                                  NO. 12-17-00242-CR

                          IN THE COURT OF APPEALS

              TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

JONATHAN DAVID MOORE,                            §      APPEAL FROM THE 7TH
APPELLANT

V.                                               §      JUDICIAL DISTRICT COURT

THE STATE OF TEXAS,
APPELLEE                                         §      SMITH COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Jonathan David Moore appeals his conviction for forgery. In two issues, Appellant
contends the evidence is insufficient to support his conviction and he was improperly denied a
jury instruction. We affirm.


                                         BACKGROUND
       On June 20, 2016, Appellant presented a check to be cashed at a Tyler branch of Austin
Bank. The check was a temporary check from his father David Moore’s (Mr. Moore) account
with Austin Bank in Jacksonville. When Appellant presented the check to the bank teller, the
bank’s system alerted the teller to compare the signature on the check with the signature on file.
Mr. Moore previously contacted the bank because he believed some of his temporary checks had
been stolen. As a result, the bank “flagged” the account in its computer system. When the teller
compared the signature, it did not match the signature card on file. As a result, she contacted her
supervisor who then contacted Mr. Moore to find out if the check had been authorized. After
confirming that the check was unauthorized, the bank contacted the police. Following an
investigation, Appellant was arrested.
       Appellant was charged by indictment with the offense of forgery. Specifically, the
indictment alleged that Appellant, with intent to defraud or harm another, altered, made,
completed, executed, and authenticated a writing so it purported to be the act of David Moore,
who did not authorize the act, and the writing was a check. Appellant pleaded “not guilty” and
the matter proceeded to a jury trial. The jury found Appellant “guilty.” After a hearing on
punishment, the jury assessed a sentence of imprisonment for twenty years and a $10,000 fine.
This appeal followed.


                                 SUFFICIENCY OF THE EVIDENCE
       In his first issue, Appellant contends the evidence is insufficient to support his
conviction. Specifically, he argues that the State failed to prove that he was a party to the
forgery.
Standard of Review and Applicable Law
       In Texas, the Jackson v. Virginia standard is the only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the state is required to prove beyond a reasonable doubt. Brooks v. State,
323 S.W.3d 893, 912 (Tex. Crim. App. 2010). The relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). This standard gives full play to
the responsibility of the trier of fact to fairly resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts. Padilla v. State,
326 S.W.3d 195, 200 (Tex. Crim. App. 2010). The jury is the sole judge of the witnesses’
credibility and the weight to be given their testimony. Brooks, 323 S.W.3d at 899.
       When the record supports conflicting inferences, we presume that the fact finder resolved
the conflicts in favor of the prosecution and therefore defer to that determination. Clayton v.
State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Direct and circumstantial evidence are
treated equally. Id. 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). A conclusion of guilt can rest on the combined
and cumulative force of all the incriminating circumstances. Hernandez v. State, 190 S.W.3d
856, 864 (Tex. App.–Corpus Christi 2006, no pet.).




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       A person commits an offense if he forges a writing with intent to defraud or harm
another. TEX. PENAL CODE ANN. § 32.21(b) (West Supp. 2017). “Forge” means to alter, make,
complete, execute, or authenticate a writing that purports to be the act of another who did not
authorize the act. Id. § 32.21(a)(1)(A)(i).    Forgery by passing occurs when, with intent to
defraud or harm another, a person issues, transfers, registers the transfer of, passes, publishes, or
otherwise utters a forged writing. Id. § 32.21(a)(1)(B). Additionally, it is an offense to possess a
forged writing with intent to utter it.     Id. § 32.21(a)(1)(C).   Intent may be established by
circumstantial evidence. Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985). The
culpable mental state requires proof of knowledge that the instrument is forged. Id.
Analysis
       Appellant contends the evidence is insufficient to prove that he committed the alleged
forgery. According to Appellant, Mr. Moore’s testimony supported the notion that Appellant
may have believed he had permission to write checks from his father’s account.
       Mr. Moore testified at trial that Appellant is his oldest son.        The account that the
temporary check was written from belongs to Mr. Moore and his wife. Mr. Moore testified that
he previously gave Appellant permission to write a check in April 2016 when he needed money
and Mr. Moore was out of the State. Although he had not given Appellant permission to issue
other checks, he testified that he did not know whether Appellant understood that fact.
       According to Mr. Moore, he had a conversation with Appellant on the morning of June
20, 2016, in which Appellant told him that he wrote approximately $1,000 worth of checks from
his father’s account. Following his conversation with Appellant, Mr. Moore went to the bank to
check his account balance. He discovered that approximately $2,000 was missing from his
account. Mr. Moore told the bank to watch the signatures on the checks, and the bank “flagged”
the account. He testified that he received a call that afternoon from the bank about a check and
whether he had authorized it. He told the bank and the police that he had not authorized the
check at issue. When shown the check at trial, Mr. Moore said that he did not fill in or sign the
check and that whoever had signed the check did so without permission.
       Christine Nguyen, a teller at Austin Bank in Tyler, Texas, testified that Appellant
presented a check to her in the bank’s drive-thru. When she checked the bank’s system, the
account was flagged. The flag instructed her to check the signature and check number because
the account holder reported some stolen checks. When Nguyen compared the signature card to



