OPINION Appellant, Dylan Joseph Wokaly, appeals his convictions for Count I: possession of a controlled substance under one gram and Count II: fraudulent use of identifying information.[1] Appellant asserts the evidence is insufficient to support his conviction of fraudulent use or possession of identifying information and his trial counsel was ineffective. We affirm. BACKGROUND This is a Walmart theft gone awry. Store security video recorded Appellant and two companions, Brittany Rincker and Nicholas Beauchamp, attempting to falsely claim a refund for store merchandise, which they had allegedly not bought.[2] Walmart Security called police, who stopped Appellant’s car, searched it, and found suspected controlled substances and drug paraphernalia. Officers also found a credit card belonging to a Christopher Ray Tuggle, a Louisiana driver’s license in Tuggle’s name with the incorrect birth date, and a Social Security identification card, which, although having Tuggle’s correct Social Security number, appeared not to be genuine. PROCEDURAL HISTORY In November 2018, the State moved to dismiss Count III, the theft charge and Appellant pleaded not guilty to the two remaining counts. Appellant, through Defense Counsel, waived his right to a jury trial, this short colloquy follows: Trial Court: All right. Mr. Ottaway, you’ve also signed off on the document as attorney for the Defendant. In your opinion, is he freely and voluntarily and knowingly and intelligently waiving his right to have a jury trial? Defense Counsel: Yes, Judge. It was his idea. He initiated it because he wants to get it behind him, so yes, he — he wishes to waive a jury. Trial Court: All right. Sir, are you mentally competent? Appellant: Yes, sir. Trial Court: You understand everything that’s going on? You’ve been able to communicate with Mr. Ottaway about your rights and about the facts and all of that that are involved in this case. Is that correct? Appellant: Yes, sir. Trial Court: Mr. Ottaway, is he mentally competent in your opinion? Defense Counsel: Yes. Trial Court: All right. I’ll approve your waiver of right to have a trial by jury, and the case will proceed to trial before this Court. [Emphasis added]. In a brief bench trial, Defense Counsel made no objections, and offered no final arguments or evidence, including during punishment, except asking the trial court for probation and drug treatment for Appellant. However, Defense Counsel cross-examined Officer Bozer who admitted Appellant was mostly cooperative during the investigation. Defense Counsel: Once his girlfriend kind of tipped and started providing accurate information, did Mr. — did the Defendant start acting cooperative? Officer Bozer: Yes. Defense Counsel: And he gave you the combination to the safe? Officer Bozer: He did. Defense Counsel: And was he — did he follow orders and cooperate all the way back to the — to the jail? Officer Bozer: I did not have any issues with him. Defense Counsel: So once he figured out that you knew, he became very cooperative? Officer Bozer: Yes, sir. Defense Counsel also did not challenge the admissibility of the drug laboratory analysis, which identified two of the three suspected controlled substances as methamphetamine and cocaine.[3] During the State’s case-in-chief, the drug laboratory report was stipulated to, the trial judge, however, did not confirm the stipulation on the record. The trial court sentenced Appellant to two years’ imprisonment in the State Jail Division of the Texas Department of Criminal Justice for Counts I and II, those sentences to run concurrently. Four days after the trial, the trial court appointed Appellant new counsel, who filed motions for a new trial which the trial court denied. This appeal followed. Sufficiency of Evidence Appellant’s first issue asserts insufficient evidence supports the trial court’s finding Appellant’s guilty for Count II: obtaining, possessing, transferring or using the identifying information of Christopher Ray Tuggle in violation of TEX.PENAL CODE ANN. § 32.51(b)(1), (c)(1).[4] The thrust of his sufficiency challenge is the paucity of evidence proving the non- consensual possession or use of the identifying information of Christopher Ray Tuggle. Standard of Review In a legal sufficiency review, we view all evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational juror could have found all of the essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Villarreal v. State, 286 S.W.3d 321, 327 (Tex.Crim.App. 2009); Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App. 2007). In conducting our review, we must give deference 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 facts to ultimate facts.” Jackson, 443 U.S. at 319; Brooks v. State, 323 S.W.3d 893, 899 (Tex.Crim.App. 2010). As the fact finder, the jury is entitled to judge the credibility of the 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). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573 (Tex.App.–Eastland 2012, no pet.)(citing Jackson, 443 U.S. at 314, 318 n.11, 320). On appeal, we consider all admitted evidence regardless of whether it was admissible or inadmissible. Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App. 2007); Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999). The fact that the record includes conflicting evidence does not render the evidence insufficient. Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996). When the record supports conflicting inferences, we presume that the fact finder resolved the conflicts in favor of the verdict and therefore defer to that determination. Clayton, 235 S.W.3d at 778. This standard applies equally to direct and circumstantial cases. See Geesa v. State, 820 S.W.2d 154, 163 (Tex.Crim.App. 1991). Circumstantial evidence alone may be enough to uphold a conviction, provided that the cumulative force of all the incriminating facts and circumstances suffice to support the conviction. Sanchez v. State, 536 S.W.3d 919, 920-921 (Tex.App.–Houston [1st Dist.] 2017, no pet.). “Thus, the State may prove an intent to defraud or harm by circumstantial evidence.” Id., citing Burks v. State, 693 S.W.2d 932, 936–37 (Tex.Crim.App. 1985); Tottenham v. State, 285 S.W.3d 19, 28 (Tex.App.—Houston [1st Dist.] 2009, pet. ref’d). See also Palmer v. State, 735 S.W.2d 696, 698 (Tex.App.–Fort Worth 1987, no pet.): In this case, Palmer’s possession of the stolen check was personal, recent, unexplained, and it involved a distinct and conscious assertion of right to the property by him. Although not conclusive, such evidence constitutes circumstances of guilt of the theft of the property in question. [Citation omitted]. If the jury might infer that Palmer stole the check, then the jury might also infer from the same evidence that Palmer knew the check was forged and, therefore, had the intent to defraud or harm the person to whom he subsequently passed it. [Emphasis added]. Palmer, 735 S.W.2d at 698. Fraudulent Possession or Use of Identifying Information To obtain a conviction for fraudulent possession of identifying information, the State had to prove that Appellant not only exercised actual care, control, or custody of the items, but that he was conscious of his connection with them and possessed them knowingly. See Brown v. State, 911 S.W.2d 744, 747 (Tex.Crim.App. 1995). When a defendant does not have exclusive possession of the place where the items were found, the evidence must link the defendant to the items and establish that the defendant’s connection with the items was more than fortuitous. Evans v. State, 202 S.W.3d 158, 161–62 (Tex.Crim.App. 2006); Pollan v. State, 612 S.W.2d 594, 596 (Tex.Crim.App. [Panel Op.] 1981). Section 32.51(b)(1) of the Texas Penal Code states: “A person commits an offense 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 or effective consent.” The Code further provides that: “‘Identifying information’ means information that alone or in conjunction with other information identifies a person, including a person’s . . . name and date of birth . . . social security number or other government-issued identification number.” TEX.PENAL CODE ANN. § 32.51(a)(1)(A)(E). The offense is “a state jail felony if the number of items obtained, possessed, transferred, or used is less than five.” TEX.PENAL CODE ANN. § 32.51(c)(1). Conviction for fraudulent use or possession of identifying information, state jail felony, requires proof that: (1) appellant possessed an item of identifying information belonging to another person, and the total number of items was less than five; (2) appellant possessed each item without the other person’s consent; and (3) appellant possessed each item with the intent to harm or defraud the other person. See TEX.PENAL CODE ANN. § 32.51(b)(1), (c)(1); Grimm v. State, 496 S.W.3d 817, 822 (Tex.App.