NUMBER 13-23-00037-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
MARCO RODRIGUEZ Appellant,
v.
THE STATE OF TEXAS, Appellee.
ON APPEAL FROM THE 347TH DISTRICT COURT OF NUECES COUNTY, TEXAS
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Peña Memorandum Opinion by Justice Longoria
A jury found appellant Marco Rodriguez guilty of fraudulent use or possession of
ten or more but fewer than fifty items of identifying information, committed against an
elderly individual, a first-degree felony. See TEX. PENAL CODE ANN. § 32.51(c)(3), (c-1)(1). The State sought to enhance the punishment range to a minimum of twenty-five years
due to Rodriguez’s prior felony convictions. See id. §§ 12.42(d). The jury found the
enhancement allegation to be true and sentenced Rodriguez to twenty-eight years in
prison. By four issues, which we address as two, Rodriguez challenges the sufficiency of
the evidence and the denial of his motion to suppress. We affirm.
I. BACKGROUND
Corpus Christi Police Department (CCPD) Officer Vince Gutierrez testified that he
was patrolling a “high drug trafficking and gang activity” area known as “Tequare” when
he observed Rodriguez riding a bicycle at approximately 1:00 a.m. Officer Gutierrez
stated that he noticed “there was no red light emitting from the bicycle,” so he stopped
Rodriguez. Over objection, video footage from Officer Gutierrez’s patrol unit’s dash
camera was admitted into evidence. The video showed Officer Gutierrez approaching
Rodriguez in his patrol unit. Rodriguez stops his bicycle as Officer Gutierrez exits his
patrol unit. Rodriguez quickly turned on his rear light when Officer Gutierrez informed him
that it was out. Officer Gutierrez then performed a pat down of Rodriguez. Officer
Gutierrez testified that the pat down was done for officer safety and that, if an officer has
reason to believe a person may have a weapon on them, they will conduct a pat down.
He confirmed that he believed Rodriguez may have had a weapon on him given the
circumstances of where he was located and the time of day. After discovering a knife in
Rodriguez’s pocket, Officer Gutierrez asked for consent to search Rodriguez. Rodriguez
hesitated in his answer, but ultimately allowed the search. During the search, Officer
Gutierrez discovered “[b]lank checks” and “identifying information such as ID cards, credit
cards, [and] debit cards” on Rodriguez’s person.
2 On cross-examination, Officer Gutierrez reiterated that he stopped Rodriguez
because he did not see a red light emanating from the rear of Rodriguez’s bicycle. After
reading the section of the transportation code associated with bicycle lighting, Officer
Gutierrez agreed that Rodriguez could have legally had a red light or a reflector, but he
was not aware if Rodriguez had a reflector on his bicycle. Officer Gutierrez did not
photograph the bicycle and did not recall if it was impounded or released to Rodriguez’s
wife, who arrived at the scene at some point prior to his arrest. Officer Gutierrez could not
recall the details of the items he turned over to Rodriguez’s wife, nor did he document
that information in his report.
Officer Gutierrez testified that he placed Rodriguez in the back of his police car,
uncuffed. He explained that Rodriguez was being detained while an investigation was
done to determine where the miscellaneous items came from. Officer Gutierrez admitted
that he did not read Rodriguez his Miranda warnings, but he did proceed to question him
about the items found in Rodriguez’s possession. While Rodriguez claimed to have found
the items, Officer Gutierrez testified that it was his duty to investigate further to determine
whether the items were stolen.
Detective Doug McDonald with the CCPD financial crimes department
photographed the items that were discovered in Rodriguez’s possession and made a file
for the case. He attempted to contact the rightful owners of the property and through his
investigation, he was able to learn that one of the people, Kimberly S. Perez, had been
the victim of a theft. He explained that there are dangers associated with someone having
possession of another’s credit cards, blank checks, or identifying information such as
compromised accounts, loss of money, identity theft, and access to personal information.
