like the person in the photographs and that she wore a baseball cap ninety
percent of the time. Appellant also said that she did not have a car at the time, so
there was no way for her to get to two businesses—a Shell gas station and a
Church’s Chicken—that were reported as locations of unauthorized transactions on
White’s credit card.
After Appellant denied working for Whataburger in June 2009, the State
called Arturo Chavarria, the Group Director of Compliance and Government
Affairs for Whataburger Restaurants, as a rebuttal witness. Chavarria’s duties
included extracting and obtaining or maintaining records, such as employment
history data. Chavarria testified that State’s Exhibit 7—Whataburger employment
records—was an accurate copy of the information stored in Whataburger
computers. According to Chavarria, the records demonstrated that Appellant was
hired by Whataburger in December 2008 and was separated or terminated in
September 2009. The employment records also showed that Appellant had
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clocked in and out of work on June 3, 2009. Chavarria also viewed State’s
Exhibits 2 and 3, and he said that the person depicted in the photographs appeared
to be wearing a Whataburger uniform.
Appellant was recalled after Chavarria testified. Appellant stated that she
may have worked at Whataburger in June 2009 but that she could not remember
the specific dates and did not intentionally mislead the jury.
III. Issue Presented
Appellant challenges the sufficiency of the evidence to support her
convictions. Specifically, Appellant contends that the evidence was insufficient to
prove her identity as the person who committed the offenses.
IV. Standard of Review
We review a sufficiency of the evidence issue under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of
the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). We defer to the jury’s role as the sole judge of the
witnesses’ credibility and the weight their testimony is afforded. Brooks, 323
S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve conflicts
in testimony, to weigh the evidence, and to draw reasonable inferences from basic
facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007). When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
prosecution and defer to that determination. Jackson, 443 U.S. at 326; Clayton,
235 S.W.3d at 778.
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V. Analysis
As we have previously stated, Appellant’s complaint regarding the
sufficiency of the evidence is confined to the issue of identity. Appellant argues
that her identification could not be proved beyond a reasonable doubt because it
was based on the faulty memory of Reeves and because there was no evidence to
explain how White’s credit card came into Appellant’s possession.
The State is required to prove beyond a reasonable doubt that the accused is
the person who committed the charged offense. Miller v. State, 667 S.W.2d 773,
775 (Tex. Crim. App. 1984). When a defendant contests the identity element of
the offense, we are mindful that identity may be proven by direct evidence,
circumstantial evidence, or even inferences. Roberson v. State, 16 S.W.3d 156,
157 (Tex. App.—Austin 2000, pet. ref’d). “Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.” Merritt v. State, 368 S.W.3d
516, 525 (Tex. Crim. App. 2012) (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex.
Crim. App. 2007)).
We have reviewed the entire record using the Jackson standard, and we
conclude that the evidence was sufficient to support the identification of Appellant
as the person who used White’s credit card to make the four unauthorized
purchases at the H-E-B. Although the identification evidence is circumstantial, it
is substantial. The evidence shows that White noticed unauthorized transactions
on her credit card statement and reported these transactions to the credit card
company and the Midland Police Department. The Midland Police Department
contacted the retailers where the unauthorized transactions took place, including
the H-E-B in Midland, and obtained surveillance photographs that depicted the
checkout counter at the time of each corresponding transaction.
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Those photographs showed the same individual conducting at least four
transactions with White’s credit card. White and Detective Rodriguez identified
Appellant as the person in the photographs based on Appellant’s in-court
appearance, and Reeves identified Appellant as the person in the photographs
based on his previous personal knowledge of Appellant’s appearance. Witness
testimony established that the person in the photographs was wearing a
Whataburger uniform during at least two of the transactions at H-E-B, and there
was evidence that Appellant worked at a nearby Whataburger at the time of the
alleged offense. In addition, Appellant lived in the apartment complex near the
H-E-B and admitted to making purchases there. Reeves also connected Appellant
to unauthorized transactions using the same credit card at his store.
Although Appellant denied that she used White’s credit card to make any
transactions and argues on appeal that Reeves’s memory was faulty, the credibility
of testifying witnesses is an issue for the jury to decide. See Taylor v. State, 279
S.W.3d 818, 822–23 (Tex. App.—Eastland 2008, pet. ref’d). Furthermore, the fact
that the evidence does not show how Appellant came into possession of White’s
credit card is not determinative. “Possession” is not an element of the offense of
credit card abuse; nevertheless, the jury could have inferred Appellant’s possession
based on the card being lost and Appellant’s apparent use of the card in an
unauthorized manner. Viewing all the evidence in the light most favorable to the
verdict and giving proper deference to the jury’s credibility determinations, we
conclude that a rational trier of fact could have found the essential elements of
each offense beyond a reasonable doubt. Appellant’s sole issue is overruled.
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VI. This Court’s Ruling
We affirm the judgments of the trial court.
MIKE WILLSON
JUSTICE
August 7, 2014
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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