                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-14-00309-CR


DAVID KITZMILLER                                                        APPELLANT

                                          V.

THE STATE OF TEXAS                                                            STATE


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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. F-2013-0272-B

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                         MEMORANDUM OPINION1

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                                   I. Introduction

      In three issues, Appellant David Kitzmiller appeals his conviction for

forgery, asserting (1) the evidence is insufficient to sustain his conviction, (2) the

trial court abused its discretion when it denied his motion for directed verdict, and




      1
       See Tex. R. App. P. 47.4.
(3) the trial court abused its discretion when it denied his motion to suppress.

We affirm.

                                 II. Background

      In December 2012, Denton Police Detectives Terry Brooks and Chris

Murphy were engaged in a hotel interdiction2 at the Royal Hotel Suites in Denton,

when, according to Detective Brooks, they received information that Room 249

was experiencing a high volume of foot traffic.       The room was registered to

Ashley Howard.     As a result of a check for outstanding warrants, Detective

Brooks received confirmation of an outstanding warrant for Howard from Bell

County.

      The detectives proceeded to Room 249 and knocked on the door.                A

female answered and identified herself as Ashley Howard, whereupon Detective

Brooks informed her that there was a warrant out for her arrest and asked if they

could come inside the room. Howard acquiesced. Detective Brooks testified that

as soon as he entered the room, he smelled a burnt odor of marijuana, so he

inquired if there was anyone else in the room. Howard replied in the affirmative

and pointed toward the bedroom, which was located further down a hallway. As




      2
         Detective Brooks testified that hotel interdictions involve routine stops at
local hotels that are “hotspots for narcotics and prostitution.” The officers speak
to hotel employees, including managers and maintenance workers, and
investigate reports of suspicious activity and complaints in an effort to minimize
illegal activity.


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part of a “protective sweep,” Detective Brooks entered the bedroom.3               As

Detective Brooks entered the bedroom, he observed Kitzmiller standing a few

feet away. While speaking with Kitzmiller, Detective Brooks continued to scan

the room for any other potential threats. Approximately three or four feet from

where Kitzmiller stood, Detective Brooks noticed a Hewlett-Packard printer on

the nightstand. The printer contained a piece of paper in its paper tray with what

appeared to be counterfeit U.S. currency printed on it.4

      Detective Brooks described the paper as “odd” with “several bills . . . on

one sheet of paper . . . several U.S. currency bills.” Specifically, on one side of

the paper, a ten-dollar bill and three twenty-dollar bills were depicted.        The

backside of the paper was blank. Sitting next to the printer was a package of

linen paper similar to the paper onto which the images of money had been

photocopied.

      Detective Brooks then performed a consensual search of Kitzmiller and

discovered a ten-dollar bill and three twenty-dollar bills taped together in his right

front pocket. The serial numbers of the bills in Kitzmiller’s pocket were identical

      3
         Detective Murphy explained that a protective sweep is routinely performed
when officers enter a residence to execute a warrant. Its purpose is to ensure
that there is no additional threat somewhere else in the dwelling. He explained,
“You don’t want to put your hands on somebody in a residence and try to go
arrest them if there’s a threat that could possibly come from somewhere
else . . . . That’s why we do a protective sweep to make sure there’s nobody else
around to do harm to other officers.”
      4
       Detective Brooks testified that the paper was in the tray where printed
paper emerges from the machine.


                                          3
to those in the printer tray.      When Detective Brooks inquired about the

photocopied currency, Kitzmiller expressed shock and disbelief that someone

had apparently paid him with counterfeit money.5 Fingerprints that were found on

the photocopied money matched Kitzmiller’s.

      The jury found Kitzmiller guilty of the offense of forgery, assessed his

punishment    at   two   years’   confinement,   and    recommended      community

supervision. Based on the jury’s recommendation, the judge placed Kitzmiller on

community supervision for two years.

               III. Sufficiency and Motion for Instructed Verdict

A. Standard of Review

      A challenge to the denial of a motion for instructed verdict is actually a

challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690,

693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003). Therefore, we will

review Kitzmiller’s first and second issues together.

      In our due-process review of the sufficiency of the evidence to support a

conviction, we view all of the evidence in the light most favorable to the verdict to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.



