Burks v. State
| Citation | 795 S.W.2d 913 |
| Decision Date | 19 September 1990 |
| Docket Number | No. 07-89-0261-CR,07-89-0261-CR |
| Parties | Billy Ray BURKS, Appellant, v. The STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas |
J. Pink Dickens, Plainview, for appellant.
Becky McPherson, Dist. Atty., Floydada, for appellee.
Before REYNOLDS, C.J., and BOYD and POFF, JJ.
A jury found appellant Billy Ray Burks guilty of the offense of forgery and, after appellant pleaded true to two enhancement allegations, assessed his punishment at confinement for 50 years in the Texas Department of Corrections, Institutional Division. By one denominated point, he charges the trial court with error in that it (a) excluded evidence of the illegal nature of the transaction involved, and (b) refused to submit his requested jury instruction predicating a guilty verdict upon a finding of intent to defraud a party other than the complaining witness or his agents. We will overrule the point and affirm.
Upon trial, the State adduced evidence that appellant gave an endorsed check, payable to himself and purporting to be drawn on the account of a third party, to Mrs. Ramos with the understanding that she and her husband, Joe Ramos, would cash it, keep $70.00, of which $50.00 was in repayment of some loans, and return the remainder to him. When the local supermarket refused to cash the check, Mrs. Ramos tried to cash it at the bank. The bank notified the police of her attempts to cash what appeared to be a bad check. Investigation and the consequent prosecution ensued.
In his handwritten statement admitted into evidence, appellant confessed to having written the check, but maintained he gave it to a friend of his to give to Joe Ramos as security in a drug transaction to be held until they paid him the next day. The trial court refused to allow testimony "as to people that come and go [to and from the Ramos residence], or any evidence of a profile for a place that sells illegal narcotics."
Appellant's theory of the law is that since the sale of cocaine is an illegal transaction, he could not, as a matter of law, intend to defraud or harm Ramos. If appellant's theory is correct, the excluded evidence related to a defense which he had a substantial right to present. The record contains an informal offer of proof that complies with Texas Rules of Criminal Evidence 103(a)(2) and Texas Rules of Appellate Procedure 52 by stating the substance of the testimony and its relevance, as well as showing the State's objection to its relevance and the trial court's ruling in sustension of that objection. Therefore, this sub-point was adequately preserved for review.
One of the essential elements of forgery is that the act be done with intent to defraud or harm another. Tex.Penal Code § 32.21(b) (Vernon 1989). Appellant contends that the element of intent to defraud or harm the complaining witness is negated, as a matter of law, by a showing that the forged check was consideration in an illegal transaction. Therefore, he submits, unless the State has proven an intent to defraud someone other than Ramos or his agents, the required intent is not present.
In this regard, appellant points to the refusal of the civil courts to enforce illegal contracts. He argues that the civil law would find no intent to defraud between him and Ramos and that, in the absence of a controlling definition of the required intent in the Texas Penal Code, the criminal law must incorporate this reasoning. We cannot agree.
The elements of an offense are always material issues in a criminal prosecution. Soffar v. State, 742 S.W.2d 371, 377 (Tex.Cr.App.1987), cert. denied, 493 U.S. 900, 110 S.Ct. 257, 107 L.Ed.2d 206 (1989). If the evidence proffered tended to demonstrate a fact helpful in the determination of the existence of the required intent, that evidence was admissible and its exclusion, if not justified by other consideration, was error. Tex.R.Crim.Evid. 401, 402, and 403.
Admittedly, Texas courts have adopted the general rule that illegal contracts are void and unenforceable. Paragon Oil Syndicate v. Rhoades Drilling...
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