## NO. 12

- 22

- 00047

- CR

IN THE COUR T OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS

YOELVIS HERRERA , APPELLANT

V.

THE STATE OF TEXAS , APPELLEE §

§

§ APPEAL F ROM THE 114TH

JUDICIAL DISTRICT COURT

SMITH COUNTY, TEXAS

OPINION
Yoelvis Herrera appeals his c onviction for unlawful interception of wire or electronic
communications . In a single issue, Appellant challenges the sufficiency of the evidence. We
affi rm

.

B ACKGROUND Appellant was charged by in dictment with unlawful interception of wire or electronic

c ommunication s , enhanced by a prior felony offense

. 1 He pleaded “not guilty,” and the matter proceeded to a jury trial. At trial, the evidence showed that on December 4, 2019, Tyler Police Detective s Colin Hale and Lydia Thedford discovered a skimming devi ce inside a gas pump at a local station. They removed the device and replaced it with a cell phone that mimicked the device’s Bluetooth signal . The detect ives installed a motion

- activated Blink camera inside the pump and another video camera on a utility p ole. On December 8, the y received a notification from the camera,
whic h recorded Appellant opening the pump, pulling out a board , and apparently looking f or

1 A second

- degree felony , punishable as a first

- degree felony after the enhancement by imprisonment for a term of life, or not mor e than ninety

- nine years or less than five years , and a possible fine not to exceed $10,000.00

. See T EX

. P EN AL C ODE A NN

. § § 16 .02( b )( 1 ), ( f ) (West 2019 ) ; 12.32 (West 2019 ); 12. 4 2 (b) (West 2019 )

.2 something. Patrol officers were dispatched to the scene and detained Appellant. After an investigat ion, the detectives obtained a warrant for his arrest. Ultimately, t he jury found Appellant “guilty” as charged . After hearing the punishment evidence, t he jury asses sed Appellant’s punishment at imprisonment for sixty

- five years and a $5,000.00 fine

. Thi s appeal followed.

E VIDENTIARY S UFFICIENCY In Appellant’s sole issue, he argues that the evidence is insufficient to support his
conviction for unlawful interception of wire or electronic communications because “the meaning
of the State’s circumstantial evidence is merely specu lative.” Standard of Review and Applica ble Law
The Jackson v. Virginia 2 legal sufficiency standard is the only standard that a r eviewing court should apply in determining whether the evidence is sufficient to support each element of a criminal offense that the state is required to prove beyond a reasonable doubt. See Brooks v . State , 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). Lega l sufficiency is the constitutional minimum required by the D u e Process Clause of the Fourteenth Amend ment to sustain a
criminal conviction. See Jackson , 443 U.S. at 315

- 16, 99 S. Ct. at 2686

- 87; see also Escobedo v.
State , 6 S.W.3d 1, 6 (Tex. App.

— San Ant onio 1999, pet. r ef’d). The standard for reviewing a legal sufficiency challenge is whether any ration al trier of fact could have found the essential elements of the offense beyond a reasonable doubt

. See Jackson , 443 U.S. at 320, 99 S. Ct. at 2789; see al so Johnson v. State , 871 S. W.2d 183, 186 (Tex. Crim. App. 1993). The evidence is examined in the ligh t most favorable to the verdict. See Jackson , 443 U.S. at 320, 99 S. Ct. at
2789 ; Johnson , 871 S.W.2d at 186. This requires the reviewing court to defer t o the jury’s credibility and weight determinations, because the jury is the sole judge of the wi t nesse s’ credibility and the weight to be given their testimony. Brooks , 323 S.W.3d at 899; see Jacks on , 443 U.S. at 319, 99 S. Ct. at 2789. A “court faced with a record of historical facts that supports conflicting inferences must presume

— even if it does not af firmatively appear in the record

— that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that
resolution.” Jacks on , 443 U.S. at 326, 99 S. Ct. at 2793. A successful legal sufficiency challenge

2 443 U.S. 307, 315

- 16, 99 S. Ct. 2781, 2786

- 87, 61 L. Ed. 2 d 560 (1979).3 will result in rendit ion of an acquittal by the reviewing court. See Tibbs v. Florida , 457 U.S. 31,
41

- 42, 102 S. Ct . 2211, 2217

- 18, 72 L. Ed 2d 642 (1982). The sufficiency o f the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is author ized by the
indic tment, does not unnecessarily increase the state’s burden of proof or unnecessarily restrict
the state ’s theories of liability, and adequately descri b es the particular offense for which the
defendant is tried.” Id. To prove Appellant guilt y as charged in t he indictment, the State was required to prove that he intentionally intercepted or endeavored to inte rcept a wire or electronic communication, namely credit card information transmissions, by use of an electronic transmitter
attached to a credit card read ing device located in a gas pump. See T EX

