PETER MICHAEL REMMERS v. THE STATE OF TEXAS

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Court of Appeals of Texas, Dallas.

PETER MICHAEL REMMERS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05-10-00582-CR

Decided: February 23, 2011

Before Justices Moseley, Bridges, and O'Neill

OPINION

Opinion By Justice O'Neill

Peter Michael Remmers waived a jury and pleaded not guilty to forgery by check.   After finding appellant guilty, the trial court assessed punishment at 180 days in the state jail.   In two points of error, appellant contends the evidence is legally insufficient to support the conviction, and the trial court lacked jurisdiction to hear the case and render judgment.   We affirm.

Jurisdiction

In his second point of error, appellant complains Criminal District Court No. 5 lacked jurisdiction over the case because it was not properly transferred to the court's docket.   The indictment in the case was returned in the 194th Judicial District Court, but the record contains no order transferring the case to Criminal District Court No. 5, where the case was heard and the judgment rendered.   The State responds that appellant failed to preserve his complaint for appellate review because he did not file a plea to the jurisdiction and, alternatively, no transfer order was required in the case.

A grand jury formed and impaneled by a district judge inquires “into all offenses liable to indictment,” and hears all the testimony available before voting on whether to indict an accused.  Tex.Code Crim. Proc. Ann. arts. 20.09, 20.19 (West 2005);  Ex parte Edone, 740 S.W.2d 446, 448 (1987).   A grand jury is “often characterized as an arm of the court by which it is appointed rather than an autonomous entity.”  Dallas Cnty. Dist. Attorney v. Doe, 969 S.W.2d 537, 542 (Tex.App.-Dallas 1998, no pet.).   After the conclusion of testimony, a grand jury votes “as to the presentment of an indictment.”   Tex.Code Crim. Proc. Ann. art. 20.19.   Following presentment, an indictment is filed in a court with competent jurisdiction, i.e., jurisdiction to hear the case.   See Hultin v. State, 171 Tex.Crim. 425, 434-35, 351 S.W.2d 248, 255 (1961).

In counties having two or more district courts, the judges of the courts may adopt rules governing the filing, numbering, and assignment of cases for trial, and the distribution of the courts' work they consider necessary or desirable to conduct the business of the courts.   See Tex. Gov't Code Ann. § 24.304 (West 2004);  see also Tex. Gov't Code Ann. § 74.093 (West Supp.2010) (addressing adoption of local rules of administration to provide, in part, for assignment, docketing, transfer, and hearing of all cases).   Thus, a specific district court may impanel a grand jury;  however, it does not necessarily follow that all cases returned by that grand jury are assigned to that court.   See Bourque v. State, 156 S.W.3d 675, 678 (Tex.App.-Dallas 2005, pet. ref'd).

In this case, the record shows the grand jury was impaneled in the 194th Judicial District Court.   Following the return of the indictment, the case was filed in Criminal District Court No. 5. Nothing in the record indicates the case was originally filed in or appeared on the trial docket of the 194th Judicial District Court.   Because Criminal District Court No. 5 had jurisdiction to hear appellant's case and render the judgment, we overrule appellant's second point of error.

Legal Sufficiency

In his first point of error, appellant contends the evidence is legally insufficient to prove he passed a check with the requisite intent to defraud or harm another.   Appellant asserts there is no evidence he knew the check was forged, and because he did not falsely represent himself, the evidence is insufficient to support his conviction.   The State responds that the evidence is legally sufficient to support the conviction.

Facts

On November 12, 2009, appellant went to a Chase Bank in Garland and presented a check to open an account.   The check was issued on a Bank of America account for International SOS Assistance, Inc. (SOS) in Blue Bell, Pennsylvania, and was made payable to appellant in the amount of $450,280.49.   Rochelle Walker, a branch manager at Chase, contacted Jeannie Henry, a branch manager for Bank of America, to verify the authenticity of the check.   Walker testified that when she faxed a copy of the check to Henry, she saw the word “void” written across it.   At Henry's request, Walker kept possession of the check, gave appellant Henry's contact information, and instructed appellant to call Henry directly for negotiating the check.

Henry testified she investigated the authenticity of the check over the course of several days, during which time appellant repeatedly called to ask about the check.   Prior to having appellant come to the bank, Henry compared images of the check to images of checks from SOS's account.   She believed the check appellant presented to Chase was a forgery because the font had been altered and the number of stars appearing around the dollar amount was different than other SOS checks.   Henry also learned that appellant's account at Bank of America had been closed by the bank's “risk and security department.”   During a telephone conversation with appellant, Henry asked if the funds were from a job appellant had completed.   Appellant said the money was a “loan from a friend.”   After contacting SOS and verifying that the check was forged, Henry asked appellant to come to the bank.   When appellant entered the bank, he was carrying a black duffel bag and appeared “nervous.”   Henry “guided appellant to the lobby area for “safety,” then she asked appellant if he wanted to negotiate the check.   Appellant said, “[Y]es.” Henry asked him to sign the check and provide a thumbprint, after which she took the check and appellant's driver's license to a teller line.   She asked an associate to contact the police.   When police officers arrived, they took appellant outside the bank.

