Opinion issued August 6, 2020




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-18-00937-CR
                            ———————————
                  ERNESTO CARLOS TREVINO, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


               On Appeal from the 437th Judicial District Court
                            Bexar County, Texas
                    Trial Court Case No. 2017CR10362


                                   OPINION

      A jury convicted appellant, Ernesto Carlos Trevino, of the third-degree felony

offense of forgery of a governmental document.1 The trial court assessed appellant’s



1
      See TEX. PENAL CODE ANN. § 32.21(a), (e) (providing that offense is third-degree
      felony if document forged is government record).
punishment at four years’ confinement, suspended his sentence, placed him on

community supervision for four years, imposed a $1,500 fine, and ordered him to

pay $4,000 in restitution. In three issues, appellant contends that (1) the State failed

to present sufficient evidence that he intended to harm or defraud another person,

that the writing was unauthorized, and that the writing was a government record, as

required to support a forgery conviction; (2) his conviction was based on a theory of

prosecution not alleged in the indictment; and (3) the trial court admitted evidence

of an extraneous offense but erroneously failed to give a limiting instruction.

      We reverse and render a judgment of acquittal.

                                     Background

A.    Factual Background

      In July 2016, appellant, who lives in the San Antonio area,2 placed an

advertisement on Craigslist offering a deer hunting opportunity on his property in

exchange for a truck. Kurt Stern was interested in this hunting opportunity, and he

contacted appellant. Appellant asked Stern if he had a vehicle that he was willing to

trade in exchange for the hunting opportunity. Stern told appellant that he did not

have a vehicle to trade, but he did have a jet ski which he had been thinking about



2
      The Texas Supreme Court transferred this appeal from the Court of Appeals for the
      Fourth District of Texas to this Court pursuant to its docket-equalization authority.
      See TEX. GOV’T CODE ANN. § 73.001 (“The supreme court may order cases
      transferred from one court of appeals to another at any time that, in the opinion of
      the supreme court, there is good cause for the transfer.”).
                                            2
selling. Stern estimated that his jet ski was valued around $4,000, and appellant was

interested in accepting the jet ski. Ultimately, Stern paid an undisclosed amount of

cash and the jet ski for the hunting opportunity.

       On October 15, 2016, Stern brought the jet ski to appellant’s property on a

trailer. At the time Stern brought the jet ski to appellant, the jet ski was “in good

physical condition,” but it was not “in running condition.” Appellant was aware of

this and did not believe it was “going to be a big issue as far as whatever had to get

fixed.” Stern also brought the certificate of title to the jet ski with him to appellant’s

property, and he testified that “the agreement was we were going to sit down and fill

out the title, do it the correct way.” Stern gave the title to appellant. He testified that

he intended to transfer ownership of the jet ski to appellant during this visit to

appellant’s property, but he did not sign the back of the title—actually transferring

ownership of the jet ski to appellant—on that day. Two days later, Stern had a family

emergency occur, and the need to sign the jet ski’s title slipped his mind. Stern

testified that he never signed the back of the certificate of title transferring ownership

of the jet ski to appellant.

       Stern remained in contact with appellant, although they never discussed

signing the certificate of title, and he continued to hunt at appellant’s property

throughout October, November, and December 2016. Stern agreed, on cross-

examination, that he never asked appellant “for a refund on the hunt.”


                                            3
      Appellant told Stern that he had contacted someone to repair the jet ski and

that it just needed a “simple fix.” One weekend, Stern arrived at appellant’s property

and did not see the jet ski. Stern wondered where the jet ski was because “[i]t was

always there at the house.” Appellant told Stern that he had “traded the jet ski for a

truck.” Stern had the following exchange with the State:

      Q:     Okay. And so why is it that you wondered where the jet ski was
             at? What would it matter?
      A:     Honestly, it didn’t matter, but I knew in the back of my head that
             I never signed the back of the title. I knew we didn’t sit down and
             actually do it, so that raised a red flag in my head.
      Q:     Okay. And why would that raise a red flag in your head?
      A:     That we didn’t sit down to do it.
      Q:     Okay. That you didn’t fully transfer the ownership to him?
      A:     Correct. Yes, ma’am.
      Q:     Okay. And why would that be a problem?
      A:     I have done a handful of titles in my life, and I know you are
             supposed to do it the right way, fill it out and whatnot. And I
             knew that wasn’t done. It did not matter to me what he did with
             the jet ski. I just wanted to go about doing it the right way.

