COURT OF A PPEAL S EI GHTH D I STRI CT OF TEX AS ELPASO, TEXAS
J ORGE L UI S RODRI GUEZ , Appellant,

v. THE STATE OF TEXAS, Appellee

. § § § § § § No. 08-09-00118- CR

Appea l from the 399th District Court of B exar County , Texas (TC# 2007-CR-1881)

O P I N I O N Appellant, J or g e L

u is Ro d r ig u e z, w a s c o n v ic te d o f fra

udulent use or possession of identify ing information and sentenc ed to eig hteen months in sta te jail. I n a single issue on appea l, he contests the fa ctual suff

iciency of the e vidence supporting his c onviction. We affirm.

BACK GR OUND On October 18 , 2005, Sam Castillo, a salesman at Conn’s, rec eived a call from a person named “Micha el Pantuso,” inquiring about cre dit. The rea l Michae l Pantuso’s wallet, which contained his driver’ s license, other identification car ds, and some cre dit car ds, was stolen from his truck at a construction site about a month be fore

. Whil e on the phone with Castillo, the man, later deter mined to be Appellant, g ave Pantuso’s social-se curity number. Two hours l ater, Appellant
enter ed the store, asked for Castillo, and identified himself as Pantuso. When Appellant decide d to purcha se a $4,000 television on cre dit, he provided Castillo with an identification car d simil ar to an expired driver’ s license that contained the name “Micha el Pantuso” but Appellant’s picture and an addre ss of 6311 Villag e Cliff, San Antonio, T exas. Appellant signe d Michae l Pantuso’s name on the invoice and sales contra ct, which listed the g iven addr ess. L ater that day , Appellant picked upthe television from the reta iler’s war ehouse, and a Conn’s employ ee rec orded the make, model, and

license plate of the vehicle he was driving , t h at i s , a b l ac k , For d Ex pedition with a license plate number of W72VZN

. I n November , the same television was pa wned a t A lamo Pawn and J ewe lry by Yvette Ma

rtinez, Appellant’s common-law wife. Pol i ce i n v est iga

tion deter mined that the For d Ex pedition was linked to sever al ong oing identity -theft investiga tions involving Conn’s stores. The vehicle was reg istered to Y v e tt e and listed the same addre ss g iven to Castillo. Police repor ts further linke d Ap p ellant and Yvette in sever al identity -theft case s. Although the pawn shop owner identified Yvette as the person that pawne d the television, the police investiga tion reve aled that a man had actua lly purcha sed the television at Conn’s. Approxim ately ten m onths later, Castil lo identified Appellant fr om a photo lineup as the individual who purcha sed the tele vision under the name of Michae l Pantuso. The only defe nsive evidenc e prese nted at trial consisted of Appellant’s testimony

. He denied that he purcha sed the television, claiming that he and Yvette wer e separ ated at the time the television

was purcha sed, and that his brother, Ray mond Carre on, was driving his wife’ s vehicle at that time. Appellant fur

ther stated tha t his wife owned the vehicle and avowe d that he neve r oper ated it. He further sug g ested that his brother looks just like him and claimed that Carre on was the one that stole the television. Howeve r, Ap p el l an t ad m itted to residing at the same addre ss that the vehicle was reg istered to. DISCUSSIO N I n his sole issue, Appellant arg ues that the evidenc e was fac tually insufficient to support his conviction for fra

udulent use or possession of identify ing information, contending that the evidenc e failed to establish that he was the person that committed the offe nse. He does not challeng e thesufficie ncy of any other e lement nec essar

y to support a conviction for the offe nse. 1 Standard of Review I n a fac tual-suffic iency revie w, we view all of the evidenc e in a neutra l light and ask whether the j u ry was rationally justified in finding g uilt bey ond a rea sonable doubt. Roberts v. State , 220 S.W .3d 521, 524 (Tex. Crim. App. 2007); W atson v. State , 204 S.W .3d 404, 415 (Tex. Crim. App. 2006). Evidence is fac tually insufficient when th e ev i d en ce supporting the conviction i s so weak that the verdic t seems clea rly wrong and manifestly u n j u s t , or when the evidenc e supporting the conviction i s outweig hed by the gre at weight and preponde ranc e of the contrary evidenc e so as t o rende r the verdic t clea

