Stone v. State

• Decision Date: 08 January 1992
• Docket Number: No. 3-90-149-CR,3-90-149-CR
• Citation: 823 S.W.2d 375
• Parties: Don STONE, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 375

823 S.W.2d 375

Don STONE, Appellant, v. The STATE of Texas, Appellee.

No. 3-90-149-CR.

Court of Appeals of Texas,

Austin.

Jan. 8, 1992.

Discretionary Review Refused

April 15, 1992.

Kevin M. Wilson, Austin, for appellant.

Ronald Earle, Dist. Atty., Carl Bryan Case, Jr., Asst. Dist. Atty., Austin, for appellee.

Before POWERS, JONES and SMITH, JJ.

PER CURIAM.

Appellant was convicted of forgery by possession, and punishment, enhanced by prior felony convictions, was assessed at imprisonment for ten years. Tex.Penal Code Ann. § 32.21(b) (1989). In two points of error, the appellant claims that the trial court erred in rendering judgment against him because: (1) the evidence is insufficient as a matter of law to establish that appellant knew the check was forged; and (2) the jury's verdict was against the great weight and preponderance of the evidence because the proof was insufficient to establish that appellant knew the check was forged. We will affirm the judgment of conviction.

Appellant was charged with the offense of possession of a forged document with intent to pass that document. ¹ Appellant was arrested when he attempted to cash a check for $584.34 drawn on the payroll account of the Davis Brothers Construction Company. The check's drawer was Mark Brown, an unidentified and perhaps fictitious person, who was not authorized to sign checks for the construction company. Appellant presented the check at the Money Box, a commercial check-cashing establishment in Austin, and used a Department of Public Safety identification card in the name of Reginald Frank Sedberry. The Money Box clerk, aware that checks belonging to the construction company had been stolen, photographed appellant and called the police. At trial appellant testified and denied presenting both the forged check and the Sedberry identification, claiming instead that a person ahead of him left the check and identification at the counter. The jury chose not to believe appellant's account.

In his first point of error appellant alleges that the evidence is insufficient as a matter of law to establish that he knew the check was forged. Specifically, appellant asserts that the State failed to prove that he knew that Mark Brown did not lawfully authorize the check. We disagree.

Appellant's knowledge that the check was forged may be proved by circumstantial evidence. Williams v. State, 688 S.W.2d 486, 488 (Tex.Crim.App.1985); Wilson v. State, 605 S.W.2d 284, 286 (Tex.Crim.App.1980). In Wilson the Court of Criminal Appeals held that the totality of the evidence indicated that appellant had knowledge of a forged drawer's signature on a check: (1) Wilson attempted to cash a paycheck made out to a third party, Caldwell; (2) Wilson falsely held himself out as Caldwell; (3) the drawer on the check was a person who never worked for Caldwell's employer; and (4) Wilson did not use his own identification when he attempted to cash the check. Wilson, 605 S.W.2d at 286. The evidence in this cause is substantially identical to that in Wilson. A rational trier of fact could have found appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979); Griffin v. State, 614 S.W.2d 155, 159 (Tex.Crim.App.1981). Point of error one is overruled.

In his second point of error appellant alleges that the jury's verdict was against the great weight and preponderance of the evidence. ² The Court of Criminal Appeals in 1990 issued its opinion in Meraz v. State, holding that the courts of appeals are constitutionally given the authority to determine whether a jury finding on a matter the defendant must prove is factually insufficient. 785 S.W.2d 146, 154 (Tex.Crim.App.1990). The court in Meraz expressed no opinion on the role of the courts of appeals in reviewing the sufficiency of the evidence relative to the proof of the elements of the offense. Id. at 156. This issue of first impression is now squarely before us, and we hold that the courts of appeals have such power.

We note that the Fourteenth Court of Appeals has stated repeatedly that factual-sufficiency reviews by the courts of appeals are limited by Meraz to instances when the criminal defendant must prove an affirmative defense or other fact issue which the law has designated that the defendant has the burden of proof by a preponderance of the evidence. Coleman v. State, 804 S.W.2d 563, 565 (Tex.App.1991, no pet.); ³ Brown v. State, 804 S.W.2d 566, 571 (Tex.App.1991, pet.ref'd); Marsh v. State, 800 S.W.2d 607, 610 (Tex.App.1990, pet.ref'd); Hunter v. State, 799 S.W.2d 356, 358-59 (Tex.App.1990, no pet.); Mason v. State, 798 S.W.2d 854, 857 (Tex.App.1990, no pet.); Gaynor v. State, 788 S.W.2d 95, 97 (Tex.App.1990, pet.ref'd). While it is conceivable that the Court of Criminal Appeals may one day so hold, we respectfully disagree that Meraz foreclosed the possibility of factual-sufficiency review of the elements of the offense in a criminal appeal. See Garza v. State, 794 S.W.2d 497, 499 (Tex.App.1990, pet.ref'd) (holding that the extent of the courts of appeals's power to conduct a factual-sufficiency review in a criminal appeal is an undecided question).