. P ENAL C ODE A NN

. § 16 .02 (b)(1)

. An alysis Appellant argues that the evidence supporting his conviction is insufficient because it is merely speculative as to whether he “endeavored to intercept” electronic communi cations from the gas pump. He contends that the State’s theory of culpability was that bec ause he open ed the pump door, he was responsible for installing the skimme r

. Consequently, Appellant argues that the evidence is merely speculative because his finger prints and DNA profile were not found on the skimmer or the pump and the circumstantial evidence does not support a reasonable infer ence that he endeavored to intercept electronic communications. We disa gree. T he undisputed evidence shows that A ppellant p arked his pickup truck at the gas pump
where the skimmer was discovere d

— Pump 8

— and opened the pump doo r. Once i nside the pump, he immediately pulled out the CRIND board, 3 to which the skimmer had been attached , looked around for a few seconds, and closed t he pump. The fact that the CRIND board can be pulled out of the pump is highly specialized knowledge. A couple minutes later , Appellant
walk ed over t o an individual and a truck parked at another pum p

— Pump 4

. A few minutes later, App ellant walk ed back to hi s truck , and the other truck le ft the station. About a minute later, the patrol officers arrive d

.

3 Detective Hale testified that “ CRIND ” stands for “card reader in dispenser” and a CRIND boar d is “essentially the device that connects to eventually the internet that handles the transaction information from the card reader.”4 The patrol officers requested and obtained Appellant’s consent for a search of his person
and vehicle. Appellant told the officers that he just bought diesel , but an investigation of the pump records showed that there was no transaction at Pump 8 at that time

. He later stated that the pump was open and he looked inside because he was curious

. However, Detective Hale
testified that on December 6 , he adjusted th e B link camera and then bolt ed the pump door closed

. Detective Thedford testi fied that if the pump doo r was opened even a small amount prior to Appellant’s opening it, the detectives would have been notified. Appellant further stated that someone approache d him and asked him to pay for some g as in exchange for $10.00 cash
because he had no debit card and t he station was closed. When Detective Thedford arrived, she asked Appellant why he was in Tyler, and he said
that he was there to see his girlfriend. How ever, Appellant could not say on which street his girlfriend lived. Instead, h e said that her address was in the GPS in his cell phone

. But when
Thedfor d obtained Appellant ’s consent and look ed through his cell phone , the active directions in the GPS app w ere not to a residence but to another gas station. Thedford additionally found a long list of gas stat ions around Texas and Louisiana that Appellant visited. To explain this, Appellant said he owned a trucking company.
When Detective Hale arrived and was about to search Appellant’s truck, Appellant
revoked his consent. After obtaining a search warrant, Ha le found a gas pump key, a 10

- millimeter socket on a screw driver handle , a hex Allen wrench, a nd a crowbar. Hale tested the key and socket , which enabled him to open the small and large pump doors

. He also found a fuel

ce ll in the back of the truck. Hale t estified that a fuel cell is an auxiliary fuel box that some truck s have. Although fuel cells are common, their presence can indicate possible skimming

ac tivity because people involved in skimming often use stolen credit card numbers to buy fuel
and sell i t at black market fuel depots

. Detective Hale also obtained a sear ch warrant to download the contents of Appellant’s cell phone , and Detective Thedford ex amined the contents. Thedford found a large amount of
evidence that tends to show Appellant was involv ed in skimming activity

. First, she found a conversation between Appellant and an individual she identified as Alvaro Castillo on the text

messag in g appli cation WhatsApp

. In the conversation, Castillo sent Appellant a link to
www.bankbinlist.com . Thedford explain ed that a BIN is the four or five numbers on a credit or debit card that identify the issuing bank and w hether it is a credit or debit card

. People involved5 in skimming activity often want to know the issui ng bank of stolen credit or debit card
information because it helps them avoid sounding an alarm by using a local bank ’s card
information in another state

. Castillo also sent Appellant numerous Google maps screen shot s and photos of different gas pump s

. Add itionally, he sent numerous photographs of a fuel meter with readings showing the amount of gas pumped. Thedford explained that this evidence was signific ant because if a person was reselling fuel, he would keep track of the amount s of fuel sold and requir ed. Second, Appellant’s phone contained numerous photograph s of gas pumps and fuel meter readings in addition to those sent by Castillo

