Justin Cain Tolar v. State

• Court: Court of Appeals of Texas
• Decided: April 1, 2015
• Docket: 09-13-00482-CR
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont ________________

NO. 09-13-00482-CR ________________

JUSTIN CAIN TOLAR, Appellant

V.

THE STATE OF TEXAS, Appellee __________________________________________________________________

On Appeal from the 258th District Court Polk County, Texas Trial Cause No. 22938 __________________________________________________________________

MEMORANDUM OPINION

A jury convicted Justin Cain Tolar of credit card abuse, found two

enhancement paragraphs to be true, and assessed punishment at twenty years of

confinement. In two appellate issues, Tolar challenges the legal sufficiency of the

evidence supporting his conviction and contends the State engaged in improper

jury argument during the punishment phase of his trial. We affirm the trial court’s

judgment of conviction.

1 THE EVIDENCE

The victim, Terry Carr, testified that American Express deactivated his card

due to lack of use while he was offshore, and the company told him he had to

apply for a new card. Carr never received the new card and never authorized

anyone else to use it, but he received a bill that contained several charges. In

addition, Carr’s bank informed him that American Express e-payments had been

used to remove over $5000 from his bank account. Carr testified that the charges

made on the card were fraudulent.

Livingston police officer Brandon Brewer testified that he spoke with Carr

when Carr contacted the police about receiving an American Express bill that

contained unauthorized charges. Brewer obtained a written statement from Carr,

made copies of Carr’s American Express bill, and instructed Carr to inform

American Express of the fraudulent activity. Brewer contacted American Express

and requested all of its records regarding Carr’s account. American Express gave

Brewer a list of all charges that had been made on the account as well as an

inbound phone log, which was “the log of every time someone called regarding

that account.”

Brewer began going to the businesses where Carr’s card had been used. One

of the people with whom Brewer spoke was Brenda McKee, Walmart’s asset

protection manager. When Brewer provided McKee the last four digits of Carr’s

2 credit card, the time of the transaction, and the total amount of the transaction,

McKee was able to provide a video of the transaction as well as a video of the

person who used the card exiting the store. At trial, McKee identified the disc

containing the videos, which was admitted as State’s Exhibit 11 and played for the

jury. Brewer also spoke with the manager at Timewise Chevron, and Brewer and

the manager reviewed video footage of the transaction that had been conducted at

Timewise with Carr’s card. However, Brewer was unable to obtain a copy of the

footage from Timewise because by the time the manager received corporate

approval to make a copy, something had been recorded over the video and it no

longer existed.

Brewer began calling the phone numbers listed on American Express’s call

log. Brewer eventually noticed a number that appeared several times on the log and

determined that the number belonged to a State Farm office owned by Tolar’s

brother, Marcus, and that inquiry ultimately led to Tolar. Brewer then gave the

case to Detective Marty Drake of the Livingston Police Department. Detective

Drake testified that he contacted Marcus at his insurance agency and sent Marcus

still shots of the suspect from the videos provided by Walmart. Marcus identified

the suspect as Tolar.

Marcus testified that two police officers contacted him about telephone calls

made from his office, and he learned that they were investigating a case involving

3 fraudulent use of a credit card. Detective Drake emailed pictures of the suspect to

Marcus, and Marcus identified the suspect as Tolar. Marcus testified that he

eventually watched the video taken at Walmart, and that he is certain that Tolar is

the person in the video. Marcus explained that he recognized Tolar’s manner of

walking.

ISSUE ONE

In his first issue, Tolar challenges the legal sufficiency of the evidence

supporting his conviction. When reviewing the legal sufficiency of the evidence,

we review all of the evidence in the light most favorable to the verdict and

determine whether any rational trier of fact could find the essential elements of the

offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979). The jury is the ultimate authority on the credibility of witnesses and the

weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.

Crim. App. [Panel Op.] 1981). We give deference to the jury’s responsibility to

resolve conflicts in the 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).

A person commits the offense of credit card abuse if, with intent to

fraudulently obtain a benefit, he presents or uses a credit card or debit card with

knowledge that the card has not been issued to him and the cardholder has not

4 effectively consented to the card’s use. Tex. Penal Code Ann. § 32.31(b)(1)(A)

(West 2011). The jury heard evidence that Carr never received his American

Express card and did not authorize anyone else to use it, but several charges

appeared on Carr’s bill and $5000 was removed from Carr’s bank account via

American Express e-payments. In addition, the jury heard evidence that the

investigation of the charges made on the card and the phone calls made to

American Express ultimately led the authorities to Tolar, and Tolar’s brother

identified Tolar as the person depicted on the two videos from Walmart, where the

card was used. Viewing all of the evidence in the light most favorable to the

verdict, we conclude that a rational jury could have found the essential elements of

the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19;

Penagraph, 623 S.W.2d at 343. Accordingly, we overrule issue one.

ISSUE TWO

In his second issue, Tolar contends the State engaged in improper jury

argument during the punishment phase of his trial. Specifically, Tolar alleges that

the State (1) argued outside the record, (2) argued that his past sentences were

excessively lenient, (3) urged the jury to consider parole law, and (4) argued about

extraneous offenses that were not proven beyond a reasonable doubt.

To preserve error regarding improper jury argument, a defendant generally

must (1) make a timely and specific objection; (2) request an instruction that the

5 jury disregard the statement if the objection is sustained; and (3) move for a

mistrial if the instruction is insufficient to remove the prejudice resulting from the

argument. Cruz v. State, 225 S.W.3d 546, 548 (Tex. Crim. App. 2007); see also

Tex. R. App. P. 33.1(a). The record reflects that Tolar did not object to any of the

allegedly improper jury arguments about which he now complains. Therefore,

issue two is not preserved for appellate review. See Cruz, 225 S.W.3d at 548; see

also Tex. R. App. P. 33.1(a). Accordingly, we overrule issue two and affirm the

trial court’s judgment of conviction.

AFFIRMED.

________________________________ CHARLES KREGER Justice

Submitted on February 18, 2015 Opinion Delivered April 1,2015 Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.