3 Detective McDonald testified that Rodriguez did not need to use the identifying
information to commit a crime and that possession of the information is enough. In his
experience, a person in possession of the amount of identifying items that Rodriguez had
typically uses those items “for credit card abuse, withdrawals from banks, applying for
credit, things of that nature.” He agreed that the items could also be used as “commerce
for narcotics.”
On cross-examination, Detective McDonald explained that the intent to defraud is
presumed when a person possesses three or more items of identifying information. He
was unable to verify the ownership of the credit and debit cards. Through his investigation,
he was only able to confirm that Perez had been the victim of theft; he was unable to
contact any other victims to confirm whether Rodriguez had permission to possess the
items.
The State presented four witnesses whose identifying information was found on
Rodriguez’s person. Matthew Evans testified that he did not know Rodriguez and never
gave Rodriguez his Texas ID card or social security card. He admitted he was not aware
that the items were stolen, but he recalled having his wallet when he got on a bus and
not having it on his person when he got off. He agreed that he might have lost the wallet.
To his knowledge, there was no illicit use of his identifying information.
Ismael Hernandez testified that he did not know Rodriguez and that he did not
know how Rodriguez came into possession of his Texas driver’s license. Hernandez
stated that he had once lost his wallet, but that was about ten years prior to trial and the
license in question was not in that wallet. He was not aware that his license was missing,
though he noted that he has had to renew his license a few times to change addresses.
4 To his knowledge, he has not been the victim of identity theft in any way.
Fred Narvaez testified that he was sixty-nine years’ old at the time of trial. He was
“acquainted” with Rodriguez, but said it was “temporary” and that he had not seen
Rodriguez in three or four years. He stated that he never gave Rodriguez possession of
his credit or debit card, nor did Rodriguez have permission to have the bank card.
Kimberly Perez testified that the blank checks found in Rodriguez’s possession
had her name on them, but she did not have an account associated with USAA Bank, nor
was the address listed her own. Perez explained that her mother had an account with
USAA Bank and that she was a user on the account, but that she believed any checks on
that account would have also contained her mother’s name. She stated that she did not
know Rodriguez, nor did she give him any checks, debit cards, or identifying information.
On cross-examination, she stated that she was unsure whether the checks belonged to
her or whether they were from a different Kimberly Perez.
The jury found Rodriguez guilty and, finding the enhancement paragraph true,
sentenced him to a term of twenty-eight years’ incarceration. This appeal followed.
II. SUFFICIENCY
By his first two issues, Rodriguez argues that the evidence was insufficient to
support his conviction.
A. Standard of Review & Applicable Law
We review the sufficiency of the evidence by considering “all the evidence in the
light most favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational juror could have found the essential elements
of the crime beyond a reasonable doubt.” Hammack v. State, 622 S.W.3d 910, 914 (Tex.
5 Crim. App. 2021); see Jackson v. Virginia, 443 U.S. 307, 318–19 (1979). The jury is the
sole judge of witnesses’ credibility and weight to be given the evidence presented, and
we defer to those conclusions. Hammack, 622 S.W.3d at 914 (citing Garcia v. State, 367
S.W.3d 683, 687 (Tex. Crim. App. 2012)). We look to the “events occurring before,
during[,] and after the commission of the offense and may rely on actions of the defendant
which show an understanding and common design to do the prohibited act.” Id. (quoting
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “Circumstantial evidence is
as probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt.” Id. at 914–15. Not every fact or piece
of evidence needs to point directly to appellant’s guilt, so long as the cumulative force of
all the evidence supports the convictions. Id. at 914. “Juries are permitted to draw
reasonable inferences from the evidence presented at trial ‘as long as each inference is
supported by the evidence presented at trial.’” Carter v. State, 620 S.W.3d 147, 150 (Tex.
Crim. App. 2021) (quoting Hooper, 214 S.W.3d at 15).
We measure the sufficiency of the evidence by the elements of an offense as
defined by a hypothetically correct jury charge. Hammack, 622 S.W.3d at 914. “Such a
charge [is] one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s
theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Id. (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)).
