                                 NOS. 12-16-00087-CR
                                      12-16-00088-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

ANTHONY MATHEW LUJAN,                            §      APPEALS FROM THE 244TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      ECTOR COUNTY, TEXAS

                                  MEMORANDUM OPINION
         Anthony Mathew Lujan appeals from his convictions for forgery by passing. In one
issue, he challenges the legal sufficiency of the evidence to support his convictions. We affirm.


                                         BACKGROUND
         The State charged Appellant with passing two forged checks. Appellant pleaded “not
guilty” to both offenses. At trial, Kevin Myers testified that his truck, which contained his
checkbook, was stolen shortly before August 15, 2014. Detective Wilma Rodriguez with the
Odessa Police Department testified that when Myers’s vehicle was recovered, some checks were
missing. She testified that a man named Stephen Winje attempted to cash one of the checks, and
claimed he received the check from his friend, Edward Palomino, and Palomino’s Uncle “Steel.”
Myers testified that another individual was found in possession of a firearm stolen from his truck
and tried to pass one of the missing checks. Detective Rodriguez testified that she could not
develop any leads from this information. At some point, Myers brought her copies of checks that
had either been passed or attempted to be passed, including two that named Appellant as the
payee.
       Gustavo Hernandez, a teller at Wells Fargo Bank at the time of the offense, testified that
Appellant attempted to cash a check for $2,500 on August 14, 2014. Appellant did not have an
account with the bank. Hernandez noticed that the signature on the check did not match the
signature that the bank had on file. Because there was an alert on Myers’s account, Hernandez
asked Appellant to wait while he verified the signature on the check. Appellant was initially
calm. But when Hernandez told Appellant that the system was taking a while to verify the
check, Appellant reached over the counter, took the check and his identification, and left the
bank without cashing the check. According to Detective Rodriguez, however, the check was
cashed at Wells Fargo on August 18.
       Kelton Smith testified that he owns N-N Out, a convenience and check cashing store.
Holly Wimberly, a check cashier for N-N Out, testified that Appellant entered the store on
August 15, 2014, to cash a $2,500 check and provided his identification, social security number,
and fingerprints. She described Appellant as “pretty calm.” Smith testified that he verified the
check. Wimberly then cashed the check and gave Appellant the cash. When the check was
returned for insufficient funds, Smith contacted Myers and learned that the check had been
stolen. Pat Harris, a crime scene technician for the Odessa Police Department, testified that
Appellant’s fingerprints matched those provided to N-N Out when he cashed one of the checks.
       Appellant testified that he is not guilty of forgery by passing. He explained that he
posted a sign inquiring about work, and a man he thought to be Myers contacted him. On
August 14, he and Sammy Martinez met with the man outside a convenience store. The man
gave them a business card and instructed them to pick up trash at three locations and take the
trash to the dump. It took several trips, totaling approximately eight hundred miles and ten to
eleven hours, and around $120 in dump fees to complete the job. This was the only job that
Appellant obtained as a result of posting the sign looking for work.
       On August 15, he and Martinez met the man to receive their paychecks. Appellant cashed
his check at N-N Out on August 15. On August 16, the man contacted Appellant to ask if he
would accept a second check in his name because Martinez did not have valid identification and
could not cash his check. On August 17, Appellant met the man to get the second check. He
cashed the check at Wells Fargo on August 18 and gave the cash to Martinez.
       Appellant testified that he did not know until trial that the man who gave him the checks
was not actually Myers. He also testified that he did not know that everything was a “sham.” He



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did not try to contact the fake “Myers” once he discovered that the checks had been forged. Nor
did he try to contact Martinez, who he heard had moved out of the area. Appellant testified that
he does not know or have any connections to the other individuals who were found in possession
of Myers’s stolen checks.
       Myers testified that he did not authorize, sign, or fill out the two checks. He further
testified that he has never had any personal or business dealings with Appellant and has never
written a check to Appellant. The jury found Appellant guilty of forgery by passing and assessed
punishment of confinement for two years in a state jail facility.


