Burgess v. State

• Decision Date: 31 May 1990
• Docket Number: No. A14-89-00490-CR,A14-89-00490-CR
• Citation: 790 S.W.2d 856
• Parties: Earl Barrington BURGESS, Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 856

790 S.W.2d 856

Earl Barrington BURGESS, Appellant, v. The STATE of Texas, Appellee.

No. A14-89-00490-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

May 31, 1990.

Tom Donald Moran, Houston, for appellant.

Calvin A. Hartman, Houston, for appellee.

Before J. CURTISS BROWN, C.J., and JUNELL and MURPHY, JJ.

OPINION

JUNELL, Justice.

The court convicted appellant of felony forgery by possession and assessed punishment, enhanced by two prior convictions, at forty years imprisonment. Appellant brings seven points of error alleging: (1) insufficient evidence to support the conviction; (2) appellant did not knowingly and intelligently waive his right to counsel; (3) appellant did not knowingly and intelligently invoke his right of self-representation; (4) the court failed to properly admonish appellant of the dangers of self-representation; (5) appellant's waiver of right to counsel failed to comply with TEX.CODE CRIM.PROC.ANN. art. 1.051; (6) and (7) appellant's waiver of jury was without representation of counsel required by statute. We affirm.

The teller from the branch of a Houston bank testified that on December 30, 1988, she paid appellant $900 when he presented a savings withdrawal slip to her at the bank's counter. She testified further that appellant appeared again at the bank in early January 1989, and again presented a withdrawal slip on the same savings account. On that second occasion the teller told appellant the account had insufficient funds to satisfy his $400 requested withdrawal and she referred him to the customer service department of the bank. Customer service personnel learned the account had experienced previous forgery activity. The branch manager was told that appellant was present in the bank to make a withdrawal. The manager personally knew by sight the real person against whose account the withdrawal was requested. Appellant was not that person. The manager invited appellant into an anteroom. After a conversation with appellant the manager excused himself and called Houston Police. The manager showed police the temporary Department of Public Safety identification card presented by appellant when he made his requested withdrawal that day from the account of the depositor known to the manager. The manager told police that on a prior occasion appellant had made an unauthorized withdrawal from the account of the true depositor. Two bank tellers confirmed to police that appellant had made two such withdrawals from the account in question. Police arrested appellant and found in his wallet a temporary Department of Public Safety identification card with his correct name on it. No actual withdrawal slips were shown to police prior to the arrest. The withdrawal slip tendered by appellant on the day of the arrest was never found. It had been handed back to appellant prior to police intervention. The true depositor, Mullen, testified at trial he had never authorized appellant to take money from his savings account.

Excluding enhancement paragraphs, the January 6, 1989, indictment of appellant for felony forgery reads as follows:

... on or about December 30, 1988, did then and there unlawfully and with intent to defraud and harm, forge the writing duplicated below 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:

Spread on the indictment is the following document stamped "Paid" by NBC Bank Houston, Heights Branch under date of December 30, 1988, and bearing the legend

"CHARGE TO MY SAVINGS ACCOUNT":

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

The record shows appellant was represented at trial pro se after having had two court-appointed lawyers. The first lawyer asked to be excused due to appellant's refusal to cooperate with him. The second appointed counsel was excused at appellant's request just before jury voir dire, but was appointed as standby counsel, nonetheless. Appellant waived jury trial in writing, followed by oral inquiry by the court of appellant's knowledge of his constitutional right to a jury. Appellant entered a plea of not guilty and trial to the bench ensued.

In his first point of error appellant claims the State did not prove that any forgery had been committed by him. The rationale for appellant's argument is a carefully-woven fabric which begins with the definition of felony forgery under TEX.PENAL CODE ANN. § 32.21(d), and interprets the phrasing of that Penal Code section according to the technical meaning of words found in TEX.BUS. & COM.CODE ANN. § 3.102 et seq. (part of the Texas Uniform Commercial Code, or "UCC"). Appellant applies definitions found in the UCC because TEX.GOV'T.CODE ANN. § 311.011(b) directs words to be construed according to their technical meanings if such meanings are available. Appellant employs TEX. GOV'T.CODE ANN. § 311.011 because the language in TEX.PENAL CODE ANN. § 1.05(b) related to construction rules for that code mandates such use "unless a different construction is required by the context". ¹

More directly stated, appellant argues that a savings account withdrawal slip cannot be the basis for a felony forgery conviction in Texas. We do not agree.

