                                 NO. 07-11-0284-CR

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                 JANUARY 18, 2012


                              WILLIAM CLARK BRAGG,

                                                                Appellant
                                           v.

                               THE STATE OF TEXAS,

                                                                Appellee
                         _____________________________

           FROM THE 181ST DISTRICT COURT OF RANDALL COUNTY;

             NO. 21,291-B; HONORABLE JOHN B. BOARD, PRESIDING


                               Memorandum Opinion


Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      William Clark Bragg contends the evidence supporting his conviction of forgery

by passing is legally insufficient to show that he “passed” the subject check and the

record contains legally insufficient evidence to support the assessment of attorney’s

fees against him. We modify the judgment and, as modified, affirm it.

      Background

      On June 23, 2009, appellant first attempted to cash a cashier’s check written by

IBM in the amount of $3,350 with Mundy Boggs, an employee of Mr. Payroll.      Boggs
spoke to several persons with IBM in an attempt to verify the check but she was not

able to do so. However, she then received a telephone call from a man purporting to be

James Whitmore who claimed to be a secretary for the CEO of IBM. He gave her a

valid telephone number for IBM but told her she could call him back at a local cell phone

number. He further assured her the check was good. Mr. Payroll cashed the check for

appellant later that day.

       Two days later, appellant attempted to cash the check which is the subject of this

indictment at another Mr. Payroll store. That check was purportedly drawn on Navy

Federal Credit Union in the amount of $4,200.95. In attempting to verify the accuracy of

that check, the Mr. Payroll employee determined that the routing number was that of

Wachovia Bank, the account number and the check number were missing, and the

appearance and color of the check were not the same as others of the Navy Federal

Credit Union. Although appellant attempted to assure the employee that the check was

good, she declined to cash it and returned it to appellant. After appellant left, the

employee received a telephone call from someone purporting to work for the Navy

Federal Credit Union seeking to verify the check. The employee believed that she

recognized the voice to be that of appellant. She further sent an e-mail to the other Mr.

Payroll stores warning them that she believed this check to be a fraud.

       Later that day, appellant entered the Mr. Payroll store where Mundy Boggs

worked. Prior to that, Boggs received a telephone call from James Whitmore, who this

time claimed to work for the Navy Federal Credit Union, and he assured Boggs that the

check was good. He left the same telephone number for her that the James Whitmore

who was purportedly working for IBM had given two days earlier.           When appellant

                                            2
appeared at the store, Boggs told appellant she would cash his check but, while he was

waiting, she called police.

         Sufficiency of the Evidence of Passing

       We review challenges to the sufficiency of the evidence under the standard

discussed in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). To convict

appellant of forgery by passing, the State was required to prove that appellant, with the

intent to defraud or harm another, passed to Mundy Boggs a writing that had been

made so that it purported to be the act of another who did not authorize the act with the

knowledge that it was a forgery. See TEX. PENAL CODE ANN. §32.21(a)(1)(A)(i) & (B) &

(b) (West 2011). Appellant argues that there is no evidence that he ever delivered or

circulated the subject $4,200.95 check to Boggs as charged in the indictment.

       In determining legal sufficiency, we examine whether the necessary inferences

are reasonably based upon the combined and cumulative force of all the evidence when

viewed in a light most favorable to the verdict. Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). Each fact need not point directly and independently to guilt so

long as the cumulative force of all the evidence is sufficient to support the conviction.

Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

       The word “pass” is not defined in the statute. However, it means more than

merely displaying. State v. Allen, 346 S.W.3d 713, 718 (Tex. App.–Austin 2011, pet.

ref’d). An object is passed if it is delivered or circulated but also includes situations

where there is no manual transfer. Parker v. State, 985 S.W.2d 460, 464 (Tex. Crim.

App. 1999). Furthermore, passing does require a showing that the defendant “offered”

the instrument. McGee v. State, 681 S.W.2d 31 (Tex. Crim. App. 1984).

                                           3
       The evidence showed that 1) appellant had delivered the same check a short

time earlier to another employee at another Mr. Payroll store, 2) the person claiming to

be James Whitmore called Boggs, asked her to cash the second check for appellant,

and told her appellant would come to present it, 3) appellant came to the store where

Boggs was working with the check, 4) Boggs led appellant to believe she would cash

the check for him and he was happy about it, 5) appellant was standing at the teller’s

window when police arrived, 6) Boggs, the teller, showed the check to police, and 7)

appellant told police that he had tried to cash a check at Mr. Payroll. This is some

evidence allowing a rational factfinder to reasonably infer that appellant offered and

passed the check to Boggs. Appellant’s first issue is overruled.

       Attorney’s Fees

       Next, appellant argues that there is no evidence indicating that he is financially

able to pay attorney’s fees as listed in the bill of costs, which was assessed by the trial

court in the judgment. When the record does not show that the defendant is financially

capable of paying attorney’s fees, the trial court errs in ordering reimbursement in the

judgment. See Mayer v. State, 309 S.W.3d 552, 556-57 (Tex. Crim. App. 2010). The

record here contains orders appointing counsel for appellant for trial and appeal. There

is no other evidence of his ability to pay.     Furthermore, the State agrees that the

judgment should be modified to delete the requirement to pay attorney’s fees.




                                            4
      Accordingly, we modify the judgment to delete any obligation to pay attorney’s

fees in the amount of $3,062.50 and, as modified, affirm it.




                                                Brian Quinn
                                                Chief Justice

Do not publish.




                                            5
