                                                                              PD-0070-15
                                                             COURT OF CRIMINAL APPEALS
                                                                             AUSTIN, TEXAS
                                                           Transmitted 6/12/2015 12:14:48 PM
 June 15, 2015
                                                              Accepted 6/15/2015 7:50:14 AM
                                                                              ABEL ACOSTA
                             No. PD-0070-15                                           CLERK

                 TO THE COURT OF CRIMINAL APPEALS

                       OF THE STATE OF TEXAS



DONALD LYNN RAMSEY                                                Appellant
a/k/a DONALD LYNN RAMSAY,

v.

THE STATE OF TEXAS,                                                Appellee


                       Appeal from Swisher County


                               * * * * *

                   STATE’S BRIEF ON THE MERITS

                               * * * * *


                            LISA C. McMINN
                        State Prosecuting Attorney
                          Bar I.D. No. 13803300

                        STACEY M. GOLDSTEIN
                    Assistant State Prosecuting Attorney
                           Bar I.D. No. 24031632

                              P.O. Box 13046
                           Austin, Texas 78711
                        information@spa.texas.gov
                        512-463-1660 (Telephone)
                            512-463-5724 (Fax)
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL

*   The parties to the trial court’s judgment are the State of Texas and Appellant,
    Donald Lynn Ramsey a/k/a Donald Lynn Ramsay.

*   The trial Judge was Hon. Edward Lee Self.

*   Counsel for the State at trial and before the Court of Appeals was Swisher
    County Attorney J. Michael Criswell, 119 South Maxwell, Tulia, Texas 79088.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin,
    Texas 78711.

*   Counsel for Appellant at trial was Tina Davis-Rincones, 109 East 6th Street,
    Plainview, Texas 79072.

*   Counsel for Appellant before the Court of Appeals was Troy Bollinger, 600
    Ash Street, Plainview, Texas 79072.
                                       TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

ISSUE PRESENTED.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Does an appellate court give proper deference to a jury’s forgery finding of
intent to defraud or harm when it fails to consider the totality of the evidence
and rational inferences therefrom?

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3-4

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-11

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14




                                                         i
                                   INDEX OF AUTHORITIES

Cases

Critteden v. State. 671 S.W.2d 527 (Tex. Crim. App. 1984).. . . . . . . . . . . . . 10 n.3

Evans v. State, 202 S.W.3d 158 (Tex. Crim. App. 2006). . . . . . . . . . . . . . . . . . . 7-8

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-6

Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . . 7

Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . 6

Ramsey v. State, No. 07-14-00249-CR, 2014 Tex. App. LEXIS 13519 (Tex.
App.—Amarillo Dec. 17, 2014) (not designated for publication).. . . . . . . . passim

Stuebgen v. State, 547 S.W.2d 29 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . 8-9

Williams v. State, 688 S.W.2d 486 (Tex. Crim. App. 1985).. . . . . . . . . . . . . . . . . . 8

Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . 10 n.2

Statute

TEX. PENAL CODE § 32.21(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6




                                                      ii
                               No. PD-0070-15

                 TO THE COURT OF CRIMINAL APPEALS

                         OF THE STATE OF TEXAS


DONALD LYNN RAMSEY                                                      Appellant
a/k/a DONALD LYNN RAMSAY,

v.

THE STATE OF TEXAS,                                                     Appellee



                         Appeal from Swisher County


                                  * * * * *

                    STATE’S BRIEF ON THE MERITS

                                  * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State Prosecuting Attorney respectfully presents her Brief on the Merits.

            STATEMENT REGARDING ORAL ARGUMENT

     The Court did not grant oral argument.




                                       1
                         STATEMENT OF THE CASE

      A jury convicted Appellant of forgery of a check by passing, enhanced because

it was committed against an elderly person, and sentenced him to six years’

imprisonment and assessed a $1,000 fine. The court of appeals, over a dissent,

reversed and entered a judgment of acquittal, holding that the evidence was

insufficient to show intent to defraud or harm. Ramsey v. State, No. 07-14-00249-

CR, 2014 Tex. App. LEXIS 13519, at *6 (Tex. App.—Amarillo Dec. 17, 2014) (not

designated for publication).

                               ISSUE PRESENTED

Does an appellate court give proper deference to a jury’s forgery finding of
intent to defraud or harm when it fails to consider the totality of the evidence
and rational inferences therefrom?

