Latoya Fultcher v. State ( 2009 )

Affirmed and Memorandum Opinion filed September 24, 2009.

In The

Fourteenth Court of Appeals

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NO.  14-08-00174-CR

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LATOYA FULTCHER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 232nd District Court

Harris County, Texas

Trial Court Cause No.  1125543

M E M O R A N D U M   O P I N I O N

Latoya Fultcher, the appellant, was convicted of fraudulent use or possession of identifying information and sentenced to nine years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  Fultcher appeals her conviction contending that (1) the trial court abused its discretion by admitting into evidence an unredacted photo of Fultcher; (2) the State failed to meet its burden to adequately corroborate accomplice-witness testimony; (3) the evidence at trial is legally insufficient to support her conviction; and (4) the evidence is factually insufficient to support her conviction.  We affirm.

I

On January 6, 2007, Harris County District Attorney=s Office Investigator Calvin Johnson was working undercover, investigating information that a local businessCTejas Hi-TekCwas producing fake identification cards that could be used with stolen checks and credit cards. Working with a team of investigators, Johnson and undercover officer Elizabeth Mihalco of the Houston Police Department went to Tejas Hi-Tek to purchase identification cards to match three different credit cards specially supplied for use in fraud investigations.

 Johnson and Mihalco entered the small one-room shop and approached a clerk, Izdell Jaime, standing behind a counter. On the counter, Jaime had a lap-top computer and a scanner.  Behind the counter was a computer printer.  Johnson testified that he told Jaime he wanted an identification card created for each credit card.  Jaime then gave Johnson three small slips of paper to fill out.  These slips of paper asked for the name, address, date of birth, and other identifiers Athat normally go on a driver=s license or on an identification card.@  Johnson filled out the slips using three different names, none of which were his own.  Jaime then used a digital camera to take Johnson=s photo as he stood against a blue drape, similar to the blue background used in Texas Department of Public Safety driver=s license photos. According to Johnson, Jaime told him that this would be the only time he would need to have his photo taken.  She said that his photo would be saved in a computer file so that he could come back and use it again.  Johnson was never asked to verify his actual identity.

While Johnson was waiting for Jaime to make his identification cards, four women entered the shop.  At trial, Johnson identified Fultcher as being among the four women.  According to Johnson, A[I]t was obvious that [Jaime] recognized them as previous customers of the business.@  Johnson testified that all four of the women Ahad some form of paperwork in their hands.@  Johnson could see that at least two of the women had forms from PublicData.com, which the record reflects is a web-based business that makes personal information such as name, address, date of birth and certain government-issued identification numbers available for a fee.^[1]  Johnson watched as each of the four women filled out the small slips of paperCusing information taken from the papers that each had brought with themCand then gave the completed paperwork to Jaime.  Johnson said that this activity indicated to him that the women were seeking to obtain fake identification cards for the names on the PublicData.com forms.  Johnson further testified that Jaime asked them if they wanted  to use the same photos as Alast time,@ which indicated to him that the women were repeat customers with photos on file.

After the women completed filling out their forms, they left the shop and climbed into a white Lincoln Navigator parked outside.  It appeared to Johnson that the women intended to wait inside the Navigator until their cards were ready.  A short while later, Jaime told Johnson that his cards were ready.  Johnson paid for the cards, and then received them from Jaime.  Johnson exited the shop and gave the pre-arranged signal to the investigation team.  The team moved in and arrested Jaime, the shop owner, and the four occupants of the Navigator including Fultcher.  The team also photographed the crime scene and seized evidence. 

Fultcher was indicted for fraudulent use or possession of identifying information, tried by a jury, and convicted.  She was then sentenced to nine years= confinement in the Institutional Division of the Texas Department of Criminal Justice.  This appeal followed.

II

Fultcher appeals her conviction contending that (1) the trial court abused its discretion by admitting into evidence an unredacted photo of Fultcher; (2) the State failed to meet its burden to adequately corroborate accomplice-witness testimony; (3) the evidence at trial is legally insufficient to support her conviction; and (4) the evidence is factually insufficient to support her conviction. 

