
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-99-00724-CR





Jesse S. Villanueva, Appellant


v.


The State of Texas, Appellee





FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT

NO. CR99-036, HONORABLE CHARLES R. RAMSAY, JUDGE PRESIDING






	Jesse S. Villanueva appeals from his conviction for knowingly passing a forged
instrument.  See Tex. Penal Code Ann. § 32.21 (West Supp. 2000).  The trial court assessed
appellant's punishment, enhanced by two prior felony convictions, at imprisonment for twenty
years.

	Appellant asserts that the evidence is factually insufficient to support the jury's
verdict and that inadmissable evidence was admitted.  The judgment will be affirmed.

	It was alleged that appellant, with the intent to defraud and harm another,
intentionally and knowingly passed a check that he knew was forged.  The check purportedly made
by Edmond Schorn was drawn on Schorn's account without his authority.  Appellant concedes the
legal sufficiency of the evidence, but insists that the evidence is factually insufficient to support
his conviction.

	In reviewing factual sufficiency of the evidence, we view all the evidence "without
the prism of in the light most favorable to the prosecution;" we set aside the jury's verdict only
if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. 
See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d
375, 381 (Tex. App.--Austin 1992, pet. ref'd).  In performing a factual sufficiency review, the
courts of appeals are required to give deference to the jury verdict and examine all of the evidence
impartially, setting aside the jury verdict "only if it is so contrary to the overwhelming weight of
the evidence as to be clearly wrong and unjust."  Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim.
App. 1997) (quoting Clewis, 922 S.W.2d at 129).  Recently, the Clewis standard has been
reprised, "[T]he complete and correct standard a reviewing court must follow to conduct a Clewis
factual sufficiency review of the elements of a criminal offense asks whether a neutral review of
all the evidence, both for and against the finding, demonstrates that the proof of guilt is so
obviously weak as to undermine confidence in the jury's determination, or the proof of guilt,
although adequate if taken alone, is greatly outweighed by contrary proof."  Johnson v. State, No.
1915-98, slip op. at 18 (Tex. Crim. App. Feb. 9, 2000).

	On August 20 or 21, 1998, Edmond Schorn, a retiree, allowed two men and a
woman to come into his house to inspect the windows and to advise him about repairing them. 
Once these people left his house Schorn did not hear from them again.  Later, when Schorn
received his bank statement, he discovered that $9,200 had been removed from his account without
his authority.  Check number 2174 in the sum of $2,800 and check number 2175 in the amount
of $6,400 drawn on Schorn's account had been paid by Chase Bank in New Braunfels.  Schorn
discovered these blank checks had been taken from his checkbook by someone else.  Schorn
remembered that when the window inspectors were in his house, the woman sat near a desk where
he kept his checkbook.  Schorn also recalled that his telephone had been disabled soon after the
window inspectors had been in his house.  Schorn could not identify appellant as one of the men
who had been in his house.

	Anthony Felsing testified he was involved with stealing Schorn's checks.  Felsing
admitted that he filled in the checks and forged Schorn's signature as the maker of each check. 
Felsing described how he had used a piece of glass and a flashlight to trace Schorn's signature
from a stolen check bearing Schorn's signature onto the stolen blank checks.  Felsing pleaded
guilty and was convicted of the offense of forging and passing check number 2174.  Felsing
testified that he had filled in check number 2175, making it payable to appellant.  He also testified
that after appellant cashed check number 2175, he and appellant and four other men divided the
proceeds of the check.

	Jason Amerson, a teller at Chase Bank, testified that appellant presented the stolen
check and received the proceeds in cash on August 28, 1998.  Because the check was for more
than $2,500, Amerson followed the bank's policies for cashing checks in large amounts.  These
policies include running the payee's driver's license number through the Texas Department of
Public Safety main frame to verify the name, date of birth, height, sex, and eye color of the person
presenting the driver's license and the check.  In addition, Amerson and his supervisor compared
the maker's signature on the check with the account holder's signature card and compared the
endorser's signature with the signature on the driver's license.  After verifying the identification
and obtaining his supervisor's permission, Amerson cashed the check presented by appellant. 
After the discovery of the forgery, Amerson identified appellant in the photographic line-up shown
to him by the investigator.  At trial, Amerson identified appellant as the man who presented the
forged check.

	Kathryn Rutledge, the teller manager at Chase Bank in New Braunfels, testified that
following the bank's policies, she compared the maker's signature on check number 2175 with
Schorn's signature card and compared the endorser's signature with the signature on the driver's
license which had been presented to Amerson.  She then attempted but was unable to call Schorn
on the telephone.  She authorized Amerson to cash the check.  Although Rutledge did not see
appellant when he was in the bank, later when the investigator showed her a photographic display
of six men, she identified appellant's photograph as depicting the same man that she saw on the
driver's license photograph.

