Oldham v. Ham
| Decision Date | 21 October 1999 |
| Citation | 5 S.W.3d 840 |
| Parties | <!--5 S.W.3d 840 (Tex.App.-Houston 1999) ROSLYN HENRY OLDHAM, Appellant V. THE STATE OF TEXAS, Appellee NO. 14-92-00139-CR In The Fourteenth Court of Appeals |
| Court | Texas Court of Appeals |
On Appeal from the 337th District Court Harris County, Texas Trial Court Cause No. 535,589
[Copyrighted Material Omitted]
[Copyrighted Material Omitted] Panel consists of Chief Justice Murphy and Justices Anderson and Hudson.
This matter is before this Court on remand from the Texas Court of Criminal Appeals. See Oldham v. State, 977 S.W.2d 354 (Tex.Crim.App. 1998), cert. denied, ___U.S.___, 119 S.Ct. 1121, 143 L.Ed.2d 116 (1999).1
Roslyn Henry Oldham (Appellant) was indicted for the third degree felony offense of forgery. See TEX. PENAL CODE ANN. 32.21 (Vernon 1989). Appellant pleaded not guilty and was tried by a jury. Upon the jury's guilty finding, the trial court sentenced Appellant to three years' confinement in the Institutional Division of the Texas Department of Criminal Justice. See TEX. PENAL CODE ANN. 12.34(a)(1) (Vernon Supp. 1994). On appeal to this Court, Appellant presents several points of error, contending that the evidence was insufficient to support her conviction, she was denied due process because her bail was set by an assistant district attorney rather than a court, her speedy trial rights were violated, the trial court erred in failing to order a pre-sentence investigation report, the trial court erred in not allowing certain testimony during the guilt phase of trial, the trial court erred in overruling her request to make an offer of proof concerning certain testimony during the punishment phase of trial, she was denied effective assistance of counsel at trial, and that she was denied the right to assistance of counsel or effective assistance of counsel during a critical stage of the proceedings. We affirm.
In December 1988, Steve Pond discovered that three blank checks were missing from his trucking company's checkbook. Mr. Pond notified his bank and requested a stop-payment order be placed on the missing checks.
In January 1989, Appellant attempted to cash one of Mr. Pond's missing checks at a grocery store. Appellant told an employee of the store that the check was issued to her from her employer. The check was in the sum of $2,137.00. Not familiar with the company name appearing on the check and being late in the evening, the store employee told Appellant that he would have to verify the availability of the funds with the bank the next morning. Appellant agreed and said she would return the following morning to pick up the cash. The following morning, the employee gave the check to the store owner so that he could verify the availability of funds.
The store owner contacted the owner of the company about the check. Mr. Pond responded to the store owner by telling him not to cash the check because that check and others were stolen from his company's checkbook. Mr. Pond went to the store to see the check. He confirmed to the store owner that the check was indeed one of the missing checks from his company checkbook. Mr. Pond told the store owner that his name must have been forged on the signature line of the check. The store owner gave the check to Mr. Pond so that it could be given to the Harris County District Attorney's Office. Appellant was subsequently charged with forgery.
In her first point of error, Appellant contends that the evidence was legally and factually insufficient to support her conviction for forgery.
We review challenges to the legal sufficiency of the evidence to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The determination of legal sufficiency is made as a matter of law, and, succinctly stated, means "the case should never have been submitted to the jury." See Clewis v. State, 922 S.W.2d 126, 132-33 (Tex.Crim.App. 1996).
In this case, under section 32.21 of the Texas Penal Code, the State was required to prove beyond a reasonable doubt that Appellant forged2 a writing with intent to defraud or harm another. See TEX. PENAL CODE ANN. 32.21(b) (Vernon 1989). Stated differently, the State was required to prove beyond a reasonable doubt that Appellant (1) with intent to defraud or harm another, (2) passed, (3) a writing, (4) that purported to be the act of another, and (5) that other person did not authorize the act. Williams v. State, 688 S.W.2d 486, 488 (Tex.Crim.App. 1985); see also TEX. PENAL CODE ANN. 32.21(a) (Vernon 1989).