A

In her second issue on appeal, Fultcher contends that the State failed to meet its burden under article 38.14 of the Texas Code of Criminal Procedure to adequately corroborate accomplice-witness testimony.  Specifically, Fultcher asserts that the State=s case relied substantially on testimony from Rochell Jackson, an accomplice in the charged offense, but that the State failed to sufficiently corroborate Jackson=s testimony as Texas law requires.  The State responds that testimony from other witnesses as well as physical evidence corroborates Jackson=s testimony.   

The accomplice‑witness rule provides that a conviction cannot stand solely on the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.  Tex. Code of Crim. Proc. Ann. art. 38.14 (Vernon 2005); Solomon v. State, 49 S.W.3d 356, 361 (Tex. Crim. App. 2001).  When evaluating the sufficiency of corroboration evidence under the accomplice‑witness rule, we A>eliminate the accomplice testimony from consideration and then examine the remaining portions of the record to see if there is any evidence that tends to connect the accused with the commission of the crime.=@  Malone v. State, 253 S.W.3d 253, 257 (Tex. Crim. App. 2008) (quoting Solomon, 49 S.W.3d at 361).  To meet the requirements of the rule, the corroboration evidence need not prove the defendant=s guilt beyond a reasonable doubt by itself.  Id.  Rather, the evidence must simply link the accused in some way to the commission of the crime and show that A>rational jurors could conclude that this evidence sufficiently tended to connect [the accused] to the offense.=@  Id. (quoting Hernandez v. State, 939 S.W.2d 173, 179 (Tex. Crim. App. 1997)).  There is no set amount of non‑accomplice corroboration evidence that is required for sufficiency purposes; A>[e]ach case must be judged on its own facts.=@ Id. (quoting  Gill v. State, 873 S.W.2d 45, 48 (Tex. Crim. App. 1994)).  A>[P]roof that the accused was at or near the scene of the crime at or about the time of its commission, when coupled with other suspicious circumstances, may tend to connect the accused to the crime so as to furnish sufficient corroboration to support a conviction.=@  Id. (quoting Brown v. State, 672 S.W.2d 487, 489 (Tex. Crim. App. 1984)). But A>mere presence alone of a defendant at the scene of a crime is insufficient to corroborate accomplice testimony.=@  Id. (quoting Golden v. State, 851 S.W.2d 291, 294 (Tex. Crim. App. 1993)). The accomplice‑witness rule is a statutory creation, and is not based upon federal or state constitutional notions of sufficiency; there simply needs to be Aother@ evidence tending to connect the defendant to the offense.  Id.  

At trial, the State presented evidence that established the  process by which someone could obtain fake identification cards at Tejas Hi-Tek.  Johnson testified that these cards likely would be sufficient to enable  persons to cash checks and use credit cards belonging to other people.  Johnson also testified that he personally witnessed that Fultcher was among the group of women who entered the shop, that each woman carried paperwork into the shop with her, and that each woman used the paperwork she brought with her to fill out the Tejas Hi-Tek information sheets.  Further, Johnson testified that it was Aobvious@ to him that Jaime recognized the four women as prior customers.  Not only did Jaime=s demeanor indicate that she was familiar with the women, she also asked them if they wanted to use the same photos they had used before.

The State also offered testimony from Steve Januhowski, another investigator participating in the operation. Januhowski testified that after Fultcher, Jaime, and the others were arrested, he seized the shop=s computer equipment, as well as the many information slips lying around on the counter.  Januhowski stated that among the seized information slips, he found a slip containing the identifying information of Linda Carter, including her name, address, date of birth, and her Texas driver=s license number.  Further, he pointed out that someone had hand-written the number A284@ on the form.  Ron Knotts, a forensic computing investigator, testified that he examined the lap-top and thumb drive seized from Tejas Hi-Tek and discovered a file containing a photograph of Fultcher.  Knotts stated that the filename for the photograph was APicture 284.JPG.@  Knotts further testified that he discovered photographs of the other women arrested in the operation, and that the numbers associated with the filename of each photograph also matched information slips recovered from the shop, each containing the identifying information of another person.

Finally, Investigator Mike Kelly testified that he also participated in the operation and was present when the womenCincluding FultcherCwere removed from the white Lincoln Navigator.  He stated that he then searched the Navigator and recovered multiple blank checks belonging to several different people, including Linda Carter.  

