Chambers v. State

• Decision Date: 04 June 1986
• Docket Number: No. 1147-83,1147-83
• Parties: John Lloyd CHAMBERS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 240

711 S.W.2d 240

John Lloyd CHAMBERS, Appellant, v. The STATE of Texas, Appellee.

No. 1147-83.

Court of Criminal Appeals of Texas En Banc.

June 4, 1986.

Robert T. Baskett (court-appointed), Dallas, for appellant.

Henry Wade, Dist. Atty. and Tom Streeter, Molly Meredith, Steve Stevenson and George West, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., and Alfred Walker, First Asst., State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S MOTION FOR REHEARING ON PETITION FOR

DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted by a jury of credit card abuse. V.T.C.A. Penal Code, § 32.31. Punishment was assessed at eight (8) years confinement in the Texas Department of Corrections and a $4,000 fine. On direct appeal, the Fort Worth Court of Appeals reversed the conviction and ordered a judgment of acquittal. Chambers v. State, delivered October 27, 1983, No. 2-83-198-CR. Both the District Attorney's and State Prosecuting Attorney's Petitions for Discretionary Review were refused by this Court on April 4, 1984. On December 3, 1984, we granted leave to file a motion for rehearing by the State Prosecuting Attorney to consider the correctness of the holding by the court of appeals. The motion for rehearing will be granted.

The indictment alleges in pertinent part that appellant, acting "with [the] intent to fraudulently obtain property and services, namely, the rent of a room, from Louise Dyringe Posey, knowingly and intentionally use and present an American Express credit card Number 3782 916388 22022 with knowledge that the card had not been issued to the said defendant, and that the said card was not used with the effective consent of the cardholder, Jerome Thomas Fiske."

I. Facts 1

The facts, viewed in the light most favorable to the prosecution are as follows.

Jerome Fiske, the cardholder, testified that on December 15, 1981, he checked into the Eight Days' Inn in Irving. At about 1:00 a.m., shortly after he checked in, he went to Denny's for coffee. After having coffee, he went to his room and went to sleep. At approximately 7:30 a.m. on the morning of the fifteenth, Fiske went through his belongings and found that his car keys, his American Express card, a Texaco gas credit card, and his Tennessee driver's license were gone. His 1979 black Mark V Lincoln Continental was also missing from the parking lot. Fiske immediately notified the police. Fiske was asked by the prosecutor whether he gave consent to anyone to enter his room or to use his credit card on December 15, 1981. He told the jury "nobody uses my credit cards, not even my own wife. Nobody uses my credit cards, no, at all." He further testified that he did not know appellant or his blonde companion.

Louise Dyringe Posey testified that on December 15, 1981, she was the manager at the Lexington Apartments and Motor Inn [hereafter called Lexington] in Irving. She lived on the premises and rented both rooms and apartments. When she arrived at her office at 6:20 a.m. December fifteenth, the desk clerk told her that a couple had just checked into Room 111. The clerk showed Posey the registration card and the American Express imprint from that transaction. The name shown on the registration card and the imprint was that of the complainant, Jerome Fiske.

The State then introduced the imprint of the American Express card and the registration card into evidence. The number on the imprint matches the card number alleged in the indictment. The number of the card is 3782 916388 22 022. The prosecutor then incorrectly read off the number as 3782 916388 23 022. Posey mistakenly agreed that that was the number, although the exhibit displayed the proper number. The same exchange concerning the card number occurred between the prosecutor and Fiske during Fiske's testimony, but Fiske never identified any card imprint.

Posey stated that appellant and his companion returned to the office within minutes of her conversation with the desk clerk. She described appellant as a black male, medium height, and medium build. He was wearing a hat and had long hair and a mustache. Appellant's companion was a tall, thin, blonde female wearing a big long cape. Posey identified appellant in open court.

While they were standing in the office, Posey asked the couple what room they were in. The female responded: "Room 111." They were in the office waiting for a taxi. She told the jury that she knew appellant as Jerome Fiske, the name appearing on the registration card and the credit card imprint.

Posey testified that later that day, she received a call from AGM car rental in Richardson. AGM asked if a Jerome Fiske was registered at the motel and whether he had presented an American Express card when he registered. Posey responded that she had the card imprint; AGM informed Posey that the card was stolen.

