                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-19-00126-CR


                              FRITZ KEITH PETERS, APPELLANT

                                                    V.

                               THE STATE OF TEXAS, APPELLEE

                             On Appeal from the 441st District Court
                                    Midland County, Texas
               Trial Court No. CR48226, Honorable Jeffrey Todd Robnett, Presiding

                                         February 26, 2020

                                 MEMORANDUM OPINION
                         Before QUINN, C.J., and PARKER and DOSS, JJ.

        Fritz Keith Peters, appellant, appeals his conviction for forgery. Through two

issues, he contends the evidence was insufficient to support his conviction, and the trial

court abused its discretion in allowing a defense expert to testify for the State. We affirm.1




         1 Because this appeal was transferred from the Eleventh Court of Appeals, we are obligated to

apply its precedent when available in the event of a conflict between the precedents of that court and this
Court. See TEX. R. APP. P. 41.3.
       Issue One – Sufficiency of the Evidence

       Appellant initially contends that “[w]hile the evidence in this case shows the

complainant did not write the checks nor authorized anyone to do so, the evidence does

not establish Appellant as the perpetrator of that fraud.” This purportedly is so because

the State presented no evidence that he 1) was the “person who established this bank

account so he could commit the elaborate forgery scheme,” 2) was the person who took

the photographs of the checks to make the mobile deposit, 3) was the individual who

deposited the money into the bank account, 4) touched the checks deposited into the

account, and 5) was the individual who withdrew the funds from the account. We overrule

the issue.

       We begin our analysis by mentioning several principles. First, the applicable

standard of review is that discussed in Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.

Ct. 2781, 61 L. Ed. 2d 560 (1979), Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App.

2012), and Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010). Second, not only is

direct and circumstantial evidence equally probative, but also circumstantial evidence

alone may be ample to prove guilt if its cumulative force is enough to support the

conviction. Winfrey v. State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, application of the foregoing

standard requires us to focus on the evidence presented, as opposed to the evidence

which could have been presented but was not. Merritt, 368 S.W.3d at 526.

       Here, the State accused appellant of “pass[ing] and transfer[ring] a writing that had

been MADE AND ALTERED so that the said writing purported to be the act of another

who did not authorize that act, to-wit: the act of RAJESH GUTTA AND MIDESSA ORAL



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AND FACIAL SURGERY, and . . . pass[ing] and transferr[ing] the said writing with the

knowledge that said writing was forged”. The accusation implicated § 32.21(b) of the

Texas Penal Code, which states that a person commits an offense if "he forges a writing

with intent to defraud or harm another." TEX. PENAL CODE ANN. § 32.21(b) (West Supp.

2019).

         One can "forge" a writing in several ways, per the statute. The manner pertinent

here is that where the accused allegedly “issue[s], transfer[s], register[s] the transfer of,

pass[es], publish[es], or otherwise utter[s] a writing that is” altered, made, completed,

executed, or authenticated so that it purports to be an act of another who did not authorize

the act. Id. § 32.21(a)(1)(A), (B). As explained by the State to the jury, appellant "got

these checks that he knew were fake, and he took money that didn't belong to him when

he deposited these checks into his account. So that's where the crime is.”

         The checks about which the State spoke were six in number for $150 each. They

were written on the account of “Gutta PA” of Midland, Texas, dated March 1, 2016, and

payable to "Fritz K. Peters." Each was deposited on the same day into a checking

account recently opened with BBVA Compass Bank in Athens, Alabama. The deposits

were made via mobile banking, that is, by sending the check through a telephone app to

the bank.

         Additionally, a bank employee testified that appellant "owned" the account. Other

evidence was proffered to support this proposition. It consisted of testimony that the bank

required photo I.D. from a person opening the account to verify the identity of the person

opening it. So too was there evidence indicating the signature on the signature card

executed when the account was open was similar to that of appellant. The investigator


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assigned to the case also opined that appellant owned the account, which opinion was

based upon her "training and experience" and consideration of the signature card and

account identifiers.

       The record also illustrates that the account was opened with an initial deposit of

only $25. No other deposits were made until the deposit of the aforementioned six checks

on March 1st. Three days later, a check in the amount of $850 payable to the order of

“cash” was drawn against the account. Appellant’s handwritten name appeared in the

signature line on the front of the instrument and the signature line on the back where a

payee normally endorses the check for negotiation. According to a bank employee with

12 years of experience in the industry, the signatures on the $850 check and signature

card were “substantially similar enough” to warrant payment of the check.

       There appeared other evidence of record. For instance, Dr. Gutta of “Gutta PA”

practiced in Midland, Texas. And, he testified and denied that 1) he knew appellant, 2)

appellant was a patient of his, 3) the six $150 checks payable to appellant were his

(Gutta’s), 4) the signatures on each check were his, and 5) the appearance of the checks

was similar to that of the checks he used. Another witness testified that mobile deposits

into a third-person’s account could not be accidental because the manner in which they

were made and the information which had to be known to complete the deposit. Finally,

a bank employee also testified that appellant never reported to the bank any supposed

misconduct or fraudulent activity regarding the account.

