                                                                          PD-0070-15
                                                        COURT OF CRIMINAL APPEALS
                                                                         AUSTIN, TEXAS
                                                        Transmitted 7/16/2015 6:02:21 PM
                                                          Accepted 7/17/2015 8:27:33 AM
 July 17, 2015                                                            ABEL ACOSTA
                         No. PD-0070-15                                           CLERK

                               In the
                    Court of Criminal Appeals
                        Of the State of Texas



  Donald Lynn Ramsey, aka Donald Lynn Ramsay, Appellant

                                 v.

                    STATE OF TEXAS, Appellee


Trial Court                             Appellate Court
Cause No. B-4502-13-07                  Cause No. 07-14-00249-CR
242 District Court, Swisher County      Seventh District of Texas
of Hale County, Texas                   at Amarillo
_________________________________________________________________


 BRIEF OF DONALD LYNN RAMSEY ON THE MERITS
_________________________________________________________________

                                      TROY BOLLINGER
                                      State Bar No. 24025819
                                      600 Ash Street
                                      Plainview, Texas 79072
                                      Tel.: (806) 293-2618
                                      Fax: (806) 293-8802
                                      troy@laneybollinger.com
                                      Attorney for Donald Ramsey


                   ORAL ARGUMENT WAIVED
          STATEMENT REGARDING ORAL ARGUMENT
                     Appellant waives oral argument.

                       NAMES OF ALL PARTIES

Appellant:
      DONALD LYNN RAMSEY

Counsel for Appellant on Appeal:                Counsel for Appellant at Trial:
     TROY BOLLINGER                                  Tina Davis-Rincones
     SBN: 24025819                                   SBN: 24030776
     600 Ash Street                                  109 East 6th Street
     Plainview, TX 79072                             Plainview, TX 79072
     (806) 293-2618                                  (806) 429-0706
     (806) 293-8802 Fax
     troy@laneybollinger.com

Counsel for the State before the Court of Criminal Appeals:
     Stacey M. Goldstein, Assistant State Prosecuting Attorney
     PO Box 13046
     Austin, TX 78711
     (512) 463-1660
     (512) 463-5724
     information@spa.texas.gov

Counsel for the State at Trial:
     J. Michael Criswell, County Attorney of Swisher County, Texas
     SWISHER COUNTY ATTORNEY’S OFFICE
     Swisher County Courthouse
     119 South Maxwell Avenue
     Tulia, TX 79088
     (806) 995-2214


      Trial Judge:
             THE HONORABLE ED SELF, Judge Presiding




                                       i
                                     TABLE OF CONTENTS
HEADING                                                                                                     PAGE #




STATEMENT REGARDING ORAL ARGUMENT...................................................i
NAMES OF ALL PARTIES..........................................................................................i
INDEX OF AUTHORITIES.......................................................................................iii
STATEMENT OF THE CASE .....................................................................................1
STATE’S ISSUE ............................................................................................................1
RESPONSE TO STATE’S ISSUE...............................................................................1
STATEMENT OF CONTESTED FACTS ..................................................................2
      SOLE AND UNLIMITED ACCESS .....................................................................3
      KNOWLEDGE OF FORGERY .............................................................................4
      CHECK FOR SERVICES RENDERED..............................................................6
SUMMARY OF THE ARGUMENT ............................................................................7
ARGUMENT ..................................................................................................................8
   APPLICATION OF FACTS TO STATE’S THEORY ...........................................8
   ARGUMENT SUPPORTING THE COURT OF APPEALS..............................11
      SUMMARY ............................................................................................................11
      STANDARD...........................................................................................................12
      APPLICATION .....................................................................................................13
      STATE IGNORES CLEAR LONG-STANDING PRECEDENT ....................15
      STATE’S ATTEMPT TO SHIFT THEIR BURDEN........................................16
      CONCLUSION......................................................................................................18
PRAYER .......................................................................................................................19
CERTIFICATE OF SERVICE ..................................................................................20
CERTIFICATE OF COMPLIANCE.........................................................................21




                                                               ii
                                   INDEX OF AUTHORITIES
CASE OR CITE                                                                                                            PAGE #