—Houston [14th Dist.] 2016, no pet.). Appellant’s challenge to the sufficiency of the evidence addresses only the second element, i.e., his possession of identifying information without consent of the other person. DISCUSSION Officer Bozer testified, following a call from Walmart security, Officer Anderson stopped Appellant’s vehicle. When stopped, Appellant identified himself with a Louisiana driver’s license in the name of Christopher Ray Tuggle, with a birth date of July 1, 1989. Officers were unable to get “positive returns” when the Lousiana driver’s license for Tuggle was run. Appellant was asked his date of birth and responded July 9, 1989, which was different from the Lousiana driver’s license he had produced. When asked for additional identification, Appellant gave Officer Causey a Social Security identification card, which, while having Tuggle’s correct Social Security number, did not appear authentic. Officer Bozer then mirandized Appellant, who subsequently admitted his true, correct name and identity is Dylan Wokaly. Officers then contacted Christopher Ray Tuggle. Officer Bozer’s testimony on the issue of consent was: State: Okay. And just to kind of move ahead kind of to the end, the police department made contact with a man named Christopher Ray Tuggle. Correct? Bozer: Correct. State: And actually he was a firefighter in the — was it in the Air Force? Bozer: I’m not sure. State: But, nevertheless, he confirmed that his identity had been stolen? Bozer: Yes. State: And that he certainly didn’t give the Defendant permission to use his name and Social Security number? Bozer: No, sir. The officers also searched Appellant’s vehicle, recovering stolen Walmart merchandise and a locked safe.[5] After unlocking the safe, Officers found drug paraphernalia, a bag of methamphetamine, Appellant’s and Rincker’s inmate cards, and a credit card in Tuggle’s name.[6] Appellant’s insufficiency complaint targets the unobjected hearsay from Officer Bozer that Tuggle had not consented to Appellant’s possession and/or use of his identifying information and the State’s failure to introduce the identification cards into evidence. Appellant’s view is the failure of Toggle testifying to the lack of consent and the non-production of Tuggle’s purported identification cards is fatally defective and, therefore, legally insufficient. We disagree. Here, there is little question that Appellant possessed and used identifying information of Christopher Ray Tuggle, i.e., name, date of birth, Social Security number, and credit card. Appellant was stopped by law enforcement, questioned after WalMart security observed a suspicious transaction, while in possession of unlawful controlled substances. Further, Appellant admitted he is not Christopher Ray Tuggle. Officer Bozer testified Tuggle had not given Appellant consent to possess or use his identifying information. We consider all the admitted evidence, admissible or inadmissible, in a sufficiency analysis. Clayton, 235 S.W.3d at 778. In spite of Appellant’s assertion Bozer’s testimony is inherently unreliable because it was hearsay, it was unobjected to and admitted. Therefore, it can be considered. Perhaps the production and introduction of the identification cards may have been helpful, however, Appellant has not pointed us to any law that requires this. Our research has not uncovered any caselaw requiring the introduction of the identifying information items be introduced into evidence to legally uphold a conviction under Section 32.51(b)(1). We note, that while the identifying items may be authentic or forged, the proof of either is not an element of Section 32.51(a)(1). Bozer’s testimony of Tuggle’s non-consent, while unobjected-to hearsay, and the evidence regarding the existence and the production of Tuggle’s identifying information physically and verbally by Appellant when stopped is legally sufficient to support his conviction. Issue One is overruled. Ineffective Assistance of Counsel In his second issue, Appellant contends he did not receive effective assistance of counsel at trial. Relying on Cronic, Appellant maintains the deprivation of counsel in his case amounted to a complete failure of the adversarial process. United States v. Cronic, 466 U.S. 648 (1984). Appellant asserts he was not represented by counsel because the State’s sole witness testified to the investigation of other officers; other witnesses and the individual who spoke to Toggle regarding consent of the identifying information constituted hearsay or triple hearsay. Further, the State failed to present evidence showing harm or the intent to defraud