Landry v. State

• Decision Date: 11 April 1979
• Docket Number: No. 3,No. 57533,57533,3
• Citation: 583 S.W.2d 620
• Parties: Clifton Jerry LANDRY, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 620

583 S.W.2d 620

Clifton Jerry LANDRY, Appellant, v. The STATE of Texas, Appellee.

No. 57533.

Court of Criminal Appeals of Texas, Panel No. 3.

April 11, 1979.

On Rehearing July 18, 1979.

Roy Ahrens, Houston, for appellant.

Carol S. Vance, Dist. Atty. Douglas M. O'Brien, and Donald H. Dawson, Jr., Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before DALLY, W. C. DAVIS and CLINTON, JJ.

OPINION

CLINTON, Judge.

Appeal is brought from a conviction of forgery by passing. The jury found that appellant had been twice previously convicted of felonies, and punishment was assessed at life.

The single ground of error presented in appellant's original brief contends that the trial court erred by admitting evidence of an extraneous offense. Appellant was charged with an act of passing a forged check at a bank drive-through window on September 28, 1976. The State introduced testimony from two bank employees concerning an attempt by appellant to pass a check at the same bank on September 24, 1976.

Susanne Christensen testified that she was working in the bank on September 24th when appellant attempted to cash a check made out to "Santokh Sohal." She noticed the check because the Sohal account was "being closed" at that time. The instrument was a payroll check from a landscape company. Christensen asked for identification, and appellant produced a social security card in the name of "Melvin Edwards." She took the check to a bank officer who refused to cash it.

Debbie Kneisel stated that she was also employed at the bank on September 24th. She saw appellant enter the bank that day and pass a check to Susanne Christensen made out to "Mr. Sohal." Kneisel had received a notice that Sohal's account was being closed that day. She advised Christensen of that fact, and further advised her to ask for appellant's identification. Kneisel saw appellant again on September 28, 1976, when he again attempted to pass a check at the bank.

The State's evidence showed that on September 28, 1976, appellant presented a check at the bank drive-through window. The instrument was a payroll check from the Sunshine Landscape Co. made payable to Santokh Singh Sohal. Upon request for identification appellant produced a driver's license issued to "Melvin Edwards." The tellers called the security officer who attempted to make an arrest, but appellant fled the scene. Appellant was later arrested.

The contention is that the testimony regarding the incident on September 24th was not relevant to any contested issue in the case and its admission violated this Court's decision in Albrecht v. State, 486 S.W.2d 97 (Tex.Cr.App. 1972). Albrecht Specified six non-exclusive exceptions to the general rule prohibiting the introduction of evidence of extraneous offenses. The State alleges that the evidence was admissible under one of those exceptions described in Albrecht As follows:

"To prove scienter, where intent or guilty knowledge is an essential element of the state's case and cannot be inferred from the act itself." Albrecht, supra at 100.

The State argues that it was required to prove knowledge that the instrument was forged and the extraneous transaction was relevant on that issue.

Appellant counters first by saying that knowledge is not required to be proven because of the decision in Jones v. State, 545 S.W.2d 771 (Tex.Cr.App. 1977). That case held that failure to allege in the indictment that the defendant had knowledge that the instrument was forged can not be raised for the first time on appeal. However, we have held subsequently that knowledge must be proved at trial. In Pfleging v. State, 572 S.W.2d 517 (Tex.Cr.App. 1978), we reversed because the evidence was insufficient to show knowledge. Quoting from Baker v. State, 552 S.W.2d 818 (Tex.Cr.App. 1977), we said:

"While the requisite culpable mental state under Section 32.21(b) is 'intent to defraud or harm,' we fail to perceive how such culpable mental state can be shown absent proof of knowledge that the instrument is forged." Pfleging, supra at 519.

See also Lloyd v. State, 574 S.W.2d 159 (Tex.Cr.App. 1978).

Although knowledge must be proven by the State, Albrecht admits another offense when knowledge "cannot be inferred from the act itself." In Ware v. State, 475 S.W.2d 282 (Tex.Cr.App. 1971), we held:

"The fact that appellant offered the forged check in question, made out in a name other than his own, is sufficient to warrant the jury's conclusion that he knew the check was a forgery." Ware, supra at 284.