This evidence did more than simply place Fultcher at Tejas Hi-Tek on the day of her arrest.  The evidence shows that Fultcher submitted an information slip with the intent of obtaining an identification card.  Further, the evidence establishes that she was a recognized and repeat customer of the business and had a photograph on file from a prior transaction.  The number associated with her photo was hand-written on an information slip containing the personal identifying information of Linda Carter.  Fultcher was arrested after being removed from a vehicle in which the police discovered blank checks carrying Carter=s name.

Fultcher contends that the State was unable to prove her intent to defraud Carter without Jackson=s uncorroborated testimony.  But as we have stated above, proof beyond a reasonable doubt is not the standard of the accomplice-witness rule.  See Malone, 253 S.W.3d at 257.  All that was required of the State was to demonstrate that the non-accomplice evidence tends to link Fultcher to the charged offense.  See id.  We are satisfied that this evidence goes beyond Malone=s proximity-plus-suspicious-circumstances standard.  See id.  Based on the cumulative impact of this evidence, rational jurors could conclude that Fultcher was sufficiently connected to the charged offense of fraudulent use or possession of Linda Carter=s identifying information.  See id.  Consequently, we are satisfied that the State successfully corroborated the accomplice testimony of Rochell Jackson according to the requirements of the Code of Criminal Procedure.  See Tex. Code of Crim. Proc. Ann. art. 38.14.  We overrule Fultcher=s second issue. 

B

In her third and fourth issues, Fultcher contends that the evidence presented at trial is both legally and factually insufficient to support her conviction for fraudulent use or possession of identifying information.  Specifically, Fultcher asserts that the evidence is insufficient to support her conviction because (1) the State relied extensively on the unreliable testimony of accomplice-witness Jackson, (2) there is no evidence that Fultcher had possessed Carter=s identifying information, and (3) there is no evidence Fultcher had any intent to defraud Carter.  The State responds that the evidence is sufficient for a rational jury to convict Fultcher of the charged offense, and that such a conviction is not manifestly unjust or against the great weight of the evidence.

1

In reviewing legal sufficiency, we look at the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vasquez v. State, 67 S.W.3d 229, 236 (Tex. Crim. App. 2002). Although we consider all the evidence presented at trial, we may not re‑weigh the evidence and substitute our judgment for that of the jury.  King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony, and it is the exclusive province of the jury to reconcile conflicts in the evidence. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998).  A jury is entitled to accept one version of the facts and reject another, or reject any part of a witness=s testimony.  Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000), abrogated on other grounds, Laster v. State, 275 S.W.3d 512 (Tex. Crim. App. 2009).  We do not eliminate the testimony of an accomplice when analyzing the legal sufficiency of the evidence as a whole. Long v. State, 245 S.W.3d 563, 569 (Tex. App.CHouston [1st Dist.] 2007, no pet.).

In reviewing the factual sufficiency of the evidence, we begin with the assumption that the evidence is legally sufficient under Jackson v. Virginia.  Laster v. State, 275 S.W.3d 512, 518 (Tex. Crim. App. 2009).  We view all the evidence neutrally.  Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006); Newby v. State, 252 S.W.3d 431, 435 (Tex. App.CHouston [14th Dist.] 2008, pet ref=d).  A jury=s verdict may be set aside on the basis of factual insufficiency only if this court finds: (1) the evidence is so weak that the verdict is clearly wrong and manifestly unjust; or (2) the verdict is against the great weight and preponderance of the evidence.  Watson, 204 S.W.3d at 414B15; Newby, 252 S.W.3d at 435. In our analysis we consider the evidence which Fultcher claims is most important in allegedly undermining the jury=s verdict.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Newby, 252 S.W.3d at 435. 

Although we may disagree with the jury=s conclusion, we must avoid substituting our judgment for that of the jury.  Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005); Newby, 252 S.W.3d at 435. It is not enough for this court to harbor a subjective level of reasonable doubt to overturn a conviction that is founded on legally sufficient evidence. Watson, 204 S.W.3d at 417.  We cannot conclude that a conviction is Aclearly wrong@ or Amanifestly unjust@ simply because, on the quantum of evidence admitted, we would have voted to acquit had we been on the jury.  Id.  Nor can we declare that a conflict in the evidence justifies a new trial simply because we disagree with the jury=s resolution of that conflict.  Id.  We must first be able to say, with some objective basis in the record, that the great weight and preponderance of the evidence contradicts the jury=s verdict before we are justified in exercising our appellate fact jurisdiction to order a new trial.  Id.