                                 SUFFICIENCY OF THE EVIDENCE
       In his sole issue, Appellant contends that the evidence is legally insufficient to support
his conviction because the evidence failed to establish that he (1) wrote on, altered, or marked on
the checks; and (2) knew the checks were forged, altered, or not authorized by Myers. Appellant
argues that he did nothing more than cash the checks.
Standard of Review and Applicable Law
       When reviewing the sufficiency of the evidence, we determine whether, considering all
the evidence in the light most favorable to the verdict, the jury was rationally justified in finding
guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony.
Id. We give deference to the jury’s responsibility to fairly resolve evidentiary conflicts, weigh
the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper v. State,
214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct
evidence in establishing the accused’s guilt. Id.
       A person commits an offense if he forges a writing with intent to defraud or harm
another. TEX. PENAL CODE ANN. § 32.21(b) (West 2011). “Forge” means to alter, make,
complete, execute, or authenticate a writing that purports to be the act of another who did not
authorize the act. Id. § 32.21(a)(1)(A)(i). Forgery by passing occurs when, with intent to
defraud or harm another, a person issues, transfers, registers the transfer of, passes, publishes, or
otherwise utters a forged writing.       Id. § 32.21(a)(1)(B).      Intent may be established by
circumstantial evidence. Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985). The
culpable mental state requires proof of knowledge that the instrument is forged. Id.



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Analysis
       That Appellant did not alter or otherwise mark on the checks is irrelevant. Appellant
need not be the actual maker of the checks in order to be guilty of forgery by passing. See
McFarland v. State, 605 S.W.2d 904, 907 (Tex. Crim. App. 1980).           The jury heard evidence
that Myers’s checks were stolen, two of the stolen checks were made out to Appellant for a large
amount of money, and Appellant passed the two checks within days of the checks being stolen.
The record shows that there is no connection between Appellant and Myers, and Myers did not
authorize or sign the checks. Evidence that the checks were signed and cashed without Myers’s
authority is prima facie evidence that the checks were forged. See Anderson v. State, 621
S.W.2d 805, 808 (Tex. Crim. App. 1981); see also Huntley v. State, 4 S.W.3d 813, 814 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d); Choice v. State, 883 S.W.2d 325, 329 (Tex. App.—
Tyler 1994, no pet.).
       The jury also heard evidence that when Wells Fargo attempted to verify one of the
checks, Appellant took the check and left the bank without cashing it. The jury could infer from
this behavior that Appellant was concerned by the delay in verification of the check because he
knew the checked was forged. Appellant’s use of different locations to cash the checks also
gives rise to an inference that he chose to do so in an effort to avoid arousing suspicion. The jury
was entitled to infer Appellant’s intent or knowledge from his acts, words, and conduct,
including any behavior designed to avoid detection. See Hart v. State, 89 S.W.3d 61, 64 (Tex.
Crim. App. 2002); see also Garcia v. State, 630 S.W.2d 303, 305 (Tex. App.—Houston [1st
Dist.] 1981, no pet.).
       As sole judge of the weight and credibility of the evidence, the jury bore the burden of
resolving any conflicts in the evidence and deciding which testimony to believe. See Brooks,
323 S.W.3d at 899; see also Hooper, 214 S.W.3d at 13. In doing so, the jury was entitled to
reject Appellant’s explanation as to how he came into possession of the checks. See Brooks, 323
S.W.3d at 899; see also Hooper, 214 S.W.3d at 13. As evidenced by its verdict, the jury did not
believe Appellant’s testimony and, rather, believed that he knew the checks were forged.
Viewing the evidence in the light most favorable to the verdict, the jury was rationally justified




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in finding Appellant guilty of forgery by passing beyond a reasonable doubt. See Brooks, 323
S.W.3d at 899. We overrule Appellant’s sole issue.


                                                   DISPOSITION
         Having overruled Appellant’s sole issue, we affirm the trial court’s judgments.

                                                                 JAMES T. WORTHEN
                                                                    Chief Justice

Opinion delivered August 31, 2016.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)




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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           AUGUST 31, 2016


                                         NO. 12-16-00087-CR


                                  ANTHONY MATHEW LUJAN,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 244th District Court
                            of Ector County, Texas (Tr.Ct.No. C-44,919)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                           AUGUST 24, 2016


                                         NO. 12-16-00088-CR


                                  ANTHONY MATHEW LUJAN,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                Appeal from the 244th District Court
                            of Ector County, Texas (Tr.Ct.No. C-44,920)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