                                                 3
the check, the card’s signature did not match the signature on the check. She contacted Mr.
Moore and asked whether he issued the check. When she learned that he had not issued the
check, Nguyen notified her supervisor and manager, who contacted the police.
       Officer Chad Homer of the Tyler Police Department testified that he was on patrol on
June 20, 2016, when he was dispatched to Austin Bank on Old Bullard Road in Tyler to
investigate a forgery in progress. When he arrived at the bank, he spoke with bank employees
and learned that a person in the drive-thru passed a check that was reported stolen. Homer
confirmed with the bank that the account was flagged, and his partner confirmed with Mr. Moore
that the check was unauthorized. When Mr. Moore indicated that he wanted to press charges,
Homer arrested Appellant.
       Accordingly, the jury heard evidence that Appellant attempted to cash a check on Mr.
Moore’s account, that the signature card and check did not match, that Mr. Moore did not issue
the check Appellant presented to the bank, and that Mr. Moore did not give Appellant permission
to write checks outside of the April 2016 instance. The jury also heard testimony that Appellant
admitted to Mr. Moore that he previously wrote checks on Mr. Moore’s account. As sole judge
of the weight and credibility of the testimony, the jury was entitled to reject the theory that
Appellant believed he had permission to write checks on Mr. Moore’s account. See Brooks, 323
S.W.3d at 899; see also Padilla, 326 S.W.3d at 200. Based on the evidence presented at trial, the
jury could reasonably conclude that, with the intent to defraud or harm another, Appellant not
only completed and signed the check, such that it purported to be the act of another who did not
authorize the act, but further attempted to pass the forged check. See TEX. PENAL CODE ANN.
§ 32.21(a)(1)(A)(i), (B)-(C), (b). Viewing the evidence in the light most favorable to the verdict,
we conclude that a rational jury could have found all essential elements of forgery as alleged in
the indictment. See id.; see also Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Brooks, 323
S.W.3d at 912. Because there is sufficient evidence to support the jury’s verdict, we overrule
Appellant’s first issue.


                                        CHARGE ERROR
       In his second issue, Appellant argues that the trial court erred when it refused to instruct
the jury that his voluntary absence from trial could not be used against him in assessing
punishment.



