                                   NO. 07-11-0020-CR

                             IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL B

                                 SEPTEMBER 27, 2011


                             CORY FARRELL MORRISON,

                                                                  Appellant
                                             v.

                                 THE STATE OF TEXAS,

                                                                   Appellee
                          _____________________________

            FROM THE 251ST DISTRICT COURT OF RANDALL COUNTY;

              NO. 21,525-C; HONORABLE ANA ESTEVEZ, PRESIDING


                                 Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Cory Farrell Morrison was convicted of forgery by passing and sentenced to two

years confinement.     In seeking to overturn that conviction, he argues that 1) the

evidence was legally and factually insufficient to sustain his conviction, and 2) the trial

court abused its discretion in failing to permit a witness to testify, although she had

already notified the court that she would invoke her right against self-incrimination. We

affirm the judgment.
      Background

      On April 20, 2011, appellant and an unidentified woman visited Amarillo’s Animal

Control Department in order to locate appellant’s two pit bulls. After finding them at the

facility, appellant was informed by Shawn Wood that it would cost him $100 to obtain

the release of the dogs. Appellant told Wood that he did not have any money, and he

attempted to sell Wood a knife he had with him. Wood declined to purchase the knife,

and appellant and the woman left.

      They returned a short time later and asked if a friend could pay for the release of

the dogs.   Wood informed appellant that would be acceptable.         Appellant and the

woman sat down to wait on the friend, and appellant again attempted to sell his knife to

other people entering the building until told by Wood to put the knife away. Appellant

and the woman then left a second time.

      Just before closing, appellant and the woman returned, and appellant told Wood

that his friend could not come but that he had a check signed by his friend. He provided

the check and his own identification card to Wood. The check was written on the

account of Gary Homen at Amarillo National Bank. Wood accepted the check and

released the dogs. Homen’s check had been stolen out of his truck when it had been

broken into several days earlier.

      Issue 1 - Sufficiency of the Evidence

      Appellant first challenges the legal and factual sufficiency of the evidence to

sustain his conviction.   We review the sufficiency of the evidence under a single

standard as discussed in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010) to

which we refer the parties. A person committs fraud if he forges a writing with intent to

                                              2
defraud or harm another. TEX. PENAL CODE ANN. §32.21(b) (Vernon 2011). To “forge”

means to alter, make, complete, execute, or authenticate any writing so that it purports

to be the act of another who did not authorize it or to possess a writing that is forged.

Id. §32.21(a)(1)(A)(i) & (C). Intent cannot be inferred by the mere passing of a forged

instrument. De La Paz v. State, 279 S.W.3d 336, 350 n.46 (Tex. Crim. App. 2009).

However, it may be proved by circumstantial evidence.        Id.; Williams v. State, 688

S.W.2d 486, 488 (Tex. Crim. App. 1985).           Appellant contends the evidence is

insufficient to show that he knew the check was a forgery. We overrule the issue.

      The giving of false information 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.).           Here,

appellant indicated that he did not have the funds to pay the requisite fee. Then, he

indicated that a friend was going to arrive and pay the fee. Then, he indicated that the

“friend” was not going to arrive but that he would nonetheless pay the fee through a

check, which check he tendered to Wood. Then, he represented to Wood that the

check was signed by his “friend.” The name appearing on the signature line of the

instrument was Homen’s. Yet, Homen testified that his check was stolen and that he

did not know appellant. From this, a rational jury could infer, beyond reasonable doubt,

that appellant wanted to trick Wood into believing 1) appellant’s “friend” signed the

check, and 2) since the name on the check was Homen’s, that Homen was the

purported “friend.”   Coupling that with Homen’s own testimony about not knowing

appellant would enable the same jury to also infer, beyond reasonable doubt, that

appellant was attempting to deceive Wood by passing him a check with a signature

appellant knew was not Homen’s.

                                           3
         Issue 2 – Admission of Testimony

         Next, appellant argues that he should have been permitted to call Laura Colson

as a witness. She allegedly was the woman who accompanied him to the Animal

Control Department. And, he thought he was entitled to have her testify to that, even

though she had already asserted her Fifth Amendment right against self-incrimination

outside the presence of the jury. Being denied that opportunity allegedly violated his

rights to due process and compulsory process. We overrule the issue.

         Although several exchanges took place between counsel and the trial court

concerning Colson, appellant never asserted that denying him opportunity to call her as

a witness would violate his rights to due process or compulsory process. Therefore,

those grounds were not preserved for review. Heidelberg v. State, 144 S.W.3d 535,

537 (Tex. Crim. App. 2004) (stating that the complaint on appeal cannot vary from the

complaint raised at trial). Furthermore, a trial court does not abuse its discretion when it

refuses to permit a defendant to call a witness who is going to invoke his Fifth

Amendment right to remain silent before a jury. Keller v. State, 662 S.W.2d 362, 365

(Tex. Crim. App. 1984); Mendoza v. State, 552 S.W.2d 444, 450 (Tex. Crim. App.

1977).

         Accordingly, the judgment is affirmed.



                                                  Brian Quinn
                                                  Chief Justice



Do not publish.


                                              4
