Thomas Dale Giammona v. State

Affirmed and Memorandum Opinion filed April 15, 2008 Affirmed and Memorandum Opinion filed April 15, 2008. In The Fourteenth Court of Appeals _______________ NO. 14-06-01071-CR _______________ THOMAS DALE GIAMMONA, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 176th District Court Harris County, Texas Trial Court Cause No. 1022644 M E M O R A N D U M  O P I N I O N In a single issue, appellant, Thomas Dale Giammona, contends the evidence is factually insufficient to support his conviction for theft of more than twenty thousand dollars and less than one hundred thousand dollars. Because all dispositive issues are clearly settled in law, we issue this memorandum opinion and affirm. See Tex. R. App. P. 47.4. I. Background In 2004, appellant worked as an online technical support advisor for Universal Weather and Aviation (Universal), a private company that provides aviation support to corporate aircraft operators. In August 2004, the supervisor of Universal=s credit department investigated several suspicious debits from Universal=s credit card account. She discovered seven refunds from Universal=s credit card machine, totaling $37,377.03, that did not correlate with any of Universal=s customer accounts. She ultimately discovered that each of these refunds had been deposited into appellant=s bank account. On August 9, 2004, appellant met with his division manager and three other Universal employees to discuss the debits from Universal=s account. At the meeting, appellant admitted he knew he had received credits in his bank account from Universal that he was not owed. Further, appellant stated he spent all the money and was unable to make restitution. Appellant was terminated from his position with Universal on August 13, 2004. The State charged appellant by indictment with the offense of theft. The jury found him guilty and, after finding an enhancement allegation true, assessed punishment at nine years= confinement. II. Analysis In his sole issue, appellant contends the evidence is factually insufficient to support his conviction for theft. In reviewing factual-sufficiency claims, we view all the evidence in a neutral light and will set aside the verdict only to prevent manifest injustice. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006). In conducting a factual-sufficiency review, we engage in a two-prong test to determine whether there is some objective basis to find: (1) the evidence in support of the jury=s verdict is so weak that the jury=s verdict seems clearly wrong and unjust; or (2) in considering conflicting evidence, the jury=s verdict is against the great weight and preponderance of the evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). A person is guilty of theft if he unlawfully appropriates property with intent to deprive the owner of the property. See Tex. Pen. Code Ann. ' 31.03(a) (Vernon 2003 & Supp. 2007). Appropriation of property is unlawful if it is without the owner=s effective consent. See Tex. Pen. Code Ann. ' 31.03(b) (Vernon 2003 & Supp. 2007). At trial, the State=s evidence showed seven deposits to appellant=s bank account matching unauthorized automated clearing house debits charged to Universal by Global Payments, Universal=s credit facilitation service.[1] This money was not a part of appellant=s salary, and Universal never authorized the money to be paid to appellant. Additionally, appellant admitted he knew the funds, which he was not owed, had been deposited in his bank account by Universal, and that he had spent the money. Appellant contends this evidence does not militate the conclusion he committed a theft of Universal=s property because the evidence is equally consistent with a conclusion that Universal mistakenly deposited the funds in his bank account. In support of this theory, appellant notes that, at least once during 2004, Universal paid approximately seventy percent of its employees incorrect amounts through its direct deposit program. Appellant further points to his own statements wherein he claimed that he contacted his bank when he first discovered the funds had been deposited into his account and was told the deposits resulted from bank error.[2] It was the jury=s role as fact finder to resolve any discrepancies or inconsistencies in the evidence, determine the credibility and weight to be given the evidence, and draw reasonable inferences from the evidence. See Tex. Code Crim. Proc. Art. 38.04. Although our factual-sufficiency jurisprudence allows us to substitute our judgment for the jury=s on those questions to a limited degree, we still afford due deference to the jury=s determination. Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006). The jury was in the best position to evaluate the credibility of the witnesses, and we give proper deference to its determination. See id. We cannot conclude appellant=s cited evidence renders the jury=s verdict factually insufficient. Appellant further contends the evidence is factually insufficient to support the jury=s verdict because the State presented no direct evidence that he committed the crime charged. Specifically, he notes that none of Universal=s employees observed him use Universal=s credit card machine and Universal did not maintain video surveillance of the machine. Further, no one heard appellant use the credit card machine, even though the machine made noise while in use and four or five employees were stationed nearby. Although it is axiomatic that the State must prove beyond a reasonable doubt that the accused is the person who committed the crime charged, identity may be proved with direct or circumstantial evidence. Smith v. State, 56 S.W.3d 739, 744 (Tex. App.CHouston [14th Dist.] 2001, no pet.). Proof of identity though circumstantial evidence is not subject to a more rigorous standard than is proof by direct evidence. Id. (citing McGee v. State, 744 S.W.2d 229, 238 (Tex. Crim. App. 1989)). As stated above, the State=s evidence demonstrated that seven debits charged to Universal by its credit facilitation service were deposited into appellant=s bank account, and appellant acknowledged that he had received the funds and spent the money. This evidence is sufficient to support the jury=s verdict. In sum, after reviewing the evidence in a neutral light, we cannot conclude the evidence in support of the jury=s verdict is so weak that the jury=s verdict seems clearly wrong and unjust, or in considering conflicting evidence, that the jury=s verdict is against the great weight and preponderance of the evidence. Appellant=s sole issue is overruled. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Memorandum Opinion filed April 15, 2008. Panel consists of Justices Fowler, Frost, and Seymore. Do Not Publish C Tex. R. App. P. 47.2(b). [1] Most of these transactions occurred on days appellant worked at Universal or used his access card to enter the facility. Further, appellant=s former division manager testified that Universal employees could enter the facilities without using an access card either by entering through the front entrance or by following another employee through a secured door. [2] Appellant also seems to argue that he could not have personally used Universal=s credit card machine because Universal never issued him a credit card number. However, appellant cites, and we can find, no testimony that a specific credit card number issued by Universal was required to use the credit card machine. In fact, it was possible to refund money from the credit card machine with any valid credit or debit card number. It is possible that appellant is referencing the credit card machine=s authorization code and arguing that he could not have used the machine because Universal never informed him of the machine=s authorization code. However, the supervisor of Universal=s credit department testified that the credit card machine=s authorization code could be defeated by pressing A0.@