                                                                                PD-0070-15
                                                               COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                             Transmitted 1/29/2015 9:18:34 AM
                                                               Accepted 1/29/2015 3:24:42 PM
                                                                                 ABEL ACOSTA
                               No. PD-0070-15                                            CLERK

                   TO THE COURT OF CRIMINAL APPEALS

                         OF THE STATE OF TEXAS


DONALD LYNN RAMSEY,                                                   Appellant
a/k/a DONALD LYNN RAMSAY

v.

THE STATE OF TEXAS,                                                    Appellee



                         Appeal from Swisher County


                                 * * * * *

             STATE’S PETITION FOR DISCRETIONARY REVIEW


                                 * * * * *
January 29, 2015

                              LISA C. McMINN
                          State Prosecuting Attorney
                            Bar I.D. No. 13803300

                          STACEY M. GOLDSTEIN
                      Assistant State Prosecuting Attorney
                             Bar I.D. No. 24031632

                                P.O. Box 13046
                             Austin, Texas 78711
                          information@spa.texas.gov
                          512-463-1660 (Telephone)
                              512-463-5724 (Fax)
                                       TABLE OF CONTENTS



IDENTITY OF JUDGE, PARTIES, AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Does an appellate court give proper deference to a jury’s forgery finding of intent
to defraud or harm when it fails to consider the totality of the evidence and
rational inferences therefrom?

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-9

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX (Opinion of the Court of Appeals)




                                                         i
           IDENTITY OF JUDGE, PARTIES, AND COUNSEL



*   The parties to the trial court’s judgment are the State of Texas and Appellant,
    Donald Lynn Ramsey a/k/a Donald Lynn Ramsay.

*   The trial Judge was Hon. Edward Lee Self.

*   Counsel for the State at trial and before the Court of Appeals was Swisher
    County Attorney J. Michael Criswell, 119 South Maxwell, Tulia, Texas 79088.

*   Counsel for the State before the Court of Criminal Appeals is Stacey M.
    Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin, Texas
    78711.

*   Counsel for Appellant at trial was Tina Davis-Rincones, 109 East 6th Street,
    Plainview, Texas 79072.

*   Counsel for Appellant before the Court of Appeals was Troy Bollinger, 600 Ash
    Street, Plainview, Texas 79072.




                                       ii
                                   INDEX OF AUTHORITIES


Cases

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . 5

Ramsey v. State, No. 07-14-00249-CR, 2014 Tex. App. LEXIS 13519 (Tex.
App.—Amarillo Dec. 17, 2014) (not designated for publication). . . . . . . . . . 2, 4,7

Stuebgen v. State, 547 S.W.2d 29 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . 7

Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . 8 n.2

Statute

TEX. PENAL CODE § 32.21(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5




                                                      iii
                                No. PD-0070-15

                  TO THE COURT OF CRIMINAL APPEALS

                          OF THE STATE OF TEXAS



DONALD LYNN RAMSEY                                                       Appellant
a/k/a DONALD LYNN RAMSAY,

v.

THE STATE OF TEXAS,                                                       Appellee




                          Appeal from Swisher County

                                   * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                   * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

     The State Prosecuting Attorney respectfully urges this Court to grant review.

             STATEMENT REGARDING ORAL ARGUMENT

     The State does not request oral argument.




                                        1
                         STATEMENT OF THE CASE

     A jury convicted Appellant of forgery of a check by passing, enhanced because

it was committed against an elderly person, and sentenced him to six years’

imprisonment and assessed a $1,000 fine.

                 STATEMENT OF PROCEDURAL HISTORY

     Over a dissent, the court of appeals reversed the trial court’s judgment and

entered a judgment of acquittal. Ramsey v. State, No. 07-14-00249-CR, 2014 Tex.

App. LEXIS 13519 (Tex. App.—Amarillo Dec. 17, 2014) (not designated for

publication). The State did not seek rehearing.

                           STATEMENT OF FACTS

Background

     Eighty-four-year-old Jimmie Owens and his son Jed owned Owens Motor

Machine. 1 RR 131. Appellant worked for the Owens’ for four to five months and

lived at the business’s shop. 1 RR 103, 133. Jed typically parked his work-truck

inside the shop in the evenings and left it unlocked. 1 RR 134-35.     Jed kept the

business’s checkbook in an inside pocket on one of the truck’s doors. 1 RR 127, 134.

Both Jimmie and Jed were signatories on the account. 1 RR 120, 131, 133-34.

Jimmie was listed as “J.E. Owens,” and Jed was listed as “J.J. Owens.” 1 RR 121,

123, 132, 136. Jimmie usually signed checks as “J.E. Owens,” but sometimes signed


                                         2
as “Jimmie E. Owens.”1 1 RR 123-24, 136. Jimmie always paid Appellant by check

and included the notation “contract labor” on the memo line. 1 RR 125, 127. The

Owens had previously given a nearby liquor store permission to cash Appellant’s

paychecks. 1 RR 150.

       In June 2013, Appellant tendered a $65 check payable to him from the Owens

Motor Machine account at the liquor store. Some of the money was used for goods,

and the remainder was given to Appellant as change. 1 RR 151-52. The signature on

the check read “Jim E. Owens,” and “Contract Labor” was written in the memo line.

1 RR 135; State’s Exhibit 2.

       Neither Jimmie nor Jed had signed or issued the check to Appellant. 1 RR 124,

136. Jed testified that Appellant was their only employee in June 2013, as well as the

preceding six months. 1 RR 136. He also believed that, with the exception of his

father, Appellant was the only other person to have access to his truck. 1 RR 136-38.

Jed acknowledged that other people sometimes stopped by the shop but stated that

they typically just called him. 1 RR 139-40.




   1
     Jimmie also explained that he signed checks with “Jimmie Owens” a long time
ago. 1 RR 129.
                                          3
Court of Appeals

      A majority of the court of appeals held that the State failed to prove that

Appellant intended to defraud or harm because there was no evidence that Appellant

knew the check was forged. Ramsey, 2014 Tex. App. LEXIS 13519, at *6. It

required evidence of the number of checks previously written and the name appearing

on the signature line before a jury could “logically” infer that Appellant knew whether

the signature was fake or genuine. Id. at *7. The majority also concluded that

Appellant’s knowledge of the forgery cannot be inferred from the fact that it was not

signed “J.E. Owens.” Id. at *6. Jimmie testified that he signed checks using “Jimmie

Owens” and “Jimmie E. Owens.” Id.

      The dissent maintained that the evidence circumstantially established Appellant

knew the check was forged. Id. at *12-13 (Prible, J., dissenting). When Appellant

passed the check noting “Contract Labor” he inferentially represented it was given for

services rendered, but the evidence showed that it was not given for services rendered.

Id. at *12. Further, Appellant had access to the checkbook and passed it at a place he

knew it would be honored. Id.

                             GROUND FOR REVIEW

Does an appellate court give proper deference to a jury’s forgery finding of intent
to defraud or harm when it fails to consider the totality of the evidence and
rational inferences therefrom?


                                          4
                                    ARGUMENT

      The court of appeals’ consideration of the facts, and reasonable inferences

drawn therefrom, was severely deficient. As a result, it failed to give proper deference

to the jury’s determination that Appellant knew the check was forged.

      When reviewing the sufficiency of the evidence, all of the evidence is

considered in the light most favorable to the verdict to determine whether, based on

that evidence and the reasonable inferences therefrom, the factfinder was justified in

finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979). The factfinder is the sole judge of credibility and weight given to the evidence

and is permitted to draw multiple reasonable inferences from facts when supported by

the evidence Id. at 319. When there are conflicting inferences, it must be presumed

that the factfinder resolved them in favor of the verdict. Id. at 326.

      The offense of forgery includes the elements of intent to defraud or harm

another. TEX. PENAL CODE § 32.21(b). Proof of those elements is established by

showing that the actor knew the writing was forged. Okonkwo v. State, 398 S.W.3d

689, 695 (Tex. Crim. App. 2012).

      Giving proper deference to the jury’s guilty verdict, the State satisfied its burden

to prove that Appellant knew the check was forged because the evidence firmly

established that Appellant forged the check.


                                            5
      First, Appellant was the beneficiary. The check was made out to Appellant

directly, and there is no evidence that anyone else would be motivated to make him

the beneficiary.

      Second, Appellant had unlimited access to the checkbook because he lived in

the shop where it was kept in an unlocked truck. Additionally, the evidence does not

support an alternative perpetrator theory. While other employees had been in Jed’s

truck before, Appellant was the Owens’ only employee in the four to six months

before the check was passed. 1 RR 139-40. Jed also testified that most people called

him instead of stopping by the shop. 1 RR 139-40. And because he stored the truck

in the shop overnight, the likelihood that persons who entered the shop during

business hours had access to the truck is slight. 1 RR 134-35.

      The forged check was close enough to show familiarity but imprecise enough

to show it was forged. Having had received checks from Jimmie in the past,

Appellant knew the specific manner in which he issued his paychecks. Thus, it

included the particular memo-line notation “Contract Labor.” But the use of “Jim E.

Owens” for the signature, a style that was never used by Jimmie when issuing checks,

confirms it was not genuine.

      Appellant’s choice of venue for cashing the check is also consistent with his

forgery scheme. As the court of appeals’ dissent observed, he cashed it at the liquor


                                         6
store because he knew he would not be scrutinized and that it would be honored.

       Finally, even if the evidence did not show that Appellant was the forger, the

evidence would nonetheless show he knew it was forged. As the dissent observed,

Appellant did not actually do any work for the Owens’ to warrant payment, so the

“windfall” payment for his labor is inexplicable, as is his acceptance of payment for

labor not performed.

Unlike the Court’s 1977 Stuebgen Decision

      The majority also erred to conclude that this case is controlled by Stuebgen v.

State, 547 S.W.2d 29 (Tex. Crim. App. 1977). Ramsey, 2014 Tex. App. LEXIS

13519, at *4-6. In that case, the appellant was convicted of forgery for passing a

check belonging to his employer made payable to him with his employer’s forged

signature. Stuebgen, 547 S.W.2d at 31. This Court noted that the employer testified

that appellant had been his employee, he normally paid employees by check, he kept

the checkbook in his truck, and that three to five of his employees, including the

appellant, rode in the truck at the time the check was forged. Id. Finding the evidence

insufficient to show that the appellant knew the check was forged, the Court stated:

      In the instant case, the record reflects that appellant made no statement
      from which it could be inferred that he knew the instrument was forged.
      Appellant was listed as the payee, and appellant did not falsely represent
      himself. No evidence was introduced to show that anything appearing on
      the check was in appellant’s handwriting. Although appellant had access
      to [his employer’s] checkbook, and [his employer] normally paid his

                                          7
          employees personally, we do not find that this evidence is sufficient to
          discharge the State’s burden of showing that appellant acted with intent
          ‘to defraud or harm’ another.

Id. at 32.

          Stuebgen has no application here. First, it is a pre-Jackson v. Virginia-era case.

Therefore, Jackson’s ground rules about deferring to the jury’s resolution of the facts

was not yet established, and the Court did not apply such a standard on its own. In

fact, the Stuebgen Court appeared to apply the now-defunct, reasonable alternative

hypothesis standard.2 Under Jackson—as applied today—it is likely that this Court

would reach the opposite conclusion.

          Next, even if Stuebgen is regarded as good law, the quantum of evidence in this

case differs significantly from that in Stuebgen. Here, Appellant’s access to the

checkbook was nearly exclusive, as opposed to Stuebgen’s three to five employees.

Thus, there is no reasonable, alternative culprit here.3 Additionally, the evidence

strongly supports Appellant’s identity as the forger. Here, there is a nexus between

Appellant and the check because of the obvious attempt to duplicate the unique

manner in which Jimmie issued Appellant’s paychecks.

  2
     See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (recognizing that
the alternative reasonable hypothesis standard is no longer applicable when reviewing
legal sufficiency).
      3
     And again, the reasonable, alternative culprit theory relied upon in Stuebgen
would be an improper application of the sufficiency standard today.
                                               8
Conclusion

      The fact and circumstances surrounding the passing of the check support the

finding that Appellant forged it himself and therefore intended to defraud or harm

Jimmie Owens. The court of appeals’ decision represents a marked departure from

Jackson’s sufficiency analytical construct, 443 U.S. at 318-19, 326, because it failed

to acknowledge the significance of all the facts and logical inferences that support the

jury’s verdict. This Court should grant review and reinstate Appellant’s conviction.




                                           9
                             PRAYER FOR RELIEF

      WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant review and reverse the decision of the court of appeals.



                                        Respectfully submitted,

                                        LISA C. McMINN
                                        State Prosecuting Attorney
                                        Bar I.D. No.13803300


                                        /s/ STACEY M. GOLDSTEIN
                                        Assistant State Prosecuting Attorney
                                        Bar I.D. No. 24031632


                                        P.O. Box 13046
                                        Austin, Texas 78711
                                        information@spa.texas.gov
                                        512-463-1660 (Telephone)
                                        512-463-5724 (Fax)




                                         10
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool this

document contains 1,594 words, exclusive of the items excepted by TEX. R. APP. P.

9.4(i)(1).




                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         11
                         CERTIFICATE OF SERVICE

      The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on January 29, 2015, via certified electronic service provider

to:


Hon. J. Michael Criswell
Swisher County Attorney
119 South Maxwell
Tulia, Texas 79088
swisherca@swisher-tx.org

Hon. Troy Bollinger
600 Ash Street
Plainview, Texas 79072
troy@laneybollinger.com



                                       /s/ STACEY M. GOLDSTEIN
                                       Assistant State Prosecuting Attorney




                                         12
APPENDIX
                  DONALD LYNN RAMSEY AKA DONALD LYNN RAMSAY, APPELLANT v.
                                THE STATE OF TEXAS, APPELLEE

                                                     No. 07-14-00249-CR

                      COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

                                                 2014 Tex. App. LEXIS 13519


                                                 December 17, 2014, Decided

NOTICE: PLEASE CONSULT THE TEXAS RULES                            Okonkwo v. State, 398 S.W.3d 689, 695 (Tex. Crim. App.
OF APPELLATE PROCEDURE FOR CITATION OF                            2014); accord Stuebgen v. State, 547 S.W.2d 29, 32
UNPUBLISHED OPINIONS.                                             (Tex. Crim. App. 1977) (stating that "[w]hile the
                                                                  requisite culpable mental state . . . [for the offense of
PRIOR HISTORY:           [*1] On Appeal from the 242nd            forgery of a writing] is 'intent to defraud or harm,' we
District Court, Swisher County, Texas. Trial Court No. B-         fail to perceive how such culpable mental state can be
4502-13-07, Honorable Edward Lee Self, Presiding.                 shown absent proof of knowledge that the instrument is
                                                                  forged."). And, while intent may be inferred from
                                                                  circumstantial evidence such as words, acts, or conduct,
JUDGES: Before QUINN, C.J., and CAMPBELL and                      Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.
PIRTLE, JJ. Patrick A. Pirtle, Justice.                           1995), intent to defraud cannot be inferred from mere
                                                                  evidence of possession, passage, or presentment of a
OPINION BY: Brian Quinn                                           forged instrument. Johnson v. State, 425 S.W.3d 516,
                                                                  520 (Tex. App.--Houston [1st Dist.] 2012, pet. ref'd).
OPINION
                                                                         1 The definition of "forge" includes to "alter,
MEMORANDUM OPINION                                                       make, complete, execute or authenticate any
                                                                         writing so that it purports . . . to be the act of
    Appellant Donald Lynn Ramsey, aka Donald Lynn
                                                                         another who did not authorize that act . . . ." TEX.
Ramsay, appeals his conviction of forgery committed
                                                                         PENAL CODE ANN. § 32.21(a)(1)(A)(i) (West
against an elderly person by contending the evidence is
                                                                         2011).
insufficient to sustain the conviction. We reverse the
judgment.                                                              According to the evidence here, the $65 check
                                                                  negotiated by appellant was made payable to him and
     The standard of review is discussed in Brooks v.
                                                                  contained the signature "Jim E. Owens." Listed on the
State, 323 S.W.3d 893 (Tex. Crim. App. 2010). We refer
                                                                  memorandum line was the phrase "Contract Labor." The
the parties to that opinion in lieu of reiterating its content.
                                                                  record contains no evidence illustrating who wrote that
     Next, the State alleged, via indictment, that appellant      information on the item. Nor does it contain evidence
"with the intent to defraud or harm another, namely               indicating that the handwriting on the instrument was
JIMMIE E. OWENS, an elderly individual 65 years of                similar [*3] to that of appellant.
age or older, pass[ed] to Janna Parson, a forged writing,
                                                                       Other evidence illustrated that 1) J. E. Owens,
knowing such writing to be forged, and such writing had
                                                                  eighty-five years old, signed his checks as Jimmie E.
been so executed so it purported to be the act of JIMMIE
                                                                  Owens, Jimmie Owens, or J. E. Owens; 2) appellant
E. OWENS . . . ." The statute upon which the allegation
                                                                  worked for him and his son Jed; 3) appellant had been
was founded made it an offense for a person to forge a
                                                                  paid in the past with checks written with the words
writing with the intent to defraud or harm another. See
                                                                  "Contract Labor" on the memorandum line; 4) the two
TEX. PENAL CODE ANN. § 32.21 (b) (West 2011).1 Because
                                                                  authorized signatories on the account were J. E. Owens
an element of the crime charged required proof that the
                                                                  who is Jimmie Owens and J. J. Owens who is Jed
accused acted with the intent to defraud or harm [*2]
                                                                  Owens; 5) J. E. did not sign or authorize anyone to sign
another, the "State necessarily had to prove that . . . [the
                                                                  the check in question; 6) Jed did not sign the check or
accused] knew that the . . . [item was] forged . . . ."
                                                                  authorize another to do so; 7) appellant lived in the
                                                                                                                     Page 2
                                            2014 Tex. App. LEXIS 13519, *

Owens' shop; 8) the checks were kept in an unlocked               to defraud there, it was not enough here. Simply put,
truck; 9) appellant had access to the truck; and 10) others       there is no evidence of record from which a rational fact
who came to the shop had access to the truck as well.             finder could infer, beyond reasonable doubt, that
                                                                  appellant knew the instrument was forged and, therefore,
     The record further discloses that Janna Parson owned
                                                                  intended to defraud or harm either Owens. See also
the Booger Red Liquor store, which was located a block
                                                                  Crittenden v. State, 671 S.W.2d 527, 528 (Tex. Crim.
and a half from the Owens Motor Machine shop. She
                                                                  App. 1984) (finding no evidence of intent to defraud
testified that appellant was a customer and passed that
                                                                  from a record in which the defendant made no statement
check on June 11, 2013. Testimony also disclosed that
                                                                  from which it could be inferred that he knew the
she had received permission from the Owens to cash
                                                                  instrument was forged, he was listed as the payee and he
paychecks for appellant. There is no evidence about
                                                                  did not falsely represent himself, no evidence was
whether she recognized the signature on the check as
                                                                  introduced to show that anything on the check was in the
genuine.
                                                                  defendant's handwriting, there was no showing of any
     In [*4] Stuebgen v. State, the defendant cashed a            connection between the check stolen from the service
check made payable to him. The name of the account                station and appellant prior to the time he said he
owner appeared on the check, but the owner testified that         received it in the mail, and he made no attempt to [*6]
he did not sign the instrument. Additionally, the accused         flee after his attempt to deposit the check was thwarted).
was an employee of the account owner who also
                                                                       We do not have a situation like that in Oldham v.
happened to keep his checkbook in his truck. And, as
                                                                  State, 5 S.W.3d 840 (Tex. App.--Houston [14th Dist.]
here, individuals in addition to the accused had access to
                                                                  1999, pet. ref'd). There, the accused represented to the
the vehicle and no evidence appeared of record indicating
                                                                  person to whom she passed the check that she obtained
that the writing on the instrument was similar to that of
                                                                  the instrument from her employer. Yet, she did not work
the accused. Given these circumstances, our Court of
                                                                  for the person. Id. at 843-45. The misrepresentation
Criminal Appeals was asked to determine whether
                                                                  allowed the fact finder to reasonably infer that the
sufficient evidence appeared of record from which a
                                                                  writing was forged. So, the State's reliance on Oldham is
rational jury could infer, beyond reasonable doubt, that
                                                                  misplaced.2
the accused intended to defraud or harm. In response, the
court said:
                                                                         2 In Williams v. State, 688 S.W.2d 486 (Tex.
                                                                         Crim. App. 1985), another case relied on by the
           In the instant case, the record reflects
                                                                         State, the defendant was asked by the cashier
       that appellant made no statement from
                                                                         where he had obtained the money order he
       which it could be inferred that he knew the
                                                                         sought to cash, and he replied that he had done
       instrument was forged. Appellant was
                                                                         some work for a lady and she paid him with it.
       listed as the payee, and appellant did not
                                                                         Id. at 488. The utterance was false, and from that
       falsely represent himself. No evidence was
                                                                         the jury could rationally infer his knowledge of
       introduced to show that anything
                                                                         the forgery. Id. at 490.
       appearing on the check was in appellant's
       handwriting. Although appellant had                             Nor does the evidence that J. E. Owens signed the
       access to Chitwood's checkbook, and                        checks as "J. E. Owens" constitute proof that appellant
       Chitwood normally paid his employees                       knew the check was forged. Again, Owens testified that
       personally, [*5] we do not find that this                  he had also signed checks in other ways, such as
       evidence is sufficient to discharge the                    "Jimmie Owens" or "Jimmie E. Owens." So, it cannot be
       State's burden of showing that appellant                   rationally inferred that appellant knew of the forgery
       acted with intent "to defraud or harm                      because the signature line did not contain "J. E. Owens"
       another."                                                  in this instance. Moreover, to accept the State's
                                                                  argument would require us to presume that [*7]
                                                                  appellant knew how Owens signed his checks, but we
Stuebgen v. State, 547 S.W.2d at 32.                              found no evidence to support that. Appellant did not
                                                                  testify; nor did anyone so testify. Nor does the record
     We find it difficult to distinguish the material
                                                                  contain a description of the number of checks previously
circumstances in Stuebgen from those before us.
                                                                  written to appellant and the particular name appearing
Consequently, we find the outcome in Stuebgen
                                                                  on the signature line. It would seem necessary for such
controlling here. To the extent that access to the checks
                                                                  to appear of record before one can logically infer that the
and passing the check was not enough to establish intent
                                                                  payee somehow knew whether or not the signature on a

                                                              2
                                                                                                                    Page 3
                                              2014 Tex. App. LEXIS 13519, *

later instrument was genuine or fake simply by looking at       Owens," he did not sign check number [*9] 1313 and he
the signature.                                                  did not authorize anyone to sign it for him. He further
                                                                testified that he did not authorize delivery of the check
     Based on this record, we find the evidence
                                                                to Appellant and he did not write the words "contract
insufficient to establish that appellant 1) knew the
                                                                labor" on the instrument. Jed Owens also testified that
instrument was forged or 2) had the requisite intent to
                                                                he did not sign the check or authorize its issuance. The
defraud or harm.3 Consequently, we reverse the judgment
                                                                clerk from the liquor store testified that she had
and render a judgment of acquittal.
                                                                previously been authorized by Jed Owens to cash
                                                                Appellant's paychecks. Additional testimony established
       3 Per Bowen v. State, 374 S.W.3d 427, 431-32
                                                                that Appellant had previously been employed by the
       (Tex. Crim. App. 2012), we perused the record to
                                                                Owens and had prior access to the location where the
       determine if the crime for which appellant was
                                                                Owens Motor Machine checkbook was stored.
       tried encompassed a lesser-included offense
       having evidentiary support. None was found.                   Omitting the formal parts, the indictment in the
                                                                instant case charged that Appellant:
    Brian Quinn
    Chief Justice                                                          "did then and there, with intent to
                                                                       defraud or harm another, namely Jimmie
DISSENT BY: Patrick A. Pirtle                                          E. Owens, an elderly individual 65 years
                                                                       of age or older, pass to Janna Parson, a
DISSENT                                                                forged writing, knowing such writing to
                                                                       be forged, and such writing had been so
DISSENTING OPINION                                                     executed so it purported to be the act of
                                                                       Jimmie E. Owens, who did not authorize
     Applying the precedent of Stuebgen v. State1 and                  the act . . . ."
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 [*8] a forgery or that he had the requisite           A person commits the offense of forgery if he
intent to defraud or harm another. Because I would              forges an instrument with intent to defraud or harm
distinguish the facts of this case from those in Stuebgen       another.3 While it is true that the State must establish
and Crittenden, and because I find there is sufficient          every element of the offense charged, [*10] the intent to
circumstantial evidence to sustain Appellant's conviction,      defraud or harm another may be established by
I respectfully dissent.                                         circumstantial as well as direct evidence. Williams v.
                                                                State, 688 S.W.2d 486, 490 (Tex. Crim. App. 1985). In
       1 Stuebgen v. State, 547 S.W.2d 29 (Tex. Crim.           Williams the Court of Criminal Appeals found the
       App. 1977).                                              evidence was sufficient to discharge the State's burden
       2    Crittenden v. State, 671 S.W.2d 527 (Tex.           of showing that the accused acted with intent to defraud
       Crim. App. 1984).                                        or harm another when it established he made an
                                                                affirmative statement that he received the money order
    Although the underlying facts of this case are              he was attempting to pass in exchange for work
appropriately set out in the majority opinion, I will briefly   performed, when other evidence established that the
summarize those facts pertinent to my analysis of the           instrument had been stolen.
evidence. On June 11, 2013, Appellant went to the
Booger Red Liquor Store in Tulia, Texas, where he was a                3 The definition of "forge" includes to "alter,
regular customer, and cashed a check for $65. The check                make, complete, execute or authenticate any
was made out to Appellant and was drawn on the account                 writing so that it purports . . . to be the act of
of Owens Motor Machine at Centennial Bank. The                         another who did not authorize that act . . . ." TEX.
account belonged to J.E. Owens and his son, Jed Owens.                 PENAL CODE ANN. § 32.21(a)(1)(A)(i) (West
A customer service representative of the bank testified                2011). The definition also includes to "issue,
that the account had two authorized signators, "J.E.                   transfer, register the transfer of, pass, publish, or
Owens" and "J.J. Owens."                                               otherwise utter a writing that is forged within the
     The check in question, check number 1313, was                     meaning of Paragraph (A)." Id. at §
made out to Donald Ramsey and was signed by "Jim E.                    32.21(a)(1)(B).
Owens." The memo section of the check reflected that it             The Stuebgen case is distinguishable. In that case
was for "contract labor." J.E. Owens testified that             the Court found that the element of "intent to defraud or
although he has signed checks in the past as "Jimmie E.
                                                                                                                 Page 4
                                            2014 Tex. App. LEXIS 13519, *

