Olurebi v. State

818 S.W.2d 851, 1991 Tex. App. LEXIS 2556, 1991 WL 207635
CourtCourt of Appeals of Texas
DecidedOctober 17, 1991
Docket01-90-00685-CR
StatusPublished
Cited by3 cases

This text of 818 S.W.2d 851 (Olurebi 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
Olurebi v. State, 818 S.W.2d 851, 1991 Tex. App. LEXIS 2556, 1991 WL 207635 (Tex. Ct. App. 1991).

Opinions

OPINION

DUNN, Justice.

A jury convicted appellant of credit card abuse, and the trial court assessed his punishment at 10 years probation and a $2,000 fine. We affirm.

A two-count indictment charged appellant with credit card abuse. The State abandoned count I of the indictment. Count II of the indictment charged that appellant violated Tex. Penal Code Ann. § 32.31(b)(2) (Vernon 1989), which states a person commits the offense of credit card abuse if he uses a fictitious credit card with the intent to obtain property or service.

In September 1988, Chevron received a credit card application from a “Wale R. Lawson.” In October 1988, Chevron issued one of its credit cards to “Wale R. Lawson,” and sent it to an address on Algiers street in Houston, which was listed in the credit card application.

After Chevron failed to receive any payments on the credit card account, Barnes, a corporate security representative for Chevron, began to investigate the account in April 1989. Barnes testified no one named “Wale R. Lawson” had a driver’s license in Texas, Louisiana, Oklahoma, or New Mexico. No one by that name could be found in the tax records of Harris County. Someone else lived at the Algiers address listed in the credit card application, and she stated she had lived at that address for 30 years and had never heard of “Wale R. Lawson.” The banks and bank account numbers on the credit card application did not exist. The social security number on the application belonged to another person. The employment information on the application was false. The credit card references on the application were not valid numbers.

Barnes checked the automobile license registration receipts on a license plate number that appeared on one of the credit card receipts generated by the use of the credit card. The license plate number on the receipt belonged to a car owned by appellant.

Barnes obtained a copy of appellant’s driver’s license photograph and placed it in a photo array which he showed to Kaldis, owner of a Chevron station where the credit card had been used numerous times. Kaldis identified appellant as the person who had used the card.

At trial, Kaldis identified appellant as the customer he knew as “Wale R. Lawson.” Kaldis testified that appellant never denied being “Wale R. Lawson.” Kaldis testified that on December 7, 1988, appellant presented Kaldis the credit card to pay for a brake job and other work, and that appellant signed the receipt, “Wale R. Lawson.”

At trial, appellant testified he had known Lawson since high school. He said Lawson was a Nigerian born, British citizen. Appellant claimed that Lawson lived with him from August 1988 to February 1989 when Lawson moved to London, England; that Lawson obtained the credit card while he lived with appellant; and that appellant used the credit card and signed the credit card receipts in Lawson’s name with Lawson’s permission.

Appellant testified he used Lawson’s credit card to help him through rough times when his car needed repairs. Appellant also testified he had a valid American Express credit card in his name during November and December 1988. Appellant said that when he used Lawson’s credit card, he paid Lawson back within about two weeks after appellant got paid. Appellant said that Lawson lived on Manchester street somewhere in London. Appellant [853]*853also said he used to have Lawson’s telephone number in London.

Appellant presents four points of error. Appellant’s first point of error asserts reversible error occurred when the prosecutor repeatedly questioned him about his post-arrest, pretrial silence.

Appellant sets out the following from the prosecutor’s cross-examination of him:

[Prosecutor]: Now, you stated that he
[Lawson] lived there [with appellant] for six months?
[Appellant]: Absolutely, sir.
[Prosecutor]: And now he’s a preacher in London?
[Appellant]: Sir.
[Prosecutor]: Now he’s some kind of preacher in London?
[Appellant]: Yeah. That’s right. Probably might be somewhere else right now, but that’s what he told me and that’s where I took him, Intercontinental Airport.
[Prosecutor]: Did you ever tell this story to Chevron?
[Appellant]: Do I do what?
[Prosecutor]: About this preacher in London?
[Appellant]: To who?
[Prosecutor]: To Chevron people? [Appellant]: Never.
[Prosecutor]: Okay. Did you ever tell the police that Mr. Lawson had fled to London.
[Appellant]: Fled to London.
[Prosecutor]: Yes, sir.
[Appellant]: No, sir. I have nothing to tell the policeman about.
[Prosecutor]: So this is the first time you’ve told anybody this story? [Appellant]: Absolutely.
[Prosecutor]: Waited until this time in court some, almost a year afterwards to finally tell somebody Mr. Lawson went to London?
[Appellant]: Repeat your question, sir.
[Prosecutor]: This is the first time after almost over a year that you finally told somebody Mr. Lawson went to London?
[Appellant]: That should be with him and my lawyer. Probably I already told my lawyer when the case started, that’s between me and my lawyer.
[Prosecutor]: You would agree this is the first time you have told anybody besides your lawyer?
[Appellant]: That’s right.

In his brief, appellant does not appear to complain about these comments by the prosecutor because they were “not time-specific and not related to any particular individual.” To the extent that the foregoing comments could be construed as comments on appellant’s post-arrest silence, appellant waived any error by his failure to object at trial. See Smith v. State, 721 S.W.2d 844, 855 (Tex.Crim.App.1986) (defendant’s failure to object to prosecutor’s impeachment of defendant’s testimony with his post-arrest silence waived any error).

Appellant also sets out the following from the prosecutor’s cross-examination of him:

[Prosecutor]: Isn’t it true Mr. Olurebi, this is the first time you’ve ever told this story besides to your lawyer [sic]?
[Appellant]: Sir.
[Prosecutor]: Did you ever attempt to contact Chevron after these charges were brought and tell them hey, Mr. Lawson is in England, I know exactly where he’s at. Did you ever try to do that?
[Appellant]: Who am I going to tell?
[Prosecutor]: Did you ever attempt to come to the D.A.’s Office?
[Appellant]: What D.A.—
[Appellant’s counsel]: I object to that. He’s been under charges since then.

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Related

Olurebi v. State
875 S.W.2d 807 (Court of Appeals of Texas, 1994)
Olurebi v. State
870 S.W.2d 58 (Court of Criminal Appeals of Texas, 1994)

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Bluebook (online)
818 S.W.2d 851, 1991 Tex. App. LEXIS 2556, 1991 WL 207635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olurebi-v-state-texapp-1991.