                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-09-00205-CR
                                No. 10-09-00206-CR
                                No. 10-09-00207-CR
                                No. 10-09-00208-CR

CHIMINH EDVON JOHNSON,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                        From the 82nd District Court
                             Falls County, Texas
                 Trial Court No. 8502, Trial Court No. 8503
                Trial Court No. 8504 and Trial Court No. 8505


                          MEMORANDUM OPINION


      These four cases involve identical issues and will therefore be decided together.

Four amended indictments charged Chiminh Edvon Johnson with the state-jail felony

offense of forgery of a financial instrument by passing. See TEX. PENAL CODE § 32.21(b),

(d) (Vernon Supp. 2010). A jury found Johnson guilty on the sole count in each of the

four cases and, based on the State’s enhancement allegations, assessed an eight-year
sentence and $2,000 fine in each case, and the trial court ordered the sentences to run

concurrently. Johnson raises three issues in this appeal.

                              Sufficiency of the Evidence

        We begin with the third issue in each case, which asserts that the evidence is

legally insufficient. Based on the four indictments’ allegations, Johnson was charged

with passing a forged writing, knowing such writing to be forged, with intent to

defraud or harm another. Id. § 32.21(a)(1)(B), (d). Johnson asserts that the evidence is

insufficient to show that he had knowledge that the four instruments were forged and

that he thus passed the instruments with intent to defraud or harm.

        When reviewing a challenge to the legal sufficiency of the evidence to establish

the elements of a penal offense, we must determine whether, after viewing all the

evidence in the light most favorable to the verdict, any rational trier of fact could have

found the essential elements of the offense beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). Our duty is to

determine if the finding of the trier of fact is rational by viewing all of the evidence

admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d

418, 422 (Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in

favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).

        In reviewing the sufficiency of the evidence, we should look at “events
        occurring before, during and after the commission of the offense and may
        rely on actions of the defendant which show an understanding and
        common design to do the prohibited act.” Each fact need not point
        directly and independently to the guilt of the appellant, as long as the
        cumulative force of all the incriminating circumstances is sufficient to
        support the conviction. Circumstantial evidence is as probative as direct

Johnson v. State                                                                    Page 2
        evidence in establishing the guilt of an actor, and circumstantial evidence
        alone can be sufficient to establish guilt.
        ...
               Under the Jackson test, we permit juries to draw multiple reasonable
        inferences as long as each inference is supported by the evidence
        presented at trial. However, juries are not permitted to come to
        conclusions based on mere speculation or factually unsupported
        inferences or presumptions.
        ...
               [C]ourts of appeals should adhere to the Jackson standard and
        determine whether the necessary inferences are reasonable based upon
        the combined and cumulative force of all the evidence when viewed in the
        light most favorable to the verdict.

Hooper v. State, 214 S.W.3d 9, 13, 15-17 (Tex. Crim. App. 2007) (citations omitted).

        Intent may be inferred from circumstantial evidence such as the acts, words, and

conduct of the defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).

Proof of intent to defraud or harm another requires proof of knowledge that the

instrument is forged. Palmer v. State, 735 S.W.2d 696, 697-98 (Tex. App.—Fort Worth

1987, no pet.) (citing Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985)). “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.” Huntley v. State, 4 S.W.3d 813, 814 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d) (op. on reh’g en banc) (citing Williams, 688

S.W.2d at 488). Circumstances that are “suspicious enough” can support an inference

that the actor had knowledge of the forgery. See Huntley, 4 S.W.3d at 815; see, e.g.,

Palmer, 735 S.W.2d at 698.

        The evidence viewed in the light most favorable to the verdict shows that C.L.

Moore, an 86-year-old lifelong resident of Marlin who had banked at Citizens State

Bank in Marlin for fifty-five years, received his monthly bank statement in September

Johnson v. State                                                                       Page 3
2007 and noticed that money was missing from his checking account. He examined the

photocopied checks that came with the bank statement and immediately noticed that

four checks were forged. Moore notified the bank of the forged checks, and the person

at the bank said she would begin an investigation.

        Each of the four checks was made payable to “Chiminh Johnson,” and they were

in the respective amounts of $575.00, $575.00, $375.00, and $575.00, for a total of

$2,100.00.    The memo line on three of the checks had the following respective

handwriting: “house repair,” “yard work/housekeeping,” and “repairs, etc.” The

handwritten notation on the $375.00 check was illegible. Moore identified each check as

his but said he did not write, sign, or authorize them. He believed he may have seen

Johnson, but Moore did not know him. He said that Johnson had never done any work

for him.