Stern questioned appellant about signing the back of the title, and appellant told

Stern that Stern had signed the title. Stern corrected appellant, telling him that Stern

had only signed the front of the title when he first received the jet ski. Stern was not

concerned with whether appellant traded the jet ski, but he “wanted to go about it

the right way” and he did not “want anything coming back to [him]” in case the jet

ski was later involved in an accident.
                                           4
      The trial court admitted the title to the jet ski into evidence. Both the front of

the title and the back of the title contain a signature stating, “Kurt Stern.” Stern

testified that the signature on the front of the title—which was above a line stating

“signature of owner or agent”—was his signature and that he signed the front of the

title when he received the jet ski. He stated that the signature on the back of the

title—which was above a line stating “signature of seller”—said “Kurt Stern,” but

he testified that was not his writing and was not his signature. These two signatures

do not look similar. Stern stated that when he gave the title to appellant, “there was

no writing on the back of the title,” and he did not give anyone permission to sign

his name to the back of the title. He testified that he felt “taken advantage of” when

he saw that his name had been signed to the back of the title.

      After taking physical possession of the jet ski from Stern, appellant posted

another ad on Craigslist, this time offering to trade the jet ski for a truck. Trung

Nguyen saw this ad and contacted appellant regarding a pickup truck he was willing

to trade for the jet ski. In November 2016, appellant went to Nguyen’s house with

the jet ski, which he started for Nguyen to ensure that it worked, and appellant then

test-drove Nguyen’s truck. Nguyen had the following exchange with the State

concerning what happened next:

      Q:     And then what happened?
      A:     I asked him [appellant] a second time that the jet ski is okay. And
             he said, “Yes,” so we signed the paper.

                                           5
      Q:     Okay. And what paper did you sign?
      A:     The title of my truck and the title of the jet ski.
      Q:     Okay. What did you sign?
      A:     I signed on my title, the truck title, and gave it to him. And then
             he signed the title of the jet ski and gave it to me.
      Q:     Okay. So you watched him sign the back of the title for the jet
             ski?
      A:     Yes, I saw that, because there’s only him and his wife and me [at
             Nguyen’s house while the transaction occurred], and that’s it.

The State showed Nguyen the same title that Stern had identified, and Nguyen

pointed to his name on the back of the title, which he had written above a line stating

“Print Name of Purchaser.” When the State pointed to Stern’s name on the back of

the title, Nguyen testified that appellant signed that signature.

      After appellant traded the jet ski to Nguyen, Stern and appellant

communicated in a series of text messages on January 2 and 3, 2017. Defense

counsel asked Stern whether, on January 2, 2017, he received a text message from

appellant in which appellant asked Stern if he wanted the jet ski back. Stern could

not recall that particular text message, but he agreed that might have happened.

Defense counsel asked Stern whether he responded, “I don’t want it back,” and Stern

could not recall his response to appellant’s text, but he did not deny responding in

that manner. Defense counsel then asked:

      Q.     And what you said was, “I just don’t want it in my name.” That
             is what you said, right?


                                           6
      A.     Correct.
      Q.     All right. And then the next day at 7:16 p.m., January 3, 201[7],
             you said, “I don’t want the jet ski back.” So you said it a second
             time, right?
      A.     Right, meaning I would like to work everything out and settle
             and be done and walk away.

Defense counsel did not offer, and the trial court did not admit, copies of the text

messages between Stern and appellant.

      Nguyen took the title to the jet ski to have it changed over to his name on

January 26, 2017. Several weeks later, Nguyen received in the mail a title in his

name and a decal for the jet ski—issued by the Texas Parks & Wildlife Department

and titled “Certificate of Number for a Vessel”—that had his name and address and

the jet ski’s identification number.

