Johnson v. State

• Decision Date: 10 October 2012
• Docket Number: No. 01–11–00406–CR.,01–11–00406–CR.
• Citation: 425 S.W.3d 516
• Parties: Christopher Ray JOHNSON, Appellant v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

425 S.W.3d 516

Christopher Ray JOHNSON, Appellant

v.The STATE of Texas, Appellee.

No. 01–11–00406–CR.

Court of Appeals of Texas, Houston (1st Dist.).

May 3, 2012.

Discretionary Review Refused Oct. 10, 2012.

Thomas J. Lewis, Attorney at Law, Houston, TX, for Appellant.

Alan Curry, Chief Prosecutor, Appellate Division, Harris County District Attorney's Office, Melissa Parker Hervey, Assistant District Attorney, Harris County, Texas, Houston, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices HIGLEY and BROWN.

OPINION

SHERRY RADACK, Chief Justice.

Appellant Christopher Ray Johnson was convicted following a jury trial of forgery of a commercial instrument, i.e., a money order, and sentenced to seven years' confinement. He appeals here (1) challenging the sufficiency of the evidence that he acted with “intent to defraud,” and (2) complaining that the prosecutor's closing argument improperly introduced facts outside the record. We reverse.

BACKGROUND

On March 3, 2010, Miriam Karr bought a Western Union money order for $535 to pay her family's rent at The Pointe apartment complex. She filled in “The Pointe” as the payee and her own name and address on the “purchaser” line. Around 8:00 that same evening, she deposited the money order into the night drop box of the apartment complex's office, which was already closed for the day.

The Pointe did not receive Karr's money order. She requested a refund from Western Union, but required a police report and an affidavit from her attesting that she was not at fault. She then discovered that to obtain a police report, she needed a copy of the money order from Western Union and other information from Western Union about the location of the money order. It took several months for Karr to straighten it out and, because of the delay in receiving a Western Union refund and her inability to come up with funds to pay the lost rent, her family was evicted for rent nonpayment and lost their belongings.

The copy of the money order Western Union provided reflected that both the purchaser and payee lines had been altered to remove Karr's and The Pointe's names. Her name on the purchaser line had been replaced with “Shoust,” and her apartment complex's name as the payee had been replaced with appellant's name. The amount of the money order, i.e., $535, had not been changed. Karr testified that she did not know appellant and had not authorized him or anyone else to alter her money order.

Sergeant Patrick Walker with the Houston Police Department Forgery Division testified that he investigated the theft of the money order and opined that it was likely “fished” out of the apartment complex's night deposit, and then chemically “washed.” He explained that “night drop fishing” is a common method of stealing rent payments by using double-sided tape or some other adhesive attached to a wire hanger or other pliable, extended tool to pull money orders and checks back through the slot of a night drop box. “Washing” refers to the use of chemicals to soften the ink on a money order or check so that a soft adhesive can been used to lift the ink off the paper, leaving the original writing largely undetectable.

Walker's inspection of the forged money order revealed that appellant had cashed it at an HEB Store the afternoon of March 5, 2010, about thirty-six hours after Karr deposited it in the night drop box. Walker interviewed the cashier who processed the transaction. That cashier was not able to identify appellant from a photo array, but did confirm that appellant presented a valid Texas driver's license, provided his thumbprint, and otherwise complied with HEB's verification procedures to obtain payment from the instrument. Deputy Katherine Mills with the Houston Police Department Crime Scene Unit testified that she also compared the fingerprint that appellant submitted at HEB when he cashed the money order with appellant's known fingerprints, and verified that they matched.

Walker testified that he made no attempt to locate or indentify anyone named Shoust—the name listed as purchaser on the money order—to ascertain if that person existed and, if so, if that person had any ties to the Point, to Karr, or to appellant. Walker further testified that he did not try to contact or interview appellant to ask him how he came into possession of the money order. He testified that the results of his investigation demonstrated only that appellant was the person who negotiated the money order, but not that he was the person who stole or altered the money order.

Walker opined that the short period of time between the theft and negotiation of the money order was significant in that “it narrows the focus” of the investigation into who may have intent or knowledge that a commercial document is forged. He also opined that it was suspicious that the money order amount of $535 was not altered, because it would be a coincidence for the money order to have been negotiated to appellant for a debt of that amount.

