Jorge Luis Rodriguez v. State

• Court: Court of Appeals of Texas
• Decided: July 21, 2010
• Docket: 08-09-00118-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JORGE LUIS RODRIGUEZ, § No. 08-09-00118-CR Appellant, § Appeal from the v. § 399th District Court THE STATE OF TEXAS, § of Bexar County, Texas Appellee. § (TC# 2007-CR-1881) §

OPINION

Appellant, Jorge Luis Rodriguez, was convicted of fraudulent use or possession of identifying

information and sentenced to eighteen months in state jail. In a single issue on appeal, he contests

the factual sufficiency of the evidence supporting his conviction. We affirm.

BACKGROUND

On October 18, 2005, Sam Castillo, a salesman at Conn’s, received a call from a person

named “Michael Pantuso,” inquiring about credit. The real Michael Pantuso’s wallet, which

contained his driver’s license, other identification cards, and some credit cards, was stolen from his

truck at a construction site about a month before. While on the phone with Castillo, the man, later

determined to be Appellant, gave Pantuso’s social-security number. Two hours later, Appellant

entered the store, asked for Castillo, and identified himself as Pantuso. When Appellant decided to

purchase a $4,000 television on credit, he provided Castillo with an identification card similar to an

expired driver’s license that contained the name “Michael Pantuso” but Appellant’s picture and an

address of 6311 Village Cliff, San Antonio, Texas. Appellant signed Michael Pantuso’s name on

the invoice and sales contract, which listed the given address. Later that day, Appellant picked up the television from the retailer’s warehouse, and a Conn’s employee recorded the make, model, and

license plate of the vehicle he was driving, that is, a black, Ford Expedition with a license plate

number of W72VZN. In November, the same television was pawned at Alamo Pawn and Jewelry

by Yvette Martinez, Appellant’s common-law wife.

Police investigation determined that the Ford Expedition was linked to several ongoing

identity-theft investigations involving Conn’s stores. The vehicle was registered to Yvette and listed

the same address given to Castillo. Police reports further linked Appellant and Yvette in several

identity-theft cases. Although the pawn shop owner identified Yvette as the person that pawned the

television, the police investigation revealed that a man had actually purchased the television at

Conn’s. Approximately ten months later, Castillo identified Appellant from a photo lineup as the

individual who purchased the television under the name of Michael Pantuso.

The only defensive evidence presented at trial consisted of Appellant’s testimony. He denied

that he purchased the television, claiming that he and Yvette were separated at the time the television

was purchased, and that his brother, Raymond Carreon, was driving his wife’s vehicle at that time.

Appellant further stated that his wife owned the vehicle and avowed that he never operated it. He

further suggested that his brother looks just like him and claimed that Carreon was the one that stole

the television. However, Appellant admitted to residing at the same address that the vehicle was

registered to.

DISCUSSION

In his sole issue, Appellant argues that the evidence was factually insufficient to support his

conviction for fraudulent use or possession of identifying information, contending that the evidence

failed to establish that he was the person that committed the offense. He does not challenge the sufficiency of any other element necessary to support a conviction for the offense.1

Standard of Review

In a factual-sufficiency review, we view all of the evidence in a neutral light and ask whether

the jury was rationally justified in finding guilt beyond a reasonable doubt. Roberts v. State, 220

S.W.3d 521, 524 (Tex. Crim. App. 2007); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App.

2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak

that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the

conviction is outweighed by the great weight and preponderance of the contrary evidence so as to

render the verdict clearly wrong and manifestly unjust. Roberts, 220 S.W.3d at 524. In conducting

our review, we defer to the fact finder’s determination of witness credibility and the weight given

to the evidence. Cleveland v. State, 177 S.W.3d 374, 388 (Tex. App. – Houston [1st Dist.] 2005,

pet. ref’d), cert. denied, 547 U.S. 1073, 126 S.Ct. 1774, 164 L.Ed.2d 523 (2006).

Application

In contesting whether the State sufficiently proved that he committed the offense, Appellant

asserts that Castillo’s identification is unreliable given: (1) the ten-month lapse in Castillo’s photo

identification and three-year lapse in Castillo’s in-court identification; (2) Castillo’s focus on the

large commission at stake; and (3) other evidence suggesting that his brother, Raymond Carreon,

who looks similar to him, actually committed the offense. We disagree.

The record reflects that Castillo and Appellant talked over the phone, met at the store, and

discussed purchasing different televisions. Appellant gave Castillo an expired driver’s license that

contained his photo but Pantuso’s name, and Castillo drew up an invoice accordingly. Castillo

1 A person commits the offense of fraudulent use or possession of identifying information if he, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of identifying information of another person without that person’s consent. T EX . P EN C O D E A N N . § 32.51(b)(1) (Vernon Supp. 2009). positively identified Appellant in the photo lineup and again at trial. Castillo testified that he was

100 percent sure that Appellant was the man that purchased the television. Nothing in the record

casts doubts on Castillo’s positive identification despite the ten-month or three year gap in time, or

suggests Castillo was so focused on the commission that his identification of Appellant was

equivocal. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex. Crim. App. 1971) (holding that testimony

of eyewitness alone sufficient to support jury’s verdict).

As for Appellant’s argument that his brother committed the offense, we note that the only

evidence propelling this theory comes from Appellant’s testimony. Carreon did not testify, nor did

Yvette, and the only evidence suggesting that Appellant and Carreon look similar comes from

Appellant’s testimony and a photograph wherein they were both wearing sunglasses. No questions

on their similarities were proffered to Castillo, nor was the photograph ever shown to him. As such,

it was within the fact finder’s province, as the sole judge of the weight and credibility of the

witnesses, to choose not to believe Appellant’s self-serving testimony. Given Castillo’s positive

identification and other evidence showing Appellant picked up the television from the warehouse

and gave Castillo the same address that the vehicle, which was involved in several fraudulent

transactions at Conn’s, was registered to, we do not find the contrary evidence so overwhelming as

to render the identification clearly wrong and manifestly unjust. See Johnson v. State, 176 S.W.3d

74, 78 (Tex. App. – Houston [1st Dist.] 2004, pet. ref’d) (although appellant claimed through his

girlfriend’s testimony that he was at home when the crime occurred and argued that there was no

physical evidence linking him to the crime, the jury, as the sole judge of the weight and credibility

of the evidence, was free to reject such defenses given the eyewitness’s identification).

In sum, after reviewing all of the evidence in a neutral light, we do not find the evidence

supporting the conviction so weak that the verdict seems clearly wrong and manifestly unjust, or that the evidence supporting the conviction is outweighed by the great weight and preponderance of the

contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts, 220

S.W.3d at 524. We therefore find the evidence factually sufficient and overrule Appellant’s sole

issue.

CONCLUSION

The trial court’s judgment is affirmed.

GUADALUPE RIVERA, Justice

July 21, 2010

Before Chew, C.J., McClure, and Rivera, JJ.

(Do Not Publish)