Conviction for fraudulent use or possession of ten or more but less than fifty items
of identifying information, committed against an elderly individual, requires proof that:
6 (1) appellant possessed an item of identifying information belonging to another person,
and the total number of items was ten or more but less than fifty; (2) appellant possessed
each item without the other person’s consent; (3) appellant possessed each item with the
intent to harm or defraud the other person; and (4) the offense was committed against an
individual sixty-five years of age or older. See TEX. PENAL CODE ANN. § 32.51(b)(1), (c)(3),
(c-1)(1); Grimm v. State, 496 S.W.3d 817, 822 (Tex. App.—Houston [14th Dist.] 2016, no
pet.). On appeal, Rodriguez challenges the sufficiency of the evidence supporting the
number of items of identifying information and the intent to defraud.
B. Items of Identifying Information
Rodriguez first challenges the evidence supporting the number of pieces of
identifying information, arguing that the State “produced three witnesses who identified a
total of four items of identifying information.” In his view, only four (not ten or more) items
of identifying information were entered as evidence by the State.
“Identifying information” is defined in § 32.51 of the Texas Penal Code as:
[I]nformation that alone or in conjunction with other information identifies a person, including a person’s:
(A) name and date of birth;
(B) unique biometric data, including the person’s fingerprint, voice print, or retina or iris image;
(C) unique electronic identification number, address, routing code, or financial institution account number;
(D) telecommunication identifying information or access device; and
(E) social security number or other government-issued identification number.
TEX. PENAL CODE ANN. § 32.51(a)(1).
7 The Texas Court of Criminal Appeals has held that an “item of identifying
information” refers not to the individual record where the information appears—such as a
license, credit card or document—but rather to any single piece of personal, identifying
information that alone or in conjunction with other information identifies a person. Cortez
v. State, 469 S.W.3d 593, 602 (Tex. Crim. App. 2015); Grimm, 496 S.W.3d at 822. Thus,
an individual record such as a personal check could constitute two items of identifying
information if it contained (1) a person’s name and driver’s license number, and (2) a bank
account number and bank routing number. Cortez, 469 S.W.3d at 603 (noting that under
§ 32.51(a)(1), a person’s name and driver’s license number together would count as a
single “item” of identifying information and similarly, a bank account number and bank
routing number would count as a single “item” because only by combining those two
numbers do they become information identifying a person); see also Vadnais v. State, No.
03-14-00578-CR, 2017 WL 474059 at *6 (Tex. App.—Austin Jan. 31, 2017, pet. ref’d)
(mem. op., not designated for publication).
Here, Officer Gutierrez testified that he found numerous items of identifying
information on Rodriguez’s person. The State presented three witnesses at trial who
testified about their personal, identifying information that Officer Gutierrez had recovered.
Evans testified that his Texas ID and his social security card were recovered by CCPD.
Hernandez testified that he had previously lost his wallet and that the Texas driver’s
license recovered by CCPD was his. Narvaez testified that the debit/credit card found
with his name on it was his. All three witnesses testified that Rodriguez did not have
consent to have their personal identifying information.
Based on the evidence presented from these witnesses alone, the State presented
8 the jury with eight items of identifying information, all of which were found in Rodriguez’s
pocket. See TEX. PENAL CODE ANN. §32.51(a)(1). There were three items belonging to
Evans: (1) his name and date of birth; (2) his name and address; and (3) his government-
issued ID number. See id.; Cortez, 469 S.W.3d at 607 (concurring opinion; counting items
of identifying information). There were an additional four items of identifying information
belonging to Hernandez: (1) his name and date of birth; (2) his name and address; (3) his
government-issued driver’s license number; and (4) his social security number. See TEX.
PENAL CODE ANN. §32.51(a)(1); Cortez, 469 S.W.3d at 607. Additionally, there was one
item of identifying information for Narvaez, his credit card number. See TEX. PENAL CODE
ANN. §32.51(a)(1); Grimm, 496 S.W.3d at 823. Rodriguez acknowledges that this may
establish that he possessed some items of identifying information, but he contends the
evidence is insufficient to show that he possessed ten or more items of identifying
information.
