AMBER NICOLE GARDNER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED as MODIFIED; Opinion Filed December 30, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00797-CR
............................
AMBER NICOLE GARDNER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the Criminal District Court
Dallas County, Texas
Trial Court Cause No. F08-57469-RH
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OPINION
Before Justices Moseley, Bridges, and O'Neill
Opinion By Justice Bridges
        Amber Nicole Gardner waived a jury and pleaded not guilty to credit card abuse. After finding appellant guilty, the trial court assessed punishment at two years confinement in a state jail facility, probated for two years, and a $500 fine. In a single point of error, appellant contends the evidence is legally insufficient to sustain her conviction. We modify the judgment and affirm.
Background
 
        Austin Martin, the manager of Lower Level Tickets (the company), testified he received a call on July 2, 2008 from a woman who wanted to purchase four tickets to a concert. She said she did not care about the price, she just wanted the “best seats possible.” The woman identified herself as “Amber” and a last name that was not Gardner, said she was using her father's credit card and had his permission to do so, and gave her father's name, telephone number, and credit card number. Austin testified it was not uncommon for a son or daughter to order tickets with their parents' consent, so he wrote down all of the information Amber gave him and placed the order. Martin called the father's telephone number to verify that Amber had his permission. A man who answered stated that Austin had the wrong number. Austin called Amber's number and told her he could not get in touch with her father. He asked Amber if she had a different number for her father, but she did not provide another number. At that point, Austin became suspicious. He talked to his brother Jeffrey about a possibly fraudulent order. Austin testified he completed the transaction with the credit card number that Amber gave him, but he kept the order as “pending” until he could get the necessary approval before sending out the tickets.
        A short time after Austin completed the transaction, he received a telephone call from Peter Wagner, the original cardholder. Wagner questioned a charge on his credit card for tickets, stating he did not authorize the purchase. Austin told Wagner that Amber ordered four concert tickets and gave him her father's credit card number, which he now realized was Wagner's credit card number. Wagner said his wedding photographer was named Amber and perhaps she had placed the order, but he did not authorize the transaction. Austin initiated a full refund to Wagner, which totaled $1623.75. After talking with Wagner, Austin called Amber and stated she would have to come to the office with documentation from the cardholder verifying the order before the tickets would be released. During that conversation, Amber never said she wanted him to hold the tickets because she intended to pay cash for them. Austin testified that he had talked with his brother before he called Amber, and he and his brother planned to call the police when Amber showed up to get the tickets. On the day that Amber came to pick up the tickets, Jeffrey called the police. Austin testified the company's computer system generates an invoice when orders are placed, and the system automatically enters the name of the cardholder when the credit card number is entered. An invoice showing Wagner's name and credit card number was admitted into evidence.
        Jeffrey Martin, part-owner of the company, testified Austin told him a customer tried to buy four concert tickets using her father's credit card. The original cardholder, however, said he did not authorize the purchase. Austin said they should call the police and have them come to the office. Jeffrey testified that when appellant came to the office, she identified herself as Amber and a last name that was not Gardner. While appellant waited for the tickets to arrive at the company, Jeffrey called the police. An officer came, talked to appellant, and then arrested her.
        Dallas police officer Robert Kamphouse testified he received a call from the company regarding a possible fraud suspect at their location. When Kamphouse arrived, he saw appellant sitting in the outer room. Kamphouse went into an office and talked with Jeffrey Martin, who said a woman called a few days earlier and purchased $1600 worth of tickets using a credit card. The woman identified herself as “Jennifer Keck,” and she said the cardholder was her father. A short time later, the actual cardholder called questioning the ticket purchase, and stated he did not know anyone named Jennifer Keck. Jeffrey said the woman sitting in the outer room said her name was Jennifer Keck, and she was there to pick up the concert tickets. After talking with Jeffrey, Kamphouse went to the outer room and talked with appellant. Appellant admitted her name was Amber Gardner, and said she had used the name Jennifer Keck to make the ticket purchase and to pick them up. Kamphouse arrested appellant and transported her to the forgery unit.
 
