Harrell, Donna Lynn v. The State of Texas

 
AFFIRM; Opinion issued November 17, 2011
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00794-CR
............................
DONNA LYNN HARRELL, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the 291st Judicial District Court
Dallas County, Texas
Trial Court Cause No. F09-71248-U
.............................................................
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Lang-Miers
Opinion By Justice FitzGerald
 
Following a bench trial, the court found appellant Donna Lynn
Harrell guilty of fraudulent use or possession of identifying
information. The trial court sentenced her to two years' confinement in
the state jail; the court then suspended the term of incarceration and
placed appellant on probation for three years. The court also imposed a
$1500 fine. In a single issue, appellant challenges the legal
sufficiency of the evidence supporting her conviction. Because that
issue involves the application of well-settled principles of law, we
issue this memorandum opinion. See Tex. R. App. P. 47.4. We affirm the
trial court's judgment.
Approximately one month after her divorce was final, appellant
called and then entered the White Rock Home Depot in an effort to lease
a truck and buy boxes for moving her belongings. Appellant hoped to
charge the cost of these items to a Home Depot account. Luvenia
Singleton was working at the rental desk that day; she spoke to
 
appellant both on the phone and, later, when appellant arrived at the
store. Singleton testified that to lease a truck from Home Depot, one
needed a driver's license and proof of insurance. Appellant had only a
temporary license, with no picture. She gave that temporary license, her
passport, and two pages of her 2004 tax return to Singleton. The tax
return contained social security numbers belonging to appellant, her
ex-husband, and their children. When Singleton attempted to access the
account number appellant gave her, she was told to call the store's
credit center. She made that call and was told that appellant was not on
the account and the account had a flag on it. Singleton was then told to
call the store's loss prevention department and not to let appellant
leave. Police subsequently arrested appellant and charged her with
unlawfully possessing and transferring her ex-husband's social security
number with the intent to harm or defraud him.
According to the penal code: A person commits an offense if the
person, with the intent to harm or defraud another, obtains, possesses,
transfers, or uses an item of [] identifying information of another
person without the other person's consent.
Tex. Penal Code Ann. § 32.51(b)(1) (West 2011). The statute defines
“identifying information” to include a social security number. Id. §
32.51(a)(D). Appellant acknowledges she possessed her ex-husband's
social security number on a tax return from the time when the two were
married. However, she denies she transferred the number with any intent
 
to harm or defraud him. When an appellant challenges the legal
sufficiency of the evidence supporting her conviction, 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). We 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. Id. at 326.
Although our analysis considers all evidence presented at trial, we may
not re-weigh the evidence and substitute our judgment for that of the
fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000).
The issue before us is whether there is evidence that appellant
gave Singleton the identifying information , i.e., transferred it, with
an intent that violates the statute. See Footnote 1 Appellant
contends she gave the tax return-together with her temporary license and
passport-to Singleton not just to prove her identity, but also so
Singleton could determine if Home Depot had a viable account on which
appellant could charge her truck rental and purchases. She testified
that Singleton told her she needed her ex-husband's information in order
to look up appellant's access to the accounts. Appellant testified she
told Singleton of her recent divorce. She said she told Singleton she
was unsure of the status of their business account (which she said she
had used during the years they were married) and also told Singleton she
 
believed she had opened a separate account herself years earlier when
buying her husband a lawn mower. Appellant further contends that
Singleton told her that account was closed, and appellant asked if she
could open a new account or re-open the closed one. Appellant argues she
did not give the identification documents with any intent to harm or
defraud anyone. She wanted to use her own credit with Home Depot that
day, not her ex-husband's.
But Singleton's testimony contradicts appellant's version of
their exchange. According to Singleton, appellant called and spoke to
her before coming in to the store. Appellant wanted to know if she could
use a Home Depot card for the purchases she had in mind. She
acknowledged her ex- husband's name was on the card, but told Singleton
her name should be on the account as well. When appellant arrived at the
store, she gave Singleton the temporary license, the passport, and the
tax return. Singleton said when appellant gave her the tax return,
appellant said it was “all she had left of-with his social [security
number] and her name and his name.” As it turned out, the Home Depot
account was solely in appellant's ex-husband's name. Singleton denied
that appellant ever asked her to open a new account or a new line of
credit with Home Depot. Instead, she testified appellant kept saying she
was on her ex-husband's account. Singleton also testified there was only
ever one account, the one in appellant's ex-husband's name. Thus,
Singleton agreed that if appellant had been allowed to use the account,
 
the charge for renting the truck and purchasing the boxes would have
gone on her husband's account. Finally, Singleton testified that when
the police questioned appellant concerning the account, appellant “went
on and on” concerning abuse she had suffered at her husband's hands and
stated “that she had every right to whatever he had because of all the
stuff she had been through with him.”
Appellant's ex-husband testified that he has a Home Depot
account for his construction business. Appellant was never on that
account and did not ever have permission to access the account; she did
not have a card. She “absolutely” did not have his permission to use his
social security number to gain access to his credit with Home Depot to
rent a truck.
The trial court, as the finder of fact, was entitled to reject
all or any part of appellant's own version of her reason for
transferring the identifying number. See Williams v. State, 692 S.W.2d
671, 676 (Tex. Crim. App. 1984); Gabriel v. State, 842 S.W.2d 328, 331
(Tex. App.-Dallas 1992) aff'd, 900 S.W.2d 721 (Tex. Crim. App. 1995).
The State introduced evidence that appellant transferred her
ex-husband's social security number without his permission. A rational
fact finder could have inferred that appellant transferred the tax
return to establish her relationship with her ex-husband and to gain
access to the Home Depot account. A rational fact finder could also have
inferred from appellant's comments to the police that she intended to
use her husband's credit because she believed she was entitled to do so.
 
Thus, a rational fact finder could certainly have concluded beyond a
reasonable doubt that appellant acted with the intent to have her
purchases charged to her ex- husband's account without his permission.
Sufficient evidence supports appellant's conviction. See Jackson, 443
U.S. at 319.
We overrule appellant's single issue and affirm the trial
court's judgment.
 
KERRY P.
FITZGERALD
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100794F.U05
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Footnote 1
We agree with appellant that she had a legitimate right to possess a
copy of a tax return, which necessarily contained her ex-husband's
social security number, from a year when she was married.
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