In this case appellant passed a check made payable to a name other than his own, and the jury could infer that he had knowledge. The Albrecht Case would therefore compel a finding that this extraneous transaction was not admissible on the issue of knowledge.

However, Albrecht Includes other exceptions to the general rule, and among those exceptions is the following:

"To show the accused's motive, particularly where the commission of the (extraneous) offense at bar is . . . part of a continuing plan or scheme of which the crime on trial is also a part." Albrecht, supra at 100.

The extraneous transaction and the charged offense both involved efforts by appellant to pass payroll checks from a landscape company at the same bank within four days of each other. Each check was made payable to the same person whose account was being closed. In each case appellant produced identification in the name of "Melvin Edwards." We considered facts that were even less indicative of a common plan in Mendoza v. State, 459 S.W.2d 439, 440 (Tex.Cr.App. 1970), and concluded that "such evidence was admissible . . . to show . . . common plan or scheme." We conclude that the evidence of the extraneous transaction was admissible on that basis.

Ground of error number one is overruled.

Appellant has filed four pro se briefs in which he raised numerous additional grounds of error. None of those briefs were timely filed. However, we have examined each of the grounds raised in the interest of justice. We conclude that two of those contentions raise issues which merit discussion.

The indictment in this cause alleged that appellant passed a forged instrument, and the judgment reflects that the conviction was based on that theory. Appellant correctly points out that the evidence shows that he presented the forged check, but that he received no money for it. He contends, therefore, that the evidence only proves an Attempt to pass a forged check and that the proof fatally varies from the indictment.

Appellant relies on several cases decided under the old penal code. In Byrom v. State, 528 S.W.2d 224 (Tex.Cr.App. 1975), we held that when the indictment alleges passing a forged instrument and the evidence shows only an attempt to pass in which no value was received, the proof is insufficient. That decision was based on the former penal code Article 996, Vernon's Ann.P.C., which defined the offense as either passing or attempting to pass a forged instrument. There are no cases addressing this question under the new code, which provides in V.T.C.A. Penal Code, Sec. 32.21(a)(1)(B) that forgery includes:

"to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged . . . ."

The question presented is whether the indictment for forgery by passing under the new code required the State to prove that appellant actually received money for the check given to the bank teller.

The term "pass" is nowhere defined in the penal code. As previously noted, the old code delineated between passing and attempting to pass, which implied that passing was a completed act in which consideration was received. The new code does not make that distinction. While this Court has not directly confronted this issue before, we have examined forgery under the new code and determined that it now covers non-monetary and nonproperty injuries. Martinez v. State, 551 S.W.2d 735 (Tex.Cr.App. 1977). See also, Practice Commentary, V.T.C.A. Penal Code, Sec. 32.21. We also note that forgery is found in Chapter 32 of the Penal Code, which is the "Fraud" rather than "Theft" Chapter of the Penal Code. These two facts indicate that the gravamen of the offense of forgery under the new code is the perpetration of a fraud rather than the actual control over the property of another.

In construing the word "pass" we are guided by V.T.C.A. Penal Code, Sec. 1.05, which states that the provisions "shall be construed according to the fair import of their terms." Determining the "fair import" of terms is frequently a difficult and unavoidably subjective exercise, but we can gain some objective insight by examining how other authorities have defined the word.

Black's Law Dictionary (4th ed. 1968) defines "pass" as follows:

"To publish; utter; transfer; circulate; impose fraudulently. This is the meaning of the word when the offense is Passing counterfeit money or a forged paper spoken of.

'Pass,' 'utter,' 'publish,' and 'sell' are in some respects convertible terms, and, in a given case, 'pass' may include utter, publish, and sell."

This definition is supported by the language of Section 32.21(a)(1)(B) which lists various methods of transferring a forged instrument, including to "pass," followed by "or Otherwise utter a writing that is forged . . . ." (Emphasis added). The language appears to mean that passing is merely one form of uttering a writing. Black's defines "utter" as: "To put or send (as a forged check) into circulation . . . To publish or put forth . . . To offer . . . To utter, as used in a statute against forgery and counterfeiting, means to offer, Whether accepted or not, a forged instrument, with the representation, by words or action, that the same is genuine." (Emphasis added).

Another useful description is found in 25 Tex.Jur.2d Forgery § 31 (1961), which states, "An instrument is not passed or uttered until it is actually delivered in such a manner as to...