      5
       Detective Brooks testified, “He had a shocked look. He said, ‘I can’t
believe – or, who paid me with counterfeit money?,’ is what his reply was.”
Detective Brooks further testified that he did not find Kitzmiller’s display of shock
to be genuine.


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307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170

(Tex. Crim. App. 2014).

      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434

S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we

may not re-evaluate the weight and credibility of the evidence and substitute our

judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.

Crim. App. 2010). Instead, we determine whether the necessary inferences are

reasonable based upon the cumulative force of the evidence when viewed in the

light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.

Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.

2013). We must presume that the factfinder resolved any conflicting inferences

in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99

S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.

      We measure the sufficiency of the evidence by the elements of the offense

as defined by the hypothetically correct jury charge for the case, not the charge

actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing

Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.

State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of

the crime are determined by state law.”). Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily restrict




                                        5
the State’s theories of liability, and adequately describes the particular offense for

which the defendant was tried. Byrd, 336 S.W.3d at 246.

      The law as authorized by the indictment means the statutory elements of

the charged offense as modified by the factual details and legal theories

contained in the charging instrument. See Daugherty v. State, 387 S.W.3d 654,

665 (Tex. Crim. App. 2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex.

Crim. App. 2014) (“When the State pleads a specific element of a penal offense

that has statutory alternatives for that element, the sufficiency of the evidence will

be measured by the element that was actually pleaded, and not any alternative

statutory elements.”).

B. Applicable law

      In this case, Kitzmiller committed the offense if the evidence shows,

beyond a reasonable doubt, that he “forge[d] a writing with intent to defraud or

harm another.”    See Tex. Penal Code Ann. § 32.21(b) (West 2011).              Here,

“forge” means to possess a writing that is altered or made so that it purports to

be the act of another who did not authorize that act, id. § 32.21(a)(1)(A)(i), with

the intent to utter or pass such writing, id. § 32.21(a)(1)(B), (C).      A “writing”

includes money. Id. § 32.21(a)(2)(B).

C. Analysis

      In his first issue, Kitzmiller asserts that the State failed to prove every

element of the indictment. Specifically, he argues that the State failed to prove

that (1) the United States Government did not authorize him to make the


                                          6
currency, (2) Kitzmiller forged the currency, or (3) Kitzmiller possessed the

photocopied currency with the intent to defraud or harm another.

      1. Authorization

      Kitzmiller first argues that “expert testimony” was required to prove that the

Secretary of the United States Department of the Treasury did not give him the

authority to photocopy U.S. currency.         Specifically, he asserts that the State

needed to have either a Secret Service agent or someone from the U.S.

Department of Treasury testify that Kitzmiller was not authorized to make the

currency.

      “Circumstantial evidence is as probative as direct evidence in establishing

the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In

this case, the facts are as follows: (1) The officers found Kitzmiller in a hotel that

was known for crime; (2) Kitzmiller was standing a few feet from a home printer

containing a piece of paper with U.S. currency photocopied onto it on one side;

(3) Kitzmiller’s fingerprints were on the photocopied page; (4) a box of linen

paper matching the paper in the printer tray was located beside the printer; (5)

Kitzmiller possessed valid currency taped together in his pocket; (6) the serial

numbers of the taped currency matched the serial numbers of the photocopied

currency; and (7) the surroundings did not appear to be those of a legitimate

printing operation.




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      A juror is not required to check his or her common sense at the door. See

Wright v. State, 571 S.W.2d 24, 25 (Tex. Crim. App. [Panel Op.] 1978) (holding

that jury charges need not define phrases that are commonly understood that

present a fact issue); Anderson v. State, 414 S.W.3d 251, 256 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d) (stating that jurors must use their common

sense in determining whether proof beyond a reasonable doubt has been met);

Perkins v. State, 394 S.W.3d 203, 209 (Tex. App.—Houston [1st Dist.] 2012, pet.

