NUMBER 13-12-00090-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KIMBERLY GILBERT, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION ON REHEARING
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Longoria
We withdraw our opinion and judgment of January 31, 2013 and substitute the
following in its place. Appellant, Kimberly Gilbert, was convicted of credit card fraud, a
state jail felony. TEX. PENAL CODE ANN. § 32.31(b)(1)(A) (West 2011). In two issues,
appellant challenges the sufficiency of the evidence supporting her conviction. We
affirm.
I. BACKGROUND
The uncontroverted evidence at trial established that appellant gave a credit card
to the manager of a gas station to pay for filling two vehicles driven by herself and her
adult son, Cody. Both Cody and appellant drove off after filing up but before completing
the transaction. The manager immediately tried to use the card, but it was declined.
The card had been issued in the name of Shirley Vickery, appellant’s aunt. Vickery
testified at trial that she had given the card to her brother (appellant’s now deceased
father) to buy things for his grandsons, but that Vickery later cancelled the card. Vickery
testified for the State that only her brother had permission to use the card and that she
never gave appellant permission to use it. Vickery also testified that she immediately
cancelled the card after appellant failed to return the rental car that appellant’s father
used the card to allow her to rent and informed her brother that the card was cancelled.
Appellant was arrested, charged, and pleaded guilty to misdemeanor theft.
Punishment was assessed at sixty days in jail. While appellant was still incarcerated,
the State indicted her for credit card fraud arising out of the same incident. Appellant
pleaded not guilty and waived a jury trial. After a bench trial, the trial court convicted
appellant and assessed a sentence of four years’ imprisonment. This appeal followed.
II. DISCUSSION
In two issues, appellant challenges the sufficiency of the evidence supporting two
of the essential elements of credit card abuse: (1) lack of effective consent of the
cardholder; and (2) intent to fraudulently obtain a benefit. TEX. PENAL CODE ANN.
§ 32.31(b)(1)(A).
1. Standard of Review
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In evaluating the sufficiency of the evidence supporting a conviction, we view all
the evidence in a light most favorable to the verdict and ask “whether any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt.” Garcia v. State, 367 S.W.3d 684, 686–87 (Tex. Crim. App. 2012) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact, in this case the trial
court judge, is the sole judge of the credibility of witnesses and the weight, if any, to be
given to their testimony. Id.; Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App.
2010) (plurality op). “The reviewing court must give deference to the responsibility of
the trier of fact to fairly resolve conflicts in testimony, to weigh the evidence, and to draw
reasonable inferences from basic facts to ultimate facts.” Hooper v. State, 214 S.W.3d
9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318–19 (1979)). The State
may prove the elements of an offense by either direct or circumstantial evidence. Id. In
a sufficiency review, “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.” Id. (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).
If the record could support conflicting inferences, we presume that the fact finder
resolved the conflict in favor of the prosecution and defer to that resolution. Garcia, 367
S.W.3d at 687; see Brooks, 323 S.W.3d at 899 n.13.
2. Applicable Law
We measure the sufficiency of the evidence supporting a conviction “by the
elements of the offense as defined by the hypothetically correct jury charge for the
case” applied to the particular facts of the case. Byrd v. State, 336 S.W.3d 242, 246
(Tex. Crim. App. 2011) (citing Malik v. State 953 S.W.2d 234, 240 (Tex. Crim. App.
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1997)). In this case, the State had to prove that the defendant: (1) with intent to obtain
a benefit fraudulently; (2) presented or used a credit card; (3) with knowledge that the
card has not been issued to her; and (4) with knowledge that the card is not used with
the effective consent of the cardholder. TEX. PENAL CODE ANN. § 32.31(b)(1)(A). Intent
or knowledge can generally be inferred from the “acts, words, and conduct of the
accused.” Sholars v. State, 312 S.W.3d 694, 703 (Tex. App.—Houston [1st Dist.] 2000,
pet. ref’d.). Knowledge of lack of effective consent of the cardholder in a prosecution for
credit card abuse may be shown by circumstantial evidence. Lee v. State, 962 S.W.2d
171, 174 (Tex. App.—Houston [1st Dist.] 1998, pet. ref’d).