      One or two months after Nguyen had the title changed, appellant called

Nguyen and told him that he “wanted to change it again,” meaning appellant “wanted

to have his jet ski back, and then [appellant] wanted to give [Nguyen] back [his]

truck.” Nguyen told appellant that he had already had the title to the jet ski changed

to his name. When asked if appellant told Nguyen why he wanted to make the second

trade, Nguyen testified, “I don’t remember exactly what he said, but I believe that

he said that if I do not change that back, that he might go to jail.”

      Derek Iden is a game warden with the Texas Parks & Wildlife Department

(“the Department”). In January 2017, he began an investigation, and during this

                                           7
investigation, he “learned that Kurt Stern had traded a personal watercraft and some

money for hunting privileges that was provided by [appellant].” The jet ski became

“an item of interest” in Iden’s investigation, and on January 9, 2017, Iden spoke with

the Boat Titling Division of the Department “and asked that if somebody were to

present the [jet ski’s] title to transfer ownership, that it be flagged in our system and

that [Iden] be notified.”

      On January 26, 2017, Iden received a call from the Department’s San Antonio

regional office notifying him that Nguyen “came in with the title for the jet ski in

question and tried to get it registered in his name.” The next day, Iden and his partner

visited the office and learned that Nguyen “presented the title and another piece of

paperwork” to put title to the jet ski into his name. Later that day, Iden and his partner

spoke with Nguyen. Nguyen informed Iden that he had traded his truck to appellant

for the jet ski through a Craigslist ad. Iden then had contact with appellant through

emails and text messages.

      After speaking with Stern, Nguyen, and appellant, Iden concluded that Stern

did not sign the title to the jet ski. Iden did not remove the “flag” on the jet ski so

that Nguyen could register and use it. When asked whether he ever told Nguyen that

he could not use the jet ski, Iden testified:

      I never gave him permission to use it. I told him he should not use it,
      no. He wanted to use it. He was talking about wanting to use it. I did
      not give him permission to use it.


                                            8
Iden also testified that he wanted to seize the jet ski, but his partner did not, and it

remained in Nguyen’s possession. Iden told Nguyen to keep the jet ski in a safe

location because Iden “believed it needed to be returned to Kurt Stern.” Nguyen also

testified that Iden and his partner told him that he could not operate the jet ski, that

he believed it was wrong to use the jet ski, and that he had not used it during the time

period between speaking with Iden and the trial. Stern testified that Iden informed

him when the jet ski was located and asked Stern if he wanted the jet ski back. Stern

told Iden that he “would rather try to get the dollar amount for the jet ski instead of

getting the jet ski back.”

      Iden acknowledged that the jet ski had been titled in Nguyen’s name. He

testified that he was surprised to learn of this, stating:

      [I]t occurred on the day that he went to our office January 26, 2017, and
      I had told the clerk, “Do not allow this to go through as part of a pending
      criminal forgery investigation on a title.” It apparently slipped through
      the clerical cracks, if you will, and was registered into Mr. Nguyen’s
      name when it was not supposed to be at all. I told them—I made it clear,
      abundantly clear, “Do not allow this to be registered.”

Iden testified that Nguyen mistakenly received a “Certificate of Number for a

Vessel” decal and that having this decal and using the jet ski “could cause [Nguyen]

a multitude of problems” due to the pending allegations concerning the forged title.

      The jury found appellant guilty of forgery. The trial court assessed appellant’s

punishment at four years’ confinement, suspended the sentence, and placed appellant

on community supervision for four years. The trial court also imposed a $1,500 fine
                                            9
and ordered appellant to pay $4,000 in restitution—the value of the jet ski—to Kurt

Stern. This appeal followed.

                               Sufficiency of Evidence

      In his first issue, appellant contends that the State failed to present sufficient

evidence to support his conviction for forgery. Specifically, he argues that the State

did not present sufficient evidence that he intended to defraud or harm another

person, that the writing was without authorization, and that the writing was a

governmental record. Appellant also argues, in his first issue, that the trial court

committed reversible error when it denied him the opportunity to cross-examine

Stern about his purported statement to Jim McKay that he did not wish to prosecute

appellant or be a complaining witness.