Circumstantial evidence is as probative as direct evidence in establishing an actor=s guilt. Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004).  Indeed, circumstantial evidence alone is enough to establish guilt.  Id.  Furthermore, the standard of review on appeal is the same for both direct‑ and circumstantial‑evidence cases.  Id.  As with a challenge to the legal sufficiency of the evidence, we view all the evidence in a factual-sufficiency review, including accomplice‑witness testimony.  Long, 245 S.W.3d at 570.

2

A person commits an offense if the person obtains, possesses, transfers, or uses identifying information of another person without the other person=s consent and with intent to harm or defraud another.  Tex. Penal Code Ann. ' 32.51(b) (Vernon 2003).^[2] AIdentifying information@ means information that alone or in conjunction with other information identifies a person, including a person=s name and social security number, date of birth, or government‑issued identification number.  Tex. Penal Code Ann. ' 32.51(a)(1)(A) (Vernon 2003 & Supp. 2008).

As discussed above in our review of the evidence corroborating Jackson=s accomplice-witness testimony, Jackson observed Fultcher enter the shop with three other women while carrying some type of paperwork.  With her accomplices, Fultcher filled out an information sheet and delivered it to Jaime.  Jaime recognized Fultcher and her accomplices as repeat customers.  A computer file was discovered on the shop=s thumb drive containing Fultcher=s photograph.  The filename associated with this photograph contained the three-digit number A284,@ which was shown to be hand-written on an information sheet containing Linda Carter=s identifying information.  Jaime testified that it was standard procedure to write the number from the photograph filename on the corresponding information sheet in order to match pictures with identifying information.  There was also testimony and documentary evidence that blank checks apparently associated with an account belonging to Carter were recovered from the Lincoln Navigator right outside the shop, where Fultcher was discovered just before her arrest. Further, Carter confirmed the accuracy of the identifying information on the information sheet recovered from the shop, and denied giving consent to Fultcher or anyone else to use her identifying information in such a manner.

Jackson=s accomplice-witness testimony buttresses the evidence detailed above.  Jackson testified that the four women, including Fultcher, went to Tejas Hi-Tek that day to get fake identification cards so that they could then Awrite some checks . . . in someone else=s name.@  Jackson related that the group had obtained blank checks in several names, as well as PublicData.com sheets for each individual named on the checks, from a third party named ATasha.@  Jackson testified that the women had done this before, and that each time they would pay $200.00 for each set of checks and the matching Aidentity@ information. They would then go to Tejas Hi-Tek and obtain fake identification cards that matched the names on the blank checks.  The women would then go to stores like Wal-Mart, Target, or Ross and buy merchandise that later would be returned for a cash refund.  The goal of the plan, according to Jackson, was to obtain cash.  Jackson further confirmed the procedure whereby Jaime would write the number corresponding to the customer=s photograph onto the information slip of the desired identification card.  Jackson demonstrated that the number associated with her own photograph, which was recovered from the Tejas Hi-Tek thumb drive, was written on the information sheet she submitted in order to obtain her fake identification that day.

Jackson gave powerful testimony specifically linking Fultcher to the offense.  Jackson identified the handwriting on the information sheet containing Carter=s identifying information as that of Fultcher.  Jackson also described Fultcher as participating in planning the offense.  Jackson testified that she was certain that Fultcher had planned to use the fake  identification to write checks for merchandise.  According to Jackson, A[W]e all talked about it . . . we all picked out the checks before we went there . . . we all picked out which person we were going to do . . . we had done it before.@

This evidence demonstrates that Fultcher possessed Carter=s identifying information, which she then used when she filled out the information sheet seeking to obtain a fake identification card bearing that information.  The evidence also demonstrates Fultcher=s intent to harm Carter and defraud third parties by using the fake identification to write checks on Carter=s account to buy merchandise.  Finally, there was evidence that Fultcher possessed and used Carter=s identifying information without Carter=s consent.

