                                     In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                             ____________________

                              NO. 09-17-00244-CR
                             ____________________

                   KENNETH RAY CHATMAN, Appellant

                                        V.

                  THE STATE OF TEXAS, Appellee
__________________________________________________________________

                On Appeal from the 359th District Court
                      Montgomery County, Texas
                   Trial Cause No. 15-08-08596-CR
__________________________________________________________________

                         MEMORANDUM OPINION

      Appellant Kenneth Ray Chatman appeals his conviction for forgery. See Tex.

Penal Code. Ann. § 32.21 (West Supp. 2017). 1 In issue one, Chatman argues that the

evidence was insufficient to support his conviction for the offense charged in the

indictment because there is a fatal variance between the language in the indictment

and the evidence presented at trial. In issue two, Chatman complains that his trial


      1
      We cite to the current version of section 32.21 of the Penal Code because the
subsequent amendment is not material to the outcome of the appeal.
                                        1
counsel provided him with ineffective assistance of counsel by requesting a jury

instruction that allowed Chatman to be convicted of the lesser-included offense of

forgery. We affirm the trial court’s judgment.

                                     Background

      A grand jury charged Chatman with the offense of forgery against an elderly

individual, a third-degree felony, and further alleged five prior felony convictions

for purposes of punishment enhancement. The indictment alleges that Chatman

      on or about March 14, 2015 . . . did then and there, with intent to defraud
      or harm another, pass a writing that is or purports to be a check, that
      was altered, made, completed, executed, or authenticated so that it
      purports to be the act of [K.V.], . . . an elderly individual, who did not
      authorize that act[.]

The check was issued from the account of Beacon Holdings Corporation

(“Beacon”), dated March 14, 2015, made payable to the order of Kenneth Ray

Chatman, and signed by Alma Michaels. K.V., who owns Beacon and who was

seventy-eight years old when the offense occurred, testified that his bank notified

his secretary that one of Beacon’s issued checks contained an unauthorized

signature, and K.V. testified that he did not know Alma Michaels.

      K.V. testified that he kept some of Beacon’s checks in his vehicle’s glove

compartment, and he believed that someone from the local car wash had taken the

check while his vehicle was being washed. K.V. explained that his bank gave him a

                                          2
copy of the stolen check, which was made payable to Chatman. K.V. testified that

neither he nor his secretary had signed the check, nor had he authorized Chatman to

use the check.

      Louis Nava, the district manager of a local liquor store, testified that he

reviewed the store’s surveillance video footage from March 14, 2015, and he gave

the video to the police. Nava testified that when a person cashes a check at the liquor

store, the store requires that he put his personal information and thumbprint on the

check. Leslie McCauley, a Sergeant with the Montgomery County Sheriff’s Office’s

Crime Laboratory, testified that she is a latent print examiner, and McCauley

determined that the thumbprint on the check belongs to Chatman. Kenneth Lewis,

the owner of the car wash where K.V.’s check was stolen, testified that Chatman

worked for him part-time over the past few years and that K.V. was one of his long-

time customers. After viewing the video footage from the liquor store, Lewis

testified that the person cashing the check in the video “looks like” Chatman.

      Officer Rodney Baseke of the Willis Police Department testified that in March

2015, he was working as a detective when he was assigned to investigate Chatman’s

case. Baseke testified that after viewing the video from the liquor store, he positively

identified Chatman as the person who cashed the check. During his investigation,

Baseke spoke with Chatman, and a recording of their conversation was admitted into

                                           3
evidence. Chatman told Baseke that K.V. gave him a blank check for washing his

car and that Chatman had someone else make it out. Chatman also admitted that he

had made a mistake and wanted to pay K.V. back. According to Baseke, Chatman

confessed to committing the forgery.

      After the State rested, Chatman’s counsel moved for a directed verdict,

arguing that the State failed to show that the offense was committed against an

elderly person because Beacon is not an elderly individual, Beacon and K.V. are

different entities, and there was no evidence that Chatman cashed the check

purporting to be an act of K.V. The trial court, finding that reasonable minds could

draw more than one conclusion from the evidence, denied Chatman’s motion for a

directed verdict. During the jury charge conference, defense counsel requested that

the trial court include the lesser-included offense of forgery in the jury charge, and

the trial court granted the request.

      The jury found Chatman guilty of the lesser-included offense of forgery. The

trial court conducted a punishment trial, during which Chatman stipulated to the

enhancement paragraphs alleged in the indictment. The trial court found the

enhancement paragraphs to be true and assessed Chatman’s punishment at five years

of confinement. Chatman appealed.

                                       Analysis

                                          4
      In issue one, Chatman argues that the evidence is insufficient to support his

conviction for the offense charged in the indictment because there was a fatal

variance between the language in the indictment and the evidence presented at trial.

Chatman contends that according to the specific language in the indictment, the State

was required to prove that he passed a writing that purported to be the act of K.V.,

but the evidence shows that the act was not authorized by K.V. According to

Chatman, the signature on the check purported to be an act of A.M., and K.V., whose

name did not appear on the check, testified that he did not make, sign, or authorize

the check. Chatman argues that because the State named the wrong victim in the

indictment, it was impossible for the State to prove the offense as pleaded. The State

argues that no variance exists because the evidence showed that K.V. was the person

authorized to sign company checks on Beacon’s behalf.

      In a legal sufficiency review, we examine the evidence in the light most

favorable to the verdict to determine whether a rational trier of fact could have found

the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307, 319 (1979); Ramsey v. State, 473 S.W.3d 805, 808 (Tex. Crim. App.

2015). Thus, the sufficiency of the evidence should be measured by the elements of

the offense as defined by the hypothetically correct jury charge for the case. Malik

v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury

                                          5
charge accurately sets out the law, is authorized by the indictment, does not

unnecessarily increase the State’s burden of proof or restrict its theories of liability,

and adequately describes the offense for which the defendant was tried. Id.

      A variance occurs when there is a discrepancy between the allegations in the

indictment and the proof offered at trial. Byrd v. State, 336 S.W.3d 242, 246 (Tex.

Crim. App. 2011). In conducting an evidentiary-sufficiency analysis, we consider

two types of variances: material and immaterial. Thomas v. State, 444 S.W.3d 4, 9

(Tex. Crim. App. 2014). Because immaterial variances do not affect the validity of

a criminal conviction, a hypothetically correct jury charge need not incorporate

allegations that give rise to only immaterial variances. Id. A variance is fatal when

it is a material variance that prejudices the substantial rights of the defendant. Id.;

Gollihar v. State, 46 S.W.3d 243, 257-58 (Tex. Crim. App. 2001). In determining

whether a variance is material, we look to see whether the indictment informed the

defendant of the charge against him sufficiently to allow him to prepare an adequate

defense at trial and whether the indictment would subject him to the risk of being

prosecuted later for the same crime. Gollihar, 46 S.W.3d at 258.

      The jury charge instructed the jury to consider the lesser-included offense of

forgery, and the application paragraph of the lesser-included instruction omitted any

reference to K.V. or his status as an elderly individual. The jury found Chatman

                                           6
guilty of the lesser-included offense of forgery. Because the jury did not convict

Chatman for the offense of forgery against an elderly individual as alleged in the

indictment, we conclude that Chatman’s argument that there was a fatal variance

between the language in the indictment and the evidence presented at trial is without

merit. We further conclude that Chatman’s argument that it was impossible for the

State to prove the offense as pleaded is also without merit, because the jury charge

for the lesser-included offense of forgery did not reference K.V. or his status as an

elderly individual.

      A person commits a forgery by passing a writing that has been altered made,

completed, executed, or authenticated so that it purports to be the act of another who

did not authorize that act. Tex. Penal Code. Ann. § 32.21(a)(1)(A)(i), (B). A person

must pass the writing with the intent to defraud or harm another. Id. § 32.21(b). The

Texas Penal Code defines “another” as a “person other than the actor.” Id. §

1.07(a)(5) (West Supp. 2017). “Person” means “an individual, corporation, or

association.” Id. § 1.07(a)(38) (West Supp. 2017). The testimony at trial established

that K.V. owned Beacon and that only K.V. and his secretary, D.W., were authorized

to sign checks on behalf of Beacon. The evidence further showed that there was no

Alma Michaels associated with Beacon. Thus, the evidence showed that to be valid,

any check issued from Beacon’s account would have to be signed by K.V. or D.W.