3. Analysis
In her first issue, appellant argues that the evidence is insufficient to support a
finding that she acted with knowledge that she did not have the effective consent of the
cardholder when she used the card. Appellant states in her motion for rehearing that
she “raised the issues [sic] that the scienter requirement of credit card abuse extends to
the element of lack of effective consent.” Appellant’s original brief indeed phrased the
issue in the language of a lack of evidence supporting a “culpable mental state,” for that
element of the offense, but the substance of appellant’s argument is that the evidence is
insufficient for the trial court judge to find the “without effective consent” element of the
offense beyond a reasonable doubt. Appellant argues in this issue that the only “direct
evidence” regarding consent to use the card was appellant’s own testimony that Cody
told her that Vickery authorized them to use the card to obtain gas. In any event,
appellant does not explain how the “scienter requirement” of the statute—that the
accused must intend to fraudulently obtain a benefit—extends to the “without effective
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consent” element of the offense. Accordingly, we construe appellant’s brief on this
issue as challenging the sufficiency of the evidence supporting the consent element of
the offense.
Appellant reasserts her trial testimony that she did not know the card had been
cancelled, the card had been used to purchase necessities for her and her family
before, and Vickery had, at one point, used the card “in [appellant]’s presence to secure
rental property for her and [appellant]’s children.” Appellant argues that “the only direct
evidence” relevant to consent to use the card is her own testimony that Vickery told
Cody that they could use the card to purchase gasoline.1 Appellant further testified that
she did not specifically ask Vickery because she and Vickery did not get along and
because Cody had always been the mediator between them. Appellant also testified
that she did not think the card was available to her whenever she needed it, and that
she did not know how her son would have permission to use it.2
Vickery testified for the State. According to Vickery, she gave the card to her
brother, appellant’s father, to purchase things for appellant’s children, such as school
supplies. Vickery testified that her brother “always told me before he used it.” Vickery
also testified that no one other than her brother had permission to use the card.
According to Vickery, the “rental property” appellant referred to in her brief was a car
that appellant wanted to rent for a three-day trip to San Antonio; appellant was going to
pay the actual rental fee, but her father specifically asked Vickery to permit him to use
1
Appellant specifically testified that she thought she could use the card “[b]ecause my son said
that this is what Shirley [Vickery] said for us to get the gas.”
2
In her motion for rehearing, appellant asserts that it is “uncontroverted” that Vickery gave the
card to a relative (we assume appellant refers to her father, Vickery’s brother) who “gave the card to
appellant to make purchases herself with permission.” In fact, as we related above, appellant specifically
denied at trial that she was ever given the card, and Vickery testified that only her brother was permitted
to use the card.
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the card as a surety so that appellant could rent the car. The rental company billed
Vickery after appellant kept the car for almost two months, and appellant fell behind in
her payments to the rental car company. Vickery testified that she immediately
cancelled the card after she discovered the charges; she informed appellant’s father but
did not inform appellant because of their poor relationship.
Appellant does not explain how the State’s evidence is insufficient to permit a
rational fact-finder to find beyond a reasonable doubt that appellant used the card
without the effective consent of the card holder. Appellant essentially adopts her own
testimony as the facts of the case; except to cite to Vickery’s testimony that she did not
specifically inform appellant that the card was canceled, appellant does not address the
State’s evidence at all. However, the State elicited testimony from the cardholder that
appellant did not have permission to use the card in this instance, and in fact no one
ever had permission to use the card other than appellant’s deceased father.
Furthermore, the gas station manager testified for the State that appellant drove off
without paying for the gas after distracting her, and never returned to claim the card or
pay by another means. See Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App.
1994) (“Evidence of flight or escape is admissible as a circumstance from which an
inference of guilty may be drawn”). The only evidence that she did have permission to
use the card is her testimony regarding what her son told her, but the trial court judge
was free to disbelieve her testimony. See Garcia, 367 S.W.3d at 687.
Viewing the totality of the State’s evidence in a light most favorable to the verdict,
as we must, we conclude that the State produced sufficient evidence from which a
rational trier of fact could find beyond a reasonable doubt that appellant did not have the
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effective consent of the cardholder. See Lee, 962 S.W.3d at 174. Accordingly, we
overrule appellant’s first issue.
In her second issue, appellant argues that the evidence is insufficient to establish
that she used the card with intent to fraudulently obtain a benefit. See TEX. PENAL CODE
ANN. § 32.31(b)(1)(A). Appellant argues that the card “was used merely to turn on the
pump” and that the evidence does not show that it “was used for purposes of payment.”
Appellant does not expand on its argument, brief supporting authorities, or otherwise
explain how the State’s evidence is insufficient to show that she fraudulently obtained a
benefit. We conclude that this point of error is inadequately briefed and presents
nothing for our review. See TEX. R. APP. P. 38.1(i); see also Lucio v. State, 351 S.W.3d
878, 896 (Tex. Crim. App. 2011) (observing that “this Court is under no obligation to
make appellant’s arguments” for her). We overrule appellant’s second issue.
Appellant’s motion for rehearing is denied.
III. CONCLUSION
We affirm the trial court’s judgment.
_______________________
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
2nd day of May, 2013.
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