ref’d) (stating that jurors were permitted to rely on their common sense to

conclude that images of a teenage girl—who had undressed in the belief that she

had privacy in the bathroom—“were created and preserved to appeal to deviant

and voyeuristic interests of the viewer, and thus the images are intended or

designed to elicit a sexual response”). To the contrary, jurors are free to use

their common sense and apply common knowledge, observation, and experience

gained in the ordinary affairs of life when giving effect to the inferences that may

reasonably be drawn from the evidence. Boston v. State, 373 S.W.3d 832, 837

(Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013); Obigbo

v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no pet.) (“Appellant’s

insurance claim defies common sense and ordinary life experience.”). In using

their common sense, jurors are not required to ignore commonly-understood

concepts, such as the presence and purpose of serial numbers on currency—or

other everyday items such as appliances and electronics—to uniquely identify a

particular item. See, e.g., Bollinger v. State, 224 S.W.3d 768, 777 (Tex. App.—


                                         8
Eastland 2007, pet. ref’d) (“The serial numbers on the guns in Bollinger’s truck

were the same as the serial numbers on the guns Davis reported stolen.”).

Therefore, a reasonable juror could have inferred that because Kitzmiller was in

a hotel room photocopying U.S. currency—each note of which bore a unique

serial number—onto linen paper on a home-printer, that he did not have

authorization from the U.S. Government to engage in that activity.         See 12

U.S.C.A. § 413 (West 2014) (directing that “[f]ederal [r]eserve notes shall bear

upon their faces a distinctive letter and serial number”); 31 U.S.C.A. § 5114

(West 2003 & Supp. 2014) (authorizing the U.S. Secretary of the Treasury to

engrave and print United States currency on “distinctive paper”).

      2. Forgery

      Kitzmiller argues next that the State failed to prove the element of actual

forgery as defined by the statute.       Specifically, he asserts that evidence

consisting only of one-sided photocopied currency is insufficient to prove forgery,

a necessary element to support his conviction.

      “[T]he fact that an instrument does not appear to create a legal obligation,

or otherwise apparent validity, no longer precludes prosecution for forgery.”

Graham v. State, 693 S.W.2d 29, 30 (Tex. App.—Houston [14th Dist.] 1985, no

pet.); see also Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. 1978)

(holding that there was no requirement to prove that a check was a valid

obligation because the offense of forgery “does ‘not require that the instrument in

writing be such as to create, increase, diminish, discharge or defeat pecuniary


                                        9
obligation’”) (citation omitted). Like here, the issue in Graham was whether the

one-sided bills were writings, as defined by the statute, which purported to be an

act of the United States Government. The appellate court affirmed the conviction

and, in doing so, held that they were. 693 S.W.2d at 30. Therefore, the one-

sided photocopied bills were sufficient to support Kitzmiller’s conviction. See id.

      3. Possession with Intent to Defraud

      Kitzmiller further argues that the State failed to prove the intent-to-defraud

element. He argues that since the only evidence presented to the jury was that

Kitzmiller was found with the one-sided photocopied money, which was located

in a nearby printer tray, the State proved mere possession, which he contends is

insufficient to prove intent to defraud.

      “In the case of forgery, the culpable mental state”—i.e., intent to defraud or

harm—“requires proof of knowledge that the instrument is forged.” Williams v.

State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985) (en banc). This knowledge,

and the intent that is inferred from it, may be established by circumstantial

evidence. See id.

      Here, when the detectives asked Kitzmiller about the photocopied

currency, he acted shocked and made a nonsensical comment about someone

paying him with counterfeit money. See Johnson v. State, 425 S.W.3d 516, 520

(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (listing as one of the

circumstances that courts have found probative of intent to defraud is when the

defendant gives a false explanation of how he possessed the financial


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instrument); cf. Stuebgen v. State, 547 S.W.2d 29, 32 (Tex. Crim. App. 1977)

(holding evidence of forgery insufficient when record reflected that appellant

made no statement from which it could be inferred that he knew the instrument

was forged). The officers found the valid currency from which the photocopied

currency had been duplicated in Kitzmiller’s pocket, and his fingerprints appeared

on the photocopied money. We hold that this constitutes sufficient evidence to

prove that Kitzmiller had photocopied valid U.S. currency. A reasonable juror

could infer from these facts that Kitzmiller was both aware that the money on the

printer was forged and also that Kitzmiller intended to defraud with the forged

currency. See Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.—Houston [1st

Dist.] 1999, pet. ref’d) (op. on reh’g) (“The intent to defraud or harm another in a

forgery case can be inferred if the State proves an actor has knowledge that the

check is forged.”); see also Lopez v. State, No. 13-08-00732-CR, 2010 WL

1115671, at *6 (Tex. App.—Corpus Christi Mar. 25, 2010, no pet.) (mem. op., not

designated for publication) (pointing out that proof of intent to defraud is

derivative of the other elements in a forgery case; it can be inferred if the State

proves that the defendant knew that the writing in question was forged); cf.