Cases

Clayton v. State, 235 S.W.3d 772 at 778 (Tex. Crim. App. 2007)..............................................13
Crittenden v. State, 671 SW2d 527 (Tex. Crim. App. 1984)...................................................8, 16
Hernandez v. State, 819 S.W.2d 806 (Tex. Crim. App. 1991) ....................................................14
Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................................12, 13
Laster v. State, 275 S.W.3d 512 at 517 (Tex. Crim. App. 2009).................................................12
Pfleging v. State, 572 S.W.2d 517 (Tex. Crim. App. 1978) .........................................................15
Ramsey, 07-14-00249-CR, Seventh Court of Appeals (this case) ......................................1, 4, 5, 6
Stuebgen v. State, 547 SW 2d 29 (Tex. Crim. App. 1977) .................................................8, 15, 16
Tibbs v. Florida, 457 U.S. 31 (1982)................................................................................................13
Williams v. State, 688 S.W.2d 486 at 488 (Tex. Crim. App. 1985) ...........................................14




Statutes

Texas Code of Criminal Procedure,. Article 38.08.......................................................18
Texas Penal Code, Chapter 32 .....................................................................................14
Texas Penal Code, Chapter 32.21(b) ............................................................................14
TEXAS RULES OF APPELLATE PROCEDURE, Rule 38.2(B) ..................................2
TEXAS RULES OF APPELLATE PROCEDURE, Rule 68.11 ...................................20
TEXAS RULES OF APPELLATE PROCEDURE, Rule 9.4) ......................................21
TEXAS RULES OF APPELLATE PROCEDURE, Rule 9.5 .......................................20


Constitutional Provisions

TEXAS CONSTITUTION, Article 1, Bill of Rights, Sec. 10. RIGHTS OF ACCUSED
 IN CRIMINAL PROSECUTIONS ............................................................................18
UNITED STATES CONSTITUTION, Amendment V.................................................18




                                                                 iii
TO THE HONORABLE COURT OF CRIMINAL APPEALS




STATEMENT OF THE CASE


     Appellant is satisfied with the State’s description in its
“Statement of the Case”




STATE’S ISSUE


“Does an appellate court give proper deference to a jury’s forgery
finding of intent to defraud or harm when it fails to consider the
totality of the evidence and rational inferences therefrom?”




RESPONSE TO STATE’S ISSUE


     The State’s issue ignores the specific holding of the Memorandum

Opinion. The ruling is that “there was no evidence of record”1 that Mr.

Ramsey knew the instrument was forged. One can neither ‘consider the

totality of’ nor make ‘rational inferences’ from a null set.




1Ramsey, 07-14-00249-CR (this case in the lower Court), Memorandum Opinions,
p4.

                                      1
STATEMENT OF CONTESTED FACTS


     TEXAS RULES OF APPELLATE PROCEDURE, Rule 38.2(B)

exempts the responding party from the requirement of creating a

Statement of Facts unless they are “dissatisfied” with the opponent’s

briefing of the ‘Facts’. In the present case, the State’s description of the

facts is stilted to obscure some very basic and necessary issues. Thus

we must create a Statement of Facts to avoid confusion and an incorrect

view of the evidence actually presented.

     There are three specific areas in which the State’s contention of

‘Facts’ is merely their interpretation and argument. These are:

   That Mr. Ramsey had the sole and “unlimited access” [State’s

     PDR Brief (hereinafter SPDFB), p5] to the checkbook from which

     the check was allegedly drawn.

   That there was ANY evidence presented at trial that Mr. Ramsey

     knew the check was forged.

   That there was ANY evidence that the check was NOT for work

     performed by Mr. Ramsey.




                                     2
      SOLE AND UNLIMITED ACCESS

      The State’s assertion the Mr. Ramsey was the only person with

    access to the checkbook ignores important evidence from the actual

    record of the trial. A witness2 did say, as the State alleges, that he

    believed that only the Complainant and Mr. Ramsey had access to

    his truck [RR, pp. 136-138]. However, that belief of sole access was

    immediately belied in the testimony at trial.