The "intent" to defraud or harm may be established by circumstantial evidence. Williams, 688 S.W.2d at 488. Proof of intent to defraud is also derivative of other elements. In the case of forgery, the culpable mental state requires proof of knowledge that the check is forged. Id. 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. Wallace v. State, 813 S.W.2d 748, 751 (Tex.App.-Houston [1st Dist.] 1991, no pet.).
Chand Khan, the store clerk of B & J Corner Store, testified that Appellant came into the store and attempted to cash a check. Mr. Khan was familiar with Appellant because she was often in the store cashing checks and making purchases. Appellant endorsed the back of the check in Mr. Khan's presence and presented it to him. Mr. Khan asked Appellant for her driver's license and wrote the license number on the back of the check, underneath Appellant's endorsement signature. After Mr. Khan realized that the check was from a company he was not familiar with, he told Appellant that before cashing the check, he would have to verify the availability of funds with the bank. Because it was late in the evening, he told Appellant that he would keep the check until the next morning when he could contact the bank. Appellant told Mr. Khan that she would return the next morning.
The next morning, before he contacted the bank, Mr. Khan gave the check to Irshad Alvi, the store owner. Mr. Alvi contacted the owner of the company from whom the check was issued. Mr. Alvi spoke to Steve Pond, the owner of Pond Freight Services, Inc. Mr. Pond told Mr. Alvi to not cash the check because it was probably one of the checks stolen from his company checkbook. Mr. Pond went to Mr. Alvi's store to inspect the check. Mr. Pond confirmed that the check was indeed one of the checks stolen from his company checkbook. Mr. Pond took possession of the check so that he could contact the Harris County District Attorney's Office.
Mr. Pond testified that three of his company checks were stolen from his checkbook, including check number 1707, the check he retrieved from Mr. Alvi. Mr. Pond testified that he did not authorize anyone to have possession of check number 1707. Mr. Pond also testified that the name appearing on the check is "R. H. Oldham." He testified that he knew Appellant and that she used that name. Mr. Pond knew Appellant through her association with one of his employees. He testified that the signature on the check was not his, nor did he ever issue any checks to Appellant.
Viewing the record in the light most favorable to the verdict, the evidence shows that Appellant knew she was in possession of a check that contained a forged signature before she presented it to the B & J Corner Store. Further, the evidence was sufficient to show that Appellant passed a writing that purported to be the act of another, with the intent to defraud or harm another. See Williams, 688 S.W.2d at 488; see also TEX. PENAL CODE ANN. 32.21(a) (Vernon 1989). Thus, the evidence is legally sufficient to support Appellant's conviction because any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt. See Clewis, 922 S.W.2d at 132-33.
Appellant also contends that the evidence is, nevertheless, factually insufficient to support the jury's finding of guilt. In conducting a factual sufficiency review, we view "all the evidence without the prism of in the light most favorable to the prosecution . . . and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Clewis, 922 S.W.2d at 129. Notwithstanding our authority to conduct factual sufficiency review under the aforementioned standard, our role is "not . . . to 'find' facts, or substitute [our] judgment for that of the jury." Id. at 135.
The only evidence in the record contrary to that set forth above in our legal sufficiency review came from Appellant. She testified that she was not the person who presented the check at issue to Mr. Khan. However, the jury is permitted to believe or disbelieve any part of a witness' testimony, including a defendant. Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App. 1998). It is clear in this case that the jury chose to reject Appellant's credibility. This Court will not disturb a jury's credibility finding. See id. Viewing all the evidence in the record, including evidence favorable to Appellant, we conclude that the jury's finding is not "so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." See Clewis, 922 S.W.2d at 129. Thus, the evidence is factually sufficient to support the jury's verdict. Point of error is overruled.
In her next three points of error, Appellant maintains that her due process rights were violated in this case because an...
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