Opinion filed January 31, 2013

 

(Eleventh Giana of Qppwlﬁ

No. 11-1 1-00014-CR

DESTINEE PRINCESS CHEATHAM, Appellant
V.

STATE OF TEXAS, Appellee
W

On Appeal from the 40th District Court
Ellis County, Texas
Trial Court Cause No. 34981CR

W

MEMORANDUM OPINION

Appellant? Destinee Princess Cheatham, appeals her conviction for fraudulent use of ﬁve
items or less of identifying informationl a state jail felony, asserting that the State presented no
evidence of the required element of intent to defraud or harm another After the trial: in which
appellant had pied not guilty} the jury convicted appellant. The trial court sentenced her to 738
days in State jail and a ﬁne of $1,000. The court suspended the jail time and placed appellant on
community supervision for ﬁve years and ordered her to pay restitution of 3323560. Appellant
complains in a single issue that the trial court erred by not granting her directed verdict request

because the State failed to prove beyond a reasonable doubt that She knowingly or intentionally

used identifying information with the intent to harm or defraud Marco A. Lozano when she
cashed one of his stolen and forged business checks. We affirm.
Factual Summary

Appellant claimed that she received a check in the amount of $2.560 in late November or
early December 2009 from an African American or Nigerian man driving a Mercedes or BMW
and referring to himself as Mr. “745.” Appellant testiﬁed that she received the check because
Mr. 745. with his vehicle. had struck the 2001 Nissan Maxima that she was driving. which
dented the Nissan. The 2001 Nissan Maxima was not appellantis vehicle, but belonged to Freda
Trimble, appellant’s grandmother. Appellant had a passenger in the vehicle, Shakoia Beasley,
who also received a check from Mr. 745 in the amount of $2,200. Both appellant and Beasley
claimed that they received the checks While at the accident scene. Neither appellant nor Beasley
reported the accident.

The imprinted name on both checks was Marco A. Lozano d/b/a American Waste
Control. a business located in Red Oak, Texas. The checks were drawn on a Bank of America
account. Appellant took the check to PLS Check Cashing in Grand Prairie where she cashed the
check and was charged a fee of $140.80 for doing so. Appellant did not utilize the Bank of
America location a few blocks away and testiﬁed that she did not go there because they charge a
fee. The transaction took about twenty-four minutes for appellant to complete. A few hours
later. Beasley cashed her $2,200 check at another PLS Check Cashing location in Oak Cliff.

Lozano testified that he discovered in early December 2009 that his business phone had
been disconnected. When Lozano checked his bank accounts, he noted money was disappearing
from the Bank of America account and determined that his checkbook had been stolen from his
truck, which had been burglarized. Lozano testiﬁed that he had not authorized anyone to write
checks or use his account. He also testiﬁed that he had to close the Bank of America account to
secure a refund of the stolen funds.

Lozano lived in Ellis County and provided a copy of one of the unauthorized checks to an
investigator there. The check, dated December 2, 2009. was made out to Destinee Cheatharn for
$2.560 for an “insurance claim.” Lozano had not authorized anyone to write this check to her
and it was not his signature on the check. Lozano did not have anyone who worked for him that

drove a Mercedes or BMW or went by the name Mr. “745.”

Robert Policy investigated circumstances surrounding the two checks that had been
cashed on Lozano’s account. He found that the check made out to appellant was cashed at PLS
Check Cashing in Grand Prairie, Texas. This location had records of the transaction and Video
surveillance of appeiiant cashing the check. Appeliant had cashed checks at this location in the
past and had a transaction history} but: she did not have an account at the location.

investigator Polley iearned from Lucia Hernandez at the PLS Grand Prairie location that
the check looked “suspicious” and that she had called the maker, Lozano, but was unable to
reach him. After about twenty minutes; Hernandez got approval from the district manager to
cash the check that appellant presented. Appellant endorsed the check in Hernandez’s presence

and provided identiﬁcation. Hernandez authenticated the Video for the jury and testiﬁed that

appellant seemed “nervous” when presenting and cashing the check.

Beasley testiﬁed at appellant’s triala and appellant testiﬁed in her own defense. Beasley
said she did not know why Mr. 745 gave her a check for $23200, but claimed it was because of
the car accident. Beasley testiﬁed that she did not ask to see identiﬁcation from Mr. 745 and that
she pleaded guilty to the same offense that appellant was charged with in this case.

Appellant testiﬁed that Mr. 745 was a tall African man in his twenties with a nice haircut
and clothes and that she did not ask him for identiﬁcation or write down his license plate
number. Appellant said that she used the $2,560 to buy another car and that she was not
suspicious of Mr. 745 but was suspicious of Investigator Polley when he inquired about her
receipt and cashing of the check. Appellant admitted that she did not have Lozano’s permission
to cash the check.

During conversations with investigator Policy, appellant claimed that she did not know
Beasley and that she had sold or no longer had the 2001 Nissan Maxima. In fact, appellant and
Beasley admitted at trial that they had been staying together at the time both received the stoien
and forged checks, Furthermore, appeiiant’s grandmother, Trimble, testified that she took the
car away from appellant and gave it to a nephew after appeliant had failed to make payments on
the vehicle. Trimble testified that: although she saw a dent on the Nissan, she was never told

about any accident and was never given any money by appellant for car repairs resulting from an

accident.