      The Complainant testified that the checks for Owen’s Machine

    Shop were stored in his son’s (Jed Owens) pickup [RR, p126]. Jed

    Owens confirmed that this checkbook was stored in his work truck

    at the shop with the doors unlocked [RR, pp. 134-135].

      He initially testified that Appellant was the only person with

    access to his work truck3 [RR, p136]. However, this statement was

    recanted. Testimony was specifically entered that there were two

    checkbooks for the account [RR, pp. 140-141]. The other one was in

    the continuous possession of his father4. More importantly, under




2 Complainant’s son
3 As was conceded above.
4 The complainant



                                      3
    cross-examination, Jed Owens admitted that that several other

    individuals had access to the checkbook [RR, pp. 139-140].

      A simple reading of the Trial Record shows, conclusively, that Mr.

    Ramsey did not have sole or ‘unlimited’ access to the check in

    question.


KNOWLEDGE OF FORGERY

      The State goes a long way in its Statement of ‘Facts’ to imply

    evidence that Mr. Ramsey knew the check was forged. That evidence

    is simply not there. This is the primary ground upon which the

    Seventh Court of Appeals reversed. The Opinion from that

    Honorable Court States:

          “The record contains no evidence illustrating who wrote that

            information on the item. Nor does it contain evidence

            indicating that the handwriting on the instrument was

            similar to that of the appellant”5,




5Ramsey, 07-14-00249-CR (this case in the lower Court), Memorandum Opinions,
p2.

                                      4
            “There was no evidence about whether she [receiver of the

              check] recognized the signature as genuine”6, and most

              important,

            “Simply put, there is no evidence of record … that the

              appellant knew the instrument was forged”7.

        Because of this lack of evidence, the Seventh reversed. The

     State’s Statement of ‘Facts’ attempts to create evidence of

     knowledge where it simply was not presented at the trial.

        The State says that “Neither Jimmie nor Jed had signed or issued

     the check to Appellant” [SPDRB, p3]. This was a contention of the

     State, but not a proven fact. The Complainant testified that he did

     not sign that check and that he authorized no one else to do so. [RR,

     p124]. He did, however, admit to requiring pain pills and that they

     could possibly make him forget things [RR, p130]. He admitted that

     he had written out similar checks to Mr. Ramsey and they would

     have been substantially similar to the check in question [RR, pp. 125-

     126]. No handwriting expert examined the check to compare to the

     handwriting of either the Complainant or to Mr. Ramsey. Neither

6   Ramsey, at 3.
7   Ramsey, at 4.

                                      5
     the Bank examiner [RR, pp. 121-122, the lady who received the

     check, nor the Complainant’s son [RR, p131] testified that the

     signature on the check was not that of the Complainant.

        Even if we defer to the State’s belief that the check was not

     written out by the Complainant, there is simply no evidence of record

     that Mr. Ramsey knew the check was forged8.

        CHECK FOR SERVICES RENDERED.

        The State asserts that “evidence showed” [SPDRB, p4] that the

check in this question was not for services rendered. They propound

that ‘forgery was proven by the fact that the money was for work he knew

was never performed’ [SPDRB, p5] and that Mr. Ramsey ‘did not

actually do any work for the Owens’ [SPDRB, p8]. It is very interesting

to note that the only support for this ‘fact’ is one cite to Justice Pirtle’s

Dissenting Opinion. If any of the members of this Honorable Court

wonder at this, the Defense offers a simple reason. THIS FACT IS NOT

SUPPORTED IN THE TRIAL RECORD. In fact, it directly controverts

the testimony in this case at trial.




8   As Chief Justice Quinn states unreservedly in Ramsey, p4.

                                          6
     Mr. Ramsey worked for the Owens. This is the uncontroverted

testimony of both State fact witnesses [RR, pp 125 &133]. He was

allowed to live in their shop while he was working for them [RR, p 133].

He was paid for his work with checks similar to the one in question in

this case [RR, p 125].

     The clear evidence at the trial is that Mr. Ramsey was fired from

the Owen’s employment only when the younger Owens learned of the

problems with this check [RR, pp. 138-139].

