Kimberly Gilbert v. State

• Court: Court of Appeals of Texas
• Decided: January 31, 2013
• Docket: 13-12-00090-CR
• Status: Published

Opinion

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.

2 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.