Richardson v. State

Decision Date12 August 2010
Docket NumberNo. 2-09-195-CR.,2-09-195-CR.
PartiesWilliam RICHARDSON, Appellant, v. The STATE of Texas, State.
CourtTexas Court of Appeals

W. Ty Wilson and Valerie Ly, Denton, TX, for Appellant.

Paul Johnson, Crim. Dist. Atty., Charles E. Orbison, Asst. Crim. Dist. Atty. and Chief of the Appellate Section, John Rentz, and David Jahn, Asst. Crim. Dist. Attys., for State.

PANEL: McCOY and WALKER, JJ.; and DIXON J. HOLMAN (Senior Justice, Retired, Sitting by Assignment).

OPINION

PER CURIAM.

I. Introduction

In four issues, Appellant William Richardson appeals his conviction for fraudulent use or possession of identifying information. We affirm

II. Factual and Procedural Background

In the early morning hours of December 4, 2007, Flower Mound Police Officer Nick Hill pulled over a vehicle for a traffic violation. Officer Hill approached and made contact with the driver, identified as Richardson by his driver's license and insurance. After making contact with the passenger, Gary Wayne Webster, Officer Hill instructed Richardson to stand at therear of the vehicle while he ran a standard computer check. The computer check returned an outstanding warrant for Richardson. Officer Hill, requested a back-up unit and asked dispatch for confirmation on Richardson's warrant. The back-up unit, driven by Officer Ben Lippens, arrived almost immediately.

While Officer Lippens kept an eye on Webster, Officer Hill questioned Richardson. He asked whether Richardson owned the vehicle he was driving; Richardson responded that the car belonged to his mother. Officer Hill also asked, "Do you have any problem if I take a look in your car?" Richardson responded that he did not. Shortly thereafter, dispatch confirmed the warrant, and Officer Hill arrested Richardson and seated him in the backseat of his patrol unit.

The Officers then removed Webster from the front passenger seat and searched the vehicle, discovering a Wal-Mart bag in the driver's seat containing a clear plastic wallet insert with a social security card, a Unicard, a Visa card, and a Texas Department of Human Services card, all bearing the name Burgie Davis. The bag also contained Wal-Mart gift cards still attached to their original cardboard backing and a receipt from the Fairfield Inn in Richardson's name. In the center console, the officers discovered another bag containing more gift cards.

The officers found a laptop computer and a clear plastic box on the front passenger side floorboard. The box contained transparency graphing paper; razor blades; glues and adhesives; gift cards; and drivers' licenses, identifications, and keychain credit cards, all belonging to individuals other than Richardson or Webster, including some that belonged to Burgie Davis. On the driver's side backseat floorboard, the officers discovered a red plastic folder containing, among other items, a list of The Sun Shop's customers and their financial information (The Sun Shop list); pictures of Webster; a document from a website discussing magnetic strip readers; and hotel receipts with credit card information on individuals other than Richardson or Webster. On the middle rear floorboard, the officers found a small photo printer that was attached to a laptop computer (belonging to Webster) and to a power inverter plugged into the cigarette lighter. The officers also discovered a Nikon camera, a cell phone, CDs, and DVDs in the backseat. In the trunk, the officers found an aluminum box containing razor blades, white-out, hard drives for laptops, glue, a screwdriver, batteries, scissors, and printer cartridges.

After searching the vehicle, Officer Hill transported Richardson to the jail. A wallet found in Richardson's back pocket contained a business card for The Sun Shop, clear graphing transparency paper, and receipts showing purchases made using a Visa card discovered in the clear plastic box found on the front floorboard. The State charged Richardson with fraudulent possession of identifying information for over fifty individuals (specifically those on The Sun Shop list) and included an enhancement paragraph for a prior felony conviction—aggravated assault on a peace officer.

At trial, in addition to both Officer Hill and Officer Lippens testifying to the facts stated above, Kelly Wood, an ex-employee of The Sun Shop, testified that she had stolen billing lists from The Sun Shop, taken them to Webster's house, assisted Webster and Richardson in making fraudulent cards from the billing lists, and that she, Richardson, and Webster had used the fraudulent cards to shop. Wood also testified that she went to Webster's house to "get high" on methamphetamine. She further stated that Richardson and Websterwere roommates and that Richardson was Webster's driver.

Elizabeth Herring, The Sun Shop's manager, confirmed that the list found in the vehicle was, in fact, one of The Sun Shop's billing lists. Herring testified that The Sun Shop's employees were not allowed to give out its customers credit card information to third partiesshe specifically testified that neither Wood, Richardson, nor Webster had permission to have The Sun Shop's billing list. She further testified that she recognized fifty-seven specific customers on the list and that none of them had given their permission for The Sun Shop to share their information.

The owner of The Sun Shop, Dennis Sheldon, also testified that the business was not allowed to, and did not, give anyone permission to have The Sun Shop's billing lists. Sheldon confirmed Wood's dates of employment and also confirmed that Wood had stolen billing lists from The Sun Shop.

Jesse Basham, an FBI computer forensic examiner, testified that the laptop found in the vehicle contained photographs, signature strips, driver's license templates, university ID cards, credit card numbers, and social security numbers for individuals other than Richardson or Webster.