                           STATEMENT OF FACTS

Background

      Eighty-four-year-old Jimmie Owens and his son Jed owned Owens Motor

Machine. 1 RR 131. Appellant worked for the Owens’ for four to five months and

lived at the business’s shop. 1 RR 103, 133. Jed typically parked his work-truck

inside the shop in the evenings and left it unlocked. 1 RR 134-35. Jed kept the

business’s checkbook in an inside pocket on one of the truck’s doors. 1 RR 127, 134.

Both Jimmie and Jed were signatories on the account. 1 RR 120, 131, 133-34.


                                         2
Jimmie was listed as “J.E. Owens,” and Jed was listed as “J.J. Owens.” 1 RR 121,

123, 132, 136. Jimmie usually signed checks as “J.E. Owens,” but sometimes signed

as “Jimmie E. Owens.”1 1 RR 123-24, 136. Jimmie always paid Appellant by check

and included the notation “contract labor” on the memo line. 1 RR 125, 127. The

Owens had previously given a nearby liquor store permission to cash Appellant’s

paychecks. 1 RR 150.

      In June 2013, Appellant tendered a $65 check payable to him from the Owens

Motor Machine account to the liquor store. 1 RR 151-52. Some of the money was

used for goods, and the remainder was given to Appellant as change. 1 RR 151-52.

The signature on the check read “Jim E. Owens,” and “Contract Labor” was written

in the memo line. 1 RR 135; State’s Exhibit 2.

      Neither Jimmie nor Jed had signed or issued the check to Appellant. 1 RR 124,

136. Jed testified that Appellant was their only employee in June 2013, as well as the

preceding six months. 1 RR 136. He also believed that, with the exception of his

father, Appellant was the only other person to have access to his truck. 1 RR 136-38.

Jed acknowledged that other people sometimes stopped by the shop but stated that

they typically just called him. 1 RR 139-40.



  1
    Jimmie also explained that he signed checks with “Jimmie Owens” a long time
ago. 1 RR 129.
                                          3
Court of Appeals

      A majority of the court of appeals held that the State failed to prove that

Appellant intended to defraud or harm because there was no evidence that Appellant

knew the check was forged. Ramsey, 2014 Tex. App. LEXIS 13519, at *6. It

required evidence of the number of checks previously written and the name appearing

on the signature line before a jury could “logically” infer that Appellant knew

whether the signature was fake or genuine. Id. at *7. The majority also concluded

that Appellant’s knowledge of the forgery cannot be inferred from the fact that it was

not signed “J.E. Owens.” Id. at *6. Jimmie testified that he signed checks using

“Jimmie Owens” and “Jimmie E. Owens.” Id.

      The dissent maintained that the evidence circumstantially established Appellant

knew the check was forged. Id. at *12-13 (Prible, J., dissenting). When Appellant

passed the check noting “Contract Labor” he inferentially represented it was given

for services rendered, but the evidence showed that it was not. Id. at *12. Further,

Appellant had access to the checkbook and passed it at a place he knew it would be

honored. Id.




                                          4
                      SUMMARY OF THE ARGUMENT

      The court of appeals erred to find the evidence insufficient to prove that

Appellant, in passing a forged check, had the intent to defraud or harm because there

was no evidence he knew it was forged. The evidence, in fact, established the

contrary. He was the beneficiary, he had unlimited access to the checkbook, there

was no evidence of an alternative perpetrator, the writing showed familiarity with the

payor’s customary style while slight deviations from that style showed it was fake,

and Appellant passed it at a store where he knew it would not be questioned. Even

if Appellant was not the forger, knowledge that it was a forgery was proven by the

fact that the money was for work he knew he never performed.

                                   ARGUMENT

      The court of appeals’ consideration of the facts, and reasonable inferences

drawn therefrom, was severely deficient. As a result, it failed to give proper

deference to the jury’s determination that Appellant knew the check was forged.

      When reviewing the sufficiency of the evidence, all of the evidence is

considered in the light most favorable to the verdict to determine whether, based on

that evidence and the reasonable inferences therefrom, the factfinder was justified in

finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979). The factfinder is the sole judge of credibility and weight given to the

                                          5
evidence and is permitted to draw multiple reasonable inferences from facts when

supported by the evidence Id. at 319. When there are conflicting inferences, it must

be presumed that the factfinder resolved them in favor of the verdict. Id. at 326.