In order to understand fully the constitutional issues present in this appeal, we must briefly review the historical development of the Texas appellate courts. The Texas Supreme Court originally exercised appellate jurisdiction in both civil and criminal cases until the adoption of the current, 1876 Texas Constitution. Tex.Const. of 1869, art. V, § 3 (amended 1873); Tex.Const. of 1866, art. IV, § 3; Tex.Const. of 1861, art. IV, § 3; Tex.Const. of 1845, art. IV, § 3; Repub.Tex.Const. of 1836, art. IV, § 8. The 1876 constitution created a "court of appeals" and assigned this court appellate jurisdiction in all criminal cases and some civil cases. Tex.Const. art. V, § 6 (1876, amended 1891). The constitution was amended in 1891, creating the courts of civil appeals and renaming the "old" court of appeals the Court of Criminal Appeals. Tex.Const. art. V, § 4 (1891, amended 1966, 1977), § 6 (1891, amended 1978, 1980, 1985). The courts of civil appeals were given criminal appellate jurisdiction and renamed courts of appeals by a 1980 constitutional amendment, effective September 1, 1981. TEX.CONST. ART. V, § 6⁴ (1980, amended 1985).

In article V, section 6 of the Texas Constitution, that document delegates to the courts of appeals "appellate jurisdiction co-extensive with the limits of their respective districts." The next sentence states, "Provided, that the decision of said courts shall be conclusive on all questions of fact brought before them on appeal or error." The proviso, known as the "factual-conclusivity clause," is not a grant of power to the courts of appeals to conduct a factual-sufficiency review. Rather, the proviso implicitly recognizes that power as being within the "appellate jurisdiction" delegated to those courts in the preceding sentence, by prescribing the legal effect of an exercise of their decisions on questions of fact--their decisions "shall be conclusive." The 1891 amendment restricted, in express terms, the pre-existing jurisdiction of the supreme court over questions of fact, and confined the supreme court to questions of law. Cropper v. Caterpillar Tractor Co., 754 S.W.2d 646, 648 (Tex.1988); Herbert v. Herbert, 754 S.W.2d 141, 143 (Tex.1988); Choate v. San Antonio & A.P. Ry., 91 Tex. 406, 44 S.W. 69, 69 (Tex.1898). The question then is whether the appellate criminal courts of this State ⁵ had jurisdiction over questions of fact before 1891. We conclude that they did.

In Bailey v. Haddy the Supreme Court of the Republic of Texas held that a court operating under a general grant of "appellate jurisdiction" had the power to review both the facts and the law. ⁶ Dallam 376, 378 (Tex.1841). This power was not restricted to civil cases. Republic v. Smith was decided in the same year as Bailey, and the court said, "[T]he Defendant in a criminal prosecution in the District Court has the right of appeal to this Court from the judgment, or sentence of the Court below, and to have the facts as well as the Law, at his own election, opened for re-examination." Dallam 407, 410-11 (Tex.1841).

We note that in an older pre-Meraz opinion, White v. State, the Court of Criminal Appeals held that it did not have fact jurisdiction as did the courts of civil appeals. 591 S.W.2d 851, 856 (Tex.Crim.App.1979). However, White was based on the presumption that the factual-conclusivity clause was an affirmative grant of power to the courts of civil appeals. This view was expressly rejected in Meraz, and we presume that White has been impliedly overruled on this issue.

In addition to the case law acknowledging the power of the appellate courts to review questions of fact, the legislature has explicitly authorized such review by statute since 1856:

The Supreme Court may revise the judgment in a criminal action, as well upon the law as upon the facts; but when a cause is reversed for the reason that the verdict is contrary to the weight of the evidence, the same shall in all cases be remanded for a new trial. ⁷

There is nothing in either the text or history of the statute that limits the criminal appellate court's power to review the facts merely to ensure that the conviction is legally sufficient, i.e., that evidence exists, viewed in the light most favorable to the prosecution, such that a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89 (1979); Griffin, 614 S.W.2d at 159 (Tex.Crim.App.1981).

Having established that the courts of appeals have jurisdiction over questions of fact, we must decide whether this power conflicts with our obligation under the federal constitution to ensure the legal sufficiency of the evidence to support a criminal conviction. See Jackson, 443...