                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                         No. 07-14-00249-CR


                               DONALD LYNN RAMSEY AKA
                            DONALD LYNN RAMSAY, APPELLANT

                                                   V.

                               THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 242nd District Court
                                     Swisher County, Texas
               Trial Court No. B-4502-13-07, Honorable Edward Lee Self, Presiding

                                         December 17, 2014

                                   DISSENTING OPINION
                      Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Applying the precedent of Stuebgen v. State1 and Crittenden v. State,2 the

majority reverses Appellant’s forgery by passing conviction by finding the evidence

insufficient to establish that Appellant knew the instrument was a forgery or that he had

the requisite intent to defraud or harm another. Because I would distinguish the facts of




      1
          Stuebgen v. State, 547 S.W.2d 29 (Tex. Crim. App. 1977).
      2
          Crittenden v. State, 671 S.W.2d 527 (Tex. Crim. App. 1984).
this case from those in Stuebgen and Crittenden, and because I find there is sufficient

circumstantial evidence to sustain Appellant’s conviction, I respectfully dissent.

       Although the underlying facts of this case are appropriately set out in the majority

opinion, I will briefly summarize those facts pertinent to my analysis of the evidence. On

June 11, 2013, Appellant went to the Booger Red Liquor Store in Tulia, Texas, where

he was a regular customer, and cashed a check for $65. The check was made out to

Appellant and was drawn on the account of Owens Motor Machine at Centennial Bank.

The account belonged to J.E. Owens and his son, Jed Owens. A customer service

representative of the bank testified that the account had two authorized signators, “J.E.

Owens” and “J.J. Owens.”


       The check in question, check number 1313, was made out to Donald Ramsey

and was signed by “Jim E. Owens.” The memo section of the check reflected that it

was for “contract labor.” J.E. Owens testified that although he has signed checks in the

past as “Jimmie E. Owens,” he did not sign check number 1313 and he did not

authorize anyone to sign it for him. He further testified that he did not authorize delivery

of the check to Appellant and he did not write the words “contract labor” on the

instrument. Jed Owens also testified that he did not sign the check or authorize its

issuance.    The clerk from the liquor store testified that she had previously been

authorized by Jed Owens to cash Appellant’s paychecks.                Additional testimony

established that Appellant had previously been employed by the Owens and had prior

access to the location where the Owens Motor Machine checkbook was stored.


       Omitting the formal parts, the indictment in the instant case charged that

Appellant:

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        “did then and there, with intent to defraud or harm another, namely Jimmie
        E. Owens, an elderly individual 65 years of age or older, pass to Janna
        Parson, a forged writing, knowing such writing to be forged, and such
        writing had been so executed so it purported to be the act of Jimmie E.
        Owens, who did not authorize the act . . . .”



        A person commits the offense of forgery if he forges an instrument with intent to

defraud or harm another. 3 While it is true that the State must establish every element of

the offense charged, the intent to defraud or harm another may be established by

circumstantial as well as direct evidence. Williams v. State, 688 S.W.2d 486, 490 (Tex.

Crim. App. 1985). In Williams the Court of Criminal Appeals found the evidence was

sufficient to discharge the State’s burden of showing that the accused acted with intent

to defraud or harm another when it established he made an affirmative statement that

he received the money order he was attempting to pass in exchange for work

performed, when other evidence established that the instrument had been stolen.


        The Stuebgen case is distinguishable. In that case the Court found that the

element of “intent to defraud or harm another,” found in section 32.21(b), necessarily

implicated a culpable mental state that included “knowing [the forged instrument] was

forged at the time of the passing,” an element specifically required under the former

Penal Code. See Articles 996, 979 VERNON’S ANN. PENAL CODE. Cf. TEX. PENAL CODE

ANN. § 32.21(b) (West 2011). Similar to the facts of this case, in Stuebgen the accused

passed a check made payable to himself and purportedly signed by his employer. The


        3
           The definition of “forge” includes to “alter, make, complete, execute or authenticate any writing
so that it purports . . . to be the act of another who did not authorize that act . . . .” TEX. PENAL CODE ANN.
§ 32.21(a)(1)(A)(i) (West 2011). The definition also includes to “issue, transfer, register the transfer of,
pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A).” Id. at §
32.21(a)(1)(B).

                                                      3
Court of Criminal Appeals held that since the accused made no statement from which it

could be inferred that he knew the instrument was forged, the evidence was insufficient

to discharge the State’s burden of showing he acted with the intent to defraud or harm

another. It should be noted, however, that unlike the record in this case, the record in

Stuebgen does not reflect the forged instrument contained a memo concerning the

purpose for which the instrument was given.


      In Crittenden the Court of Criminal Appeals reversed a forgery conviction

because the State failed to show the accused had knowledge that the instrument was

forged. In that case, the accused attempted to open a checking and savings account by

depositing a forged check. When the bank teller questioned the instrument and called

the owner of the account, she was told the check had been stolen. The police were

summoned and the accused explained he thought the check was from his attorney,

representing proceeds from a personal injury case. Because there was no showing of

any connection between the accused and the stolen check, he made no statements

from which it could be inferred that he knew the check was stolen, and he made no

attempt to flee after his attempt to deposit the check was thwarted, the Court found the

evidence was insufficient to show that he had the intent to defraud or harm another.


      I find that the instant case to be more appropriately governed by the holding in

Williams.   Here, similar to Williams and unlike Stuebgen and Crittenden, Appellant

attempted to pass an instrument that clearly stated that it was given for a specific

purpose, to-wit: “contract labor.” Furthermore, the evidence established that he was a

former employee of the purported maker of the check, had access to a checkbook from

their account and passed the instrument at a location where he knew his “paychecks”

                                           4
would be honored. Reviewing the evidence in the light most favorable to the jury’s

verdict, the evidence in this case circumstantially establishes that Appellant passed the

check under circumstances inferentially representing the check was given for services

rendered.    As such, because the testimony of J.J. Owens and Jed Owens

circumstantially established that the check was not issued to Appellant for services

rendered, I believe a rational and fair-minded juror could conclude beyond a reasonable

doubt that Appellant knew the instrument was forged when he passed it. Accordingly, I

would overrule Appellant’s sufficiency issue and affirm the judgment of conviction. See

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Brooks v.

State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).




                                                      Patrick A. Pirtle
                                                          Justice


Do not publish.




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