Toggle. Appellant points to trial counsel errors of: (1) no objection to hearsay; (2) no confrontation of witnesses; (3) no meaningful cross-examination; (4) no objection to leading questions; and (5) no objection to the laboratory report. Standard of Review Both the United States and the Texas Constitutions guarantee an accused the due process right to assistance of counsel. U.S. CONST. amend. VI; TEX.CONST. art. I, § 10; see also TEX.CODE CRIM.PROC.ANN. art. 1.05. Implicit in that right is the right to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 683–86 (1984). However, a presumption of prejudice may be warranted when there has an actual or constructive denial of counsel. Cronic, 466 U.S. at 658–60; Childress v. Johnson, 103 F.3d 1221, 1228 (5th Cir. 1997). In such a case “[n]o specific showing or prejudice [is] required,” because “the adversary process itself [is] presumptively unreliable.” Cronic, 466 U.S. at 659; see also Smith v. Robbins, 528 U.S. 259, 287–87 (2000) (distinguishing complete denial of counsel on appeal, warranting presumption of prejudice, from ineffective assistance of counsel on appeal, which does not warrant such presumption). The presumption of prejudice arises when there are “circumstances that are so likely to prejudice the [defendant] that the cost of litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658. This can occur when (1) the defendant is denied the presence of counsel at a critical stage of his trial, (2) counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, or (3) circumstances at trial are such that, although counsel is available to assist the defendant during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of counsel. Id. at 659–60; see also Bell v. Cone, 535 U.S. 685, 695–96 (2002). For Cronic to apply, counsel’s failure to test the prosecution’s case “must be complete.” Bell, 535 U.S. at 686. “‘[B]ad lawyering, regardless of how bad, does not support the . . . presumption’ of prejudice under Cronic.” Childress, 103 F.3d at 1229. Rather, prejudice is presumed when the defendant can establish counsel was not merely incompetent but inert. Id. at 1228; see also Ex parte McFarland, 163 S.W.3d 743, 752 (Tex.Crim.App. 2005) (Cronic is “epitomized by the ‘inert’ or ‘potted plant’ lawyer who, although physically and mentally present in the courtroom, fails to provide (or is prevented from providing) any meaningful assistance.” [Internal footnotes omitted and Emphasis added]). Cronic envisions a scenario in which defense counsel is fully and completely absent. Cannon v. State, 252 S.W.3d 342, 350 (Tex.Crim.App. 2008)(defense counsel refused to participate and “effectively boycotted” the entire trial). Analysis under Cronic We disagree that Defense Counsel “committed cumulative errors” that “amounted to a complete failure of the adversarial process” such that the presumed prejudice doctrine under Cronic applies. Appellant complains of: (1) lack of objection to hearsay; (2) no confrontation of witnesses; (3) no meaningful cross-examination; (4) lack of objection to leading questions; and (5) no objection to the laboratory report. First, we note under Cronic the record must show a complete absence or representation and not a series of cumulative errors. Here, Defense Counsel participated and cross-examined Bozer regarding Appellant’s cooperativeness with law enforcement at the scene by promptly admitting to the use of Toggle’s identifying information and supplying officers with the combination to the safe. During sentencing, Defense Counsel closed by stating: Well, Judge, every time he’s been in trouble before, he gets a jail sentence. We’d ask you to give him probation and send him to a drug treatment. It’s obvious that the drugs are a problem, so we’re asking that you consider drug treatment and probation. The trial was short, and it appears Defense Counsel was acting on Appellant’s directive to resolve the case as expeditiously as possible. Defense Counsel explaining to the trial court, his client’s desire to waive a jury trial, states “Yes, Judge. It was his idea. He initiated it because he wants to get it behind him, so yes, he — he wishes to waive a jury.” On this record, we cannot conclude Appellant was deprived of total and complete representation of counsel to satisfy the Cronic standard. Issue Two is overruled. CONCLUSION For these reasons, we affirm. July 27, 2020 YVONNE T. RODRIGUEZ, Justice Before Alley, C.J., Rodriguez, and Palafox, JJ. (Do Not Publish)