Appellant correctly argues that for the forgery of a savings account withdrawal slip to constitute a felony (rather than a misdemeanor) the document must be classified among those in TEX.PENAL CODE ANN. § 32.21(d), or § 32.21(e). Because subsection (e) is limited to "an issue of money, securities, postage,", etc., only subsection (d) remains as a possible basis for a felony offense:

An offense under this section is a felony of the third degree if the writing is or purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check or similar sight order for payment of money, contract, release, or other commercial instrument.

TEX.PENAL CODE ANN. § 32.21(d).

Unfortunately, the Penal Code does not provide a definition for any of the "writings" it refers to in Section 32.21(d).

Appellant argues that the forged withdrawal slip is not a "check, or similar sight order for payment of money," because it fails to meet the definition of a "check" under the UCC as set out in TEX.BUS. & COM.CODE ANN. § 3.104. It is not a negotiable instrument payable on demand.

We notice the UCC does not define the terms "similar sight order", or "other commercial paper", found in section 32.21(d) of the Penal Code. The savings withdrawal slip possibly could fit into those categories. In any event, the UCC definition of "order" is broad enough to include the document in question here:

An "order" is a direction to pay and must be more than an authorization or request. It must identify the person to pay with reasonable certainty....

TEX.BUS. & COM.CODE ANN. § 3.102(a)(2).

The writing in this case is a pre-printed form provided by the bank to the depositor for use in withdrawing funds from his or her account. The form directs the bank to charge the depositor's account for the amount of funds desired to be drawn. The depositor directs the bank to pay him by his affirmative acts of writing the amount of money he wants, entering the date, designating the account number to be charged, signing his name, and presenting the slip to the bank teller for execution. At the point of presentation to the teller, the depositor cannot be said to be in an authorizing or requesting mode. He is directing the bank to give him money he has on deposit.

While the issue of this point of error appears to be one of first impression in Texas, it has been encountered in at least one other jurisdiction. In State v. Young, 24 Ohio Misc. 241, 260 N.E.2d 133 (1970), the trial court determined:

The crime of forgery has been extended by statute and by judicial construction. It appears to cover nearly every class of instruments known to the law as affecting private or public rights. It further appears that the substance of the instrument as distinguished from its form is determinative of whether it may support a charge of forgery. (Citations omitted.)

In State v. Young, the court further found that the withdrawal slip had the "characteristics of an order, a request or a receipt for the payment of money", and that "Such an instrument, however, although non-negotiable, conforms to the definition of 'order' as set forth in [the UCC]. It is more than a request or a receipt. It is a direction to the bank to give the possessor of such an order money from a designated account."

We hold the withdrawal slip is an "order" within the definition of the UCC and that it is a writing included in TEX.PENAL CODE ANN. § 32.21(d).

The Texas Court of Criminal Appeals has established the elements of possession of a forged writing:

The elements of forgery by possession with intent to utter are

(1) a person

(2) "forges"

(3) a writing

(4) with intent to defraud or harm

(5) another.

In "possession" cases the term "forge" in § 32.21 means "(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subsection."

While evidence of a passing or attempted passing of a forged instrument would certainly aid a State's case of possessing a forged instrument, such evidence is not absolutely essential.

Burks v. State, 693 S.W.2d 932, 936 (Tex.Crim.App.1985). (Emphasis added.)

Viewing the evidence in the light most favorable to the verdict, a rational trier of fact could have found beyond a reasonable doubt the essential elements of the offense of forgery by possession. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560; Butler v. State, 769 S.W.2d 234, 239 (Tex.Crim.App.1989) (reconfirming the Jackson standard of review). Appellant passed the withdrawal slip dated December 30, 1988, to the bank teller in exchange for $900. The owner of the savings account did not authorize him to...