At the close of the State's case, appellant moved for a directed verdict, which the court denied. The defense rested without putting on evidence.

The jury found appellant guilty of forgery and, after appellant stipulated to the truth of two prior enhancements—both state jail felony offenses of burglary of a building—the jury assessed his punishment at seven years' confinement. Appellant timely appealed.

ISSUES ON APPEAL

In two points of error, appellant contends (1) there is legally insufficient evidence to prove the “intent to defraud” element of forgery, and (2) the prosecutor made an improper jury argument that suggested to the jury that appellant knew that the money order was stolen despite there being no supporting evidence in the record to that effect.

SUFFICIENCY OF THE EVIDENCE

In his first issue, appellant contends that there is insufficient evidence of his intent to defraud. He acknowledges that intent to defraud can be inferred if the State proves the defendant has knowledge the instrument has been forged. See Williams v. State, 688 S.W.2d 486, 488 (Tex.Crim.App.1985). But, he asserts, the Court of Criminal Appeals has admonished that “intent or guilty knowledge cannot be inferred from the mere passing of a forged instrument.” See Parks v. State, 746 S.W.2d 738, 740 (Tex.Crim.App.1987). While courts have recognized that circumstantial evidence can be adequate to demonstrate intent to defraud, he argues that such circumstantial evidence is absent here.

In response, the State concedes that appellant's passing or presenting the forged money order is not evidence of his specific intent to defraud. It asserts, however, that there is sufficient circumstantial evidence of such specific intent to support the jury's verdict. Specifically, it argues that intent is shown by evidence (1) that there was no explanation for appellant's possession and presentment of the money order, (2) that the amount on the money order was not changed, and (3) of the short timeframe between theft of the money order and appellant's presentment.

A. Standard of Review

We review a challenge to the legal sufficiency of the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, 318–20, 99 S.Ct. 2781, 2788–89, 61 L.Ed.2d 560 (1979). See Ervin v. State, 331 S.W.3d 49, 52–56 (Tex.App.-Houston [1st Dist.] 2010, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 894–913 (Tex.Crim.App.2010)). Under the Jackson standard, evidence is insufficient to support a conviction if, considering all the record evidence in the light most favorable to the verdict, no rational factfinder could have found that each essential element of the charged offense was proven beyond a reasonable doubt. See Jackson, 443 U.S. at 317–19, 99 S.Ct. at 2788–89;Laster v. State, 275 S.W.3d 512, 517 (Tex.Crim.App.2009). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere “modicum” of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. See Jackson, 443 U.S. at 314, 318 n. 11, 320, 99 S.Ct. at 2786, 2789 & n. 11;Laster, 275 S.W.3d at 518;Williams v. State, 235 S.W.3d 742, 750 (Tex.Crim.App.2007).

The Jackson standard gives full play to the responsibility of the factfinder to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. See Jackson, 443 U.S. at 318–19, 99 S.Ct. at 2788–89;Clayton v. State, 235 S.W.3d 772, 778 (Tex.Crim.App.2007). An appellate court presumes the factfinder resolved any conflicts in the evidence in favor of the verdict and defers to that resolution, provided that the resolution is rational. See Jackson, 443 U.S. at 326, 99 S.Ct. at 2793. If an appellate court finds the evidence insufficient under this standard, it must reverse the judgment and enter an order of acquittal. See Tibbs v. Florida, 457 U.S. 31, 41, 102 S.Ct. 2211,2218, 72 L.Ed.2d 652(1982).

B. Applicable Law

It is an offense if a person “forges a writing with intent to defraud or harm another.” Tex. Penal Code Ann. § 32.21 (Vernon 2011); Ex parte Porter, 827 S.W.2d 324, 325 (Tex.Crim.App.1992).

Possession, passage, or presentment of a forged instrument is not evidence of intent to defraud. Parks, 746 S.W.2d at 740. Intent to defraud or harm may be established by other circumstantial evidence. Williams, 688 S.W.2d at 488. For example, if the State proves that an actor has knowledge that a particular check is forged, proof of intent to defraud is inferred. Id. Further, if there is sufficient evidence to establish an actor's theft of the instrument ultimately forged, the evidence is deemed sufficient to show knowledge of the forgery, and therefore sufficient to show an intent to defraud or harm. Palmer v. State, 735...