Bharvin Patel, finance manager for SOS, testified his company has never done business with appellant and never issued appellant a check.   SOS pays medical bills on behalf of companies whose employees travel overseas or come from overseas to the United States.   SOS had nothing to do with the mechanical engineering field, nor do they make business loans.   A copy of the original check was admitted into evidence.   Patel testified the original check was issued to a Canadian company called “RMA” in the amount of $3,056.12.   According to Patel, RMA never received the check, so SOS had to void the original check and re-issue another one.

Dawn Seastrom, a Bank of America investigator, testified appellant opened an account on August 26, 2009 by presenting a check issued to him.   The check deposited was returned unpaid on August 31, 2009, and the bank closed appellant's account.   Seastrom contacted a representative for the maker of the check, who stated the check appellant had presented was counterfeit.

During his testimony, appellant testified he has a mechanical engineering degree but was currently working in “construction.”   Appellant admitted he went to Chase and presented a check for over $450,000 to open an account, but claimed he did not alter the check or know it had been forged.   Appellant said a man named “Mr. White” contacted him over the internet and said he was “willing to give me some money in order to get some more money.”   In an email, Mr. White said his “business” was called “SOS company,” and that a Mr. Sato, who was the company's “financial person,” would contact appellant about actually getting the check.   The plan was for appellant to accept the check, cash it, send Mr. White $350,000, and keep the remaining $100,000.   After agreeing to accept the check, appellant talked to Mr. Sato for only three minutes over the telephone.   Upon receiving the check, appellant went to Chase and asked a banker to find out if the check was any good, stating he wanted to open an account with it.   The bank could not verify the check because it was Saturday.   The banker gave appellant contact information for Jeannie Henry and said they would have to hold the check.   Appellant called Henry, who said it would take her a few days to verify the check.   Appellant testified while he awaited Henry's answer, he called the Bank of America in Blue Bell, Pennsylvania, and asked if the check was good.   The Pennsylvania bank said the funds were there.   At some point, Henry told appellant the check was good, and she asked him to come to the bank.   Henry also told appellant to bring a bag.   Appellant said he intended to get a cashier's check for $350,000 to send to Mr. White and take the remainder in cash to Chase.

Appellant testified he had some “bad check problems” in the past, and recounted three separate incidents.   In the first incident, appellant presented a $50,000 check for deposit to an account at Chase.   Chase said the check was “no good,” and closed appellant's account.   In the second incident, appellant presented a $14,000 check to Bank of America.   The bank said that check was not good.   In the third incident, appellant presented a $50,000 check to a Commerce Bank of Texas located in a Wal-mart store where he had an account.   Commerce said that check was not good.   Appellant testified he had obtained the $14,000 and $50,000 checks through the mail.

Applicable Law

In reviewing a challenge to the sufficiency of the evidence, we examine all the evidence in the light most favorable to the verdict and 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);  Brooks v. State, 323 S.W.3d 893, 895 (Tex.Crim.App.2010) (plurality op.).   We are required to defer to the jury's credibility and weight determinations because the jury is the sole judge of the witnesses' credibility and the weight to be given their testimony.   See Jackson, 443 U.S. at 326 (“a court faced with a record of historical facts that supports conflicting inferences must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution”).

The State was required to prove beyond a reasonable doubt that appellant (1) with intent to defraud or harm another, (2) passed (3) a writing (4) that purported to be the act of another (5) who did not authorize the act.   See Tex. Penal Code Ann. § 32.21(a), (b) (West 2003).   The intent to defraud or harm another requires a showing that appellant knew that the check he passed was forged.  Anderson v. State, 621 S.W.2d 805, 808 (Tex.Crim.App. [Panel Op.] 1981);  Porter v. State, 711 S.W.2d 698, 699 (Tex.App.-Dallas 1986, no pet.).   The State may, however, establish intent to defraud or harm by circumstantial evidence.  Burks v. State, 693 S.W.2d 932, 936-37 (Tex.Crim.App.1985);  Hill v. State, 730 S.W.2d 86, 87 (Tex.App.-Dallas 1987, no pet.).

Analysis

The evidence in this case shows appellant attempted to cash a check purportedly made by SOS in the amount of $450,280.49.   SOS's finance manager said the company did not write the check to appellant or authorize anyone to do so, and that the original amount of the check was only $3,056.12.   The evidence also shows that on three previous occasions, appellant presented checks to banks that were “not good.”   Although appellant said he obtained the checks through the mail and from a man he met over the internet, it was the trial judge's role, as the fact-finder in this case, to reconcile any conflicts in the evidence.   See Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003).   The trial judge was free to accept or reject any and all of the evidence presented by either side.   See Dewberry v. State, 4 S.W.3d 735, 740 (Tex.Crim.App.1999).

Viewing the evidence under the proper standard, we conclude a rational trier of fact could find beyond a reasonable doubt that appellant intended to defraud or harm another by passing a forged check.   Thus, the evidence is sufficient to support the conviction.   See Brooks, 323 S.W.3d at 895;  Hill, 730 S.W.2d at 87.   We overrule appellant's first point of error.

We affirm the trial court's judgment.

MICHAEL J. O'NEILL JUSTICE

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