     The only evidence the record shows is that Mr. Ramsey WAS

working for the Complainant. That is all the testimony, and the

rational inferences that testimony can suggest. The State’s assertion

otherwise is disingenuous at best.




SUMMARY OF THE ARGUMENT


  1) The State’s analysis and ‘fact’ presentation is flawed at best.

     There is no evidence of record that Mr. Ramsey knew the

     instrument was forged.




                                     7
           2) The State is asking this Honorable Court to specifically overrule

              Stuebgen v. State9 and Crittenden v. State10 and nullify over

              thirty years of standing precedent.




      ARGUMENT
              APPLICATION OF FACTS TO STATE’S THEORY

              The State sums up its argument that Mr. Ramsey knew the check

           was stolen thusly [SPDRB, p5]. The Defense has provided specific

           counterpoints.

 i.        He was the beneficiary,

                    Being the beneficiary of a check is no evidence that the

              receiver knew or should have known the check was forged,

              especially when the check was made out exactly as a check he

              should have received (and had in fact received in the past).

ii.        he had unlimited access to the checkbook,

                    The Defense has already shown this ‘fact’ to be incorrect, and

              will thus not belabor this Honorable Court with more repetition.


      9   Stuebgen v. State, 547 SW 2d 29 (Tex. Crim. App. 1977)
      10   Crittenden v. State, 671 SW2d 527 (Tex. Crim. App. 1984)

                                               8
iii.   there was no evidence of an alternative perpetrator,

               As the State’s own brief points out, any ‘alternative

         perpetrator’ is irrelevant [SPDRB, pp. 6, 9, 10, & 11].

         Additionally, this ‘fact’ relies on an impermissible shifting of the

         burden. How does this factor in any way relieve the State’s

         burden of providing evidence of Mr. Ramsey’s knowledge or

         intent? The answer, of course, is that it does not.

iv.    the writing showed familiarity with the payor’s customary style while

       slight deviations from that style showed it was fake, and

               Here the State really shows the distance from which they

         have shifted from the facts in the Record and the requisite burden

         of proof. The State is saying that because the check looked like

         other proper checks, then Mr. Ramsey knew it was forged. This is

         ludicrous. One might infer knowledge when the check was

         substantially different. Imputing knowledge from the fact the

         check looked correct is just goofy.

               “Slight deviations from that style” is a complete creation of

         the State. One must ask: What deviations were proven that any

         person should have noticed?



                                        9
                    The Complainant testified to signing a multitude of different

              names [RR, pp. 128-129]. Nobody testified that the signature was

              not similar or even the same11. The check had a memo line that

              was the same as other unchallenged checks. When Mr. Owens

              wrote a paycheck, he wrote ‘contract labor’ in the memo field on

              the checks [RR, p125]. Each check J. E. Owens did create would

              have looked exactly like Check #1313 did. These ‘variations’ exist

              nowhere in the record and appear only in the mind of the State’s

              attorneys.

v.        Appellant passed it at a store where he knew it would not be

          questioned.

                    The State attempted to show that Mr. Ramsey passed a

              paycheck in the store he had been permitted to use to cash such

              checks [RR, p150]. This is the store that the Complainant had

              taken him to cash his check before [RR, pp. 126 & 150 ]. This is

              the store that is “a block and a half” from the shop in which he

              was living [RR, p142]. The State’s argument that this is evidence

              of anything is ridiculous. This is exactly where anyone would go


     11   As discussed above

                                            10
               with a valid check in these circumstances. If Mr. Ramsey did pass

               the check, going anywhere else would have been suspicious12.

vi.         knowledge that it was a forgery was proven by the fact that the money

            was for work he knew he never performed

               As discussed above, this is simply not a statement supported by

            the record. In fact, it flies directly in the face of all the testimony in

            the trial. Mr. Ramsey did work for, and live in the shop of, the

            Complainant.



               ARGUMENT SUPPORTING THE COURT OF APPEALS

      SUMMARY

               Neither access to an instrument nor even passing an instrument

      creates the presumption of intent to harm or defraud. The State failed

      to produce any evidence, circumstantial or otherwise, to demonstrate

      that Mr. Ramsey had the requisite mens rea to be found guilty of this

      offense. The Seventh Court of Appeal reversed the Trial Court on the

      basis of well-established precedent. The State has produced nothing

      that would require this Honorable Court to void that proper judgement.

