Opinion filed August 25, 2016




                                             In The


          Eleventh Court of Appeals
                                         __________

                                   No. 11-14-00305-CR
                                       __________

                  CARINA SANCHEZ SANCHEZ, Appellant
                                                V.
                         THE STATE OF TEXAS, Appellee


                        On Appeal from the 238th District Court
                                 Ector County, Texas
                           Trial Court Cause No. CR41432


                         MEMORANDUM OPINION
      Carina Sanchez Sanchez pleaded not guilty to the state jail felony offense of
debit card abuse. After a trial, the jury convicted her of that offense.1 The State and
Appellant reached an agreement on punishment, which the trial court approved. In
accordance with the agreement, the trial court assessed Appellant’s punishment at

      1
          See TEX. PENAL CODE ANN. § 32.31(b)(1)(A) (West 2011).
confinement for two years and a fine of $1,000. As agreed, the trial court suspended
the imposition of the sentence and placed Appellant on community supervision for
three years. The trial court also ordered Appellant to make restitution of $915. In
two issues on appeal, Appellant asserts that the State adduced insufficient evidence
that she used a debit card of the victim and that the victim was the cardholder. We
affirm.
                              I. The Charged Offense
      The grand jury indicted Appellant for the state jail felony offense of debit card
abuse. The State alleged that Appellant had a taken a VISA debit card that belonged
to Sonia Torres and had knowingly used that card without Torres’s consent. A
person commits the offense of debit card abuse if she, with an intent to benefit
fraudulently, presents or uses a debit card with the knowledge that the card has not
been issued to her and is not used with the effective consent of the cardholder.
PENAL § 32.31(b)(1)(A).
                                II. Evidence at Trial
      Torres, the dairy supervisor at the HEB grocery store in Midland, had
purchased a “NetSpend” card, which is a prepaid VISA debit card, at HEB. At
6:18 a.m. on the morning of the offense, Torres used her NetSpend card at work to
make a purchase. Although Torres was not sure where she had left her wallet after
her purchase, she thought she had left her wallet and phone in the dairy cooler at
HEB. Later that morning, she went to get her phone and her wallet out of the dairy
cooler; her phone was there, but her wallet was not. Torres explained that she then
saw text messages on her phone. One of the messages indicated that the PIN related
to the NetSpend card had been changed. In addition, she received notice that three
cash withdrawals of $302.50 along with service fees of $2.50 for each transaction
had been made on her NetSpend card at the ATM inside the HEB store in Midland.
The transactions occurred at 7:21 a.m., 7:23 a.m., and 7:25 a.m. Torres did not
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change her PIN or make the withdrawals, and she reported the incident to the
management team at the HEB.
      Bob Murphy, who was HEB’s unit director at the Midland store, and Manuela
Mondragon, who was the store’s operation leader at the time, retrieved the
surveillance video that covered the area where the only ATM in the HEB store was
located. After Murphy and Mondragon reviewed those portions of the video that
corresponded to the time of the ATM withdrawals, and based on the clothes and
physical appearance of the person in the video, they were convinced that Appellant
was the person in the video. Murphy was “definitely sure” it was Appellant in the
video because he had worked with her at the store for a long time. Torres also
reviewed the video. Based on the appearance of the person in the video, including
the pink jacket that that the person wore, Torres thought that Appellant was the
person shown in the video. Torres reported the incident to the police. After the
police conducted an investigation, the police obtained a warrant for Appellant’s
arrest. Appellant testified on her own behalf and denied that she was the person
depicted in the surveillance video.
                               III. Standard of Review
      We review the sufficiency of the evidence under the standard set forth in
Jackson v. Virginia, 443 U.S. 307, 318 (1979). Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010). Under this standard, we review all of the evidence in
the light most favorable to the jury’s verdict and decide whether any rational jury
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319. The trier of fact is the sole judge of the weight and
credibility of the evidence, and a reviewing court may not reevaluate the weight and
credibility of the evidence and substitute its own judgment for that of the factfinder.
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986); Polk v. State, 337 S.W.3d 286, 288–89
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(Tex. App.—Eastland 2010, pet ref’d); Isham v. State, 258 S.W.3d 244, 248 (Tex.
App.—Eastland 2008, pet. ref’d).
                              IV. Discussion and Analysis
