### IN THE TENTH COURT OF APPEALS No. 10
- 11 - 00222
- CR TAMMY RENA WILLIAMS , Appellant v. THE STATE OF TEXAS , Appellee

From the 272nd District Court Brazos County, Texas Trial Court No. 09
- 04698
- CRF
- 272

MEMORANDUM OPINION
Tammy Rena Williams was convicted of the offense of credit card abuse and sentenced to four years in prison. T EX
. P ENAL C ODE A NN . § 32.31(b)(1)(A) (West 2011). She appeals. Because the evidence is sufficient to support the finding of guilt and because Williams’ issue regardin g questioning by the trial court was not preserved, the trial court’s judgment is affirmed.
B ACKGROUND Williams needed new tires on her car. According to Williams, Cheryl, the cousinWilliams v. State Page 2

of Williams’ co

- worker, offered Williams the use of a credit card in ex change for $250. Cheryl told Williams to sign the name that was on the card. When Williams bought tires at a Firestone store, she signed the name that was on the card, “Catherine Hawes.” She knew that was not Cheryl’s name. Williams went back to the Fi restone store the next day and used the credit card again to pay for the tires being mounted on her car. Williams was identified by the manager of the Firestone as the person who made the two purchases. The next month when Mary Catherine Hawes received h er credit card statement, she noticed bills for tires she never purchased from a Firestone store she had never visited. Hawes did not know Williams and had not given her permission to use
her card. Hawes further testified that her credit card had never l eft her purse.
S UFFICIENCY OF THE E VIDENCE In her first issue, Williams contends the evidence was insufficient to support the trial court’s finding of guilt. Specifically, she argues that because she presented evidence showing that in exchange for the use of the credit card, she paid cash to the person who gave her the card and assumed that person had the authority to use the card; Williams did not know that she was using the card without the effective consent
of the cardholder. Standard of Review The Co urt of Criminal Appeals has expressed our standard of review of a sufficiency issue as follows:Williams v. State Page 3 In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorab le to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational fact finder could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307, 318

- 19 (1979); H ooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This "familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic f acts to ultimate facts." Jackson , 443 U.S. at 319. "Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction." Hoope r , 214 S.W.3d at 13. Lucio v. State , No. AP

- 76,020, ___ S.W.3d ___, ___, 2011 Tex. Crim. App. LEXIS 1222, *43

- 44, 2011 WL 4347044, *16 (Tex. Crim. App. Sept. 14, 2011). The Court of Criminal Appeals has also explained that our review of "all of the evid ence" includes evidence that was properly and improperly admitted. Conner v. State , 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting inferences, we must presume that the factfinder resolved the conflicts in favor of the
p rosecution and therefore defer to that determination. Jackson v. Virginia , 443 U.S. 307, 326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence are treated equally: "Circumstantial evidence is as probative as direct ev idence in establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to establish guilt." Hooper v. State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally , it is well established that t he factfinder is entitled to judge the credibility of witnesses and can choose to believe all, some, or none of the testimony presented by the parties. Chambers v. State , 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).Williams v. State Page 4

Elements The elements for credit card abuse are: (1) a person with intent to obtain a benefit fraudulently; (2) presents or uses a credit card; (3) with knowledge that the card has not been issued to her; and (4) and is not used with the effective consent of the cardholder.
T EX
. P ENAL C ODE A NN . § 32.31(b)(1)(A) (West 2011). See In re C.P ., 998 S.W.2d 703, 709 (Tex. App.

— Waco 1999, no pet.). Lack of effective consent may be proven solely by
circumstantial evidence. Lee v. State , 962 S.W.2d 171, 174 (Tex. App.