The State responds that it also elicited testimony from Perez that the blank checks
contained her first and last name along with her middle initial, but that she did not have
an account through USAA and the address listed was not, nor had it ever been, hers.
Furthermore, the State produced five additional credit or debit cards with five different
names and an additional social security card and Texas driver’s license belonging to other
individuals. The State did not present testimony from these individuals.
Rodriguez argues that this evidence does not establish he had ten or more items
of identifying information. He notes that, aside from confirming her name, Perez stated
the account information and address were not hers, nor had they ever been hers. As to
the remaining items, Rodriguez argues there was no testimony to prove that the items
9 were real credit or debit cards or information belonging to real people. Perez stated that
the name on the checks matched her name, but there were no other identifying pieces of
information on the blank checks that belonged to her. However, Detective McDonald
testified that when he spoke to Perez, she “stated that that was her account” and
confirmed the checks were hers and that he had taken a recorded statement from her
confirming the same. While Perez’s testimony contradicted that of Detective McDonald’s,
when faced with conflicting evidence, we presume the jury resolved conflicts in favor of
the prevailing party. Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993); see Tucker
v. State, 150 S.W.2d 1025, 1029 (Tex. Crim. App. 1941) (noting that jury was entitled to
avail itself of adage “false in one, false in all” as to witness’s testimony and apparently did
so, crediting nothing she said on stand). Accordingly, we include the two blank checks in
the number of items of identifying information established by the evidence. It has been
held that a blank check can contain as many as four items of identifying information:
For instance, if an accused possessed one check on which appeared 1) a unique electronic identification number, 2) the address of the account owner, 3) a routing code, and 4) the financial institution account number, appellant would have us conclude that the accused possessed only one item of identifying information. The State, however, would argue that the accused possessed four items of identifying information under that scenario. [W]e agree with the State.
Cortez v. State, 428 S.W.3d 338, 341 (Tex. App.—Amarillo, 2014 pet. granted), aff’d, 469
S.W.3d 593 (Tex. Crim. App. 2015). Here, the blank checks contained: (1) the name and
address of the account holder; (2) the routing number; and (3) the account number. These
three items of identifying information taken with the eight items previously discussed
brings the total number to eleven items of identifying information. As such, we need not
10 address the remaining debit or credit cards because the State presented evidence of
more than ten items of identifying information. See TEX. PENAL CODE ANN. § 32.51(c)(3).
C. Intent
Rodriguez also challenges the evidence supporting the element of intent, though
he does so through two sentences with no citations to authority or any legal analysis. He
states: “On the issue of intent, the presumption that Rodriguez intended to harm or
defraud the rightful owners, was rebutted by the State’s own evidence that Mr.
Hernandez’s license was missing for approximately ten years without incident of misuse.
Same for Mr. Evans and Mr. Narvaez.” We find this argument to be inadequately briefed.
See TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.”).
Furthermore, the statute itself states that the actor is presumed to have the intent to harm
or defraud another if the actor possesses the identifying information of three or more other
persons. TEX. PENAL CODE ANN. § 32.51(b-1)(1). That burden was met here.
D. Conclusion
Having found that a rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt, we overrule Rodriguez’s first issue.
III. MOTION TO SUPPRESS
By his third and fourth issues, Rodriguez argues that the trial court erred in denying
his motion to suppress on the basis that “the actions of the [CCPD] violated [his]
constitutional and statutory rights.” Specifically, Rodriguez complains on appeal that his
Fourth and Fourteenth Amendment rights were violated, and the trial court should have
excluded the evidence under Texas Code of Criminal Procedure Article 38.23(a). See
11 U.S. CONST. amends. IV, XIV; TEX. CODE CRIM. PROC. ANN. art. 38.23.
“An appellate court applies a bifurcated standard of review to a trial court’s ruling
on a motion to suppress.” Ramirez-Tamayo v. State, 537 S.W.3d 29, 35 (Tex. Crim. App.