        Moore testified that he kept his checkbook in a drawer in his bedroom, the

checks had been torn out of his checkbook, but his checkbook had not been stolen. He

had not noticed that checks had been taken out of his checkbook until he received the

bank statement. He remembered that, around the time period of the checks, the lock on

the doorknob of his back door had been “jiggled.” Moore said that when he left his

home for a long period of time, he would lock his doors’ bolt-action locks and leave

through his garage, but if he were leaving for only a brief period, he would lock only

the back door’s doorknob lock.

        Kim Solomon testified that she has been Moore’s next-door neighbor for nine

years and that Johnson is her cousin. Johnson has been at her house often. She has

Johnson v. State                                                                 Page 4
never seen anyone do any work in Moore’s yard; he does his own yardwork.

        Juanita Hogg, a bank employee, testified that Moore notified her of the forged

checks, and she began an investigation and alerted all the tellers not to accept any more

checks from Johnson, should he appear again, and to call the police.              In her

investigation, Hogg was able to identify each teller who had cashed the four checks.

Hogg testified that the bank’s policy for cashing a bank customer’s check for a payee

who does not have an account is to verify the payee’s identity and then to cash the

check if funds are available. Hogg identified and recognized Johnson at trial because he

had previously had an account at the bank. After Moore had reported the forged

checks, a teller contacted Hogg and told her that Johnson was at the bank asking

questions. Hogg told the teller to answer Johnson’s questions and to stall him and that

she would call the police. Hogg called Marlin Assistant Chief of Police Darrell Allen.

        Brandy Rodriquez, a bank teller, testified that she cashed two of the checks for

Johnson after verifying his picture identification and that funds were available. She

identified Johnson as the person for whom she cashed the checks, and she confirmed

that she had been told not to cash any more checks for Johnson if he returned. On

cross-examination, Rodriquez said that nothing unusual or suspicious about Johnson

occurred when she cashed the two checks.

        Carolyn Bennett, another bank teller, testified that she cashed the other two

checks for Johnson after verifying his identity. She identified Johnson as the person for

whom she cashed the checks, and he did not seem nervous during those two

transactions. On the second check, which she cashed for him at the walk-up window,

Johnson v. State                                                                   Page 5
she had Johnson give a thumbprint (stipulated by Johnson as being his) per bank policy

for the walk-up window. On cross-examination, she said there was nothing unusual or

suspicious about either transaction.

        Bennett said that after Moore had notified the bank of the forged checks, Johnson

returned to the bank and asked her if Moore had called the bank. She said that Moore

had not called the bank, and, to try to stall him, she said that she would call Moore if

Johnson wanted her to. Bennett had the impression that Johnson was there to cash a

check and that by asking if Moore had called the bank, he was checking to see if it was

clear for him to cash another of Moore’s checks. Bennett said that when she told

Johnson that she would call Moore, Johnson became “very jumpy, very nervous” and

was in a hurry to leave, but police were able to detain him before he left the premises.

        Assistant Chief Allen said that he got a call from the bank that Johnson was

there, and he immediately walked over to the nearby bank. He detained Johnson as he

was approaching his vehicle, which was parked in front of the bank. When officers

arrived, Johnson was arrested because he had an outstanding warrant for a probation

violation. Allen attempted to question Johnson about the checks and have him give his

side of the story, but Johnson did not want to talk to him.

        The evidence in the light most favorable to the verdict shows that Johnson

cashed four of Moore’s checks on three different days; the checks noted that they were

for work done by Johnson for Moore; Moore did not know Johnson; and Johnson had

not done any work for Moore. The evidence also showed that the checks were stolen

from Moore’s home; Moore did not write or sign the checks; someone may have

Johnson v. State                                                                     Page 6
“jiggled” the lock on Moore’s back door around the time the checks were stolen; and

Johnson had recent possession of Moore’s checks.

        Johnson argues that the evidence in this case is similar (“remarkably on all

fours”) to the facts in Pfleging v. State, 572 S.W.2d 517 (Tex. Crim. App. [Panel Op.]

1978). We disagree; the evidence is more similar to that in the cases cited by the State.

See Huntley, 4 S.W.3d at 814-15; Palmer, 735 S.W.2d at 697-98. Pfleging is dissimilar

because the evidence here, unlike that in Pfleging, includes the following suspicious

circumstances: Johnson “often” visited his cousin who lived next door to Moore, which

would have given Johnson the opportunity to observe Moore’s home and his “comings

and goings;”after cashing the four checks, Johnson appeared at the bank a fifth time to

ask if Moore had called the bank; Johnson became very nervous and jumpy when

Bennett said she would call Moore; Johnson walked away while Bennett was trying to

stall him; and Johnson declined to explain the checks to Assistant Chief Allen.

