Adger v. State

7 S.W.3d 899, 1999 Tex. App. LEXIS 9453, 1999 WL 1240957
CourtCourt of Appeals of Texas
DecidedDecember 23, 1999
DocketNo. 01-99-00411-CR
StatusPublished
Cited by4 cases

This text of 7 S.W.3d 899 (Adger v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Adger v. State, 7 S.W.3d 899, 1999 Tex. App. LEXIS 9453, 1999 WL 1240957 (Tex. Ct. App. 1999).

Opinion

OPINION

LEE DUGGAN, Jr., Justice (Retired).

After a bench trial, the court found appellant, Bennie Adger, guilty of credit card [900]*900abuse. On appellant’s plea of true, the trial court found the two enhancement paragraphs in the indictment to be true, and assessed punishment at eight years imprisonment. We affirm.

FACTS

In April 1998, Damond Musick was working as a security guard at Macy’s Department Store in Houston when a sales associate alerted him to appellant’s presence and activity in the store. According to Musick, he observed appellant on the store’s closed-circuit television after appellant had been denied a sale and was walking through the men’s department and out of the store. Musick went to the sales floor and recovered an Identification card and a Macy’s credit card that appellant had been using to try to buy merchandise in the men’s department. Appellant’s photograph and James Loftis’ name were on the Identification card. James Loftis’ name was on the credit card.

’ Musick checked the account on the card and learned it was connected to the address and telephone number of a Houston law firm. Loftis had worked at the firm, but had not had a credit card account at Macy’s since 1986 or 1987. A number of creditors had contacted Loftis seeking to recover debts he had never heard of; one was the Macy’s account. Loftis testified that, according to the records he saw, some of the fraudulent charges on the Macy’s account occurred around the time appellant was observed in Macy’s. Loftis testified he never authorized anyone to use the Macy’s credit card in his name.

When appellant returned to the store several months after the incident, Musick recognized him, asked him to come to the security department, and called the police. Musick identified appellant from a photograph spread as the person he had observed on the earlier occasion. Appellant was charged by indictment with credit card abuse.

LEGAL SUFFICIENCY OF THE EVIDENCE

In points of error one and two, appellant challenges the legal sufficiency of the evidence. When reviewing the legal sufficiency of the evidence, 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. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Short v. State, 874 S.W.2d 666, 667 (Tex.Crim.App.1994); Reece v. State, 878 S.W.2d 320, 325 (Tex.App. — Houston [1st Dist.] 1994, no pet.). We may not sit as a thirteenth juror and disregard or reweigh the evidence. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988); Reece, 878 S.W.2d at 325. We apply the same standard of review for both direct and circumstantial evidence. Geesa v. State, 820 S.W.2d 154, 158, 161 (Tex.Crim.App.1991); Butler v. State, 981 S.W.2d 849, 852 (Tex.App. — Houston [1st Dist.] 1998, pet. ref'd).

The indictment alleged that appellant “did ... unlawfully with intent to obtain a benefit fraudulently, use a MACY’S CREDIT card knowing the use was without the effective consent of the cardholder, JAMES LOFTIS, namely without any consent of any kind, and knowing that the MACY’S card had not been issued to the Defendant.” See Tex. Penal Code Ann. § 32.31(b)(1)(A) (Vernon 1994). In order to prove the offense, the State had to establish that (1) appellant (2) with intent fraudulently to obtain (3) a benefit (4) presented or used (5) a credit or debit card (6) with knowledge the card was not issued to him and (7) with knowledge that he did not have the effective consent of the cardholder, James Loftis. See Harrell v. State, 852 S.W.2d 521, 524 (Tex.Crim.App.1993).

In point of error one, appellant contends the evidence was legally insufficient to prove Loftis was the cardholder. He bases this contention primarily on the fact that Loftis testified he had not had a Macy’s account since the 1980s. Appellant [901]*901reasons that the card was not a credit card, but a fictitious card, and relies on Olurebi v. State, 870 S.W.2d 58 (Tex.Crim.App.1994).

A “cardholder” is “the person named on the face of a credit card ... to whom or for whose benefit the card is issued.” Tex. Penal Code Ann. § 32.81(a)(1) (Vernon 1994). A “credit card” is “an identification card, plate, coupon, book, number, or any other device authorizing a designated person or bearer to obtain property or services on credit.” Tex. Penal Code Ann. § 32.31(a)(2) (Vernon 1994).

Musick testified he recognized State’s exhibit 1 as the Macy’s credit card he had picked up in the men’s department. He testified the name on the card was James Loftis. The address and telephone number associated with the card in Macy’s computer system were the address and telephone number of the law firm where James Loftis had worked. James Loftis testified creditors had contacted him regarding debts he had never heard of, including debts on the Macy’s account. The State proved Loftis was the cardholder, i.e., the person whose name was on the card and that Macy’s had issued the card for his benefit. A rational trier of fact could have found beyond a reasonable doubt that Loftis was the “cardholder” as defined by the statute.

Appellant, however, contends the card was fictitious and his criminal liability, if any, is under Penal Code section 32.31(b)(2).1 Under Olurebi, there are two ways the card might have been fictitious: (1) if it had not been issued by Macy’s, the purported owner; or (2) if it had been issued to a nonexistent cardholder. 870 S.W.2d at 61. Neither condition applies here. Macy’s issued the card, and Loftis exists.

We overrule point of error one.

In point of error two, appellant contends the evidence was legally insufficient to prove he presented or used the credit card. The State’s evidence of presentment or use came in through Musick’s testimony: '

Q. [The prosecutor] Now how did this individual come to your attention?
A. I received a call from a sales associate—
[Defense counsel]: I object to any conversation that this man had.
THE COURT: He hasn’t got into that. Thank you, sir. Go ahead.
A. I received a call from a sales associate alerting me to the defendant being in the store that day.
Q. [The prosecutor] Okay. And what did you do in response to that call?
A.

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Bluebook (online)
7 S.W.3d 899, 1999 Tex. App. LEXIS 9453, 1999 WL 1240957, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adger-v-state-texapp-1999.