. Finally, Appellan t’s web searches on the phone included numerous searches for particular gas stations and numerous www.bankbinlist.com searches

. In Appellant’s brief, he lists the following items of evidence and the reasons he be lieves they are speculative:

• Map Apps showing a search for Exxon gas stations in Tyler: speculative b ecause the Exxon where Appellant was stopped was not in Appellant’s phone and the listed gas stations in the app had no evidence of skimming activity;

• Se arches of gas stations in Louisiana, Missouri, and Houston: speculative because there is no evidence t hat credit card skimming activity occurred at these locations;

• Photographs and text messages of gas pumps and videos of fuel meter: speculative because th e photos and messages were remote in time and not l inked to conduct that occurred in Tyler or to known skimming activity at other locations;

• Not having girlfriend’s address in phone or knowing street name: speculative that Appellant was being untruthful b ecause Appellant’s lack of knowledge of a street name or failure to input address into map application does not mean that he did not know how to get to his girlfriend’s location;

• Associating with a dark truck that had $10 transaction at Pump 4: speculativ e that the vehicle was working with Appellant because that vehicle and its occupants were never locate d and could not corroborate skimming act ivity; stop of vehicle matching description in Lindale revealed no criminal activity; and officer testimony could not confirm that Appellant’s statement of having $10 cash in his pocket resulting from the transaction was untrue ;

• The Blink camera would hav e alerted to other tampering of Pump 8: speculative because the camera did not activate until after door was opene d rather than upon being jarred by Appellant’s alleged unfastening of the bolts and because there was no evidence by Hale or Thedford that the gap Ewen 4 found in the door was present on December 6th;

4 Officer Bren non Ewen was one of the responding patrol officers.6 • The existence of a “gas pump key” on Appellant’s key ri ng : speculative because it was a “universal key” that could be purchased off Amazon and there was no e vidence that a gas pump key was needed to open the door to Pump 8 ;

• The text message with www.bankbinlist.com : speculative because the message was sent several months before the offense; and

• Presence of fuel tank in back of Appellant’s truck: speculative because there was no evidence that Appellant’s statement that he owned a trucking company was untrue

.

Under t h e Jackson test, we permit juries to draw multiple reasonable inferences if each inference is supported by the evidence. Hooper v. State , 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). However, juries are not permitted to make conclusions based on mere speculati o n or factually unsupported inferences or presumptions. Id. An inference is a conclusion reached by

con sidering other facts and deducing a logical consequence from them. Id. at 16. Speculation is mere theorizing or guessing about the possible meaning of fa c ts and evidence. Id.
We cannot agree with Appellant that the jury’s verdict here is based on mere spe culation.
The jury could reasonably infer that Appellant was involved in skimming activity from the
evidence recovered from hi s phone and truck

. The jury could reasonably infer from other
evidence that Appellant lied to the police officers about what he wa s doing at the station and in Tyler , and that this was because he was conscious of his own guilt. Considering this evidence, the jury could reasonably inf er that when Appellant opened a gas pump where a skimmer was discovered four days prior, pulled out th e CRIND board , and looked around inside the pump , he

was trying to locate the skimmer in an effort to intercept electronic communications. Viewing all
the evidence in the light most favorable to the jury’s verdict, we conclude that the jury was rationally justified in finding, beyond a reasonable doubt, that Appellant committed unlawful interception of ele ctronic communications

. See T EX

. P ENAL C ODE A NN

. § 1 6.02 ( b ) ; Jackson , 443 U.S. at 319, 99 S. Ct. at 2789; see also Brooks , 323 S.W.3d at 899. Accordingly , we overrule Appellant’s s ole issue.

D ISPOSITION Having overrule d Appellant’s sole issue, we affirm the trial court’s judgment

.

B RIAN H OYLE Justice7 Op inion delivered April 28 , 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

( PUBLISH )

## COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

APRIL 28 , 2023

NO. 12

- 22

- 00047

- CR

YOELVIS HERRERA , Appellant V. THE STATE OF TEXAS , Appellee

Appeal fro m the 114th District Court
of Smith County , Texas (Tr.Ct.No. 114

- 0156

- 20 ) THIS CAUSE came to be heard on the appellate record and briefs filed
her ein, and the same being considered, it is the opinion of this court that there was no error in the judgment. It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed , and that this decision be certified to the court
below for observance. Brian Hoyle , Justice

. Panel consisted of Worthen, C.J., Hoyle, J., and Ne eley, J.