A.    Standard of Review

      When reviewing the sufficiency of the evidence, we view all of the evidence

in the light most favorable to the verdict to determine whether any rational fact finder

could have found the essential elements of the offense beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Bohannan v. State, 546 S.W.3d

166, 178 (Tex. Crim. App. 2017). The jurors are the exclusive judges of the facts

and the weight to be given to the testimony. Bartlett v. State, 270 S.W.3d 147, 150

(Tex. Crim. App. 2008); see Adames v. State, 353 S.W.3d 854, 860 (Tex. Crim. App.

2011) (stating that role of fact finder is “as the sole judge of the weight and


                                          10
credibility of the evidence after drawing reasonable inferences from the evidence”).

The jury, as the sole judge of credibility, may accept one version of the facts and

reject another, and it may reject any part of a witness’s testimony. Rivera v. State,

507 S.W.3d 844, 853 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d); see

Bohannan, 546 S.W.3d at 178 (stating that fact finder has duty to resolve conflicts

in testimony, to weigh evidence, and to draw reasonable inferences from basic facts

to ultimate facts).

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

our judgment for that of the fact finder. Bohannan, 546 S.W.3d at 178; Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We resolve any inconsistences

in the evidence in favor of the verdict. Bohannan, 546 S.W.3d at 178; see also

Murray v. State, 457 S.W.3d 446, 448–49 (Tex. Crim. App. 2015) (“When the record

supports conflicting inferences, we presume that the factfinder resolved the conflicts

in favor of the verdict, and we defer to that determination.”). A criminal conviction

may be based on circumstantial evidence. Merritt v. State, 368 S.W.3d 516, 525

(Tex. Crim. App. 2012). Circumstantial evidence is as probative as direct evidence

in establishing guilt, and circumstantial evidence alone can be sufficient to establish

guilt. Temple v. State, 390 S.W.3d 341, 359 (Tex. Crim. App. 2013) (quoting Hooper

v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). “Each fact need not point

directly and independently to the guilt of the appellant, as long as the cumulative


                                          11
force of all the incriminating circumstances is sufficient to support the conviction.”

Hooper, 214 S.W.3d at 13.

B.    Analysis

      In this case, in order to convict appellant of forgery as charged in the

indictment, the State was required to prove that appellant, with intent to defraud and

harm another, made, completed, executed, or authenticated a forged writing—a title

to a personal watercraft—knowing the writing to be forged and the writing had been

made, altered, executed, completed, or authenticated so that it purported to be the

act of Kurt Stern, who did not authorize the act, and the writing “was to the tenor

following”:




See TEX. PENAL CODE ANN. § 32.21(a)(1)(A)(i), (b). Forgery is a third-degree felony

if the writing is or purports to be a “government record listed in [Penal Code] Section

37.01(2)(C).” Id. § 32.21(e)(2). Penal Code section 37.01(2)(C) defines

“governmental record” to include “a license, certificate, permit, seal, title, letter of


                                          12
patent, or similar document issued by government, by another state, or by the United

States.” Id. § 37.01(2)(C). The Penal Code does not define “defraud,” but it does

define “harm” as “anything reasonably regarded as loss, disadvantage, or

injury . . . .” Id. § 1.07(a)(25).

       1.     Proof of Intent to Defraud or Harm Another

       Code of Criminal Procedure article 38.19 provided, at the time of appellant’s

trial, that “[i]n trials of forgery, it need not be proved that the defendant committed

the act with intent to defraud any particular person.”3 Act of May 27, 1965, 59th

Leg., R.S., ch. 722, § 1, 1965 Tex. Gen. Laws 317, 468 (amended 2019) (current

version at TEX. CODE CRIM. PROC. ANN. art. 38.19). “When intent to defraud is the

mens rea of the offense, the State must prove facts from which that intent is

deducible beyond a reasonable doubt and, in the absence of that proof, a conviction

will not be justified.” Okonkwo v. State, 398 S.W.3d 689, 695 (Tex. Crim. App.