	A handwriting expert compared the endorsement signature on check number 2175
with appellant's known signature.  The expert testified that in his opinion appellant had endorsed
the check.

	In his defense, appellant testified that he did not cash a check for $6,400 at the
Chase Bank in New Braunfels.  He testified that he had never met and did not know Anthony
Felsing and further that all of Felsing's testimony was a lie.  Appellant also testified that his
driver's license had been missing for a period of time in August 1998.

	We have made a neutral review of all of the evidence, applied the factual sufficiency
standard of review, and we hold that the evidence is not so weak as to undermine the jury's
determination of guilt or to indicate that the proof of guilt, although adequate if taken alone, is
greatly outweighed by contrary proof.  Appellant's third point of error is overruled.

	In his first two points of error, appellant asserts:


Point of Error No. One:


The appellant's due process rights were violated when the trial court allowed the
introduction of a copy of a photographic lineup when the original was lost, denying
appellant the opportunity to demonstrate the suggestiveness of the lineup and
whether or not the in-court identifications of appellant were admissible.



Point of Error No. Two:


Should the appellate court find that appellant's first point of error was not
preserved, then appellant argues that he was denied effective assistance of counsel
in violation of the Sixth Amendment of the United States Constitution, and in
violation of Article I, Section 10 of the Texas Constitution.



	Appellant argues in his appellate brief:


Appellant can not show this Court, nor the Trial Court, that the photographic
lineup was impermissibly suggestive, nor can he show that the suggestiveness of
the lineup had a corrupting effect on the subsequent in-court identification
testimony because the State lost the original.  All that we can examine is the black
and white copy introduced as State's Exhibits 1, 2 and 10.  We can not examine the
paper that the different photographs were developed on to examine whether they
were on different types or qualities of paper.  We can not examine skin colors or
the individual's eyes, hair or clothing.  We can not prove anything about the
original lineup because the State, who acknowledged to the trial court that it had
possession of the original, lost it.  When the State "lost" the original, it denied
Appellant an opportunity to demonstrate suggestiveness which would have caused
all in-court identification of Appellant to be ruled inadmissible.  Furthermore,
because we can not determine the suggestiveness of the photo lineup, we can not
weigh the required factors [ ] to determine "the corrupting effect" of the suggestive
pretrial identification procedure as required by the Texas Court of Criminal
Appeals.  See Ibarra v. State, 11 S.W.3d at 196.  Nor can we perform the test as
to whether, considering the totality of the circumstances, "the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification" as required by the United
States Supreme Court in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct.
967, 19 L.Ed.2d 1247 (1968).  Appellant can not do anything to determine
suggestiveness because of the State's actions.



	Defense counsel objected to the admission of the copy of the original photographic
line-up.  The error claimed in point one was preserved for appellate review, therefore, we overrule
appellant's point of error two without further consideration.

	The admission of copies of photographs used in photographic line-ups rather than
the original photographs has been considered and held not to be reversible error.  See Van Byrd
v. State, 605 S.W.2d 265, 270 (Tex. Crim. App. 1980); Davis v. State, 649 S.W.2d 380, 382
(Tex. App.--Fort Worth 1983, pet. ref'd).  Furthermore, "[w]hen the identification testimony is
of independent origin apart from any pretrial identification procedure, the State's inability to
produce a set of photographs has no adverse effect on the admissibility of the identification
testimony."  Love v. State, 730 S.W.2d 385, 395 (Tex. App.--Fort Worth 1987, no pet.).

	If the totality of the circumstances reveals no substantial likelihood of
misidentification despite a suggestive pretrial procedure, subsequent identification testimony will
be deemed reliable, "reliability [being] the linchpin in determining the admissibility of
identification testimony."  Manson v. Brathwaite, 432 U.S. 98, 114 (1977); see also Ibarra v.
State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999); Webb v. State, 760 S.W.2d 263, 269 (Tex.
Crim. App. 1988); Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983); Loving v.
State, 947 S.W.2d 615, 617 (Tex. App.--Austin 1997, no pet.).

	Felsing, who filled in the stolen check with appellant's name as payee and forged
Schorn's name as the maker of the check, testified that he saw appellant enter the bank to cash the
check and saw him come out of the bank and get in a truck.  Immediately thereafter, appellant,
Felsing, and four other men in three trucks went to Landa Park.  In Landa Park, the proceeds of
the check were divided among the six men.  Felsing, who had not seen the photographic line-up,
made an in-court identification of appellant.

	Following the bank's procedure, the bank teller, Amerson, verified the identity of
the man for whom he cashed the check.  Without a trial objection, Amerson identified appellant
as the man who cashed the check.

