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

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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.




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                                           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.




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       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 government-

issued 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
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                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

BERNARD KIPNGENO NGETICH,                           On Appeal from the 282nd Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F11-62810-S.
No. 05-12-00734-CR        V.                        Opinion delivered by Justice Lang-Miers,
                                                    Justices Francis and Lewis participating.
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




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