Donald Lynn Ramsey aka Donald Lynn Ramsay, Appellant v. The State of Texas, Appellee (2014)

MEMORANDUM OPINION

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.

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, 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).

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.

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.

Applying the precedent of Stuebgen v. State ¹ and Crittenden v. State,² the majority reverses Appellant's forgery by passing conviction by finding the evidence insufficient to establish that Appellant knew the instrument was a forgery or that he had the requisite intent to defraud or harm another.   Because I would distinguish the facts of this case from those in Stuebgen and Crittenden, and because I find there is sufficient circumstantial evidence to sustain Appellant's conviction, I respectfully dissent.

Although the underlying facts of this case are appropriately set out in the majority opinion, I will briefly summarize those facts pertinent to my analysis of the evidence.   On June 11, 2013, Appellant went to the Booger Red Liquor Store in Tulia, Texas, where he was a regular customer, and cashed a check for $65.   The check was made out to Appellant and was drawn on the account of Owens Motor Machine at Centennial Bank. The account belonged to J.E. Owens and his son, Jed Owens.   A customer service representative of the bank testified that the account had two authorized signators, “J.E. Owens” and “J.J. Owens.”

The check in question, check number 1313, was made out to Donald Ramsey and was signed by “Jim E. Owens.”   The memo section of the check reflected that it was for “contract labor.”   J.E. Owens testified that although he has signed checks in the past as “Jimmie E. Owens,” he did not sign check number 1313 and he did not authorize anyone to sign it for him.   He further testified that he did not authorize delivery of the check to Appellant and he did not write the words “contract labor” on the instrument.   Jed Owens also testified that he did not sign the check or authorize its issuance.   The clerk from the liquor store testified that she had previously been authorized by Jed Owens to cash Appellant's paychecks.   Additional testimony established that Appellant had previously been employed by the Owens and had prior access to the location where the Owens Motor Machine checkbook was stored.

Omitting the formal parts, the indictment in the instant case charged that Appellant:

“did then and there, with intent to defraud or harm another, namely Jimmie E. Owens, an elderly individual 65 years of age or older, pass 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, who did not authorize the act․”

A person commits the offense of forgery if he forges an instrument with intent to defraud or harm another.³  While it is true that the State must establish every element of the offense charged, the intent to defraud or harm another may be established by circumstantial as well as direct evidence.   Williams v. State, 688 S.W.2d 486, 490 (Tex.Crim.App.1985).   In Williams the Court of Criminal Appeals found the evidence was sufficient to discharge the State's burden of showing that the accused acted with intent to defraud or harm another when it established he made an affirmative statement that he received the money order he was attempting to pass in exchange for work performed, when other evidence established that the instrument had been stolen.

The Stuebgen case is distinguishable.   In that case the Court found that the element of “intent to defraud or harm another,” found in section 32.21(b), necessarily implicated a culpable mental state that included “knowing [the forged instrument] was forged at the time of the passing,” an element specifically required under the former Penal Code. See Articles 996, 979 Vernon's Ann. Penal Code. Cf. Tex. Penal Code Ann. § 32.21(b) (West 2011).   Similar to the facts of this case, in Stuebgen the accused passed a check made payable to himself and purportedly signed by his employer.   The Court of Criminal Appeals held that since the accused made no statement from which it could be inferred that he knew the instrument was forged, the evidence was insufficient to discharge the State's burden of showing he acted with the intent to defraud or harm another.   It should be noted, however, that unlike the record in this case, the record in Stuebgen does not reflect the forged instrument contained a memo concerning the purpose for which the instrument was given.

In Crittenden the Court of Criminal Appeals reversed a forgery conviction because the State failed to show the accused had knowledge that the instrument was forged.   In that case, the accused attempted to open a checking and savings account by depositing a forged check.   When the bank teller questioned the instrument and called the owner of the account, she was told the check had been stolen.   The police were summoned and the accused explained he thought the check was from his attorney, representing proceeds from a personal injury case.   Because there was no showing of any connection between the accused and the stolen check, he made no statements from which it could be inferred that he knew the check was stolen, and he made no attempt to flee after his attempt to deposit the check was thwarted, the Court found the evidence was insufficient to show that he had the intent to defraud or harm another.

I find that the instant case to be more appropriately governed by the holding in Williams.   Here, similar to Williams and unlike Stuebgen and Crittenden, Appellant attempted to pass an instrument that clearly stated that it was given for a specific purpose, to-wit:  “contract labor.”   Furthermore, the evidence established that he was a former employee of the purported maker of the check, had access to a checkbook from their account and passed the instrument at a location where he knew his “paychecks” would be honored.   Reviewing the evidence in the light most favorable to the jury's verdict, the evidence in this case circumstantially establishes that Appellant passed the check under circumstances inferentially representing the check was given for services rendered.   As such, because the testimony of J.J. Owens and Jed Owens circumstantially established that the check was not issued to Appellant for services rendered, I believe a rational and fair-minded juror could conclude beyond a reasonable doubt that Appellant knew the instrument was forged when he passed it.   Accordingly, I would overrule Appellant's sufficiency issue and affirm the judgment of conviction.   See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979);  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010).

FOOTNOTES

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.   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.

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.

1.   Stuebgen v. State, 547 S.W.2d 29 (Tex.Crim.App.1977).

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

3.   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). The definition also includes to “issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A).” Id. at § 32.21(a)(1)(B).

Brian Quinn, Chief Justice