       In short, the jury had before it evidence from which it could reasonably infer that

appellant opened a checking account in Alabama with a $25 deposit but nevertheless

withdrew $850 from it. The withdrawal occurred soon after six forged checks purportedly



                                            4
sent by someone from Texas with whom he had no relationship were also deposited. It

may have been nice to have direct testimony establishing that appellant opened the BBVA

account, deposited the six forged checks into it, and then withdrew $850. Yet, much can

reasonably be inferred from the circumstantial evidence of appellant taking $850 from an

account in which he only made one legitimate deposit of $25 and remaining silent

thereafter. See Munoz v. State, No. 11-13-00139-CR, 2015 Tex. App. LEXIS 6643, at

*10 (Tex. App.—Eastland June 30, 2015, pet. ref’d) (mem. op., not designated for

publication) (noting that a defendant's pre-arrest, pre-Miranda silence may be considered

as substantive evidence of guilt). The circumstantial evidence here permitted the fact-

finder to reasonably infer that appellant forged a writing with intent to defraud or harm

another by passing a writing purporting to be an act of another who did not authorize the

act.

       Issue Two – Allowing Defense Expert to testify for the State

       In his second issue, appellant contends the trial court abused its discretion in

permitting the State to request a defense expert to conduct a handwriting analysis of his

signature. That purportedly converted a “defense expert” appointed to help him into an

“independent expert.” In the expert being so converted, he allegedly was denied his

constitutional right “to his or her own expert” as opposed to “a neutral expert to assist both

parties.” We overrule the issue.

       Simply put, appellant argues that an appointed defense expert cannot be used by

the State for purposes of garnering evidence beneficial to the State's case.            In so

contending, he ignores Texas Rule of Evidence 611(b). It permits a litigant to cross-




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examine a witness "on any relevant matter, including credibility." TEX. R. EVID. 611(b).

Instead, he would have us read various other authorities as imposing such a restriction.

           The authorities in question are McWilliams v. Dunn, 582 U.S. __, __, 137 S. Ct.

1790, 1800, 198 L. Ed. 2d 341 (2017), Ake v. Oklahoma, 470 U.S. 68, 77, 105 S. Ct.

1087, 1093, 84 L. Ed. 2d 53 (1985), and Ex parte Jimenez, 364 S.W.3d 866, 877 (Tex.

Crim. App. 2012). They recognize that due process sometimes calls for the appointment

of an expert to assist indigents when defending against criminal accusations. That is,

they recognize that, at times, an indigent must be afforded access to at least one expert

"who, even if he cannot or will not testify to the defense's theory of the case, is 'available

to consult with counsel, to interpret records, to prepare counsel to cross-examine State's

witnesses, and generally to help present appellant's defense in the best light.'" Ex parte

Jimenez, 364 S.W.3d at 877 (quoting De Freece v. State, 848 S.W.2d 150, 161 n.7 (Tex.

Crim. App. 1993)). However, being entitled to an expert does not mean the expert is

insulated from cross-examination should he testify. Nor do Jimenez, Ake, or McWilliams

so hold.       Nor did any of those authorities hold that recognizing the right to expert

assistance requires their insulation from applicable Rules of Evidence should the expert

testify.

           In sum, we reject appellant's invitation to read McWilliams, Ake, Jimenez, and like

authority as creating a rule akin to: "this expert is mine and the State cannot ask him

relevant questions on cross-examination which may help the State." If the rules of

evidence otherwise allowed the State to pursue the line of questioning at issue, the




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aforementioned authorities alone did not bar it. And, appellant did not argue that the line

of questioning pursued by the State here somehow transgressed a rule of evidence.2

        Accordingly, we affirm the judgment of the trial court.



                                                                            Brian Quinn
                                                                            Chief Justice

Do not publish.




        2 We do note the language in McWilliams about the appointed expert being “independent from the
prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense.’“ McWilliams,
582 U.S. at ___, 137 S. Ct. at 1793 (quoting Ake, 470 U.S. at 83). Nevertheless, appellant failed to explain
how, under the circumstances at bar, the appointed expert was no longer independent from the prosecution
when asked to compare various signatures of appellant and assess their similarity. The question solicited
evidence relevant to appellant’s guilt or innocence, and, therefore, fell within the scope of Rule 611(b). And,
merely because the expert’s response may have been somewhat helpful to the State, does not alone
establish the purported lack of independence. If the contrary were true, then impeaching an appointed
expert would become prohibited given the likelihood that such often benefits the prosecution.

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