Johnson, 425 S.W.3d at 521–22 (concluding that intent-to-defraud element could

not be inferred from appellant’s lack of explanation for his possession and

presentment of money order).6 Because we hold that a rational jury could have


      6
      A jury convicted Johnson of forgery of a money order. Johnson, 425
S.W.3d at 517. The evidence showed that the complainant had purchased a

                                        11
found beyond a reasonable doubt all the elements of forgery, we overrule

Kitzmiller’s first and second issues.

                              IV. Motion to Suppress

        In his third issue, Kitzmiller asserts that the police lacked specific,

articulable facts to believe that he posed a threat or danger to them or anyone

else.

A. Standard of Review

        We review a trial court’s ruling on a motion to suppress evidence under a

bifurcated standard of review.     Amador v. State, 221 S.W.3d 666, 673 (Tex.

Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).

We give almost total deference to a trial court’s rulings on questions of historical


money order from Western Union to pay rent; her apartment complex was listed
as the payee and the complainant’s name and address were listed on the
“purchaser” line. Id. at 518. The complex never received the money order, and
the copy of the money order provided by Western Union reflected that both the
purchaser and payee lines had been altered; the complainant’s name had been
replaced with “Shoust,” and the payee’s name had been replaced with Johnson’s
name. Id. The complainant testified that she did not know Johnson and had not
authorized him or anyone else to alter the money order. Id. The investigating
police officer testified that he did not try to locate or identify Shoust or to contact
or interview Johnson to ask him how he came into possession of the money
order; he further testified that the results of his investigation showed only that
Johnson was the person who negotiated the money order but not that he was the
person who stole or altered it. Id. There was no testimony by Shoust to disclaim
a relationship with Johnson or any evidence indicating that Shoust might not
exist, and no evidence tying Johnson to the theft of the money order or its
alteration. Id. at 522, 524. In light of the complete absence of evidence about
the payor on the forged money order, the court concluded that the evidence was
insufficient to find intent to defraud and reversed the trial court’s judgment of
conviction. Id. at 524.


                                          12
fact and application-of-law-to-fact questions that turn on an evaluation of

credibility and demeanor, but we review de novo application-of-law-to-fact

questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at

673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.

State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).

B. Analysis

      The court of criminal appeals has stated that

      [w]hen conducting an in-home arrest, a police officer may sweep the
      house only if he possesses an objectively reasonable belief, based
      on specific and articulable facts, that a person in that area poses a
      danger to that police officer or to other people in the area. As the
      Supreme Court also concluded, this sweep must stay within the
      appropriate scope and may last long enough to “dispel the
      reasonable suspicion of danger.”

Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).

      The detectives testified to the following facts: (1) the hotel was a known

haven of illegal activity; (2) the detectives had received a report of high foot traffic

coming out of that specific room; (3) Howard, to whom the room was registered,

had an outstanding warrant for her arrest; (4) Howard gave the detectives

consent to enter the room; (5) one of the detectives smelled burnt marijuana; (6)

based on Howard’s warrant and the reported foot traffic, the detectives were

concerned that Howard was involved in illegal activity; (7) Howard informed the

detectives that another individual was in the bedroom; (8) the detectives did not

search through drawers, cabinets, or underneath anything; and (9) the




                                          13
photocopied money, printer, and linen paper were all in plain view when the

officers entered the room.

       Given the circumstances in this case, we hold that the detectives

possessed an objectively reasonable belief that the person Howard referred to as

in the bedroom could have posed a danger to the detectives and that they

therefore were justified in performing a protective sweep. For that reason, the

trial court did not err by denying Kitzmiller’s motion to suppress, and we overrule

Kitzmiller’s third issue.

                                 V. Conclusion

       Having overruled all of Kitzmiller’s issues, we affirm the trial court’s

judgment.

                                                   /s/ Bonnie Sudderth
                                                   BONNIE SUDDERTH
                                                   JUSTICE

PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: July 23, 2015




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