Ngetich, Bernard Kipngeno v. The State of TexasAppeal from 282nd Judicial District Court of Dallas County (memorandum opinion )

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AFFIRMED and Opinion Filed December 20, 2013 S In The Court of Appeals Fifth District of Texas at Dallas No. 05-12-00734-CR BERNARD KIPNGENO NGETICH, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 282nd Judicial District Court Dallas County, Texas Trial Court Cause No. F11-62810-S MEMORANDUM OPINION Before Justices Francis, Lang-Miers, and Lewis Opinion by Justice Lang-Miers The State charged Bernard Kipngeno Ngetich with fraudulent use or possession of ten or more but less than fifty items of identifying information of four individuals without their consent, a second-degree felony. TEX. PENAL CODE ANN. § 32.51(b)(1), (c)(3) (West Supp. 2013). Appellant pleaded not guilty before a jury, the jury found him guilty, and the court assessed punishment at two years in prison. The judgment assessed court costs in the amount of $264. In two issues on appeal, appellant argues (1) the evidence is insufficient to support the conviction because the State failed to prove he fraudulently possessed the identifying information of one of the four individuals named in the indictment and ten or more but less than fifty items of identifying information; and (2) the evidence is insufficient to support the assessment of court costs. We issue this memorandum opinion because the issues are settled. TEX. R. APP. P. 47.4. We affirm the trial court s judgment. Background An employee of a Texaco station called the Dallas Police Department to report a suspicious man at the gas pumps asking customers to use what the employee thought was a credit card to purchase their gas in exchange for cash. Officer David Detamble went to the Texaco station and talked to the employee. The employee described the individual and told the officer the direction in which the man walked after he left the Texaco station. Detamble drove to a Shell station across the intersection from the Texaco station. Another officer, Eric Weast, also arrived at the Shell station. Detamble and Weast went inside the Shell station and saw a man who matched the description given by the Texaco employee; it was appellant. Detamble asked appellant for identification and appellant removed his identification card from a wallet that he took from his pants pocket. As appellant opened the wallet, Detamble saw multiple identification cards in the wallet. Weast also saw other identification cards in the wallet, including a military card. Weast asked appellant if he was in the military, and appellant said no. Weast asked to look at the wallet. He testified that when he looked at the other cards in the wallet, he saw they were in other people s names. The officers arrested appellant. The wallet contained identifying information belonging to four different people: Johnny Fobbs (Texas Department of Public Safety Under 21 Identification Card), Joshua Hawkins (Department of Defense/Uniformed Services Identification and Privilege Card), Matthew James (Texas Learner Driver License), and Christopher Smith (Texas Department of Public Safety Identification Card). The officers also found in appellant s possession unopened beauty products, unopened electronic cables, two cell phones, and three gift cards. At trial, Fobbs, Hawkins, and James each testified that appellant did not have consent to possess their identifying information. Smith did not testify. Fobbs testified that he lost his 2 identification in Fort Worth. Hawkins said he did not know his military identification was missing until the police contacted him. He also testified that he had met appellant before at an apartment complex through a girl they both knew. James, a high school student, testified that his driver s permit was stolen while he was playing football in Danieldale Park. He said someone stole his backpack containing the learner driver license, ID, a sweater, shoes, basketball shorts, and a cell phone. Appellant testified that he found the wallet on the bus the same day he was arrested at the Shell station and it had all these people[ s] information on [sic] it[.] He said he tried to give the wallet to the bus driver, but the driver would not take it and told appellant to turn it in to the police. Appellant testified that he did not own a wallet at that time and usually kept his own identification in his shirt, but he put his identification in the wallet that morning [o]ut of confusion. He said he did not use any of the identifying information, and he was going to try to contact the people named on the cards or turn the wallet in to the police. Standard of Review We review the sufficiency of the evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307, 318 19 (1979). See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012). We review 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 crime beyond a reasonable doubt. Jackson, 443 U.S. at 318 19. The standard is the same whether we are reviewing direct or circumstantial evidence. Wise, 364 S.W.3d at 903; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). The factfinder is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. See Isassi, 330 S.W.3d at 638. 