At the close of evidence, the jury found Richardson guilty of fraudulent use or possession of identifying information for over fifty individuals (specifically those individuals on The Sun Shop list). During the punishment phase, Richardson pleaded true to the enhancement paragraph in the indictment—aggravated assault on a peace officer—and he also stipulated that he had a previous felony conviction for driving while intoxicated (DWI), along with two other DWI convictions. The jury assessed punishment at life, and the trial court sentenced Richardson accordingly. This appeal followed.

III. Sufficiency of the Evidence

In his second issue, Richardson argues that the evidence is legally and factually insufficient to support his conviction.

A. Fraudulent Use or Possession of Identifying Information

Under § 32.51 of the penal code, a person commits fraudulent use or possession of identifying information, if 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. Pen.Code Ann. § 32.51(b) (Vernon Supp.2008). Because Richardson only challenges the sufficiency of the evidence to show that "he was in 'possession' of [The Sun Shop list]," we limit our discussion to address only the possession element of the offense.

This appears to be a case of first impression. We, like the parties, were unable to find any prior case law addressing a sufficiency challenge to the possession element of fraudulent use or possession of identifying information. However, we agree with the parties that the proper law to apply in this case is the body of law pertaining to affirmative links developed in controlled substance cases. See Evans v. State, 202 S.W.3d 158, 161-62 (Tex.Crim.App.2006) (discussing the affirmative links rule and pointing out that the purpose of the rule is to protect the innocent bystander, relative, roommate, or friend from conviction merely by their proximity to another's contraband).1 Therefore, we applythe linking rule to determine whether the evidence was legally and factually sufficient to show that Richardson was in possession of The Sun Shop list.

B. Linked to Contraband

To prove possession, the State must show the accused (1) exercised control, management, or care over the contraband and (2) knew the matter possessed was contraband. Evans, 202 S.W.3d at 161; Cuong Quoc Ly v. State, 273 S.W.3d 778, 781 (Tex.App.-Houston [14th Dist.] 2008, pet. ref'd). Possession may be proved through either direct or circumstantial evidence. Poindexter v. State, 153 S.W.3d 402, 405-06 (Tex.Crim.App.2005); see also Rice v. State, 195 S.W.3d 876, 881 (Tex.App.-Dallas 2006, pet. ref'd) (stating jury could infer knowing or intentional possession of contraband).

When, as here, the accused is not in exclusive possession or control of the place where contraband is discovered, the State must show additional facts and circumstances linking the accused to the contraband to show the accused's knowledge of or control over the contraband. Poindexter, 153 S.W.3d at 406; Grisso v. State, 264 S.W.3d 351, 355 (Tex.App.-Waco 2008, no pet.). We consider the totality of the circumstances when determining whether the accused is linked to the recovered contraband. See Hyett v. State, 58 S.W.3d 826, 830 (Tex.App.-Houston [14th Dist.] 2001, pet. ref'd). The accused's connection with the contraband must be "more than just fortuitous." Poindexter, 153 S.W.3d at 405-06. The accused's presence at the scene where contraband is found is insufficient, by itself, to establish possession. Evans, 202 S.W.3d at 162. However, presence or proximity combined with other direct or circumstantial evidence (e.g., "links") may be sufficient to establish the elements of possession beyond a reasonable doubt. Id.

Reviewing courts have developed several factors showing a possible link between the accused and contraband, including: (1) the accused's presence when the search was conducted, (2) whether the contraband was in plain view, (3) the accused's...

To continue reading

Request your trial
56 cases
  • Sandoval v. State
    • United States
    • Texas Court of Appeals
    • 13 Septiembre 2013
  • Carson v. State
    • United States
    • Texas Court of Appeals
    • 8 Mayo 2013
    ... ...          To preserve error for appellate review, a defendant must make a timely, specific objection and obtain a ruling from the trial court. Tex.R.App. P. 33.1. This requirement applies even to assertions that a sentence is cruel and unusual. Richardson v. State, 328 S.W.3d 61, 72 (Tex.App.-Fort Worth 2010, pet. ref'd) (citing Solis v. State, 945 S.W.2d 300, 301 (Tex.App.-Houston [1st Dist.] 1997, pet. ref'd); Jackson v. State, 989 S.W.2d 842, 844 n. 3 (Tex.App.-Texarkana 1999, no pet.); Henderson v. State, 962 S.W.2d 544, 558 ... ...
  • Wise v. State
    • United States
    • Texas Court of Appeals
    • 14 Septiembre 2011
  • Rios v. State
    • United States
    • Texas Court of Appeals
    • 30 Mayo 2014
  • Request a trial to view additional results
1 books & journal articles
  • CHAPTER 7.I. Motion Authorities
    • United States
    • Full Court Press Texas Motions in Limine Title Chapter 7 Character Evidence
    • Invalid date
    ...opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or accident."). iii. Rebuttal Richardson v. State, 328 S.W.3d 61, 71 (Tex. App.—Fort Worth 2010, pet. ref'd) ("[B]y raising a defensive theory, the defendant 'opens the door' for the State to offer rebuttal tes......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT