

Opinion issued May 3, 2012

In The
Court of
Appeals
For The
First District
of Texas
————————————
NO. 01-11-00406-CR
———————————
Christopher Ray Johnson, Appellant
V.
The State of
Texas, Appellee

 

 
On Appeal from the 183rd District Court
Harris County, Texas

Trial Court Case No. 1278443
 

 
O P I N I O N
Appellant
Christopher Ray Johnson was convicted following a jury trial of forgery of a
commercial instrument, i.e., a money order, and sentenced to seven years’
confinement.  He appeals here (1)
challenging the sufficiency of the evidence that he acted with “intent to
defraud,” and (2) complaining that the prosecutor’s closing argument improperly
introduced facts outside the record.  We
reverse.
BACKGROUND
On March 3, 2010, Miriam Karr
bought a Western Union money order for $535 to pay her family’s rent at The
Pointe apartment complex.  She filled in
“The Pointe” as the payee and her own name and address on the “purchaser”
line.  Around 8:00 that same evening, she
deposited the money order into the night drop box of the apartment complex’s
office, which was already closed for the day. 
The Pointe did not receive Karr’s
money order.  She requested a refund from
Western Union, but required a police report and an affidavit from her attesting
that she was not at fault.  She then
discovered that to obtain a police report, she needed a copy of the money order
from Western Union and other information from Western Union about the location
of the money order.  It took several
months for Karr to straighten it out and, because of the delay in receiving a
Western Union refund and her inability to come up with funds to pay the lost
rent, her family was evicted for rent nonpayment and lost their
belongings.    
 The copy of the money order Western Union
provided reflected that both the purchaser and payee lines had been altered to
remove Karr’s and The Pointe’s names. 
Her name on the purchaser line had been replaced with “Shoust,” and her apartment complex’s name as the payee had
been replaced with appellant’s name.  The
amount of the money order, i.e., $535, had not been changed.  Karr testified that she did not know
appellant and had not authorized him or anyone else to alter her money
order.  
Sergeant Patrick Walker with the
Houston Police Department Forgery Division testified that he investigated the
theft of the money order and opined that it was likely “fished” out of the
apartment complex’s night deposit, and then chemically “washed.”  He explained that “night drop fishing” is a
common method of stealing rent payments by using double-sided tape or some
other adhesive attached to a wire hanger or other pliable, extended tool to
pull money orders and checks back through the slot of a night drop box.  “Washing” refers to the use of chemicals to
soften the ink on a money order or check so that a soft adhesive can been used
to lift the ink off the paper, leaving the original writing largely
undetectable.  
Walker’s inspection of the forged
money order revealed that appellant had cashed it at an HEB Store the afternoon
of March 5, 2010, about thirty-six hours after Karr deposited it in the night
drop box.  Walker interviewed the cashier
who processed the transaction.  That
cashier was not able to identify appellant from a photo array, but did confirm
that appellant presented a valid Texas driver’s license, provided his
thumbprint, and otherwise complied with HEB’s verification procedures to obtain
payment from the instrument.  Deputy
Katherine Mills with the Houston Police Department Crime Scene Unit testified
that she also compared the fingerprint that appellant submitted at HEB when he
cashed the money order with appellant’s known fingerprints, and verified that
they matched.  
Walker testified that he made no
attempt to locate or indentify anyone named Shoust—the name
listed as purchaser on the money order—to ascertain if that person existed and, if so, if that person had any
ties to the Point, to Karr, or to appellant. 
Walker further testified that he did not try to contact or interview
appellant to ask him how he came into possession of the money order.  He testified that the results of his
investigation demonstrated only that appellant was the person who negotiated
the money order, but not that he was the person who stole or altered the money
order. 
Walker opined that the short period
of time between the theft and negotiation of the money order was significant in
that “it narrows the focus” of the investigation into who may have intent or
knowledge that a commercial document is forged. 
He also opined that it was suspicious that the money order amount of
$535 was not altered, because it would be a coincidence for the money order to
have been negotiated to appellant for a debt of that amount.  
At the close of the State’s case,
appellant moved for a directed verdict, which the court denied.  The defense rested without putting on
evidence.
  

The jury found appellant guilty of
forgery and, after appellant stipulated to the truth of two prior enhancements—both state jail felony offenses of burglary of
a building—the jury assessed his
punishment at seven years’ confinement. 
Appellant timely appealed.
ISSUES ON APPEAL
In two points of error, appellant
contends (1) there is legally insufficient evidence to prove the “intent to
defraud” element of forgery, and (2) the prosecutor made an improper jury
argument that suggested to the jury that appellant knew that the money order
was stolen despite there being no supporting evidence in the record to that
effect.  
SUFFICIENCY OF THE EVIDENCE
In his first issue, appellant
contends that there is insufficient evidence of his intent to defraud.  He acknowledges that intent to defraud can be
inferred if the State proves the defendant has knowledge the instrument has
been forged.  See Williams v. State, 688 S.W.2d 486, 488
(Tex. Crim. App. 1985).  But, he asserts,
the Court of Criminal Appeals has admonished that “intent or guilty knowledge
cannot be inferred from the mere passing of a forged instrument.” See Parks v. State, 746
S.W.2d 738, 740 (Tex. Crim. App. 1987). 
While courts have recognized that circumstantial evidence can be
adequate to demonstrate intent to defraud, he argues that such circumstantial
evidence is absent here.  
In response, the State concedes
that appellant’s passing or presenting the forged money order is not evidence
of his specific intent to defraud.  It
asserts, however, that there is sufficient circumstantial evidence of such
specific intent to support the jury’s verdict. 
Specifically, it argues that intent is shown by evidence (1) that there
was no explanation for appellant’s possession and presentment of the money
order, (2) that the amount on the money order was not changed, and (3) of the
short timeframe between theft of the money order and appellant’s presentment. 
A.   Standard of Review
We review a challenge to the legal
sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307,
318–20, 99 S. Ct. 2781, 2788–89 (1979).  See Ervin v. State, 331 S.W.3d 49, 52–56
(Tex. App.—Houston [1st Dist.] 2010, pet. ref’d)
(citing Brooks v. State, 323 S.W.3d
893, 894–913 (Tex. Crim. App. 2010)).  Under
the Jackson standard, evidence is
insufficient to support a conviction if, considering all the record evidence in
the light most favorable to the verdict, no rational factfinder
could have found that each essential element of the charged offense was proven
beyond a reasonable doubt.  See Jackson, 443 U.S. at 317–19, 99 S. Ct.
at 2788–89; Laster v. State, 275 S.W.3d 512, 517 (Tex. Crim.
App. 2009).  Evidence is insufficient
under this standard in four circumstances: (1) the record contains no evidence
probative of an element of the offense; (2) the record contains a mere
“modicum” of evidence probative of an element of the offense; (3) the evidence conclusively
establishes a reasonable doubt; and (4) the acts alleged do not constitute the
criminal offense charged.  See Jackson, 443 U.S. at
314, 318 n.11, 320, 99 S. Ct. at 2786, 2789 & n.11; Laster, 275 S.W.3d at 518; Williams v. State, 235 S.W.3d 742, 750
(Tex. Crim. App. 2007).
The Jackson standard gives full play to the responsibility of the factfinder to resolve conflicts in the testimony, to weigh
the evidence, and to draw reasonable inferences from basic facts to ultimate
facts.  See Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2788–89; Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). An appellate court presumes the factfinder
resolved any conflicts in the evidence in favor of the verdict and defers to
that resolution, provided that the resolution is rational.  See
Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.  If an appellate court finds the evidence
insufficient under this standard, it must reverse the judgment and enter an
order of acquittal.  See Tibbs v. Florida, 457 U.S. 31, 41,
102 S. Ct. 2211, 2218 (1982).
B.   Applicable Law 
It is an offense if a person
“forges a writing with intent to defraud or harm
another.” Tex. Penal
Code Ann. § 32.21 (Vernon 2011); Ex parte Porter, 827 S.W.2d 324, 325
(Tex. Crim. App. 1992). 
Possession, passage, or presentment
of a forged instrument is not evidence of intent to defraud.  Parks,
746 S.W.2d at 740. 
Intent to defraud or harm may be established by other circumstantial
evidence. Williams, 688 S.W.2d at 488. 
For example, if the State proves that an actor has knowledge that a
particular check is forged, proof of intent to defraud is inferred.  Id.
 Further, if there is sufficient evidence
to establish an actor’s theft of the instrument ultimately forged, the evidence
is deemed sufficient to show knowledge of the forgery, and therefore sufficient
to show an intent to defraud or harm. Palmer v. State, 735 S.W.2d 696, 699 (Tex. App.—Fort Worth 1987, no
pet.).
C.   Analysis
Appellant identifies the following
as circumstances that courts have found probative of intent to defraud and
emphasizes the lack of all but one of these circumstances here:
(1)            
The defendant gives a false explanation of how he possessed the check;
(2)            
The name of the maker of the check is proven to be false;
(3)            
The defendant flees;
(4)            
The defendant gives false identification to the cashier;
(5)            
The defendant’s signature and the forged signature on the check appear
similar.
Griffin v. State, 908
S.W.2d 624, 627 (Tex. App.—Beaumont 1995, no pet.)  He analogizes the facts here to two other
cases—Stuebgen v. State, 547 S.W.2d 29 (Tex. Crim.
App. 1977) and Crittenden v. State,
671 S.W.2d 527 (Tex. Crim. App.
1984)—in which the Court of Criminal Appeals held evidence to be insufficient
to demonstrate an intent to defraud. 
In Stuebgen, the
defendant cashed a check on December 5, 1974 that was payable to him with a
maker of “Bill Chitwood.”  547 S.W.2d at 31.  Chitwood testified
that “the check passed was his personalized check, but that the signature on
the check was not his.”  Id. 
He also testified that the defendant was his employee in November and
December of 1974, that Chitwood kept his checkbook in
his truck, and that three to five employees rode in his truck daily during that
period, including the defendant.  Id. 
In holding that this evidence was insufficient to support a finding that
the defendant had sufficient intent to defraud, the court explained:
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 Chitwood’s checkbook, and Chitwood normally paid his 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.      
In Crittenden, the other case appellant cites as “similar to the
present case,” the defendant presented “a check drawn on the account of a
Lubbock service station and made payable to himself.”  671 S.W.2d at 527.  The purported maker of the check was a local
attorney, John J.C. O’Shea.  Id. 
The defendant testified that he received the check in the mail, and
believed it to be settlement proceeds from a case O’Shea was working on for
him.  Id. at 527–28. 
O’Shea testified that he was handling a case for the defendant, but that
he did not sign the service station check, nor mail it to the defendant.  Id. at 528.  In
reversing the defendant’s forgery conviction, the court explained:
We find the facts of the instant case
remarkably similar to the facts in Stuebgen v. State
and Pfleging v. State.  Just as in those cases, the State, in the
instant case, proved that the instrument was in fact forged; but the State
failed to present any evidence, circumstantial or otherwise, to show the
appellant’s knowledge that the instrument was forged or to show that appellant
possessed the intent to defraud or harm. 
The appellant made no statement from which it could be inferred that he
knew the instrument was forged.  Appellant
was listed as the payee and he did not falsely represent himself.  No evidence was introduced to show that
anything appearing on the check was in appellant’s handwriting.  There was no showing of any connection
between the check stolen from the service station and appellant prior to the time
he said he received it in the mail.  Finally,
appellant made no attempt to flee after his attempt to deposit the check was
thwarted.  
Id.
(citations omitted).
The State insists that there is
more circumstantial evidence in this case of intent to defraud than was present
in Stubegen
and Crittenden.  It argues that we should thus instead look to
other cases holding that there was sufficient circumstantial evidence of intent
to defraud to sustain a forgery conviction that it claims present facts more
analogous to those here.  See Huntley v. State, 4 S.W.3d 813 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d), Tucker v. State, No. 05-06-00746-CR,
2006 WL 3704638 (Tex. App.—Dallas, Dec. 18, 2006, no pet.) (not
designated for publication), Palmer,
735 S.W.2d at 696, Jasper v. State,
No. B14-92-00188-CR, 1993 WL 81733 (Tex. App.—Houston [14th
Dist.] Mar. 25, 1993, no pet.) (not designated for publication).
We thus examine these cases to
determine if they support the State’s argument that intent to defraud can be
inferred from (1) the lack of explanation for appellant’s possession and
presentment of the money order, (2) the amount on the money order not being
changed, and (3) the short timeframe between theft of the money order and
appellant’s presentment.  We conclude
they do not.  
In three of the four cases cited by
the State, the payor indentified
on the face of the instrument negotiated by the defendant denied having given
the defendant the instrument and testified that he or she did not know the
defendant.[1]  The Palmer
court explained the significance of this fact in the face of no explanation by
the defendant as to how he had acquired the check at issue:
Palmer presumably would have known that he
had no connection with [the payor/maker of the check]
Gateway.  We find that Palmer’s lack of
any relationship with the payor, even though he was
the payee on the check, taken in connection with his unexplained, personal,
recent possession and passing as his of one of the payor’s
stolen checks, is sufficient evidence to establish his knowledge that the check
was forged, and therefore his intent to defraud or harm another.  
735 S.W.2d at 698; see also Huntley, 4 S.W.3d at 815 (defendant’s failure to bring
forth witness who had written check to him in light of check payor’s testimony that she did not know defendant or write
check to him made other “suspicious circumstances” even “more suspicious and
rendered appellant’s recent, personal possession of a stolen check
unexplained”).
The Tucker court likewise found similar unexplained possession by the
defendant to be significant in the face of testimony by the payor
that she did not know the defendant and did not issue to him a check:
Given [payor]
Boule’s testimony, there is no plausible legitimate explanation for appellant’s
possession and presentment of the check. 
He had no relationship with Boule or her company even though he was the
payee on the check.  And unexplained,
personal, recent possession and passing of a forged check is sufficient
evidence to establish appellant’s knowledge that the check was forged ad to
show he had the intent to defraud or harm another.  
2006 WL 3704638, at *2 (citing Huntley, 4 S.W.3d at 815; Palmer, 735 S.W.2d at 698).
The State argues that, based on the
reasoning of these cases, the fact that Karr and appellant did not know each
other, coupled with appellant’s failure to explain how he came to be in
possession of Karr’s stolen money order, is evidence from which an intent to
defraud can be inferred.  The State’s
argument ignores the significant fact, however, that the payor
indentified on the money order presented by appellant
was not Karr—it was someone named Shoust.  The State has the burden of proof, and
performed no investigation to determine if such a person existed and, if so,
what relationship he or she had to appellant. 
There was thus no testimony by the payor in
this case disclaiming a relationship with appellant as in the cases cited by
the State, nor was there evidence indicating that the payor
may not exist.[2]  Indeed, the State purposefully avoided
interviewing appellant to inquire about how he came to be in possession of the
money order.  Under these circumstances,
accepting the State’s argument would render a defendant’s presentment of a forged
instrument, coupled with that defendant’s failure to testify on his or her on
behalf, sufficient evidence of intent to defraud.  This is contrary to the well-settled
principle that “[t]he failure of any defendant to so testify shall not be taken
as a circumstance against him.”  See Tex.
Code. Crim. Proc. Ann. art. 3808
(Vernon 2011).  
The next factor cited by the State
is the fact that the amount of the money order was not changed when the payor and payee were altered.  While the State asserts that this
demonstrates that “appellant at least had knowledge that the order was
illegitimate,” it cites no case supporting that proposition, and we have
located none.  Cf. Griffin, 908 S.W.2d at 628 (testimony that “even” dollar amount
of $250 was unusual because memorandum line on check stated “for work” and
generally payroll checks are not for even amounts was not evidence from which
it could be inferred that defendant knew that check was forged).     
Finally, the State cites that only
thirty-six hours passed between the theft of the money order and when appellant
passed it at HEB.  A short time frame
between theft of a financial instrument and passage of the forged document has
contributed to the totality of the circumstances in cases inferring an intent to defraud. 
See Jasper, 1993 WL 81733, at
*2 (six to eight weeks between burglary and when defendant cashed money orders
“decreas[ed] the
possibility that the money orders had changed hands since the theft”); Palmer, 735 S.W.2d at 697–98 (citing fact that check had been stolen two
days before defendant presented check as significant).  
In each case in which a short time
frame between theft and presentment was cited as circumstantial evidence of
intent to defraud, it was one of several factors adding to a totality of
suspicious factors that are not present here. 
In Huntley, the case upon which
the State primarily relies, the following factors were cited:
(1)     appellant is a black male who was in
possession of the forged check which had been stolen less than 24 hours earlier
by a black male;
(2)     no other stolen checks showed up after
appellant’s arrest, suggesting  possible
association between appellant and the robber;
(3)     appellant presented the forged check for cash to the issuing bank
early Monday morning, when the bank first opened after the robbery, maximizing
the chances that the check might be cashed if the complainant had not yet
reported her checks stolen;
(4)     the amount of the check was $465, making it unlikely that
appellant would have been given such a large check by a stranger, and yet
appellant did not subpoena this person as a witness, to explain appellant’s
possession of the check;
(5)     the check made out to appellant was dated two days before it was
stolen from the complainant, and thus two days before the check could have been
presented to appellant, which should have at least alerted appellant to
irregularity in its issuance as a predated check; and
(6)     the complainant did not know appellant,
making it suspicious that appellant would be given such a large check by a
stranger.
Huntley, 4 S.W.3d at 814–15.  These factors, coupled with Huntley’s failure
to explain how he came to be in possession of the check, were sufficient to
support the inference that he knew the check he presented was forged.  Id. at 815.
In Jasper, the court noted that (1) the defendant acted suspicious when
he cashed the money orders, presenting one and then returning ten minutes later
to present the second, (2) the defendant testified that he “could not remember
whether he cashed the money orders,” despite clear evidence that he had, and (3)
given the defendant and complainant both testified, credibility was at
issue.  1993 WL 81733, at *1–2.
In this case, evidence was
presented that appellant cashed an altered money order, which is not evidence
of intent to defraud.  Parks, 746 S.W.2d at
740–41.  We are mindful that intent to defraud can be
proven entirely by circumstantial rather than direct evidence. Griffin, 908 S.W.2d at 627 (citing Williams, 688 S.W.2d at 488).  The totality of the circumstances here,
however, falls short of those that have supported such an inference in other
cases.  The alterations to the money
order in this case were undetectable upon examination.  There is no testimony tying appellant to the
theft of the money order, or to its alteration. 
There was no evidence about appellant acting suspiciously when he
presented the money order, or about his misrepresenting his identity.  There was no evidence that his handwriting
matched that of the payor or payee on the money
order.  
The State purposefully avoided
interviewing appellant and did no investigation into the existence, identity,
or whereabouts of the money order’s payor.  There was no evidence that the payor on the money order did not exist, or testimony from
the payor disclaiming a relationship with
appellant.  The State’s entire case rests
on the facts that (1) appellant did not testify to provide an explanation about
his possession of the money order (a fact we have explained cannot be
circumstantial evidence of intent to defraud on these facts), (2) the amount of
the money order was not altered, and (3) less than two days passed between
theft of the money order and appellant’s presenting it at HEB.  
Given the complete absence of
evidence about the payor on the forged money order,
the circumstantial evidence—i.e.,
the unaltered payment amount and the short thirty-six hour timeframe between
theft and presentment—are not
sufficient in their totality for a rational factfinder
considering the evidence in the light most favorable to the verdict to find
intent to defraud was proven by the State beyond a reasonable doubt.  See
Jackson, 443 U.S. at 
317–19; Laster v. State, 275 S.W.3d at 517.  
We sustain appellant’s first point
of error.  
CONCLUSION
Given our resolution of appellant’s
first point of error, we need not reach his second point.  We reverse appellant’s conviction and render
a judgment of acquittal.   
 
 
  

 
                                                                   Sherry
Radack
                                                                   Chief
Justice 
 
Panel
consists of Chief Justice Radack and Justices Higley and Brown.
Publish.  Tex. R. App. P. 47.2(b).
 




[1]
          In the fourth case, Jasper v. State, it is not apparent from
the opinion whether there was a payor indentified on the stolen money orders presented for
payment by the defendant.  1993 WL 81733, at *2. 



[2]
          Testimony that the payor on a financial instrument does not appear to be a
real person based on a search for someone by that name in the relevant
geographical area has been cited as relevant to a defendant’s intent.  See
Williams, 688 S.W.2d at 489 (describing investigation in search of payor which revealed that she could not be located by
search of her name, and that her address listed on money order was for an
unrelated tire store);  Colburn v. State, 501 S.W.2d 680, 682
(Tex. Crim. App. 1973) (holding fact that extensive search for payor on forged check revealed that person likely did not
exist supported inference that defendant knew check was forged); Golden v, State, 475 S.W.2d 273, 274
(Tex. Crim. App. 1972) (evidence that defendant stated the maker of a forged
check was an insurance man but an extensive investigation demonstrated no such
person existed supported inference that defendant knew check was forged).    


