Dukes v. State, s. 05-86-01300-C

• Decision Date: 18 November 1987
• Docket Number: 05-86-01301-CR,Nos. 05-86-01300-C,s. 05-86-01300-C
• Citation: 742 S.W.2d 472
• Parties: James Albert DUKES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 472

742 S.W.2d 472

James Albert DUKES, Appellant, v. The STATE of Texas, Appellee.

Nos. 05-86-01300-CR, 05-86-01301-CR.

Court of Appeals of Texas,

Dallas.

Nov. 18, 1987.

Rehearing Denied Jan. 8, 1988.

Kerry P. Fitzgerald, Dallas, for appellant.

Teresa Tolle, Dallas, for appellee.

Before HOWELL, ROWE, and HECHT, JJ.

ROWE, Justice.

James Albert Dukes appeals from convictions on two separate forgery indictments in causes which were consolidated at trial and remain consolidated on appeal. Appellant waived his right to a jury trial, and the trial court assessed punishment at three years' confinement in the Texas Department of Corrections. In cause No. F86-91254-UP, appellant asserts that there was a fatal variance between the indictment and proof as to whom the forged instrument was actually passed. In addition, appellant contends that the evidence is insufficient to support the trial court's finding that appellant was the person who passed the forged instruments. Since we find no fatal variance and no insufficiency of evidence in these cases, we affirm the trial court's judgments.

In cause No. F86-91254-UP, appellant was convicted of cashing a check drafted as payable to appellant but containing a forged drawer's signature. The evidence at trial showed that the check was one of several stolen from Walter W. Keith Insurance Agency. The check as cashed was dated November 21, 1985, and was drafted for $332.44. In cause No. F86-99458-VP, appellant was again convicted of cashing a check drafted as payable to appellant but containing a forged drawer's signature. The check was shown to be one of several stolen from Walters and Walters, Inc. The check as cashed was dated December 14, 1985, and was drafted for $290.00. Both checks were cashed at Ward's Grocery Store through the use of a check-cashing card issued by the store.

Appellant, in his first point of error, contends that the judgment of conviction in cause No. F86-91254-UP should be reversed and a judgment of acquittal entered, as the State failed to prove that the check in question was actually passed to "Randy Barker" as alleged in the indictment. The evidence at trial showed that the check-cashing card number which is written on all checks cashed at Ward's Grocery Store was written on the forged instrument by a person other than Randy Barker. However, Barker testified that he saw the check before it was cashed and he was one of only three people employed by the store who had the authority to cash checks. Upon questioning by the trial judge as to whether appellant passed the checks to him, Barker answered, "Yes."

Appellant's contention is based on the well-settled rule that when an indictment alleges that the forged instrument was passed to one person but the proof at trial shows that the instrument was passed to a third party, a conviction cannot stand. Vestal v. State, 162 Tex.Crim. 223, 283 S.W.2d 955, 956 (1955); White v. State, 155 Tex.Crim. 303, 234 S.W.2d 876, 876 (1950). Vestal holds that when the person attempting to cash a check presents it first to an "assistant manager" solely for authorization and then presents it to a "checker" for encashment, the check is "passed" only to the checker and not to the assistant manager. Vestal, 283 S.W.2d at 955-56. Vestal, however, was distinguished and consequently limited by the Texas Court of Criminal Appeals in Roach v. State, 586 S.W.2d 866 (Tex.Crim.App.1979). The court in Roach upheld a conviction when the indictment named as the "passee" the store's pharmacist who was not initially presented with the money order but who later authorized payment and cashed the forged instrument. Id. at 868. The court found Vestal distinguishable because the authorizing pharmacist in Roach also gave the appellant the cash in return for the money order. Id. After Roach, proper identity of the "person" to whom a forged instrument is passed has been determined by looking at the person who acted upon and actually handled the transaction. See Woodard v. State, 700 S.W.2d 617, 618-19 (Tex.App.--Corpus Christi 1985, no pet.).

In our view, Roach has been partially discredited by the case of McGee v. State, 681 S.W.2d 31 (Tex.Crim.App.1984) (en banc). The court in McGee held that to "pass" an instrument means only to "offer the instrument" for consideration, there being no requirement that consideration be actually received. Id., at 31. This new focus on the intent of the person presenting the instrument was recognized in Watson v. State, 718 S.W.2d 892, 895 (Tex.App.--Beaumont 1986, no pet.), where an accused was found to have passed an instrument to two persons when he gave the instrument to one individual but allowed that individual to give it to another for purposes of encashment. Relying upon the rationale in McGee and Watson, we hold that when an individual presents an instrument for cashing at some business location, he not only passes it to the person to whom he first gives it for that purpose, but he also intends to pass the instrument to the person on the premises who has authority to carry out the transaction. If the person to whom he first passes the instrument is without authority to cash it, the presenter impliedly authorizes that...