                                                4
Standard of Review
       The review of an alleged jury-charge error in a criminal trial is a two-step process. See
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). First, an appellate court must
determine whether there was error in the jury charge. Id. Second, if there is charge error, the
court must determine whether there is sufficient harm to require reversal. Id. at 731-32. The
standard for determining harm depends on whether the appellant objected. Id. at 732. If the
appellant objected to the error at trial, the appellate court must reverse the trial court’s judgment
if the error “is calculated to injure the rights of the defendant.” TEX. CODE CRIM. PROC. ANN. art.
36.19 (West 2006). This standard requires proof of no more than some harm to the accused from
the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). An appellant who
did not raise the error at trial can prevail only if the error is so egregious and created such harm
that he has not had a fair and impartial trial. Id. “In both situations the actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence, including the
contested issues and weight of probative evidence, the argument of counsel and any other
relevant information revealed by the record of the trial as a whole.” Id. In assessing whether the
trial court erred by denying a requested defensive instruction, an appellate court must examine
the evidence offered in support of the defensive issue in the light most favorable to the defense.
Id.
Analysis
       During the punishment phase of trial, Appellant was present for opening statements and
was told by the court to return after the lunch recess for the continuation of trial. However,
Appellant did not return to trial after lunch. The trial court allowed additional time for Appellant
to appear, and the bailiffs searched the nearby restaurants for Appellant.          The trial court
instructed the jury that the trial could continue without Appellant if he voluntarily absented
himself from the proceedings.
       On appeal, Appellant acknowledges that his absence from trial was voluntary and that the
punishment phase of his trial could continue in his absence. See TEX. CODE CRIM. PROC. ANN.
art. 33.03 (West 2006). However, Appellant contends the trial court should have granted his
request to instruct the jury that, “You should not consider for any purpose the fact that Defendant
has voluntarily absented himself from this portion of the trial in assessing punishment.”




                                                 5
       Appellant cites no authority, nor could this Court locate any such authority, to support his
claim that the trial court must instruct the jury not to consider a defendant’s absence in assessing
punishment. However, courts have addressed the need for such an instruction during the guilt-
innocence phase of trial. For instance, in Notias v. State, 491 S.W.3d 371 (Tex. App.—Houston
[1st Dist.] 2016, no pet.), the defendant failed to return from a break during the guilt-innocence
portion of his aggravated robbery trial. Id. at 374. In his absence, the jury found him “guilty”
and sentenced him to imprisonment for forty years. Id. On appeal, Notias argued that the trial
court erred by failing to instruct the jury that his voluntary absence from trial could not be used
as evidence of his guilt. Id. In determining that the trial court did not err, the appellate court
stated that there are some instances in which flight permits an inference of guilt. Id. at 375
(citing Martin v. State, 727 S.W.2d 820, 823 (Tex. App.—Fort Worth 1987, no pet.)). In
addition, the court relied on the principle that “a defendant may not create reversible error by his
own manipulation.” Id. at 376 (citing Beasley v. State, 634 S.W.2d 320, 321 (Tex. Crim. App.
1982)). Under this principle, a trial court does not err when it refuses to instruct a jury not to
consider a defendant’s absence when he has been removed from trial because of his disruptive
behavior. Id. (citing George v. State, 446 S.W.3d 490, 503 (Tex. App.—Houston [1st Dist.]
2014, pet. ref’d)). Accordingly, the appellate court held that the trial court did not abuse its
discretion by denying Notias’s requested jury instruction. Id.
       In the present case, Appellant was absent during the punishment phase of trial instead of
the guilt-innocence phase. However, this difference does not obviate the principle that Appellant
still may not create reversible error by his own manipulation. See Beasley, 634 S.W.2d at 321;
Notias, 491 S.W.3d at 376. Moreover, the trial court’s punishment charge instructed the jury
that it could not consider Appellant’s failure to testify, and that the State bears the burden of
proof throughout the trial, which never shifts to the defendant. We assume the jury followed the
trial court’s instructions and that, in doing so, the jury assessed Appellant’s punishment based on
evidence presented by the State in satisfaction of its burden of proof rather than on Appellant’s
absence. See Resendiz v. State, 112 S.W.3d 541, 546 (Tex. Crim. App. 2003). Based on the
foregoing, we hold that the trial court did not abuse its discretion when it denied Appellant’s
request to instruct the jury that his absence from trial could not be considered in assessing
punishment. See Abdnor, 871 S.W.2d at 731. Appellant’s second issue is overruled.




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                                                   DISPOSITION
         Having overruled Appellant’s first and second issues, we affirm the trial court’s
judgment.


                                                                 BRIAN HOYLE
                                                                    Justice




Opinion delivered April 11, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



                                                          7
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                             APRIL 11, 2018


                                         NO. 12-17-00242-CR


                                  JONATHAN DAVID MOORE,
                                          Appellant
                                             V.
                                    THE STATE OF TEXAS,
                                          Appellee


                                  Appeal from the 7th District Court
                         of Smith County, Texas (Tr.Ct.No. 007-1568-16)

                        THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                        It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court
below for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
