Brown v. State

LEE ANN DAUPHINOT, Justice,

concurring and dissenting.

I agree that the State did not prove that Appellant had the ability to pay but intentionally failed to pay her community supervision fee. Respectfully, however, I cannot agree with the majority that the State *524proved that she committed a new offense while on community supervision, no matter how hard I stretch to connect the dots.

The State alleged that Appellant, on or about March 2, 2009, with “intent to defraud or harm another, and without the consent of Ben Fruin, [did] use identifying information of Ben Fruin, to-wit: name and Bank of America [BOA] checking account number.”

The real problems with this case stem from the inability of the State to tie Appellant to any transactions debited against Ben’s account. Someone paid Appellant’s cellular phone bill over the telephone. There is no indication who paid the bill or whether the person was male or female. The evidence shows only that bank records reflect an online BOA banking transaction showing a charge that Ben’s wife said was unauthorized. The Metro PCS records show payment by a Visa card ending in “5001,” the last four numbers of the Fruins’ check card number. And, although cell phone records connected to the cell phone bill show that the phone was activated and subscribed to by “Sandy Brown,” there is no proof that Appellant used that phone to pay the cell phone bill; no proof that Appellant knew that the Fruins’ checking account was being tapped to pay the bill; and no proof that Appellant knew that any unauthorized charge was made to pay the bill. There is no evidence that Appellant committed any act with intent to defraud or harm another or that she used Ben Fruin’s name or BOA checking account number. If someone borrows my car and uses a stolen credit card to buy gasoline for it without my knowledge, am I guilty of credit card abuse?

The majority manages to connect the dots in this way:

1. Someone used Ben Fruin’s Visa card to pay the bill for a cell phone listed as belonging to Sandy Brown.
2. Pawn shop records show that Sandra Le Brown pawned a television in Dallas.
3. The pawn shop records and cell phone company records show that Sandy Brown and Sandra Le Brown have the same date of birth, address, and telephone number.
4. Therefore, the majority concludes, Appellant is the person who paid the cell phone bill because:
A. Other items were purchased and charged to the Fruins’ account and shipped to Ben Fruin’s distant relative James Fruin, with whom he does not speak and has had no contact, at two different addresses;
B. The addresses to which the James Fruin purchases were shipped were that of Joyce Woodard, “a very close friend” of Appellant’s family, and Stephanie Williams, who provided information to the Johnson County Sheriffs Department that allowed them to contact Appellant;
C. Appellant’s cousin Jamall Brown often frequented pawn shops and pawned a ring shipped to James Fruin at Williams’s apartment and charged to the Fruins;
D. Cousin Jamall’s own cell phone bill was paid out of the Fruins’ account;
E. Appellant sometimes accompanied Jamall to pawn shops to pawn things. She was at the pawn shop when he pawned the ring;
F. Given Cousin Jamall’s “history of pawning jewelry and electronics across the state, and given that Appellant pawned similar items within minutes of his pawning items charged to the Fruins’ account,” Appellant and not Cousin Jamall or *525James Fruin used Ben Fruin’s name and bank account number with intent to harm and defraud someone because she, and no one else, must have paid the cell phone bill. Or perhaps Appellant was a party because, with intent to harm and defraud someone else, she solicited, encouraged, directed, aided, or attempted to aid Cousin Jamall and James to use Ben Fruin’s name and bank account number.7

Yet the record contains no evidence that Jamall or James lacked Ben’s consent to use the Visa card or to use his name and account number.

The State was required to prove that Appellant, with intent to harm or defraud another, and without the consent of Ben Fruin, used his identifying information— specifically, his name and BOA checking account number. The State did not prove by a preponderance of the evidence that Appellant did any of these things. The only expenditure connected to Appellant was the payment of her cell phone bill. There is no evidence who paid it or that she knew it was paid in any way connected to Ben Fruin. Consequently, there is no evidence of her intent to harm or defraud any person. There is no evidence that she used Ben Fruin’s name. There is no evidence that she used his BOA checking account number. If she was found to have acted as a party, there is no evidence that, with intent to harm and defraud someone else, she solicited, encouraged, directed, aided, or attempted to aid Cousin Jamall or James to use Ben Fruin’s name or bank account number. Further, there is no evidence that either Cousin Jamall or James did not have consent to use the Visa card or to use Ben Fruin’s name or bank account number.

I agree that the State did not prove Appellant’s failure to pay her community supervision fee. But I cannot agree that the State succeeded in proving that Appellant committed the new offense alleged in the petition. I would therefore reverse the trial court’s judgment and remand this case. Because the majority does not, I must respectfully dissent.

. See Tex. Penal Code Ann. § 7.02(a) (West 2011).