	Rutledge, Amerson's supervisor, did not see the man who cashed the check. 
However, when Amerson showed Rutledge the driver's license, she compared the signature on
the driver's license with the signature on the check, believing the signatures to be the same,
Rutledge instructed Amerson to cash the check.  Later, Rutledge identified appellant's photograph
in the photographic line-up as the same man whose photograph she had seen on the driver's license
Amerson had shown her.

	The handwriting identification expert compared the endorsement signature on the
check with the known signature of appellant.  The expert expressed the opinion that appellant
endorsed the check.

	Appellant specifically complains that because of the loss of the original
photographic line-up and the admission of a copy of the line-up, he did not have an opportunity
to demonstrate that the photographic line-up may have been impermissibly suggestive.  However,
even if appellant could have shown that the photographic line-up was suggestive, the totality of
the circumstances reveals no substantial likelihood that appellant was misidentified.  Appellant's
first point of error is overruled.

	The judgment is affirmed.



  
	Carl E. F. Dally, Justice

Before Justices Jones, Kidd and Dally*
Affirmed

Filed:   September 14, 2000

Do Not Publish










*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. 
See Tex. Gov't Code Ann. § 74.003(b) (West 1998).


d by the Texas Court of Criminal
Appeals.  See Ibarra v. State, 11 S.W.3d at 196.  Nor can we perform the test as
to whether, considering the totality of the circumstances, "the photographic
identification procedure was so impermissibly suggestive as to give rise to a very
substantial likelihood of irreparable misidentification" as required by the United
States Supreme Court in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct.
967, 19 L.Ed.2d 1247 (1968).  Appellant can not do anything to determine
suggestiveness because of the State's actions.



	Defense counsel objected to the admission of the copy of the original photographic
line-up.  The error claimed in point one was preserved for appellate review, therefore, we overrule
appellant's point of error two without further consideration.

	The admission of copies of photographs used in photographic line-ups rather than
the original photographs has been considered and held not to be reversible error.  See Van Byrd
v. State, 605 S.W.2d 265, 270 (Tex. Crim. App. 1980); Davis v. State, 649 S.W.2d 380, 382
(Tex. App.--Fort Worth 1983, pet. ref'd).  Furthermore, "[w]hen the identification testimony is
of independent origin apart from any pretrial identification procedure, the State's inability to
produce a set of photographs has no adverse effect on the admissibility of the identification
testimony."  Love v. State, 730 S.W.2d 385, 395 (Tex. App.--Fort Worth 1987, no pet.).

	If the totality of the circumstances reveals no substantial likelihood of
misidentification despite a suggestive pretrial procedure, subsequent identification testimony will
be deemed reliable, "reliability [being] the linchpin in determining the admissibility of
identification testimony."  Manson v. Brathwaite, 432 U.S. 98, 114 (1977); see also Ibarra v.
State, 11 S.W.3d 189, 195 (Tex. Crim. App. 1999); Webb v. State, 760 S.W.2d 263, 269 (Tex.
Crim. App. 1988); Jackson v. State, 657 S.W.2d 123, 130 (Tex. Crim. App. 1983); Loving v.
State, 947 S.W.2d 615, 617 (Tex. App.--Austin 1997, no pet.).

	Felsing, who filled in the stolen check with appellant's name as payee and forged
Schorn's name as the maker of the check, testified that he saw appellant enter the bank to cash the
check and saw him come out of the bank and get in a truck.  Immediately thereafter, appellant,
Felsing, and four other men in three trucks went to Landa Park.  In Landa Park, the proceeds of
the check were divided among the six men.  Felsing, who had not seen the photographic line-up,
made an in-court identification of appellant.

	Following the bank's procedure, the bank teller, Amerson, verified the identity of
the man for whom he cashed the check.  Without a trial objection, Amerson identified appellant
as the man who cashed the check.

	Rutledge, Amerson's supervisor, did not see the man who cashed the check. 
However, when Amerson showed Rutledge the driver's license, she compared the signature on
the driver's license with the signature on the check, believing the signatures to be the same,
Rutledge instructed Amerson to cash the check.  Later, Rutledge identified appellant's photograph
in the photographic line-up as the same man whose photograph she had seen on the driver's license
Amerson had shown her.

	The handwriting identification expert compared the endorsement signature on the
check with the known signature of appellant.  The expert expressed the opinion that appellant
endorsed the check.

	Appellant specifically complains that because of the loss of the original
photographic line-up and the admission of a copy of the line-up, he did not have an opportunity
to demonstrate that the photographic line-up may have been impermissibly suggestive.  However,
even if appellant could have shown that the photographic line-up was suggestive, the totality of
the circumstances reveals no substantial likelihood that appellant was misidentified.  Appellant's
first point of error is overruled.

	The judgment is affirmed.



  
	Carl E. F. Dally, Justice

Before Justices Jones, Kidd and Dally*
Affirmed

Filed:   September 14, 2000

Do Not Publish










*	Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting