








IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. PD-0678-12


CHRISTOPHER RAY JOHNSON, Appellant

v.


THE STATE OF TEXAS




DISSENT TO REFUSAL TO GRANT
STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE FIRST COURT OF APPEALS

HARRIS COUNTY



 Keller, P.J., filed a dissenting opinion in which Keasler, J. joined.

 Miriam Karr paid her rent by depositing a money order for $535 in the night drop at her
apartment complex, but the apartment complex never received the payment.  It was later determined
that the money order had been "washed" so that the names of the payee and payor had been replaced. 
Karr's name as the payor had been replaced by "Shoust," while the payee apartment complex had
been replaced with appellant's name.  The $535 amount remained the same.  Appellant cashed the
money order about thirty-six hours after Karr had placed it in the drop box.  Appellant had no
relationship with Karr or the apartment complex.  The police did not talk to appellant and made no
effort to ascertain who Shoust was or whether such a person or entity existed.  
	An officer from the forgery division of the Houston police department testified that "night-drop fishing" was a common method of stealing rent payments.  This practice referred to using
double-sided tape or some other adhesive and a wire hanger or other pliable tool to pull money
orders and checks back through the slot of the night drop.  He also testified to "washing," which
involved the use of chemicals to soften the ink on a money order or check so that a soft adhesive
could be used to lift the ink from the paper, leaving the original writing largely undetectable.
	Relying upon Stubegen v. State (1) and Crittenden v. State, (2) the court of appeals held that the
evidence was legally insufficient to show that appellant knew the money order was forged. (3)  Both
cases involved a purported payor who had a relationship with the defendant and from which the
defendant might expect to receive a payment.  In Stubegen, the defendant cashed a check from his
employer, (4) while Crittenden involved a check that purported to have been written by the defendant's
personal injury attorney. (5)
	In the present case, appellant and the victim were strangers.  The court of appeals faulted the
State because it did not attempt to locate or identify anyone named Shoust: (6) "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." (7)  But the notation "Shoust" is at least somewhat
suspect.  Does it refer to a natural person or an entity such as a corporation or association?  If it is
supposed to refer to a natural person, then it is not in the usual format of containing both first and
last names.  If it is an entity, the name contains no description such as "company" or "inc" that would
suggest such a status, and "Shoust" is not the name of a commonly recognized corporation or other
entity.  Add to this the fact that the money order was not a blank instrument that was allegedly filled
out by a forger but was in fact a filled-out instrument in which the names of the payor and payee had
been changed.  And add to that the fact that the money order was stolen.  
	Our cases hold that a defendant's unexplained possession of property recently stolen in a
burglary gives rise to an inference that he was in fact the burglar. (8)  In this case, a burglary of the
apartment complex occurred when someone "fished" the victim's money order from the night drop. (9) 
Appellant's possession of the money order thirty-six hours later is a sufficiently short time to be
considered "recent," especially when one considers that the money order had been subjected to
chemical processes in order to accomplish the forgery.   
	Finally, I would point out that the cases relied upon by the court of appeals are relatively old,
having been decided before this Court abandoned the alternative-reasonable-hypothesis construct
for reviewing the sufficiency of the evidence in circumstantial evidence cases. (10)  Given the changes
in our sufficiency-of-the-evidence jurisprudence and the distinctions that exist between this case and
the cases relied upon by the court of appeals, we should grant review to clarify how to assess the
sufficiency of the evidence in forgery cases.
	Because the Court declines to do so, I respectfully dissent.
Filed: October 10, 2012
Publish
1.   547 S.W.2d 29 (Tex. Crim. App. 1977).
2.   671 S.W.2d 527 (Tex. Crim. App. 1984).
3.   Johnson v. State, ___ S.W.3d ___, 2012 Tex. App. LEXIS 3494, at 9-12 (Houston [14th
Dist.] May 3, 2012).  
4.   547 S.W.2d at 31.
5.   671 S.W.2d at 527-28.
6.   Johnson, ___ S.W.3d at ___, 2012 Tex. App. LEXIS 3494, at 4.
7.   Id. at 15.
8.   Rollerson v. State, 227 S.W.3d 718, 725 & n.18 (Tex. Crim. App. 2007).  
9.   See Richardson v. State, 888 S.W.2d 822, 824 (Tex. Crim. App. 1994) ("Our burglary
statutes are intended to protect the sanctity of private areas, be they habitations, buildings not open
to the public, or vehicles.").
10.   See Geesa v. State, 820 S.W.2d 154, 156-61 (Tex. Crim. App. 1991) (abrogating the
alternative-reasonable-hypothesis construct).