      The offense of forgery includes the elements of intent to defraud or harm

another. TEX. PENAL CODE § 32.21(b). Proof of those elements is established by

showing that the actor knew the writing was forged. Okonkwo v. State, 398 S.W.3d

689, 695 (Tex. Crim. App. 2012).

      Giving proper deference to the jury’s guilty verdict, the State satisfied its

burden to prove that Appellant knew the check was forged because the evidence

firmly established that Appellant stole the check, made it out to himself, and signed

Jimmie’s name.

      First, Appellant was the beneficiary. There is no evidence that anyone else

would be motivated to forge a check on his behalf.

      Second, Appellant had unlimited access to the checkbook because he lived in

the shop where it was kept in an unlocked truck. And, although it was not necessary

to disprove an alternative reasonable hypothesis, the evidence does not support any

alternative perpetrator. Though other employees had been in Jed’s truck before,

Appellant was the Owens’ only employee in the four to six months before the check

was passed. 1 RR 139-40. Jed also testified that most people called him instead of

                                         6
stopping by the shop. 1 RR 139-40. And because he stored the truck in the shop

overnight, the likelihood that persons who entered the shop during business hours had

access to the truck is slight. 1 RR 134-35.

      The forged check was close enough to show familiarity but imprecise enough

to show it was forged. Having received checks from Jimmie in the past, Appellant

knew the specific manner in which his paychecks were issued. Thus, it included the

particular memo-line notation “Contract Labor.” But the use of “Jim E. Owens” for

the signature, a style that was never used by Jimmie when issuing checks, confirms

Jimmie’s testimony that it was not genuine.

      The absence of evidence of “a description of the number of checks previously

written to appellant and the particular name appearing on the signature line” is not

fatal, as the majority stated. Ramsey, 2014 Tex. App. LEXIS 13519, at *7.

According to the majority, such evidence was “necessary” before jurors could

logically infer that Appellant knew the signature on the check at issue was fake. Id.

However, the State’s theory all along had been that Appellant knew the signature was

fake because he signed it himself. Furthermore, reviewing courts are prohibited from

speculating about what evidence was not presented at trial as a means to overturn a

jury’s verdict. See Merritt v. State, 368 S.W.3d 516, 520 (Tex. Crim. App. 2012);

Evans v. State, 202 S.W.3d 158, 164 (Tex. Crim. App. 2006). Sufficiency is to be

                                          7
assessed based on the evidence in the record and “juries trump both trial and appellate

judges on weight-of-evidence determinations.” Evans, 202 S.W.3d at 164.

      Appellant’s choice of venue for cashing the check is also consistent with his

forgery scheme. As the court of appeals’ dissent observed, he cashed it at the liquor

store because he knew it would be honored without scrutiny. Ramsey, 2014 Tex.

App. LEXIS 13519, at *12 (Prible, J., dissenting).

        Finally, even if the evidence did not show that Appellant was the forger, it

nonetheless showed he knew it was forged. As the dissent observed, Appellant did

not actually do any work for the Owens’ to warrant payment, so the “windfall”

payment for his labor is inexplicable, as is his acceptance of payment of it. Ramsey,

2014 Tex. App. LEXIS 13519, at *12 (Prible, J., dissenting); see also Williams v.

State, 688 S.W.2d 486, 490 (Tex. Crim. App. 1985) (intent to defraud or harm was

shown, in part, by the defendant’s statement that he had received the check for work

performed when in fact the check had been stolen (i.e., clearly not for work

performed)).

This Court’s Pre-Jackson Case of Stuubgen is Inapposite

      The majority also erred to conclude that this case is controlled by Stuebgen v.