      12   But still no evidence that Mr. Ramsey knew the check was forged.

                                                11
STANDARD

      The Supreme Court established the standard for evidentiary

sufficiency in Jackson v. Virginia13. 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

fact finder could have found that each essential element of the charged

offense was proven beyond a reasonable doubt14. 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 charged15.

      The Jackson standard acknowledges the responsibility of the fact

finder to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts16. Any

13 Jackson v. Virginia, 443 U.S. 307 (1979)
14 Jackson, at 317-319 and Laster v. State, 275 S.W.3d 512 at 517 (Tex. Crim.
App. 2009).
15 Jackson, at 314; and Laster, at 518.
16 Jackson, at 318-319; and Clayton v. State, 235 S.W.3d 772 at 778 (Tex. Crim.



                                       12
reviewing court presumes the fact finder resolved any conflicts in the

evidence in favor of the verdict and defers to that resolution, provided

that the resolution is rational and supported by the record17. An

Apellate Court may not, however, create evidence of an element where

none appears in the record.

      If an appellate court finds the evidence insufficient under this

very stringent standard, it must reverse the judgment and enter an

order of acquittal18.



APPLICATION

      There are several offenses under the Texas Penal Code that

contain the intent to defraud or harm as an element of the offense.

Among them are forgery, credit card or debit card abuse, fraudulent

transfer of a motor vehicle, and securing execution of a document by

deception19. Forgery is specifically defined: “A person commits an

offense if he forges a writing with intent to defraud or harm another”20.


App. 2007).
17 Jackson, at 326.
18 Tibbs v. Florida, 457 U.S. 31 (1982).
19 Texas Penal Code, Chapter 32.
20 Texas Penal Code, Chapter 32.21(b).



                                           13
      A person acts with intent when it is his conscious objective or

desire to engage in the conduct or cause the result21. The Defense

acknowledges that the intent to harm or defraud may be proven by

circumstantial evidence22. Unless a Defendant concedes intent at trial,

the State must necessarily rely on circumstantial evidence to establish

that element of the offense. The totality of the evidence here, however,

falls well short of anything that may have supported such an inference

in other cases. The State merely proved that Mr. Ramsey had access to

the instrument. We will assume additionally, for the purposes of

argument, that the State proved that Mr. Ramsey passed the check.

What they did not prove or even address at trial was the intent required

to support a criminal conviction.

      When the intent to harm or defraud is an element of the offense,

the State must prove facts from which such intent is deducible beyond a

reasonable doubt and in the absence of such proof, the conviction cannot

stand23.




21 Hernandez v. State, 819 S.W.2d 806 at 810 (Tex. Crim. App. 1991).
22 Williams v. State, 688 S.W.2d 486 at 488 (Tex. Crim. App. 1985).
23 Stuebgen v. State, at 32.



                                       14
         As discussed at length above, there is no evidence establishing

that Mr. Ramsey had the intent to defraud or harm the complainant or

any other person. The inclusion of the requirement "with intent to

defraud or harm," in the Forgery statute precludes any interpretation

that the presentation or passing of a forged instrument is a per se

violation. Since no evidence of record is available to show intent to

defraud or harm, the conviction must be reversed24.



STATE IGNORES CLEAR LONG-STANDING PRECEDENT


         Established precedent exists directly on point to the issues of this

case. These were fully enumerated by the Appellate Court. Still, the

State is asking this Honorable Court to ignore this precedent, remove a

required burden from the State, and specifically overrule existing case

law that has been binding precedent for over thirty years.

         The Memorandum Opinion of the Seventh Court of Appeals

clearly discusses the direct correlation between this case and Stuebgen.

We will not indulge in repetition of Chief Justice Quinn’s analysis.



