Opinion issued December 7, 2017




                                    In The

                             Court of Appeals
                                   For The

                        First District of Texas
                           ————————————
                            NO. 01-17-00011-CR
                            NO. 01-17-00012-CR
                          ———————————
                     JUAN JOSE SANCHEZ, Appellant
                                      V.
                     THE STATE OF TEXAS, Appellee


                 On Appeal from the 268th District Court
                        Fort Bend County, Texas
        Trial Court Case Nos. 14-DCR-067551 and 14-DCR-067552


                              O P I N I O N

     A jury found Juan Jose Sanchez guilty of two separate offenses of fraudulent

use of identifying information, and assessed his punishment at two years’

confinement, probated for two years. See TEX. PENAL CODE § 32.51(b)(1). On
appeal, Sanchez contends that the State failed to introduce legally sufficient evidence

to permit the jury to find beyond a reasonable doubt that he intended to defraud or

harm the complainant. We affirm.1

                                  BACKGROUND

       In separate indictments, the State alleged that Sanchez used the identifying

information of Kim Pham without her consent. Sanchez was tried for both of these

related offenses in a consolidated trial.

       Kim Pham, her husband, Thai Pham, and Detective R. Fields of the Fort Bend

County Sherriff’s Office testified at trial. There were no other witnesses.

       In 2014, the Phams discovered two checks fraudulently had been written on

their joint checking account. The first check, number 125, was dated August 27 and

negotiated on September 8. The second check, number 120, also was dated August

27, but it was negotiated on September 9. Both checks were written in the amount

of $375, made out to Juan Jose Sanchez as the payee, signed in Kim’s name as the

drawer, and included a handwritten note indicating that the checks were for “Gutter

Repair.”




1
    This court previously affirmed the trial court’s denial of Sanchez’s pretrial habeas
    petition challenging the constitutionality of Section 32.51. See Ex parte Sanchez,
    Nos. 01-16-00180-CR & 01-16-00181-CR, 2016 WL 4253731 (Tex. App.—
    Houston [1st Dist.] Aug. 11, 2016, no pet.) (mem. op., not designated for
    publication).
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      Fields testified that the checks were negotiated at different bank branches.

The bank identified one of its account holders, Sanchez, as the person who

negotiated the checks. Fields confirmed Sanchez’s identity and his involvement via

his driver’s license and bank surveillance photos.       Fields concluded that the

circumstances—two checks written out of sequence but dated the same day and

written for the same amount—indicated fraud.

      Kim and Thai Pham denied writing the checks. They testified that they did

not have any work done on their gutters or on any property they owned during the

relevant timeframe. They did not recognize Sanchez and had not authorized him to

work on their property. The check numbers that they used during that period were

much higher than numbers 120 and 125. Thai said that their checks were numbered

in the 300s, 400s, or 500s; Kim said that their checks were at least in the 400s. Kim

never gave Sanchez permission to use her checking account.

                                  DISCUSSION

      Sanchez contends that the State did not prove his guilt beyond a reasonable

doubt because it failed to adduce evidence that he intended to defraud or harm Kim

Pham. In particular, Sanchez contends that “the State offered no evidence that

Pham’s checks were stolen and offered no evidence as to how” the checks came into

Sanchez’s possession.




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A.    Standard of review

      We apply the legal standard for evidentiary sufficiency stated in Jackson v.

Virginia, 443 U.S. 307 (1979). Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App.

2011); Pena v. State, 441 S.W.3d 635, 640 (Tex. App.—Houston [1st Dist.] 2014,

pet. ref’d). Under this standard, we “must consider all of the evidence in the light

most favorable to the verdict and determine whether, based on that evidence and

reasonable inferences therefrom, a rational fact finder could have found the essential

elements of the crime beyond a reasonable doubt.” Gear, 340 S.W.3d at 746. We

cannot substitute our judgment for that of the jury by reevaluating the weight or

credibility of the evidence; instead, we defer to the jury’s resolution of conflicts in

