                                   IN THE
                           TENTH COURT OF APPEALS

                                  No. 10-11-00324-CR

JAMES BERRY SHUMAKE,
                                                                 Appellant
v.

THE STATE OF TEXAS,
                                                                 Appellee


                             From the 40th District Court
                                 Ellis County, Texas
                              Trial Court No. 35,333CR


                            MEMORANDUM OPINION

          James Berry Shumake was convicted of forgery, enhanced by prior convictions,

and sentenced to 18 years in prison. See TEX. PENAL CODE ANN. § 32.21 (West 2011). In

two issues, Shumake contends the evidence is insufficient to support his conviction. We

affirm.

          A person commits the offense of forgery if he forges a writing with intent to

defraud or harm another. Id. § 32.21(b). As charged in the indictment, “forge” means to

transfer or pass a writing that is made or authenticated so that it purports to be the act

of another who did not authorize that act. Id. (a)(A)(i), (B).
Standard of Review

       In reviewing the sufficiency of the evidence to support a conviction, we view all

the evidence in a light most favorable to the prosecution to determine whether any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 107, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979); Merritt v. State, No. PD-0916-11, 2012 Tex. Crim. App. LEXIS 569 at *25 (Tex.

Crim. App. Apr. 18, 2012); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010)

(plurality op.). And if the record supports conflicting inferences, we must presume that

the factfinder resolved the conflicts in favor of the prosecution and therefore defer to

that determination. Jackson, 443 U.S. at 326. The factfinder is entitled to judge the

credibility of witnesses and can choose to believe all, some, or none of the testimony

presented by the parties. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

Identification

       In his first issue, Shumake argues the trial court erred in denying his motion for

instructed verdict because the State failed to prove that he was the person who

presented the check. A complaint about a trial court's failure to grant a motion for

directed verdict is a challenge to the legal sufficiency of the evidence. Canales v. State, 98

S.W.3d 690, 693 (Tex. Crim. App. 2003); Long v. State, 137 S.W.3d 726, 736 (Tex. App.—

Waco 2004, pet ref'd).        Shumake appears to argue that because the in-court

identification of him was improper, the evidence was insufficient.            There was no

objection to the manner of the in-court identification. To the extent Shumake contends


Shumake v. State                                                                        Page 2
there was error, it is not preserved. TEX. R. APP. P. 33.1. Further, even if there was error

in the in-court identification process, our sufficiency review of "all of the evidence"

includes evidence that was properly and improperly admitted. Conner v. State, 67

S.W.3d 192, 197 (Tex. Crim. App. 2001).

         Kelly Tyler, a bank teller, testified that Shumake walked into the bank and stood

in front of her station. He asked to cash a check and presented her the check and his

picture I.D. Tyler identified the check and the I.D. as those given to her by Shumake.

Tyler testified that she checked the picture on the I.D. with the person standing in front

of her to make sure the picture and person matched, which they did. Tyler also testified

that she was able to get a good look at Shumake and identified him at trial as the same

person who presented her with the check and the I.D. On cross-examination, she stated

that she had the opportunity to view Shumake for about 5 minutes while she verified

the check and sent an email to a co-worker regarding the check. She also stated that on

a scale of one to ten, she ranked her ability to recognize Shumake outside the courtroom

setting at an eight or a nine.

         After reviewing the evidence under the appropriate standard, we find it

sufficient to prove that Shumake was the person who presented the check. The trial

court did not err in denying Shumake’s motion for directed verdict. His first issue is

overruled.

Intent

         In his second issue, Shumake contends the evidence is insufficient to prove that


Shumake v. State                                                                      Page 3
he had the intent to harm or defraud another. The State may, of course, establish intent

to defraud or harm by circumstantial evidence as well as by direct evidence. Burks v.

State, 693 S.W.2d 932, 936-937 (Tex. Crim. App. 1985). And in a sufficiency review,

circumstantial evidence is as probative as direct evidence. Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007).

       Tyler testified that she contacted the owner of the business who purported to

issue the check to Shumake. The owner did not know Shumake and did not write or

authorize a check to be written to Shumake. Tyler had noticed that the signature on the

check appeared to be a stamped signature and knew that the owner had not authorized

checks to be signed with a stamp. Shumake was standing in front of Tyler when she

made the call to the business owner and could hear her conversation. When Tyler hung

up the phone, Shumake asked what was taking so long. When Tyler explained that it

was normal procedure to verify the items that are presented, Shumake said that he had

to go to his car and left the bank. He left the check and his I.D. and did not return.

       After reviewing the evidence under the appropriate standard, we find that, while

there may not be direct evidence of an intent to harm or defraud another, the

circumstantial evidence is sufficient to prove such intent. Shumake’s second issue is

overruled.




Shumake v. State                                                                         Page 4
Conclusion

       Having overruled each issue on appeal, we affirm the trial court’s judgment.



                                        TOM GRAY
                                        Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed August 30, 2012
Do not publish
[CR25]




Shumake v. State                                                                  Page 5
