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
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Longoria
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 one issue, 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
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 Vickers, appellant’s aunt. Vickers testified
at trial that she had given the card to her brother (appellant’s deceased father) to buy
things for his grandsons, but that Vickers later cancelled the card. Appellant was
arrested, charged, and pleaded guilty to misdemeanor theft and was assessed sixty
days in jail. The State subsequently indicted appellant for credit card fraud arising out
of the same incident while she was still incarcerated. 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 one issue, appellant challenges the sufficiency of the evidence supporting her
conviction. In reviewing evidence supporting a conviction, we view the evidence in the
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 683, 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). The trier of fact resolves
conflicts in testimony, weighs evidence, and draws reasonable inferences from that
evidence. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (quoting Jackson,
443 U.S. at 318-19). 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.
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Under Texas law, we measure sufficiency of the evidence “by the elements of the
offense as defined by the hypothetically correct jury charge for the case.” Byrd v. State,
336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (quoting Malick v. State 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). In this case, the State had to prove the following essential
elements of the offense: “(1) a person with intent to obtain a benefit fraudulently; (2)
presents or uses a credit card; (3) with knowledge that the card has not been issued to
her; and (4) and is not used with the effective consent of the cardholder.” See TEX.
PENAL CODE ANN. § 32.31(b)(1)(A); see also Williams v. State, No. 10-11-00222-CR,
2011 WL 5221263, at *2 (Tex. App.—Waco Oct. 26, 2011, pet. ref’d) (not designated for
publication).
Appellant does not specifically challenge any of the State’s evidence except by
reasserting her testimony in the trial court. The trial court, as finder of fact, is free to
believe or disbelieve her testimony, and we may not, as appellant requests, second
guess that determination. See Garcia, 367 S.W.3d at 687. Having reviewed the
evidence in this case, we conclude that a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt. We overrule appellant’s
sole issue.
III. CONCLUSION
Having overruled appellant’s sole issue, 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
31st day of January, 2013.
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Kimberly Gilbert v. State
Combined Opinion