                                          7
      We conclude that by passing the Beacon check from “Alma Michaels” to the

liquor store, Chatman did, with intent to defraud or harm another, pass a writing that

is or purports to be a check, that was altered, made, completed, executed, or

authenticated so that it purports to be the act of another who did not authorize that

act. See Tex. Penal Code Ann. § 32.21(a)(1)(A)(i), (B); Williams v. State, 688

S.W.2d 486, 488-90 (Tex. Crim. App. 1985) (concluding evidence was sufficient to

find defendant guilty of forgery); Hill v. State, 750 S.W.2d 2, 5 (Tex. App.—Fort

Worth 1988, pet. ref’d) (holding that an allegation of the non-existence of the person

whose writing the instrument is purported to be constitutes an allegation that such

person did not authorize the act). Because the evidence is sufficient to support

Chatman’s conviction for forgery, we overrule issue one. See Jackson, 443 U.S. at

319; Malik, 953 S.W.2d at 240.

      In issue two, Chatman complains that his trial counsel provided him with

ineffective assistance of counsel by requesting a jury instruction that allowed

Chatman to be convicted of the lesser-included offense of forgery. According to

Chatman, his conviction was the result of the erroneously submitted jury instruction

because the instruction more broadly defined the offense and lacked a specific

victim.




                                          8
      To prevail on a claim of ineffective assistance of counsel, an appellant must

satisfy a two-pronged test:

      First, the defendant must show that counsel’s performance was
      deficient. This requires showing that counsel made errors so serious that
      counsel was not functioning as the “counsel” guaranteed the defendant
      by the Sixth Amendment. Second, the defendant must show that the
      deficient performance prejudiced the defense. This requires showing
      that counsel’s errors were so serious as to deprive the defendant of a
      fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Hernandez v. State,

726 S.W.2d 53, 56-57 (Tex. Crim. App. 1986). An appellant must demonstrate a

reasonable probability that but for his counsel’s errors, the outcome would have been

different. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002). “Appellate

review of defense counsel’s representation is highly deferential and presumes that

counsel’s actions fell within the wide range of reasonable and professional

assistance.” Id.

      Chatman must prove that there was no professional reason for specific acts or

omissions of his counsel. See id. at 836. In addition, any allegation of ineffectiveness

“must be ‘firmly founded in the record’ and ‘the record must affirmatively

demonstrate’ the meritorious nature of the claim.” Menefield v. State, 363 S.W.3d

591, 592 (Tex. Crim. App. 2012) (quoting Thompson v. State, 9 S.W.3d 808, 813

(Tex. Crim. App. 1999)). Ordinarily, trial counsel should be given an opportunity to

                                           9
explain his actions before being denounced as ineffective. Menefield, 363 S.W.3d at

593. Thus, the bare record on direct appeal is usually insufficient to demonstrate that

“counsel's representation was so deficient and so lacking in tactical or strategic

decisionmaking as to overcome the presumption that counsel’s conduct was

reasonable and professional.” Bone, 77 S.W.3d at 833 (footnote omitted).

      Because Chatman did not file a motion for new trial, Chatman’s counsel did

not have an opportunity to explain the choices he made in representing Chatman,

and the record before us is silent about the strategy Chatman’s attorney employed.

Consequently, on this record, we cannot conclude that Chatman received ineffective

assistance of counsel. See Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim.

App. 2005). Chatman has failed to defeat the strong presumption that counsel’s

decisions during trial fell within the wide range of reasonable professional

assistance. See Bone, 77 S.W.3d at 833; see also Thompson, 9 S.W.3d at 814. We

overrule issue two. Having overruled both of Chatman’s issues on appeal, we affirm

the trial court’s judgment.

      AFFIRMED.

                                               ______________________________
                                                      STEVE McKEITHEN
                                                          Chief Justice


Submitted on September 4, 2018
                                          10
Opinion Delivered October 10, 2018
Do Not Publish

Before McKeithen, C.J., Kreger and Horton, JJ.




                                       11