rly wrong and manifestly unjust. Roberts , 220 S.W .3d at 524. I n conducting our review, we defe r t o the fact finder’ s deter mination of wit ness credibility and the weig ht g iven
to the evidence. Cleveland v. State , 177 S.W .3d 374, 388 (Tex. App. – Houston [1st Dist.] 2005, pet. re f’d) , cert. de nied , 547 U.S. 1073, 126 S.C t. 1774, 164 L .Ed.2d 523 (2006). Application I n contesting whether the State sufficie ntly proved that he committed the offe nse, Appellant

asser ts that Castillo’s identification is unreliable g iven: (1) the ten-month lapse in Castillo’s photo identification and three -y ear lapse in Ca s t i l lo’s in-court identification; (2) Castillo’s focus on the larg e commission at stake; and (3) o t h er evidenc e sug g esting that his brother, Ray mond Carre on, who looks simil ar to him, ac tually committed the offe nse. We disag ree . The re cord r efle cts that Castillo and Appellant talked over t he phone, met at the store, a nd discussed purcha sing differ ent televisions. Appellant g ave Castillo an expired driver’ s license that contained his photo but Pantuso’s name, and Castillo drew up an invoice acc ording ly

. Castillo

A p e r s o n c o m m i t s t h e o f f e n s e o f f r a u d u l e n t u s e o r p o s s e s s i o n o f i d e n t i f y i n g i n f o r m a t i o n i f h e , w i t h t h e 1 i n t e n t t o h a r m o r d e f

r a u d a n o t h e r , o b t a i n s , p o s s e s s e s , t r a n s f e r s , o r u s e s a n i t e m o f i d e n t i f y i n g i n f o r m a t i o n o f a n o t h e r p e r s o n w i t h o u t t h a t p e r s o n ’ s c o n s e n t

. T E X . P E N C O D E A N N . § 3 2

. 5 1 ( b ) ( 1 ) ( V e r n o n S u p p . 2 0 0 9 )

.positively identified Appe llant in the photo lineup and ag ain at trial. Castillo testified that he was

100 perc ent s ure that Appellant was the m an that purcha sed t he television. No t h i n g i n the record
casts doubts on Castillo’s positive identification despite the ten-month or three y ear g ap in time, or sug g ests Castillo was so focuse d on the commission that his identification of Appellant was equivoca l. See Aguilar v. State , 468 S.W .2d 75, 77 (Tex. Crim. App. 1971) (holding that testimony of ey ewitness alone sufficie nt to support jury ’s ver dict). As for Appellant’s arg ument that his brot h er co m m itted the offense, we note t hat t he only evidenc e propelling this theory comes from Appellant’s testimony

. Carre on did not testify , nor did Yv et t e, and the only evidenc e sug g esting that Appellant and Carre on look simil ar comes fro m Appellant’s testimony and a photogr aph wher ein they wer e both wea ring sung lasses. No questions

on their simil arities wer e proff ere d to Castillo, nor was the photogr aph ever shown to him. As such, it was within the fac t finder’ s province , as the so l e j u d ge o f the weig ht and cre dibilit y of the witnesses, t o ch o o s e not to believe Appellant’s self-se rving testimony

. Given Castillo’s positive identification and other evidence showing Appellant picked up the t elevision from the warehouse and g ave Castillo the same addre ss that th e v eh i cl e, which was involved in sever al fra udulent
transac tions at Conn’s, was reg istered to, we do not find the contra ry evidenc e so overw helming as to rende r the identification clea rly wrong and manifestly unjust. See Johnson v. State , 176 S.W .3d 74, 78 (Tex. App. – Houston [1st Dist.] 2004, pet. ref ’d) (althoug h ap p ell ant claimed throug h his g irlfriend’ s testimony that he was at home when the crime occur red and arg ued that there was no phy sical evidenc e linking him to the crime, the jury , as the sole judge of the weig ht and cre dibilit y of the e vidence , was fr ee to r ejec t such defe nses g iven the ey ewitness’s identific ation). I n sum, afte r revie wing all of the evidenc e in a neutra l light, we d o not find the evidenc e supporting the conviction so wea k that the verdic t seems clea rly wrong and manifestly unjust, or thatthe evidenc e supporting the conviction is outweig hed by the g rea t weig ht and preponde ranc e of the

co n trary evidenc e so as to rende r the verdic t clea rly wrong and manifestly unjust. Roberts , 2 2 0 S.W .3d at 524. We th er ef o re fi n d the evidenc e fac tually sufficie nt and overr ule Appellant’s sole issue. CONCLUSION The trial c ourt’s judg ment is affirme d.

GUADA L UPE RI VERA, J ustice J uly 21, 2010 Be fore Chew, C.J ., McClure, a nd Rivera, JJ

. (Do Not Publish)