Posey immediately notified the Irving Police. When they arrived, she showed them the American Express imprint and registration card. Posey stated that the police set up surveillance on Room 111 by positioning themselves in Room 109. At noon the following day, December 16, 1981, appellant's female companion called Posey to inform her they were checking out. Posey recognized the woman's voice, and believed her to be Mrs. Fiske. She again notified the police, who by this time had broken their surveillance on Room 111, and told her employees to stay away from the vicinity of Room 111.

Beverly Sue Buchwald told the jury that she worked for AGM car rental in Richardson. On December 15, 1981, two people came into her office to rent a Cadillac, using the name of Mr. and Mrs. Jerome Fiske. One was a black male, whom Buchwald identified as appellant, and the other was a tall, thin, blonde, white female. Appellant presented an American Express credit card and a Tennessee driver's license in the name of Jerome Fiske to her. ² She imprinted the credit card, telephoned the American Express Company for approval on the rental, and was informed that the card had some difficulty. She let appellant, who had identified himself as Jerome Fiske, talk to the American Express representative on the phone, and she heard him giving them various addresses by which they could verify his residence. The rental was not approved. Appellant and his companion left the office. The appellant said he was going to his automobile to get his Visa card. They did not return to the office. Appellant took Fiske's Tennessee driver's license with him but left the American Express card with Buchwald. After they left, the real Jerome Fiske called Buchwald and one of Buchwald's employees subsequently called Louise Posey at the Lexington.

Buchwald testified that she kept the American Express card, imprinted it, cut the card in half, and mailed it back to American Express. She told the jury that she did not remember the complete card number, but she identified a copy of the imprint as the one she later gave to the police. The card number on the identified copy matches the card number alleged in the indictment and placed in the jury charge.

Officer T.L. Garth of the Irving Police Department testified that at 2:14 p.m. on December 15, 1981, he was dispatched to the Lexington to "attempt to locate a stolen car." The car was a black, 1979 Lincoln Continental owned by Jerome Fiske. Officer Garth located the car in the parking lot of the Lexington.

Officer R.E. Dix testified that on December 15, 1981, while on duty as an undercover police officer for the City of Irving, he was called to go to the City of Richardson and talk to Beverly Buchwald at AGM Rentals. He received from her a copy of the imprint of the American Express card the appellant attempted to use to rent a Cadillac. The imprint copy, authenticated by Dix and Buchwald, was admitted into evidence as State's Exhibit No. 4. The copy as given by Buchwald to Dix and shown to the jury reflected the same card number as provided in the indictment and jury charge. Both State's Exhibit No. 1, the credit card imprint from the Lexington Apartments on Room 111 and State's Exhibit No. 4, the imprint from the credit card used in the attempt to rent the Cadillac, appear to be made from the same card; they contain the same account number with American Express in the name of Jerome Fiske.

Officer Dix further testified that he set up surveillance of Room 111 at the Lexington at about 5:00 p.m. on December 15, 1981. The black Lincoln Continental was outside the Lexington in the parking lot. After it became apparent that the occupants were not going to return, Dix obtained and executed a search warrant for the room. Inside the room he found "papers that went to the Lincoln Continental, keys to it, miscellaneous papers belonging to Jerome Fiske from the Continental, tickets, checks, things of this nature." The tickets were airline tickets in the name of Jerome Fiske.

Officer Dix also found a check made out to Jerome Fiske drawn on a Harold Vogt. Fiske testified that he did not know anyone by that name. The State offered expert testimony that the check found in Room 111 bore appellant's fingerprints. Dix further testified that his search produced an "intrusion device" and some clothes. Finally Dix testified that keys to Room 334 in the Eight Days' Inn, across the street from the Lexington, were found.

Officer D.M. Collins, Irving Police Department, Organized Crime Unit, stated that he was working undercover on December 14 and 15, 1981. He placed a phone call during this period of time to Room 334 of the Eight Days' Inn in Irving and the phone was answered by a male. He later was able to identify the voice on the telephone as appellant's. On the afternoon of the fifteenth, Collins took part in the surveillance operation at the Lexington. Collins was told the surveillance was on two suspects in a stolen car case. Officer Collins stayed on surveillance throughout the night of the fifteenth and was relieved at 5:00 a.m., ...