        Peter Wagner testified he was out of town when he noticed a charge on his credit card from the company. He called the company and informed Austin he neither authorized a purchase for $1600 nor authorized anyone to use his credit card. Austin said a woman purchased tickets with Wagner's credit card number over the telephone, and she gave her name as Jennifer Keck. Wagner told Austin that he did not know anyone named Jennifer Keck or Thomas Keck, but he did know a person named Amber. Austin said that the person who purchased the tickets was supposed to come into their office to pick them up. Because he was out of town at the time, Wagner called his wife, who called the police and made a report. Wagner testified that appellant was a wedding photographer he had hired in December 2006, he had paid appellant with his credit card, and he still used that same credit card.
        Thomas Keck testified on appellant's behalf. Keck said he was an investor in appellant's “wedding planning consulting business,” provided startup financing, and gave appellant money and use of his credit cards on a case-by-case basis. Appellant had permission to use his credit cards for online or phone purchases, she always got permission from him first before using his credit card, and she kept a record of his credit card numbers, their expiration dates, and their security numbers. About ten days before appellant's birthday in July, appellant said she wanted to go to a concert. Keck told appellant he would pay for the tickets. He intended to give appellant cash. When appellant said she needed a credit card to hold the tickets, which would cost about $900, Keck gave her permission to use one of his credit cards. Keck also told appellant he was not certain there was enough balance on any one of his credit cards to cover the $900 ticket costs. He assured appellant that he would give her cash to actually get the tickets. On the day appellant was arrested, Keck withdrew $2700 from an account and gave it to appellant. He said the money was for purchasing the tickets and for business expenses. Keck testified he is not appellant's father, and that the name “Jennifer Keck” is a made-up name by appellant. Keck was aware that appellant sometimes identified herself as Jennifer Keck when using one of his credit cards.
        Appellant testified she never intended to benefit by a fraudulent use of someone else's credit card. Appellant testified Keck provided financial support to get her full-service wedding and event company started, and he supports her financially for certain business expenses. Keck allows her the use of his credit cards for certain business purchases. Appellant had Keck's credit card numbers listed on a spreadsheet, and listed her customers' credit card numbers on a different spreadsheet. Appellant said some customers pay a deposit using a credit card, then they make monthly payments using the same card. Appellant testified she always obtained permission from Keck before using his credit card for business purchases.
        Appellant testified that whenever she made transactions in person, she represented herself as Keck's daughter, stating her name as “Jennifer Keck.” A few days before appellant's birthday, Keck offered to pay for concert tickets she wanted, and he agreed she could use his credit card to hold the tickets. When appellant called the company and placed the order for the tickets, Austin Martin said he had to get the tickets from another company and would need a credit card on file to hold the tickets. Then, when the tickets arrived, appellant could come to the office and pay cash for them. Appellant agreed, but told Austin that the ticket price was not available on the credit card and she would pay cash for them. Appellant admitted she told Austin that she was the cardholder's daughter, and that the cardholder was Thomas Keck. She denied she said the cardholder was Peter Wagner. A short time after placing the order, appellant received a telephone call from Austin saying he needed to “coordinate” when she would pick up the tickets. Appellant testified that when she went to the company to pick up the tickets, she had $2700 with her from Keck. After paying for the tickets, she intended to use the remainder for business expenses. Appellant testified she never intended to use Wagner's credit card number, and that she mistakenly had Wagner's credit card number listed on the spreadsheet with Keck's credit card numbers.
Applicable Law
 
        In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.). The Texas Court of Criminal Appeals has recently held that the Jackson v. Virginia standard is the only standard a reviewing court is to apply in determining whether the evidence is sufficient to support each element of a criminal offense that the State is required to prove beyond a reasonable doubt. We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony. See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).
        The State was required to prove beyond a reasonable doubt that appellant, with intent to obtain a benefit fraudulently, used a VISA credit card with knowledge that the card was not issued to her, and with knowledge the card was not used with the effective consent of Peter Wagner, the cardholder. See Tex. Penal Code Ann. § 32.31(b)(1)(A) (West Supp. 2010). “Cardholder” means the person named on the face of a credit card to whom or for whose benefit the card is issued. Id. § 32.31(a)(1).
Discussion
 
        Appellant contends the evidence is insufficient because she never represented herself as being the cardholder or being associated with the cardholder. Appellant asserts there is no evidence she intended to defraud anyone with another person's credit card number. The State responds that a rational trier-of-fact could have reasonably found all of the elements of the offense beyond a reasonable doubt, including that appellant intended to fraudulently obtain a benefit.
        The evidence presented shows appellant used Wagner's credit card number to purchase four concert tickets without Wagner's knowledge or consent. Austin testified appellant stated her name was Jennifer Keck, said she was the daughter of the cardholder, and gave the name “Thomas Keck” as the cardholder. Although appellant admitted she used the name “Jennifer Keck” to purchase the tickets, she said she mistakenly used Wagner's credit card number because it appeared on a spreadsheet that listed Keck's credit card numbers.
        As the fact-finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003); see also Jackson, 443 U.S. at 326. A rational fact-finder could reasonably find that appellant intended to obtain a benefit fraudulently when she used Wagner's credit card number without his consent.
        Viewing all of the evidence under the proper standard, we conclude it is sufficient to support appellant's conviction. See Brooks, 323 S.W.3d at 895. We overrule appellant's sole point of error.
        We note the record shows the trial court orally pronounced that appellant's two-year sentence would be probated, and she would be placed on community supervision for two years. The trial court's judgment, however, recites the supervision period as three years. When a conflict exists between the oral pronouncement and the written judgment, the oral pronouncement controls. See Coffey v. State, 979 S.W.2d 326, 328 (Tex. Crim. App. 1998). Accordingly, we modify the trial court's judgment to show appellant was placed on community supervision for two years. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex. Crim. App. 1993); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.-Dallas 1991, pet. ref'd).
        As modified, we affirm the trial court's judgment.
        
 
                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
100797F.U05