Credit Card Skimmers, how much evidence is enough? Herrera v. State

Herrera v. State, No. 12-22-00047-CR, 6 (Tex. App. Apr. 28, 2023) is a Texas criminal case that involves the charge of unlawful interception of electronic communications. The issue at hand was whether the evidence presented was sufficient to convict the defendant when there was no direct link, such as fingerprints or DNA, connecting him to the credit card skimmer or gas pump.

The court held that the evidence was indeed sufficient. The jury's verdict was not based on mere speculation but rather on reasonable inferences drawn from the evidence. The prosecution presented several pieces of circumstantial evidence, including evidence found on the defendant's phone and truck, suggesting his involvement in skimming activity. Additionally, the defendant was observed opening a gas pump where a skimmer had been discovered earlier, removing the credit card reader board, and inspecting the pump, which indicated an attempt to locate the skimmer and intercept electronic communications.

The court emphasized that the defendant's knowledge of how to access the CRIND board in a gas pump was highly specialized, further supporting the inference of his involvement in skimming activity. The defendant argued that individual facts were speculative and insufficient to establish skimming activity, but the appellate court rejected this argument. Instead, the court considered the evidence as a whole and distinguished between reasonable inferences drawn from the facts and mere speculation or guessing about their meaning.

From a criminal defense perspective, this case highlights the importance of considering the cumulative effect of circumstantial evidence and the distinction between reasonable inferences and mere speculation. Despite the lack of direct physical evidence linking the defendant to the crime, the court found that the combination of various pieces of evidence provided a sufficient basis for the conviction.

"We cannot agree with Appellant that the jury's verdict here is based on mere speculation. The jury could reasonably infer that Appellant was involved in skimming activity from the evidence recovered from his phone and truck. The jury could reasonably infer from other evidence that Appellant lied to the police officers about what he was 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 infer that when Appellant opened a gas pump where a skimmer was discovered four days prior, pulled out the 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 electronic communications. See TEX. PENAL CODE ANN. § 16.02(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 sole issue."

Herrera v. State, No. 12-22-00047-CR, 6 (Tex. App. Apr. 28, 2023)