2017) (cleaned up). “We afford almost complete deference to the trial court’s
determination of historical facts, especially when those determinations are based on
assessments of credibility and demeanor.” Id. “On the other hand, we apply a de novo
standard of review to the legal significance of the facts as found by the trial court.” Id.
“When findings of fact are not entered, as here, we must view the evidence in the light
most favorable to the trial court’s ruling and assume that the trial court made implicit
findings of fact that support its ruling as long as those findings are supported by the
record.” Id. at 35–36 (internal quotations omitted). In cases in which the trial court is never
asked, or is asked but declines, to exercise its discretionary authority to reopen the
suppression hearing, appellate review of its ruling on the motion to suppress is ordinarily
limited to that evidence presented at the pretrial hearing—the evidence that was before
the court at the time of its decision. Black v. State, 362 S.W.3d 626, 635 (Tex. Crim. App.
2012).
The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures. U.S. CONST. amends. IV, XIV. A pat-down for weapons—known
as a Terry frisk—constitutes a search within the meaning of the Fourth Amendment. Terry
v. Ohio, 392 U.S. 1, 19 (1968). An officer is constitutionally justified in frisking an individual
he has lawfully detained if a reasonably prudent person would be warranted in the belief
that the individual was armed and that “[the officer’s] safety or that of others was in
12 danger.” Id. at 27; Lerma v. State, 543 S.W.3d 184, 191 (Tex. Crim. App. 2018); Furr v.
State, 499 S.W.3d 872, 878 (Tex. Crim. App. 2016); O’Hara v. State, 27 S.W.3d 548, 551
(Tex. Crim. App. 2000). The officer “need not be absolutely certain that the individual is
armed”; he need only possess specific and articulable facts which, together with
reasonable inferences from those facts, in light of the officer’s experience, reasonably
lead him to conclude that the detained individual might possess a weapon. Terry, 392
U.S. at 21–27; Lerma, 543 S.W.3d at 191; Furr, 499 S.W.3d at 878; see also Seymore v.
State, No. 02-19-00486-CR, 2021 WL 2252751, at *5 (Tex. App.—Fort Worth June 3,
2021, pet. ref’d) (mem. op., not designated for publication).
“Whether a Fourth Amendment violation has occurred turns on an objective
assessment of the officer’s actions in light of the facts and circumstances confronting him
at the time, and not on the officer’s actual [subjective] state of mind at the time the
challenged action was taken.” O’Hara, 27 S.W.3d at 551 (internal quotation marks
omitted) (quoting Maryland v. Macon, 472 U.S. 463, 470–71 (1985)); accord Lerma, 543
S.W.3d at 191. To determine whether a reasonable officer could have believed that a
detained individual might possess a weapon and the officer’s safety might be at risk,
courts have considered factors such as the officer’s relative isolation during the
encounter, whether the frisk occurred during a roadside stop, the detained individual’s
clothing, the detained individual’s behavior, the area in which the encounter occurred, the
time of night, and frequency of criminal conduct in the area. See Michigan v. Long, 463
U.S. 1032, 1047–50 (1983) (noting roadside context and rural location); Lerma, 543
S.W.3d at 192 (noting roadside context, isolation, and behavior); Griffin v. State, 215
S.W.3d 403, 409 (Tex. Crim. App. 2006) (noting criminal history and nervous behavior);
13 O’Hara, 27 S.W.3d at 553–55 (noting isolation and rural location); Elliot v. State, 548
S.W.3d 121, 127 (Tex. App.—Fort Worth 2018, pet. ref’d) (noting nervous behavior,
bulges in clothing, and tendency to carry weapons); Furr, 499 S.W.3d at 880–81
(considering information from anonymous tip and “high drug, high crime” area in which
frisk occurred, in addition to other factors); see also McKellar v. State, No. 07-06-00451-
CR, 2007 WL 2262903, at *2 (Tex. App.—Amarillo Aug. 8, 2017, no pet.) (mem. op., not
designated for publication) (considering time of night, in addition to other factors);
Rodriguez v. State, No. 03-03-00140-CR, 2003 WL 22249714, at *5 (Tex. App.—Austin
Oct. 2, 2003, no pet.) (mem. op., not designated for publication) (considering time of night
and frequency of criminal conduct in the area, in addition to other factors).
