Opinion issued December 15, 2016




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-15-01054-CR
                           ———————————
                          DAVID LEROY, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 262nd District Court
                           Harris County, Texas
                       Trial Court Case No. 1471531


                                  OPINION

      A jury convicted appellant David Leroy of forgery, and the court assessed

punishment at five years in prison. See TEX. PENAL CODE § 32.21. In a single issue,

Leroy challenges the legal sufficiency of the evidence presented to support his

conviction.
      The evidence at trial supported an inference that Leroy knew he presented a

forged check. This was legally sufficient to support a finding that he intended to

defraud or harm another, the only element of forgery challenged on appeal.

Accordingly, we affirm.

                                  Background

      David Leroy entered the First Community Credit Union in Harris County,

Texas and approached a teller’s window. Without prompt from the teller, he

presented her with a First Community Credit Union check, a debit card issued by

BBVA Compass bank, and his State of Texas identification card. The check was

made out to David Leroy on the credit union account of Judy Smith in the amount

of $825. The face of the check indicated that the payment was for “roofing

contractor work.” When the teller inspected the check, she noticed that the

signature on the check “was very shaky,” “all of the security features” normally

located on check were missing or altered, the check “was washed,” and the check

“had a bleach Cloroxy smell.”

      The teller left Leroy at the window and took the check and other items to the

back of the office, away from the teller windows. While in the back, she called

Smith to verify whether she had written a check to Leroy. She had not. The teller

also called the credit union’s fraud investigator. The fraud investigator contacted

Smith and again verified that she had not written a check to Leroy. She instructed



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the teller manager to call the police, which she did. The investigator then inspected

the check herself and found that it appeared to be washed and some of the

“identifiers” were no longer on the check.

      Leroy waited for 45 minutes to an hour while the teller retained the check

and his other items in the back of the credit union. Over the course of this period of

time, he became “irate.” He walked back and forth between the teller windows

“yelling” at the tellers, telling them that he wanted his identification back, wanted

his cards back, and that he wanted his money.

      Eventually, Leroy left the credit union without any of the items that he

originally handed to the teller. He ran across the street, and he was arrested.

      At trial, the State introduced the check along with a copy of Leroy’s debit

and identification cards. The teller and fraud investigator identified Leroy as the

man who presented the check, and they identified the check presented on that day.

The teller testified that people who were not members of their credit union

generally did not present all of the documents that Leroy presented without being

prompted to do so. Additionally, the investigator testified that in her 30 years of

experience, a person who is presenting a legitimate check does not leave his check,

identification, and bank card before completing the transaction.

      Defense counsel elicited testimony on cross-examination of the teller and

investigator to the effect that Leroy did not misrepresent himself and complied



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with the requirements of cashing a check at the credit union, including allowing

himself to be fingerprinted.

      Judy Smith testified that she wrote two checks, one for her dentist and the

other for a donation to a children’s orphanage, and she placed them in her mailbox.

The check intended for the orphanage had the same check number as the one that

Leroy presented at the credit union. Smith testified that she had never had any

contact with Leroy, he never had done any roofing or construction work for her,

and she never wrote him a check. On cross-examination, she admitted that she did

not know who took the check out of her mailbox or who wrote Leroy’s name on it.

She did know that she put the checks in her mailbox in the morning on the same

day Leroy presented them at the credit union, and they were not intended for

roofing work.

      The jury convicted Leroy of forgery. At sentencing, the court found the

allegations of two enhancements to be true and assessed punishment at five years

in prison. Leroy appealed.

                                     Analysis

      In his sole issue on appeal, Leroy argues that the State presented legally

insufficient evidence to support his conviction because it failed to prove beyond a

reasonable doubt that he had the intent to defraud or harm another.




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      In reviewing the legal sufficiency of the evidence to support a criminal

conviction, a court of appeals will determine whether, after viewing the evidence

in the light most favorable to the verdict, the trier of fact was rationally justified in

finding the essential elements of the crime beyond a reasonable doubt. Brooks v.

State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We measure the evidence “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). As the

exclusive judge of the facts, the jury may believe or disbelieve all or any part of a

witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.

1991). We presume that the fact finder resolved any conflicting inferences in favor

of the verdict, and we defer to that resolution. See Brooks, 323 S.W.3d at 899–900.

On appeal we may not reevaluate the weight and credibility of the record evidence

and thereby substitute our own judgment for that of the factfinder. Williams v.

State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

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

to defraud or harm another.” TEX. PENAL CODE § 32.21(b); Johnson v. State, 425

S.W.3d 516, 520 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The indictment

in this case alleged that Leroy “unlawfully, and with intent to defraud and harm,”

forged a check, “which purported to be the act of another who did not authorize

that act, by possessing it with intent to utter it and while knowing it was forged.”



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      The only issue on appeal is whether the evidence showed that Leroy acted

with intent to defraud or harm another. To prove the requisite intent, the trier of

fact must be able reasonably to infer beyond a reasonable doubt that Leroy knew

the check was forged. See Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App.

2015). In reviewing the evidence to determine whether the jury reasonably could

have made this inference, the court looks to the totality of the circumstances and

weighs all of the facts. See Johnson, 425 S.W.3d at 524.

      Intent to defraud or harm may be established by circumstantial evidence.

Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985); Johnson, 425

S.W.3d at 520. There is no bright-line rule establishing what the State must present

to show intent to defraud or harm another. See Johnson, 425 S.W.3d at 520–24;

Griffin v. State, 908 S.W.2d 624, 627–28 (Tex. App.—Beaumont 1995, no pet.).

The mere possession, passage, or presentment of a forged instrument does not

support an inference of intent to defraud. Parks v. State, 746 S.W.2d 738, 740

(Tex. Crim. App. 1987). Courts have looked to numerous factors to determine

whether the State produced sufficient evidence to show that a defendant had the

requisite intent. See Johnson, 908 S.W.2d at 520–24; Griffin, 908 S.W.2d at 627–

28.

      Leroy argues that this case is similar to the cases of Pfleging v. State, 572

S.W.2d 517 (Tex. Crim. App. [Panel Op.] 1978), Stuebgen v. State, 547 S.W.2d 29



                                         6
(Tex. Crim. App. 1977), and Johnson v. State, 425 S.W.3d 516 (Tex. App.—

Houston [1st Dist.] 2012, pet. ref’d), in which the evidence presented was found to

be insufficient to support a finding of intent to defraud or harm another.

      In comparing this case to Pfleging and Stuebgen, Leroy identifies the facts

that he was listed as the payee on the check and that he did not falsely represent

himself when he presented the check. He also notes that the State introduced no

evidence to show that anything appearing on the checks was in his handwriting or

that he ever made a statement from which it could be inferred that he knew the

check was forged. The Court of Criminal Appeals relied upon these same factors in

finding that the State had produced legally insufficient evidence to support an

inference that each appellant knew the instrument was forged. See Stuebgen, 547

S.W.2d at 32; Pfleging, 572 S.W.2d at 519–20.

      With respect to Johnson, the court found that the only circumstantial

evidence the State produced to show the appellant’s knowledge that a money order

was forged was an “unaltered payment amount” on the instrument and a “short

thirty-six hour timeframe between theft and presentment.” Johnson, 425 S.W.3d at

524. The court held that this evidence was insufficient to enable the jury to infer

the appellant’s intent. Id. The State in Johnson also attempted to prove the

appellant’s intent by introducing evidence showing that he had no relationship with

the purchaser of the forged money order. Id. at 522. The court found that this



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evidence did not lead to an inference that he knew the money order was forged

because the actual purchaser of the money order, the complainant, was not the

person listed on the instrument at the time the appellant presented it. Id. The court

reasoned that the State had to show that the appellant had no relationship with the

person actually listed on the instrument to create an inference that he knew the

money order was forged. Id.

      This appeal is distinguishable from the cases relied upon by Leroy. The State

may produce evidence of numerous different factors to prove that a defendant had

the requisite intent to defraud or harm another. See id.; Griffin, 908 S.W.2d at 627–

28. Unlike Pfleging, Stuebgen, and Johnson, in this case the State produced

evidence of additional suspicious circumstances that were not present in those

cases. This evidence includes the facts that: there was a short amount of time

between the theft and presentment of the check; by presenting his identification

and bank card without prompting Leroy acted unusually for a person who was not

a member of the credit union; and he had no relationship with Smith (the actual

maker of the check). The State also demonstrated that Leroy became “irate” while

waiting for the teller to return with his documents, and he left the credit union

without his identification, his bank card, or the check. From this evidence, the jury

could have concluded that Leroy fled the scene. See Hart v. State, 682 S.W.2d 346,




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347 (Tex. App.—Dallas 1984, pet. ref’d) (holding that defendant’s leaving check-

cashing center without cash or check was attempt to flee).

      A defendant’s attempt to flee is a “suspicious circumstance” from which the

jury can infer that the defendant knew a check was forged. See Baker v. State, 552

S.W.2d 818 (Tex. Crim. App. 1977); Taylor v. State, No. 01-03-00173-CR, 2004

WL 550180 at *2 (Tex. App.—Houston [1st Dist.] Mar. 18, 2004, pet. ref’d)

(mem. op., not designated for publication). In addition, an appellant’s lack of any

relationship with the payor, even though he was the payee on the check, taken in

connection with his unexplained, personal, recent possession, and passing as his of

one of the payor’s stolen checks, is sufficient evidence to establish that the

appellant knew the check was forged, and therefore his intent to defraud or harm

another. See Johnson, 425 S.W.3d at 522; see also Huntley v. State, 4 S.W.3d 813,

815 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). And finally, a “short time

frame between theft of a financial instrument and passage of the forged document

has contributed to the totality of the circumstances in cases inferring an intent to

defraud.” Johnson, 425 S.W.3d at 523.

      Viewing the evidence in the light most favorable to the verdict, we conclude

that based on the totality of the circumstances a rational jury reasonably could have

inferred beyond a reasonable doubt that Leroy knew the check was forged. See




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Brooks, 323 S.W.3d at 899; Johnson, 425 S.W.3d at 524. Therefore, the evidence

was legally sufficient to support the conviction.

      We overrule his sole issue.

                                    Conclusion

      We affirm the judgment of the trial court.




                                              Michael Massengale
                                              Justice

Panel consists of Justices Massengale, Brown, and Huddle.

Publish. TEX R. APP. P. 47.2(b).




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