                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                    No. 07-14-00249-CR


                            DONALD LYNN RAMSEY AKA
                         DONALD LYNN RAMSAY, APPELLANT

                                             V.

                           THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 242nd District Court
                                   Swisher County, Texas
             Trial Court No. B-4502-13-07, Honorable Edward Lee Self, Presiding

                                     December 17, 2014

                             MEMORANDUM OPINION
                   Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

       Appellant Donald Lynn Ramsey, aka Donald Lynn Ramsay, appeals his

conviction of forgery committed against an elderly person by contending the evidence is

insufficient to sustain the conviction. We reverse the judgment.

       The standard of review is discussed in Brooks v. State, 323 S.W.3d 893 (Tex.

Crim. App. 2010). We refer the parties to that opinion in lieu of reiterating its content.

       Next, the State alleged, via indictment, that appellant “with the intent to defraud

or harm another, namely JIMMIE E. OWENS, an elderly individual 65 years of age or
older, pass[ed] to Janna Parson, a forged writing, knowing such writing to be forged,

and such writing had been so executed so it purported to be the act of JIMMIE E.

OWENS . . . .” The statute upon which the allegation was founded made it an offense

for a person to forge a writing with the intent to defraud or harm another. See TEX.

PENAL CODE ANN. § 32.21 (b) (West 2011).1 Because an element of the crime charged

required proof that the accused acted with the intent to defraud or harm another, the

“State necessarily had to prove that . . . [the accused] knew that the . . . [item was]

forged . . . .” Okonkwo v. State, 398 S.W.3d 689, 695 (Tex. Crim. App. 2014); accord

Stuebgen v. State, 547 S.W.2d 29, 32 (Tex. Crim. App. 1977) (stating that “[w]hile the

requisite culpable mental state . . . [for the offense of forgery of a writing] is 'intent to

defraud or harm,' we fail to perceive how such culpable mental state can be shown

absent proof of knowledge that the instrument is forged."). And, while intent may be

inferred from circumstantial evidence such as words, acts, or conduct, Patrick v. State,

906 S.W.2d 481, 487 (Tex. Crim. App. 1995), intent to defraud cannot be inferred from

mere evidence of possession, passage, or presentment of a forged instrument.

Johnson v. State, 425 S.W.3d 516, 520 (Tex. App.—Houston [1st Dist.] 2012, pet.

ref’d).

          According to the evidence here, the $65 check negotiated by appellant was

made payable to him and contained the signature “Jim E. Owens.”                              Listed on the

memorandum line was the phrase “Contract Labor.” 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 appellant.

          1
           The definition of “forge” includes to “alter, make, complete, execute or authenticate any writing
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) (West 2011).

                                                      2
      Other evidence illustrated that 1) J. E. Owens, eighty-five years old, signed his

checks as Jimmie E. Owens, Jimmie Owens, or J. E. Owens; 2) appellant worked for

him and his son Jed; 3) appellant had been paid in the past with checks written with the

words “Contract Labor” on the memorandum line; 4) the two authorized signatories on

the account were J. E. Owens who is Jimmie Owens and J. J. Owens who is Jed

Owens; 5) J. E. did not sign or authorize anyone to sign the check in question; 6) Jed

did not sign the check or authorize another to do so; 7) appellant lived in the Owens’

shop; 8) the checks were kept in an unlocked truck; 9) appellant had access to the

truck; and 10) others who came to the shop had access to the truck as well.

      The record further discloses that Janna Parson owned the Booger Red Liquor

store, which was located a block and a half from the Owens Motor Machine shop. She

testified that appellant was a customer and passed that check on June 11, 2013.

Testimony also disclosed that she had received permission from the Owens to cash

paychecks for appellant.   There is no evidence about whether she recognized the

signature on the check as genuine.

      In Stuebgen v. State, the defendant cashed a check made payable to him. The

name of the account owner appeared on the check, but the owner testified that he did

not sign the instrument. Additionally, the accused was an employee of the account

owner who also happened to keep his checkbook in his truck. And, as here, individuals

in addition to the accused had access to the vehicle and no evidence appeared of

record indicating that the writing on the instrument was similar to that of the accused.

Given these circumstances, our Court of Criminal Appeals was asked to determine

whether sufficient evidence appeared of record from which a rational jury could infer,



                                           3
beyond reasonable doubt, that the accused intended to defraud or harm. In response,

the court said:

       In the instant case, the record reflects that appellant made no statement
       from which it could be inferred that he knew the instrument was forged.
       Appellant was listed as the payee, and appellant did not falsely represent
       himself. No evidence was introduced to show that anything appearing on
       the check was in appellant’s handwriting. Although appellant had access
       to Chitwood’s checkbook, and Chitwood normally paid his employees per-
       sonally, we do not find that this evidence is sufficient to discharge the
       State’s burden of showing that appellant acted with intent “to defraud or
       harm another.”

Stuebgen v. State, 547 S.W.2d at 32.

       We find it difficult to distinguish the material circumstances in Stuebgen from

those before us. Consequently, we find the outcome in Stuebgen controlling here. To

the extent that access to the checks and passing the check was not enough to establish

intent to defraud there, it was not enough here. Simply put, there is no evidence of

record from which a rational fact finder could infer, beyond reasonable doubt, that

appellant knew the instrument was forged and, therefore, intended to defraud or harm

either Owens. See also Crittenden v. State, 671 S.W.2d 527, 528 (Tex. Crim. App.

1984) (finding no evidence of intent to defraud from a record in which the defendant

made no statement from which it could be inferred that he knew the instrument was

forged, he was listed as the payee and he did not falsely represent himself, no evidence

was introduced to show that anything on the check was in the defendant’s handwriting,

there was no showing of any connection between the check stolen from the service

station and appellant prior to the time he said he received it in the mail, and he made no

attempt to flee after his attempt to deposit the check was thwarted).




                                            4
        We do not have a situation like that in Oldham v. State, 5 S.W.3d 840 (Tex.

App.—Houston [14th Dist.] 1999, pet. ref’d). There, the accused represented to the

person to whom she passed the check that she obtained the instrument from her

employer. Yet, she did not work for the person. Id. at 843-45. The misrepresentation

allowed the fact finder to reasonably infer that the writing was forged. So, the State’s

reliance on Oldham is misplaced.2

        Nor does the evidence that J. E. Owens signed the checks as “J. E. Owens”

constitute proof that appellant knew the check was forged. Again, Owens testified that

he had also signed checks in other ways, such as “Jimmie Owens” or “Jimmie E.

Owens.” So, it cannot be rationally inferred that appellant knew of the forgery because

the signature line did not contain “J. E. Owens” in this instance. Moreover, to accept the

State’s argument would require us to presume that appellant knew how Owens signed

his checks, but we found no evidence to support that. Appellant did not testify; nor did

anyone so testify. Nor does the record contain a description of the number of checks

previously written to appellant and the particular name appearing on the signature line.

It would seem necessary for such to appear of record before one can logically infer that

the payee somehow knew whether or not the signature on a later instrument was

genuine or fake simply by looking at the signature.




        2
          In Williams v. State, 688 S.W.2d 486 (Tex. Crim. App. 1985), another case relied on by the
State, the defendant was asked by the cashier where he had obtained the money order he sought to
cash, and he replied that he had done some work for a lady and she paid him with it. Id. at 488. The
utterance was false, and from that the jury could rationally infer his knowledge of the forgery. Id. at 490.


                                                     5
       Based on this record, we find the evidence insufficient to establish that appellant

1) knew the instrument was forged or 2) had the requisite intent to defraud or harm.3

Consequently, we reverse the judgment and render a judgment of acquittal.




                                                              Brian Quinn
                                                              Chief Justice




       3
          Per Bowen v. State, 374 S.W.3d 427, 431-32 (Tex. Crim. App. 2012), we perused the record to
determine if the crime for which appellant was tried encompassed a lesser-included offense having
evidentiary support. None was found.

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