— Houston [1st Dist.] 1998, pet. ref’d). Application
The trial court was not required to believe that Williams did not know she did not have the cardholder’s consent to use the card. Further, Williams testified that she was told by Cheryl, the person from whom she received the card, to sign a different person’s name when usin g the card. Hawes, the cardholder, testified that she did not know Williams nor did she give Williams permission to use the card. Accordingly, the evidence was sufficient to prove the card was not used with the effective consent of the
cardholder. Willi ams’ first issue is overruled. Q UESTIONING BY THE T RIAL C OURT Williams argues in her second issue that the trial court abused its discretion by subjecting Williams to judicial cross

- examination during the punishment phase of the trial. Williams did not obj ect to the alleged questioning by the trial court but contendsWilliams v. State Page 5

on appeal that the alleged questioning was fundamental error because the trial court abandoned its neutral and detached role; and thus, no objection was required.
Preservation Texas Rule of App ellate Procedure 33.1 provides that, in general, as a prerequisite to presenting a complaint for appellate review, the record must show a timely, specific objection and a ruling by the trial court. T EX
. R. A PP
. P . 33.1. See Layton
v. State , 280 S.W.3d 23 5, 238 (Tex. Crim. App. 2009); Neal v. State , 150 S.W.3d 169, 175 (Tex. Crim. App. 2004). Unpreserved error may be reviewed if the error is a fundamental error that affects a defendant's substantial rights. T EX
. R. E VID . 103(d);
Marin v. State , 851 S.W.2 d 275, 279

- 80 (Tex. Crim. App. 1993). However, there are few rights that must be affirmatively waived and may therefore be raised for the first time on appeal. Marin , 851 S.W.2d at 280. See Saldano v. State , 70 S.W.3d 873, 887 (Tex. Crim. App. 2002) ("A ll but the most fundamental rights are thought to be forfeited if not insisted upon by the party to whom they belong.").
Facts Williams took the stand to testify during punishment. The trial court's alleged questioning took place after Williams' counsel pr esented closing argument but before the State responded. The Court stated to counsel:

But, you know, what troubles me about her is that she continues to be defiant as far as this particular charge is concerned. And those are not good mental attitudes f or rehabilitation. I’ll let you address that if there is an address that can be made.Williams v. State Page 6

At that time, counsel told Williams to “tell Judge Bryan now how you feel about this situation.” The following exchange then took place.
Williams: I accept. I know I was wrong. Court: Well, that’s not what you said up till now.
Williams: Yes, sir. I know I was wrong. If I could change it, I would

change it.
Court: Knowing that you were wrong and making a mistake is

different from knowing that you were committing a crime.
Williams: And I realize that. And I even told my lawyer that at the

time. Like I explained when I was up there, your Honor, when she hand me the card, I did not look at it. I just stuck it in my pocket. When I got to the place, I realize her name was Shirley and was Catherine on the thing. I know what I was doing was wrong at that time. And I should have used better judgment. I was under pressure under the job. I was doing the job. This is a turning. Getting paid as a manager. Only gett ing paid $500 a week, and I’m running four stores. So I did have the money to buy the tires. I used that as a copout. I did. I know I was wrong, and I admit that.
Court: All right. What else? Mr. Lewis, anything? At that point, the State presented its closing argument. The trial court questioned the State, Williams’ counsel, and the probation officer regarding what type of punishment to give Williams. The court then took the case under advisement and informed the parties that he would have a decis ion in the morning. Williams mischaracterizes the remainder of the complained of exchange between her and the trial court as occurring at the same time as the above exchange. It did not.Williams v. State Page 7

It occurred the next morning after the court sentenced Williams t o serve four years in prison and then withdrew the sentence when Williams complained that she had no one to take care of her grandchildren. The trial court gave Williams one week to make arrangements for the children. This additional exchange will not be repeated here. Application Even assuming these exchanges could be considered “questioning,” it is clear from this record that any statements addressed to Williams were for the purpose of clarifying an issue before the court, that being rehabilitation, and that the trial court maintained a neutral and detached role. Thus, an objection was required. See Brewer v.
State , 572 S.W.2d 719, 721 (Tex. Crim. App. 1978). Accordingly, Williams' second issue is not preserved and is overruled.
C ONCLUSION Having over ruled each issue on appeal, we affirm the trial court’s judgment.

TOM GRAY Chief Justice Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed October 26, 2011 Do not publish [CR25]