Viewing the evidence in a light most favorable to the verdict, as we must, we conclude that a rational trier of fact could have found this evidence sufficient to prove the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Vasquez, 67 S.W.3d at 236.  We overrule Fultcher=s third issue.

3

The first basis on which Fultcher challenges the factual sufficiency of the evidence is that the State relied heavily upon the accomplice-witness testimony of Jackson.  Fultcher contends that accomplice-witness testimony, by its very nature, is discredited.  See Walker v.  State, 615 S.W.2d 728, 731 (Tex. Crim. App. 1981).  Such testimony, Fultcher argues, is untrustworthy and is to be received and acted upon with caution.  See id.  Jackson testified to several prior criminal convictions during her testimony.  She also testified that she had charges resulting from this incident pending against her.  Jackson stated that, while she had not been guaranteed any specific benefits, the judge would consider the value of her testimony  to the State when considering her punishment.  But Jackson=s testimony was also compellingly direct, and she did not waver under cross-examination.  The jury, as the trier of fact, is the final judge of the credibility of the witnesses.  Laster, 275 S.W.3d at 524B25.  The jury may choose to believe or disbelieve any portion of the testimony.  Id.

Further, Fultcher argues that there was no evidence that she actually ever possessed Carter=s identifying information.  She points out that there was no evidence that Carter=s information was found on her person or in her purse.  APossession@ means actual care, custody, control, or management.  Tex. Penal Code Ann. ' 1.07(a)(39) (Vernon 2003 & Supp. 2008).  Investigator Johnson testified that he observed Fultcher filling out an information slip.  He also testified that while the women were filling out the forms, he saw each of them referring to the papers they had carried in with them.  An information slip was recovered containing Carter=s identifying information with a hand-written number corresponding to Fultcher=s photographCin the same manner as other slips were linked to accomplices= photographs. Jackson also testifiedCwithout objection or rebuttalCthat it was Fultcher=s handwriting on the slip bearing Carter=s information.  This evidence would demonstrate that Fultcher had the actual care, custody, and control of Carter=s identifying information at the time she filled out the Tejas Hi-Tek information form.

Further, Apossession@ is only one means by which the charged offense could be accomplished.  AUse@ was also an acceptable means, and there was considerable evidence of Fultcher=s Ause@ of the information in her attempt to obtain a fake identification card.  That Fultcher neither received the card nor was found to possess the identifying information on or near her person does not make the evidence insufficient when there is evidence regarding her use of the information.  The jury could, and likely did, consider this evidence in reaching its verdict.

Finally, Fultcher argues that during her trial, several investigators testified that Fultcher=s mere possession of Carter=s identifying information for purposes of obtaining a novelty identification card would not, by itself, constitute an offense.  While this is true, it ignores other powerful evidence that satisfies the other elements of the offense.  Carter testified that she did not consent to the use of her identifying information.  Jackson=s testimony concerning the group=s intent to Aget some IDs and write some checks,@ her explanation of the plan to purchase merchandise and then return it for cash refunds, and then the exhibition of the blank checks themselves effectively demonstrate Fultcher=s fraudulent intent, satisfying the remaining elements of the offense.

Based on this evidence, we cannot conclude that Fultcher=s conviction was Aclearly wrong,@ Amanifestly unjust,@ or that the great weight and preponderance of the evidence contradicts the jury=s verdict.  The evidence is factually sufficient to support the jury=s verdict.  See Watson, 204 S.W.3d at 417.  We overrule Fultcher=s fourth issue.

C

In her first issue, Fultcher contends that the trial court abused its discretion by allowing an unredacted photo to be admitted into evidence and published to the jury.  Specifically, Fultcher asserts that the unredacted language displayed on the t‑shirt she was wearing in the photograph was without probative value, unfairly prejudicial, and therefore improperly influenced the jury=s impression of Fultcher.  The State responds that the photograph was highly probative, lacking any serious prejudicial impact, and any possible error would be harmless in the face of the substantial evidence against Fultcher.