3 Discussion In issue one, appellant argues that the evidence is insufficient to support the conviction because the State did not prove he possessed Smith s identifying information without Smith s consent or that he possessed ten or more but less than fifty items of identifying information as charged in the indictment. A person commits the offense of fraudulent use or possession of identifying information when 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). Consent in this context means assent in fact, whether express or apparent. TEX. PENAL CODE ANN. § 1.07(a)(11). Assent in fact means there must be an actual or real agreement after thoughtful consideration. Blair v. State, 398 S.W.3d 220, 229 (Tex. Crim. App. 2013). Apparent consent means assent in fact that, while not communicated expressly, is no less clear and manifest to the understanding for not having been explicitly verbalized. Id. When a person possesses the identifying information of three or more individuals, the law presumes the person has the intent to harm or defraud another. TEX. PENAL CODE ANN. § 32.51(b 1). Smith did not testify in this case. However, a reasonable deduction from the evidence is that appellant did not have Smith s consent to possess Smith s identifying information. The three other individuals testified that appellant did not have consent to possess their identifying information, Smith s identifying information was in the same wallet as the other individuals identifying information, appellant did not know Smith, and appellant said he found the wallet on a bus. Appellant s own testimony supports the reasonable inference that he did not have Smith s express or apparent consent to possess Smith s identifying information. 4 Appellant also argues that the evidence is insufficient to show he possessed ten or more but less than fifty items of identifying information. The penal code defines identifying information as information that alone or in conjunction with other information identifies a person, including a person s (A) name and date of birth; ... (C) unique electronic identification number, address, routing code, or financial institution account number; ... (E) social security number or other government-issued identification number. TEX. PENAL CODE ANN. § 32.51(a)(1). Weast testified that name and date of birth are one piece of information, and social security number, driver license number, and address are all separate pieces of information. Neither party cites authority to show that the separately lettered paragraphs under section 32.51(a)(1) each constitutes one item of identifying information. See id. § 32.51(a)(1) (defining identifying information ), 32.51(c) (referring to number of items of identifying information). Weast testified that there were three pieces of identifying information per card, multiplied times four cards, for a total of twelve pieces of identifying information in appellant s possession when he was arrested. Appellant does not challenge Weast s testimony about what constitutes a piece or item of identifying information. Instead, appellant appears to contend that because Smith did not testify, Smith s identifying information cannot count toward the number of items of identifying information he possessed. This is incorrect. We consider all the evidence in a sufficiency challenge. See Lockhart v. Nelson, 488 U.S. 33, 41 42 (1988); Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011). Assuming, without deciding, that Weast s analysis is correct, 5 the four cards admitted into evidence each contained three separate items of identifying information the name and date of birth, address, and social security number or governmentissued identification number belonging to the respective victims in this case, for a total of twelve items of identifying information. Consequently, we conclude that the State proved appellant possessed ten or more but less than fifty items of identifying information. We resolve issue one against appellant. In issue two, appellant argues that the evidence is insufficient to support the assessment of $264 in court costs because the clerk s record does not contain a bill of costs. Since the filing of this appeal, this Court requested and received a supplemental clerk s record that contains a certified bill of costs. See Franklin v. State, 402 S.W.3d 894, 894 (Tex. App. Dallas 2013, no pet.). Consequently, this issue is moot, and we resolve it against appellant. After this Court received the supplemental clerk s record, appellant filed two objections to the bill of costs contained in the supplemental record. He objected that the bill of cost (1) was not proper because it is an unsigned, unsworn computer printout and (2) was not filed in the trial court or brought to the trial court s attention before costs were entered in the judgment. We previously considered these exact same objections in Coronel v. State, No. 05-12-00493-CR, 2013 WL 3874446, at *4 5 (Tex. App. Dallas July 29, 2013, pet. ref d), and rejected them, and we do so here as well. Conclusion We affirm the trial court s judgment. /Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE Do Not Publish TEX. R. APP. P. 47.2(b) 120734F.U05 6 S Court of Appeals Fifth District of Texas at Dallas JUDGMENT BERNARD KIPNGENO NGETICH, Appellant No. 05-12-00734-CR On Appeal from the 282nd Judicial District Court, Dallas County, Texas Trial Court Cause No. F11-62810-S. Opinion delivered by Justice Lang-Miers, Justices Francis and Lewis participating. V. THE STATE OF TEXAS, Appellee Based on the Court s opinion of this date, the judgment of the trial court is AFFIRMED. Judgment entered this 20th day of December, 2013. /Elizabeth Lang-Miers/ ELIZABETH LANG-MIERS JUSTICE 7

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