B. Analysis
The State argues that Officer Gutierrez could have reasonably believed that
Rodriguez possessed a weapon and that his safety might be in danger because:
(1) Officer Gutierrez was alone; (2) the stop occurred in a high-crime area; (3) the stop
was in the middle of the night; and (4) Officer Gutierrez had previously been assaulted in
similar circumstances.
The Texas Court of Criminal Appeals has recognized that an officer’s solitude
during a traffic stop may contribute to an objectively reasonable concern for the officer’s
safety. O’Hara, 27 S.W.3d at 553–55 (upholding frisk because, among other
considerations, the officer was alone); Rodriguez, 2003 WL 22249714, at *5 (same); see
also Seymore, 2021 WL 2252751, at *6. Here, it is undisputed that Officer Gutierrez was
patrolling alone. Furthermore, Officer Gutierrez testified that the area was known for drug
trafficking and crime. Officer Gutierrez explained that he had patrolled the area for drug
14 related activity and crimes. The Texas Court of Criminal Appeals has also recognized that
the location in which a stop takes place is a relevant factor in determining whether a pat
down is justified. See Furr, 499 S.W.3d at 881.
Considering all of the factors discussed, we agree with the State that a reasonably
prudent officer in Officer Gutierrez’s position would have been warranted in believing that
his safety was in danger. See id. Accordingly, we hold that the trial court did not err in
concluding that Officer Gutierrez was objectively justified in patting down Rodriguez for
weapons.
As shown on the dash camera video, which was admitted as evidence at the
motion to suppress hearing, once the pat down was conducted and a knife was located
and removed from Rodriguez’s pocket, Officer Gutierrez, while manipulating one of
Rodriguez’s pockets from the outside, asked Rodriguez for consent to search. Rodriguez
did not immediately consent, but when Officer Gutierrez told him it was a “yes or no”
question, Rodriguez consented, saying “go ahead.”
Rodriguez argued in his motion to suppress and now on appeal that his consent
was coerced. Rodriguez states that Officer Gutierrez was “standing closely behind
Rodriguez with his arms around Rodriguez, who he had physically contained.” Rodriguez
couples the position of Officer Gutierrez with Rodriguez’s hesitation to consent to argue
that he was coerced to give his consent. Specifically, he argues that at that point, consent
was “moot” because the search was already being conducted.
To show that a defendant’s consent to a search was constitutional, the State is
required to prove the voluntariness of the consent by clear and convincing evidence, and
the trial court must look at the totality of the circumstances surrounding the statement of
15 consent in order to determine whether that consent was given voluntarily. See Reasor v.
State, 12 S.W.3d 813, 818 (Tex. Crim. App. 2000). Reviewing the record most favorable
to the trial court’s ruling, we find that the State met its burden of demonstrating by clear
and convincing evidence that Rodriguez consented to the search. While Officer Gutierrez
was positioned directly behind Rodriguez at the time, Rodriguez was not under arrest,
and Officer Gutierrez informed him that his consent was a “yes or no” question, thus
making Rodriguez aware that he could refuse. Furthermore, the “hesitation” discussed by
Rodriguez amounted to mere seconds where he first stated that he did not have anything
illegal in his possession before telling Officer Gutierrez to “go ahead” with the search.
When he told Officer Gutierrez to “go ahead,” he was indicating his consent to the search.
See McAllister v. State, 34 S.W.3d 346, 351 (Tex. App.—Texarkana, Dec. 8, 2020, pet.
ref’d). Accordingly, the trial court did not err in denying Rodriguez’s motion to suppress
on this basis. Rodriguez’s second issue is overruled.
IV. CONCLUSION
The trial court’s judgment is affirmed.
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2 (b).
Delivered and filed on the 8th day of August, 2024.