Generally, we review a trial court=s admission of evidence under an abuse‑of‑discretion standard.  Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007). A trial court does not abuse its discretion if its evidentiary ruling was within the Azone of reasonable disagreement,@ and was correct under any legal theory applicable to the case. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007); Bargas v. State, 252 S.W.3d 876, 889 (Tex. App.CHouston [14th Dist.] 2008, no pet.).  Thus, because the trial court is usually in the best position to decide whether evidence should be admitted or excluded, we must uphold its ruling unless its determination was so clearly wrong as to lie outside the zone within which reasonable persons might disagree.  See Winegarner, 235 S.W.3d at 790; Hartis v. State, 183 S.W.3d 793, 801B02 (Tex. App.CHouston [14th Dist.] 2005, no pet.).

During Fultcher=s trial, the State sought to admit into evidence the photograph of Fultcher retrieved from the Tejas Hi‑Tek thumb drive.  The photograph depicted Fultcher wearing a white t‑shirt with the words AI am the kid your parents warned you about@ printed across the front.  Fultcher=s defense counsel approached the bench and the following conference took place:

DEFENSE:   I have no objections to the pictures, themselves.

COURT:      Do you want to take the witness on voir dire or what?

DEFENSE:   I have no objections to the pictures, themselves.  However on my client=s picture we will object to it because of the contents of the t‑shirt.

COURT:      Does the State want to be heard on this matter?

STATE:       Well, that is the picture she had taken. I am sorry.  I mean, I can=t do anything about that.

DEFENSE:   Your Honor, it is highly, highly prejudicial.  I mean, this is highly prejudicial and not probative, and there is no reason to show the jury this.  If we can just black through that.

COURT:      I will have to overrule your objection.  

DEFENSE:   Can I put on the record that I am objecting to the contents of the t‑shirt in this picture.  It is highly prejudicial to my client, and it can definitely sway the jury.

COURT:      The record will so reflect.

DEFENSE:   I have no objections to Exhibits 28, 29, and 30.

COURT:      All right.  There being no other objections, the exhibits will be admitted, other than the objections stated.

A photograph is typically admissible if testimony about what it depicts is also admissible.  Gallo v. State, 239 S.W.3d 757, 762 (Tex. Crim. App. 2007).  In other words, if some subject of testimony is relevant, photographs of the same are also relevant.  Id. Rule 401 provides that evidence is relevant if it has Aany tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.@  Tex. R. Evid. 401.

On appeal, Fultcher contends that the nature of the charged offense Acoupled with the words on the shirt she wore in the photo directly fed into the jury=s finding of guilt.@  Fultcher offers no evidence to demonstrate the text=s impact on the jury=s verdict.  But even presuming that the trial court erred in failing to redact the writing on the shirt from the photograph, the error is harmless. 

We must disregard nonconstitutional errors that do not affect the substantial rights of the defendant.  Tex. R. App. P. 44.2(b).  Erroneous admission of evidence does not affect substantial rights of the defendant if the appellate court, after examining the entire record, is assured the error did not influence the jury=s decision or only slightly influenced it.  See Motilla v. State, 78 S.W.3d 352, 355 (Tex. Crim. App. 2002).  AIn assessing the likelihood that the jury=s decision was adversely affected by the error, the appellate court should consider everything in the record, including any testimony or physical evidence admitted for the jury=s consideration, the nature of the evidence supporting the verdict, the character of the alleged error and how it might be considered in connection with other evidence in the case.@  Motilla, 78 S.W.3d at 355.

The substantial evidence against Fultcher overrides any concern that the text on Fultcher=s t‑shirt affected the jury=s verdict.  Because we are assured that the error did not influence the jury=s decision, or only slightly influenced it, we conclude Fultcher=s substantial rights were not affected.  Therefore, any error was harmless.

We overrule Fultcher=s first issue.

* * *

For the foregoing reasons, we affirm the trial court=s judgment.

/s/      Jeffrey V.  Brown

Justice

Panel consists of Justices Frost, Brown, and Boyce.

Do Not Publish C Tex. R.  App.  P.  47.2(b).

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^[1]  Several investigators testified that information from PublicData.com is frequently used for fraudulent purposes such as identity theft and the use of stolen credit cards or checks.

^[2]  The Texas legislature amended section 32.51(b) in 2007, making several changes.  See Act of May 22, 2007, 80th Leg., ch. 631, ' 1, eff. Sept. 1, 2007.  Because these changes were made after the date of the offense at issue, we will apply the prior version of the statute.