        The jury could have reasonably inferred that Johnson passed the forged checks

with intent to defraud or harm another because the evidence showed that Johnson was

cashing checks made payable to him for work he did not perform for Moore. Moreover,

from the above-described suspicious circumstances, the jury could have reasonably

inferred that Johnson had knowledge that the checks were stolen from Moore and were

forged. See Huntley, 4 S.W.3d at 814-15; Palmer, 735 S.W.2d at 698-99. Viewing the

evidence in the light most favorable to verdict, we conclude that a rational jury could

have found that Johnson had knowledge that the four checks were forged and that he

passed the checks with intent to defraud or harm. We overrule issue three.

Johnson v. State                                                                   Page 7
                               Punishment-Phase Errors

        Johnson’s first issue asserts that his sentence is void because it exceeds the

statutory sentencing range, and his second issue asserts that the punishment charge was

erroneous because it included an enhanced punishment range. The State concedes error

on these two issues.

        The offense of forgery of a check by passing is a state-jail felony. TEX. PENAL

CODE § 32.21(d).       The punishment range for an unaggravated state-jail felony is

confinement in a state jail for not more than two years or not less than 180 days, and in

addition a fine not to exceed $10,000 may be assessed. Id. § 12.35(a, b) (Vernon Supp.

2010). The four indictments each included a habitual-felon enhancement allegation for

two prior and sequential final felony convictions: a 2001 felony conviction for burglary

of a habitation, and a 2004 felony conviction for forgery of a financial instrument.

Johnson pled “true” to both prior convictions in the punishment phase, and the

punishment charge instructed the jury to find “true” the enhancement allegations and

to assess Johnson’s punishment for a period of 2 to 20 years and in addition a fine not to

exceed $10,000. The jury assessed an eight-year sentence and $2,000 fine in each case.

        The trial court overruled Johnson’s timely objection to the charge’s punishment

range. His objection was that the punishment range was improperly enhanced to a

second-degree felony because Johnson’s prior conviction for forgery of a financial

instrument was a state-jail felony, not a felony, and the prior felony and state-jail felony

could not be used under subsection 12.42(a)(2) of the Penal Code to enhance the

punishment range to a second-degree felony.

Johnson v. State                                                                      Page 8
        Subsection 12.42(a)(2) provides:

                (2) If it is shown on the trial of a state jail felony punishable under
        Section 12.35(a) that the defendant has previously been finally convicted
        of two felonies, and the second previous felony conviction is for an offense
        that occurred subsequent to the first previous conviction having become
        final, on conviction the defendant shall be punished for a second-degree
        felony.

Id. § 12.42(a)(2) (Vernon Supp. 2010). Johnson is correct, as the Court of Criminal

Appeals has held:

        We thus hold that, as used in subsection 12.42(a), the terms “felony” and
        “state jail felony” are mutually exclusive;
        …
        The statute as written also does not impose an increased punishment for
        offenders who have two previous convictions in the form of both a single
        prior state jail felony and a single prior non-state jail felony. If such lack
        of enhancement in either case is in fact an oversight in the statute, it is the
        business of the legislature, rather than this court, to correct it.

Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001); see also Tapps v. State, 294

S.W.3d 175, 182 (Tex. Crim. App. 2009).

        A “void” or “illegal” sentence is one that is not authorized by law. See Ex parte

Pena, 71 S.W.3d 336, 336 n.2 (Tex. Crim. App. 2002); Levy v. State, 818 S.W.2d 801 (Tex.

Crim. App. 1991). “A sentence that is outside the maximum or minimum range of

punishment is unauthorized by law and therefore illegal.” Mizell v. State, 119 S.W.3d

804, 806 (Tex. Crim. App. 2003). Johnson’s four eight-year sentences are outside the

maximum range for a state-jail felony without proper enhancement. We sustain issue

one.

        Jury charge error requires reversal when the defendant has properly objected to

the charge and we find “some harm” to his rights. Ngo v. State, 175 S.W.3d 738, 743

Johnson v. State                                                                          Page 9
(Tex. Crim. App. 2005).     “Some harm” is shown from the punishment charge’s

erroneous instruction on the punishment range and the jury’s assessment of four eight-

year sentences that are outside the maximum range for a state-jail felony without

proper enhancement. We sustain issue two.

                                     Conclusion

        We affirm the judgments of conviction in each case. We reverse that portion of

the judgments assessing punishment of an eight-year sentence and $2,000 fine and

remand them to the trial court for a new trial on punishment only. See TEX. CODE. CRIM.

PROC. ANN. art. 44.29(b) (Vernon Supp. 2010); Abbott v. State, 196 S.W.3d 334, 349 (Tex.

App.—Waco 2006, pet. ref’d).


                                               REX D. DAVIS
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Judgments of conviction affirmed
Punishments reversed, causes remanded
Opinion delivered and filed May 4, 2011
Do not publish
[CR25]




Johnson v. State                                                                 Page 10