      Appellant contends that there was insufficient evidence to show that Torres
was the cardholder and that Appellant used Torres’s card without authorization. The
State argues that it introduced sufficient evidence and that this court is without
jurisdiction to hear this case. As we explain below, we disagree with the State’s
position that we lack jurisdiction to hear this case, but we agree that it introduced
sufficient evidence for a rational jury to convict Appellant, beyond a reasonable
doubt, of debit card abuse.
      A. We have jurisdiction to hear this case.
      The State argues that Appellant waived her right to appeal because the trial
court accepted the State and Appellant’s agreement on punishment. See TEX. R.
APP. P. 25.2(a)(2) (providing a limited right of appeal in a “plea bargain case” for
those matters raised by pretrial motion or upon the trial court’s permission).
Schultz v. State, 255 S.W.3d 153, 154 (Tex. App.—San Antonio 2008, no pet.). In
support of its position, the State points to information in the supplemental clerk’s
record that indicates that Appellant may have waived her right to appeal, and the
State also directs our attention to the portion of the reporter’s record reflecting
Appellant’s agreement to the State’s proposal on punishment, which the trial court
adopted. We note that the clerk’s record contains a certification from the trial court
in which it indicated that Appellant had a right to appeal. We also note that
Appellant timely filed her notice of appeal. As in Shultz, Appellant never changed
her not guilty plea and, after a trial, was convicted by the jury. See 255 S.W.3d at
154. Only after being convicted did she enter into an agreement as to punishment.
We hold that Appellant did not waive her right to appeal her conviction. We have
jurisdiction to hear her appeal.
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       B. The State adduced sufficient evidence to convict Appellant of the
          state jail felony offense of debit card abuse.
       We measure the sufficiency of the evidence by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321,
327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). Under a hypothetically correct jury charge, a person commits the offense of
debit card abuse if she knowingly uses a debit card issued to another without the
cardholder’s consent. PENAL § 32.31(b)(1)(A). Evidence is insufficient when (1) the
record contains no evidence probative of an element of the offense, (2) the record
contains a mere “modicum” of evidence probative of an element of the offense,
(3) the evidence conclusively establishes reasonable doubt, or (4) the acts alleged do
not constitute the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573
(Tex. App.—Eastland 2012, no pet.) (citing Jackson, 443 U.S. 314, 318 n.11, 320).
       The State not only presented evidence that Appellant was the person that used
the ATM at the HEB to make three unauthorized withdrawals of $302.50 each, but
also proved that the NetSpend card belonged to Torres. Torres testified that she used
her NetSpend card that morning but that she did not make three cash withdrawals of
$302.502 each and did not authorize anyone to do so.
       Murphy and Mondragon testified that, after they reviewed the surveillance
video, they were certain that Appellant was the person in the video. Murphy testified
that he was “[v]ery, very sure.” Mondragon testified that she was “sure” that the
person in the video was Appellant. Appellant testified that, although she has a pink
jacket similar to the one that the individual wore in the surveillance video, she was
not that person. Appellant denied that she had used Torres’s card to withdraw
money. Appellant claimed that she was at home at the time of the withdrawals and


       2
       The State introduced the account records that corroborated that three withdrawals were made from
the HEB ATM between 7:21 and 7:25 a.m.

                                                  5
did not arrive at the HEB until 8:45 a.m. Appellant asserted that another person,
who worked in the dairy department and looked similar to Appellant, was the one
that took and used Torres’s card. However, Torres testified that she believed that
Appellant was the person in the video.
      The jury is the factfinder, and if the evidence raises any conflicting inferences,
we presume that the jury resolved such conflicts in favor of the verdict and defer to
that resolution. Jackson, 443 U.S. at 326; Brooks, 323 S.W.3d at 894; Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).             The jury resolved the
conflicting testimony by choosing to believe Murphy, Mondragon, and Torres and
not to believe Appellant. After a review of the record, we hold that a rational jury
could have concluded beyond a reasonable doubt that Appellant committed the
offense of debit card abuse as charged in the indictment. We overrule Appellant’s
two issues.
                               V. This Court’s Ruling
      We affirm the judgment of the trial court.




                                               MIKE WILLSON
                                               JUSTICE


August 25, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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