2013). To prove the requisite intent, the fact finder must be able to reasonably infer

beyond a reasonable doubt that the defendant knew the writing was forged. Ramsey

v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Leroy v. State, 512 S.W.3d


3
       The Texas Legislature amended this provision in 2019. The amendments provide
       that article 38.19 now applies, in addition to forgery offenses, to offenses for credit
       or debit card abuse and offenses for fraudulent use or possession of identifying
       information. Act of May 17, 2019, 86th Leg., R.S., ch. 291, § 2, 2019 Tex. Sess.
       Law Serv. 493, 494 (to be codified at TEX. CODE CRIM. PROC. ANN. art. 38.19). The
       remaining amendments are non-substantive. The amended version of article 38.19
       applies only to criminal proceedings that commence on or after the effective date of
       the act, September 1, 2019. Id. § 3–4.
                                             13
540, 543 (Tex. App.—Houston [1st Dist.] 2016, no pet.). To determine whether the

jury reasonably could have made this inference, we look to the totality of the

circumstances and weigh all of the facts. Leroy, 512 S.W.3d at 543; Johnson v. State,

425 S.W.3d 516, 524 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d).

      Intent to defraud or harm another may be established by circumstantial

evidence. Leroy, 512 S.W.3d at 543 (citing Williams v. State, 688 S.W.2d 486, 488

(Tex. Crim. App. 1985)). There is no “bright-line rule” establishing what the State

must present in order to show intent to defraud or harm another. Id.; Johnson, 425

S.W.3d at 520–24 (discussing cases considering different factors and circumstances

in determining whether State had established intent to defraud or harm). “The mere

possession, passage, or presentment of a forged instrument does not support an

inference of intent to defraud.” Leroy, 512 S.W.3d at 543 (citing Parks v. State, 746

S.W.2d 738, 740 (Tex. Crim. App. 1987)). However, a fact finder can infer intent to

defraud or harm another in forgery cases if the State proves that the defendant has

knowledge that the writing is forged. Huntley v. State, 4 S.W.3d 813, 814 (Tex.

App.—Houston [1st Dist.] 1999, pet. ref’d); see Oldham v. State, 5 S.W.3d 840, 844

(Tex. App.—Houston [14th Dist.] 1999, pet. ref’d) (stating that “[p]roof of intent to

defraud is also derivative of other elements” and that “[i]f the State proves that an

actor has knowledge that a particular [writing] is forged, proof of intent to defraud

is inferred”); Wallace v. State, 813 S.W.2d 748, 751 (Tex. App.—Houston [1st Dist.]


                                         14
1991, no pet.) (same). An accused’s use of deception—which may take the form of

giving false information or engaging in behavior designed to avoid detection—is

evidence of intent to defraud or harm. Garcia v. State, 630 S.W.2d 303, 305 (Tex.

App.—Houston [1st Dist.] 1981, no pet.); see Choice v. State, 883 S.W.2d 325, 329

(Tex. App.—Tyler 1994, no pet.) (“The use of deception by an accused is evidence

of intent to defraud and harm.”).

       In this case, the State presented evidence that Stern brought the jet ski and the

title to appellant’s house, but Stern did not sign the back of the title—actually

transferring ownership of the jet ski to appellant—on that day or any other day. Stern

testified that he did not give appellant authorization to sign his name on the back of

the title. However, when appellant and Nguyen met to complete their trade of the jet

ski for Nguyen’s truck, Nguyen testified that he wrote his name on the back of the

title above a line stating “Purchaser” and appellant signed above a line stating

“Signature of Seller.” Appellant did not sign his own name; instead, he signed

Stern’s name. Stern testified that he later learned that appellant had traded the jet ski.

When Stern asked appellant about signing the back of the title, appellant stated that

Stern had signed the back of the title, but Stern knew that he had not signed the title.