harm another," found in section 32.21(b), necessarily
                                                                   I find that the instant case to be more appropriately
implicated a culpable mental state that included "knowing
                                                              governed by the holding in Williams. Here, similar to
[the forged instrument] was forged at the time of the
                                                              Williams and unlike Stuebgen and Crittenden, Appellant
passing," an element specifically required [*11] under
                                                              attempted to pass an instrument that clearly stated that it
the former Penal Code. See Articles 996, 979 VERNON'S
                                                              was given for a specific purpose, to-wit: "contract
ANN. PENAL CODE. Cf. TEX. PENAL CODE ANN. § 32.21(b)
                                                              l         a         b         o         r       .        "
(West 2011). Similar to the facts of this case, in Stuebgen
                                                              Furthermore, the evidence established that he was a
the accused passed a check made payable to himself and
                                                              former employee of the purported maker of the check,
purportedly signed by his employer. The Court of
                                                              had access to a checkbook from their account and passed
Criminal Appeals held that since the accused made no
                                                              the instrument at a location where he knew his
statement from which it could be inferred that he knew
                                                              "paychecks" would be honored. Reviewing the evidence
the instrument was forged, the evidence was insufficient
                                                              in the light most favorable to the jury's verdict, the
to discharge the State's burden of showing he acted with
                                                              evidence in this case circumstantially establishes that
the intent to defraud or harm another. It should be noted,
                                                              Appellant passed the check under circumstances
however, that unlike the record in this case, the record in
                                                              inferentially representing the check was given for
Stuebgen does not reflect the forged instrument contained
                                                              services rendered. As such, because [*13] the testimony
a memo concerning the purpose for which the instrument
                                                              of J.J. Owens and Jed Owens circumstantially
was given.
                                                              e     s      t    a     b     l     i     s   h    e     d
     In Crittenden the Court of Criminal Appeals reversed     that the check was not issued to Appellant for services
a forgery conviction because the State failed to show the     rendered, I believe a rational and fair-minded juror could
accused had knowledge that the instrument was forged. In      conclude beyond a reasonable doubt that Appellant
that case, the accused attempted to open a checking and       k                   n                  e                w
savings account by depositing a forged check. When the        the instrument was forged when he passed it.
bank teller questioned the instrument and called the          Accordingly, I would overrule Appellant's sufficiency
owner of the account, she was told the check had been         issue and affirm the judgment of conviction. See
stolen. The police were summoned and the accused              Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
explained he thought the check was from his attorney,         L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893,
[*12] representing proceeds from a personal injury case.      895 (Tex. Crim. App. 2010).
Because there was no showing of any connection
                                                                  Patrick A. Pirtle
between the accused and the stolen check, he made no
statements from which it could be inferred that he knew           Justice
the check was stolen, and he made no attempt to flee after
his attempt to deposit the check was thwarted, the Court          Do not publish.
found the evidence was insufficient to show that he had
the intent to defraud or harm another.