State, 547 S.W.2d 29 (Tex. Crim. App. 1977). Ramsey, 2014 Tex. App. LEXIS

13519, at *4-6. As in this case, the appellant was convicted of forgery for passing a

                                          8
check belonging to his employer made payable to him with his employer’s forged

signature. Stuebgen, 547 S.W.2d at 31. This Court noted that the employer testified

that appellant had been his employee, he normally paid employees by check, he kept

the checkbook in his truck, and that three to five of his employees, including the

appellant, rode in the truck at the time the check was forged. Id. Finding the

evidence insufficient to show that the appellant knew the check was forged, the Court

stated:

       In the instant case, the record reflects that appellant made no statement
       from which it could be inferred that he knew the instrument was forged.
       Appellant was listed as the payee, and appellant did not falsely represent
       himself. No evidence was introduced to show that anything appearing
       on the check was in appellant’s handwriting. Although appellant had
       access to [his employer’s] checkbook, and [his employer] normally paid
       his employees personally, we do not find that this evidence is sufficient
       to discharge the State’s burden of showing that appellant acted with
       intent ‘to defraud or harm’ another.

Id. at 32.

       Stuebgen has no application here. First, it is a pre-Jackson v. Virginia-era case.

Therefore, Jackson’s ground rules about deferring to the jury’s resolution of the facts

was not yet established, and the Court did not apply such a standard on its own. In

fact, the Stuebgen Court appeared to apply the now-defunct, reasonable alternative




                                            9
hypothesis standard.2 Under Jackson—as applied today—it is likely that this Court

would reach the opposite conclusion.3

      Next, even if Stuebgen is regarded as good law, the quantum of evidence in this

case differs significantly from that in Stuebgen. Here, Appellant’s access to the

  2
     See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (the alternative
reasonable hypothesis standard is no longer applicable when reviewing legal
sufficiency).
  3
     It is likely that the Court would also reach a different outcome today in Critteden
v. State. 671 S.W.2d 527 (Tex. Crim. App. 1984). There, Crittenden presented a
local service station’s check, purporting to be issued by a local attorney, to be cashed
at local bank. Id. at 527. Noting the oddity, the bank called the service-station-
owner, who confirmed it was stolen. Id. The bank then called the police and, when
they arrived, Critteden told them the check had arrived in the mail earlier in the day
and that he thought it was part of his settlement for a case that the attorney had
pursued on his behalf. Id. The attorney denied this, stating that, although a
settlement had been reached, he had told Critteden he had not yet received the money.
Id. at 528.
         This Court held that the evidence was insufficient to show knowledge that the
check was forged:

      No evidence was introduced to show that anything appearing on the
      check was in appellant’s handwriting. There was no showing of any
      connection between the check stolen from the service station and
      appellant prior to the time he said he received it in the mail. Finally,
      appellant made no attempt to flee after his attempt to cash the check was
      thwarted.

Id.

      Because he check was stolen, Crittenden was the beneficiary, the check was
issued by his attorney, who did not even own the station, and Crittenden knew the
money was not for his share of the settlement, the evidence would be sufficient under
the Jackson standard.
                                          10
checkbook was nearly exclusive, as opposed to Stuebgen’s three to five employees.

Thus, there is no reasonable, alternative culprit here.4 Additionally, the evidence

strongly supports Appellant’s identity as the forger. There is a nexus between

Appellant and the check because of the obvious attempt to duplicate the unique

manner in which Jimmie issued Appellant’s paychecks.

Conclusion

       The facts and circumstances surrounding the passing of the check support the

finding that Appellant forged it himself and therefore intended to defraud or harm

Jimmie Owens. This Court should reinstate Appellant’s conviction.




   4
     And again, the reasonable, alternative culprit theory relied upon in Stuebgen
would be an improper application of the sufficiency standard today.
                                         11
                            PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant review and reverse the decision of the court of appeals.



                                       Respectfully submitted,

                                       LISA C. McMINN
                                       State Prosecuting Attorney
                                       Bar I.D. No.13803300

                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney
                                       Bar I.D. No. 24031632

                                       P.O. Box 13046
                                       Austin, Texas 78711
                                       information@spa.texas.gov
                                       512-463-1660 (Telephone)
                                       512-463-5724 (Fax)




                                         12
                     CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

this document contains 2,177 words, exclusive of the items excepted by TEX. R. APP.

P. 9.4(i)(1).




                                      /s/ STACEY M. GOLDSTEIN
                                      Assistant State Prosecuting Attorney




                                        13
                         CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on June 12, 2015, via certified electronic service provider to:



Hon. J. Michael Criswell
Swisher County Attorney
119 South Maxwell
Tulia, Texas 79088
swisherca@swisher-tx.org

Hon. Troy Bollinger
600 Ash Street
Plainview, Texas 79072
troy@laneybollinger.com



                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         14