       The State thus presented evidence that appellant signed Stern’s name on the

back of the title to the jet ski and that Stern did not authorize appellant to sign Stern’s

name. In forgery cases, courts have held that when the State presents evidence that


                                            15
the defendant has knowledge that a particular instrument is forged, the jury may infer

the defendant acted with the intent to defraud or harm. See Oldham, 5 S.W.3d at 844;

Huntley, 4 S.W.3d at 814. However, we determine whether a defendant acted with

intent to defraud or harm based on the totality of the circumstances. See Leroy, 512

S.W.3d at 543. Here, we cannot conclude, when examining all of the circumstances

of this case, that a reasonable jury could determine beyond a reasonable doubt that

appellant acted with the intent to defraud or harm another when he signed Stern’s

name on the back of the title to the jet ski.

       Stern testified that he and appellant reached an agreement in which appellant

would grant Stern hunting privileges on his property in exchange for an unspecified

amount of cash and a jet ski. Stern brought the jet ski—and the title to the jet ski—

to appellant’s house on October 15, 2016, fully intending to transfer ownership of

the jet ski to appellant. Stern left the jet ski and its title with appellant, but he testified

that they forgot to complete the paperwork, and he did not sign the jet ski’s title over

to appellant. Over the next few months, throughout the end of 2016, Stern continued

to hunt at appellant’s property. Stern never brought up the issue of signing the title

until after appellant traded the jet ski to Nguyen.

       Appellant desired to trade the jet ski for a truck, and he placed a second

Craigslist ad, which Nguyen saw. Nguyen and appellant then entered an agreement

in which appellant traded the jet ski to Nguyen for Nguyen’s truck. When they met


                                              16
to complete the exchange and the paperwork for this deal, Nguyen signed the title to

his truck, and appellant signed Stern’s name on the back of the title to the jet ski.

      On appeal, the State argues that appellant “intentionally defrauded Nguyen

when he signed the title under someone else’s name without permission” and that

appellant harmed Nguyen “because Nguyen was not able to properly register and

use the jet ski during the time period that the title was being investigated.” The State

also points out that appellant “lied to Stern about whether Stern had signed the title.”

We do not agree that the evidence shows that appellant, when he signed Stern’s name

on the title, intended to defraud or harm Stern, Nguyen, or anyone else. There is no

dispute that appellant and Stern had an agreement to exchange the jet ski and cash

for hunting privileges. Stern delivered the jet ski, along with the title, to appellant

but mistakenly forgot to sign the title. Despite this, appellant and Stern treated their

transaction as complete: appellant consulted with someone to repair the jet ski and

sought a new buyer for the jet ski—ultimately, Nguyen—and Stern continued to hunt

at appellant’s property. Both appellant and Stern received the benefit of their

bargain.

      Nguyen did not receive the benefit of his bargain with appellant, as he was

unable to use the jet ski, at Iden’s direction, from the date Nguyen spoke with Iden

in January 2017 until the date of appellant’s trial in July 2018. However, there is no

evidence in the record that, at the time appellant signed the title to the jet ski in


                                          17
Stern’s name, appellant did so with the intent to defraud or harm Nguyen. The

evidence, instead, indicates that appellant, believing that his deal with Stern was

complete and that he owned the jet ski, sought to trade the jet ski to Nguyen in

exchange for Nguyen’s truck, but signed Stern’s name on the title when he realized

that the paperwork from the deal with Stern had never been completed.

      Under the circumstances of this case, we conclude that the State failed to

present sufficient evidence from which a reasonable jury could conclude, beyond a

reasonable doubt, that appellant, when he signed Stern’s name on the back of the

title to the jet ski, did so with the intent to defraud or harm another. See TEX. PENAL

CODE ANN. § 32.21(b); Leroy, 512 S.W.3d at 543 (determining whether defendant,

in forgery case, acted with intent to defraud or harm requires examining totality of

circumstances).

      We sustain appellant’s first issue.4




4
      Because we conclude that the State failed to present sufficient evidence that
      appellant acted with the intent to defraud or harm another, an essential element of
      the forgery offense, and thus appellant is entitled to an acquittal, we do not address
      the remainder of appellant’s first issue or appellant’s second and third issues.
                                            18
                                    Conclusion

      We reverse the judgment of the trial court and render a judgment of acquittal.




                                             Evelyn V. Keyes
                                             Justice

Panel consists of Justices Keyes, Lloyd, and Hightower.

Publish. TEX. R. APP. P. 47.2(b).




                                        19