Standard ofReview

The standard of review to apply in reviewing a directed verdict denial is the same as for
reviewing the legal sufficiency of the evidence. trillions? v. State, 937 SW2d 479, 6382 (Tex.
Crim. App. l996). We apply the legal sufﬁciency standard outlined in Jackson and its progeny
and review all evidence admitted at trial by both the State and appellant in the light most
favorable to the jury’s verdict and decide Whether any rational jury could have found the offense
elements beyond a reasonable doubt. Jackson v. Virginia, 443 US. 307, 318 (l979); Brooks v.
State, 323 S.W.3d 893, 894 (Tex. Crim. App. 2010); Williams, 937 S.W.2d at 482.

The trier of fact may believe all, some, or none of a witness’s testimony because the
factﬁnder is the sole judge of the weight and credibility of the Witnesses. DeLeon v. State, 937
S.W.2d 129, 131 (Tex. App—«Waco 1996, pet. ref’d). We defer to the trier of fact’s resolution
of any conflicting inferences that are raised in the evidence and presume that the trier of fact
resolved such conﬂicts in favor of the prosecution. Murphy v. State, 4 S.W.3d 926, 928 (Tex.
App.-Waco 1999, pet. ret‘d).

Analysis

In her single issue, appellant complains that the trial court erred in not granting a directed
verdict because there is no evidence that she used identifying information of Lozano intending to
defraud or harm him. A person commits an offense if the person, with the intent to harm or
defraud another, obtains, possesses, transfers, or uses an item of identifying information of
another person without the other person’s consent. TEX. PENAL CODE ANN. § 32.Sl(b) (West
Supp. 2012). The Code deﬁnes “identifying information as information” alone or in conjunction
with other information that identiﬁes a person, including the person‘s ﬁnancial institution
account number. Id. § 32.Sl(a). If less than five items of identifying information are obtained,
possessed, transferred, or used, the offense is a state jail felony. Id. § 32.51(c)(l).

Intent to harm or defraud may be proven by circumstantial evidence. Williams v. State,
688 S.W.2d 486, 488 (Tex. (Irina. App. 1985). In fact, mental states are usually inferred from
acts and words. Moore v. State, 969 S.W.2d 4, 10 (Tex. Crim. App. 1998). Knowledge of a
forgery may be proven by evidence of “suspicious circumstances” that show the actor knowingly
and intentionally passed the forged check. li’illz’ams, 688 S.W.2d at 488~90; Huntley v. State, 4
S.W.3d 8l3, 81445 (Tex. AppwHouston [lst Dist} 1999, pet. ret‘d).

intent to defraud is inferred if the State proves that the actor has knowledge that the check
is forged. Colbum v. State, 501 S.W.2d 680} 582 (Tex. Crim. App. 1973). in Colbert's. the
defendant. RP. Colburn. claimed to have received a “good check” signed by Howard W.
Hopkins and made payable to RP. Colburn for allegedly hauling pulpwood, which the defendant
gave to a clerk, Barbara Lockwood} at a United Dollar Store for merchandise received. Id.
When the check was returned by the drawing hank marked “No Account,” an investigation
ensued by Lockwood and local law enforcement. 1d. No Howard W. Hopkins was ever located.
Id. With these facts. the C0123an court held that circumstantial evidence was sufﬁcient for the
trial court to find that the check was forged, that the defendant knew it was forged, and that he
had presented it to Barbara Lockwood with the intent to defraud. 1d.

Appellant in this case admitted that she received a check from Mr. 745 because of alleged
damage to her grandmotheris 2001 Nissan Maxima, but she made no report of the accident and
never gave the money to her grandmother. Appellant claimed that Mr. 745 gave her the check
because he had no insurance on his BMW or Mercedes. But appellant conceded she did not
write down the license plate number of Mr. 745’s car and did not ask for identiﬁcation from
Mr. 745. Appellant also did not ask for identiﬁcation from Mr. 745 even though the check said
“Marco A. Lozano d/b/a American Waste Control” and Mr. 745 was African American or
Nigerian. in addition, appellant’s passenger, Beasley? also received a check for alleged injuries
but did not ask for identiﬁcation. Appellant never called or conﬁrmed that the check was given

to her by Lozano or his agent.

The check appellant received included Lozano’s account information for his trucking
business} and he had not authorized anyone to use this information. Appellant’s own actions in
not asking for identiﬁcation or reporting the accident and intentionally cashing the check at PLS
Check Cashing. rather than at Bank of America where the check was drawn, as well as her
“nervousness” in doing sog confirms that appellant had suspicions about the check. Furthermore,
the length of time it took to cash the check at PLS Check Cashing and the delay between
appellant and Beasley cashing the two checks at two different PLS Check Cashing locations is
further evidence of the “suspicious” nature of the checks. Finally. appellant denied knowing
Beasley. but was actually living with Beasley at the time both had received and cashed the stolen

checks and misrepresented the circumstances regarding ownership and disposition of the 2001

Nissan.

In weighing ail of the evidence, the jury was free to conclude from these facts that the
check’s autheniiciry and receipt were “suspicious” and that appeiiant intended to harm or defraud
Lozano by cashing one of his cheeks Without his permission or authorization. Because the jury
believed these facts and disregarded other testimony provided by appeiiant, its rational decision
is supported by the evidence. Appeiiant’s single issue is overruled.

We afﬁrm the trial courts judgment.

MIKE WILLSON
JUSTICE

January 31, 2013
Do not publish, See TEX. R. APP. P. 47.203).

Panels consists of: Wright, C.J.,
McCall, 3.: and Willson, J.