the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

      Direct and circumstantial evidence are equally probative. Ramsey v. State,

473 S.W.3d 805, 809 (Tex. Crim. App. 2015). Circumstantial evidence alone may

be enough to uphold a conviction, provided that the cumulative force of all the

incriminating circumstances suffices to support the conviction. Id. A jury ordinarily

must draw inferences about a defendant’s intent or state of mind from the evidence

concerning his actions and the surrounding circumstances. Ledesma v. State, 677

S.W.2d 529, 531 (Tex. Crim. App. 1984); Tottenham v. State, 285 S.W.3d 19, 28

(Tex. App.—Houston [1st Dist.] 2009, pet. ref’d). Thus, the State may prove an




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intent to defraud or harm by circumstantial evidence. Burks v. State, 693 S.W.2d

932, 936–37 (Tex. Crim. App. 1985); Tottenham, 285 S.W.3d at 28.

B.    Applicable law

      A person commits the offense of fraudulent use of identifying information if

he: (1) obtains, possesses, transfers, or uses an item of identifying information of

another person; (2) without the other person’s consent; and (3) with the intent to

harm or defraud. TEX. PENAL CODE § 32.51(b)(1); see Grimm v. State, 496 S.W.3d

817, 822 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Identifying information

includes bank account numbers. TEX. PENAL CODE § 32.51(a)(1)(C).

C.    Analysis

      Sanchez disputes the third element of the offense—intent to defraud or harm.

The jury heard evidence that Sanchez negotiated two checks made out to him for

gutter repairs. Though both checks were dated August 27, he negotiated them on

two different dates—September 8 and September 9—at different bank branches.

Kim, the purported signatory and drawer on the checks, denied signing them. Both

she and her husband testified that they did not recognize Sanchez, did not hire him,

and did not have any gutter or other work done on their property during this

timeframe. The record is devoid of evidence that Sanchez performed any services

for the Phams. Based on this evidence, reasonable jurors could have found beyond

a reasonable doubt that Sanchez did not repair the Phams’s gutters and drawn the


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inference that Sanchez negotiated the two checks from their joint account, knowing

that he had not done any work for them, and therefore intended to defraud or harm

them.

        Sanchez contends that there is no evidence that the Phams’s checks were

stolen. Both Kim and Thai testified, however, that they keep their checkbooks in a

bedroom drawer at home and that they had not lost them. How Sanchez came to

have the two checks he negotiated is unknown; the jury heard no evidence on this

subject. But the circumstances under which Sanchez came into possession of the

checks is not an element of the offense. See TEX. PENAL CODE § 32.51(b)(1); Grimm,

496 S.W.3d at 822. Detective Fields testified that Sanchez negotiated these two

checks. The Phams testified that they did not write the checks and neither knew

Sanchez nor hired him to perform any work, including gutter repairs. This evidence

was sufficient to establish the offense’s elements, including intent to defraud or

harm.

        Finally, Sanchez contends that had he intended to defraud or harm the Phams,

he would not have presented their checks to his own bank under his own name and

driver’s license number. Having done so, he argues that the only reasonable

explanation is that “he believed the checks to be genuine and had no intent to harm

or defraud anyone.” He further posits that jury notes inquiring whether defense

counsel’s closing argument that Sanchez negotiated the checks for services rendered


                                          6
was evidence and requesting to see still photographs from the bank’s surveillance

cameras show that the jury questioned his guilt. But the State is not required to

disprove exculpatory explanations for a defendant’s conduct that are a matter of

credibility. Ramsey, 473 S.W.3d at 808 & n.3. It was the jury’s role to assess the

evidence and draw reasonable inferences from it. Id. at 810. The jury heard

Sanchez’s defense and did not credit it, as was its right as factfinder. See id.

      In conclusion, viewing the combined and cumulative force of all the evidence

in the light most favorable to the verdict, we hold that sufficient evidence supports

Sanchez’s convictions for fraudulent use of identifying information.

                                    CONCLUSION

      We affirm the judgments of the trial court.




                                               Jane Bland
                                               Justice

Panel consists of Chief Justice Radack and Justices Higley and Bland.

Publish. TEX. R. APP. P. 47.2(b).




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