24   Pfleging v. State, 572 S.W.2d 517 at 520 (Tex. Crim. App. 1978).


                                           15
         Crittenden v. State25 is also directly on point. In the

Crittenden opinion, the Court of Criminal Appeals reversed the

defendant's forgery conviction because the evidence was legally

insufficient to show the intent to defraud. In Crittenden, as in this

case, the Defendant did not make any statements from which an

inference that he knew the instrument was forged could be made. In

this case, as in Crittenden, the Defendant's presumption of innocence

could not be disregarded. The State has the burden to prove guilt

beyond a reasonable doubt and the burden cannot be shifted to the

defendant to prove he was not guilty. This the State has attempted

here.



STATE’S ATTEMPT TO SHIFT THEIR BURDEN


         The State’s attempt to relying on the non-existent ‘facts’ of

“unlimited access”, “slight deviations” and “the money was for work he

knew was never performed” [SPDFB, p5] are not the end of their

shenanigans. Equally offensive is their subtle attempt to shift the

burden of proof to Mr. Ramsey. In the State’s brief they point to the

25   Crittenden v. State, 671 S.W.2d 527 (Tex. Crim. App. 1984)


                                          16
absence of “alternative perpetrator” evidence [SPDFB, pp. 6 & 11] as

support for the Appellant’s conviction.

        The State has the sole burden of proof and it failed to present any

evidence of Mr. Ramsey’s requisite mental state. The State argues that

the intent to defraud or harm can be inferred by Mr. Ramsey's failure to

show an ‘alternative culprit’. This reasoning can only rest on the fact

that Mr. Ramsey did not produce evidence or testify to provide an

explanation for his possession of the instrument or an indication of

whom else might have created the instrument.

        Accepting this State's argument would render a defendant's mere

possession or passing of an instrument, coupled with that defendant's

decision not to testify at trial, sufficient evidence of intent to defraud.

This cannot be given any credence as it flies in the face of the

fundamental law of the land.

        “No person shall be … compelled in any criminal case to be

a witness against himself.26”

        “In all criminal prosecutions the accused … shall not be

compelled to give evidence against himself27”

26   UNITED STATES CONSTITUTION, Amendment V

                                      17
     “The failure of any defendant to so testify shall not be

taken as a circumstance against him.28"




CONCLUSION

     The Seventh Court of Appeals clearly laid out the failures of proof

at the Trial Court level. The State’s brief fails to point to any actual

facts or logic to support ignoring those failures. The State instead

points to non-existent ‘facts’ in the record, ignores a specific element of

proof, and requests this Honorable Court to ignore or specifically

overturn existing precedent. Nothing in this case supports any of these

results.



PRAYER


     Appellant prays this Honorable Court sustain these arguments,

deny the remedy requested by the State, and sustain the decision of the

Seventh Court of Appeals in this matter.



27 TEXAS CONSTITUTION, Article 1, Bill of Rights, Sec. 10. RIGHTS OF
ACCUSED IN CRIMINAL PROSECUTIONS.
28 Texas Code of Criminal Procedure,. Article 38.08.



                                     18
     Respectfully Submitted,

     /s/ Troy Bollinger


     TROY BOLLINGER

     State Bar No. 24025819
     600 Ash Street
     Plainview, Texas 79072
     Tel.: (806) 293-2618
     Fax: (806) 293-8802
     troy@laneybollinger.com
     Attorney for Appellant




19
CERTIFICATE OF SERVICE



      Pursuant to Tex. R. App. Pro. R. 9.5(a) & (e) and 68.11, I certify that on or
before July 16, 2015, Appellate Counsel served a copy of the attached document to
the District Attorney’s Office for Swisher County and the State’s Assistant
Prosecuting Attorney, and mailed a copy to Appellant, Donald Ramsey.




                                  _/s/   Troy Bollinger .
                                  TROY BOLLINGER
                                    Counsel for the Appellant




                                         20
CERTIFICATE OF COMPLIANCE



I, Troy Bollinger, attorney for Donald Ramsey, certify that this document was

generated by a computer using Microsoft Word which indicates that the word

count of this document is 3,747 words as required by Tex. R. App. P. 9.4 (i).

                                   _/s/   Troy Bollinger .
                                   TROY BOLLINGER
                                     Counsel for the Appellant




                                          21
