Williams v. State

• Decision Date: 06 February 1985
• Docket Number: No. 192-83,192-83
• Citation: 688 S.W.2d 486
• Parties: Donald Eugene WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 486

688 S.W.2d 486

Donald Eugene WILLIAMS, Appellant, v. The STATE of Texas, Appellee.

No. 192-83.

Court of Criminal Appeals of Texas En Banc.

Feb. 6, 1985.

John G. Tatum, Dallas, for appellant.

Henry Wade, Dist. Atty., Anne B. Wetherholt, Luther C. Laman and Renie McClellan, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON STATE'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of forgery pursuant to V.T.C.A. Penal Code, Section 32.21 and punishment was assessed by a jury at life imprisonment. See V.T.C.A. Penal Code, Section 12.42(d). Appellant appealed his conviction to the Dallas Court of Appeals, wherein the conviction was reversed and a judgment of acquittal was ordered. Williams v. State, 646 S.W.2d 630 (Tex.App.--Dallas 1983). We granted the State's petition for discretionary review in order to determine whether the Court of Appeals erred in finding that the evidence was insufficient to support the conviction and whether the Court of Appeals erred in finding the trial court should have granted the appellant's motion for mistrial based upon improper jury argument. Finding merit in the State's petition, we reverse the Court of Appeals and affirm the judgment of the trial court.

Omitting the formal parts, the indictment in the instant case charged that appellant:

"did then and there intentionally and knowingly with the intent to defraud and harm another, passed to Faye Norwood a forged writing knowing such a writing to be forged, such writing had been so made that it purported to be the act of Janice Chaffe, who did not authorize the act, and said writing was a Republic Money Order of the tenor following...."

In order to prove that the appellant committed the offense of forgery by passing, the State must show that the 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 persons did not authorize the act. See Section 32.21(a)(1)(A), supra; Nolan v. State, 645 S.W.2d 443 (Tex.Cr.App.1983) and Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979.) The intent to defraud or harm another may be established by circumstantial evidence, and the burden is on the prosecution to prove each and every element of the offense charged. See Stuebgen v. State, 547 S.W.2d 29 (Tex.Cr.App.1977). In the case of forgery, the culpable mental state requires proof of knowledge that the instrument is forged. See Stuebgen, supra, at p. 32.

A majority of the Court of Appeals found that it was not possible for any rational trier of fact to have concluded beyond a reasonable doubt the appellant knew that the money order was forged, relying on the holding in Stuebgen, supra. The Court of Appeals additionally concluded that the trial court erred in denying appellant's motion for mistrial when the prosecutor, during the guilt-innocence phase, made the following argument to the jury:

"Maybe I do or don't know whether the defendant did any work for them, where are those people? Where are those people? Or the neighbors from her house where he was supposed to have done this work at. How about the person living next door to Janice Chaffe coming in here and saying, 'Yeah, she existed. Maybe she had another name. She existed, she lives there, I saw him over there.' Not one witness did the defendant bring to substantiate the lie that he told Faye Norwood when he passed this check. A provable false statement."

The majority of that court cited Garrett v. State, 632 S.W.2d 350 (Tex.Cr.App.1982) and McKenzie v. State, 617 S.W.2d 211 (Tex.Cr.App.1981) for the proposition that the trial court committed reversible error by denying appellant's motion for mistrial.

The facts are undisputed. On February 18, 1981, the appellant entered a Kroger store in Dallas and attempted to cash a money order. He presented to Faye Norwood, the cashier, a money order payable to "Donald Williams." Ms. Norwood asked for appellant's driver's license. Appellant presented his driver's license. Norwood asked appellant where he had gotten the money order. Appellant replied that he had done some work for a lady in Mesquite and that she had paid him with it. Norwood became suspicious when she noticed that the money order was not embossed. Norwood presented the money order to the store manager, who in turn called the police. Appellant was arrested in the Kroger store. The money order listed a Janice Chaffe as the maker, with a purported address of 50005 Columbia, Apt. 12. The money order was dated February 14, 1981.

A supervisor for the Southland Corporation testified from his records that the number on the money order showed that it had been assigned to a store located on Military Parkway in Mesquite. Testimony elicited from the supervisor further showed that the particular money order passed by appellant was missing from the store on February 14, 1981; it was not present in the store, but had never been sold nor recorded as sold and engraved at the store. The supervisor further testified that all money orders sold through 7-11 Stores were engraved with the store name and number, and that the money order in the instant case contained neither. He also testified that he knew no one by the name of Janice Chaffe, that she was not an employee of the Southland Corporation, and that no one by that name was authorized to pass the money order on February 18, 1981.

An investigator with the Dallas police department testified he could find no person by the name of Janice Chaffe in the Dallas metroplex area and could find no address of 50005 Columbia within the confines of Dallas County, including Mesquite. He testified that he did find an address of 5005 Columbia in Dallas County, but that it was a tire store.

Relying primarily on Stuebgen, supra, the Court of Appeals found the evidence to support the conviction to be insufficient and stated:

"In this case it cannot be inferred from appellant's explanation that he knew that Janice Chaffe was a non-existent person. Neither does the evidence show that appellant, rather than the 'lady in Mesquite' signed the name of Janice Chaffe on the money order.

"Had the appellant stated that Janice Chaffe had given him the money order and that Janice Chaffe was someone that he knew, the evidence would have been sufficient to sustain the conviction for forgery [citations omitted.] However, appellant's statement that he 'had received the check as payment for work he had done in Mesquite' does not show beyond a reasonable doubt that he knew that the person listed as the sender on the money order was in fact a fictitious person [citations omitted.] To find him guilty the jury would have to speculate that appellant was referring to the person named on the money order as the person who had given the instrument for payment for work. We conclude that it is not possible for any rational trier of fact to have found beyond a reasonable doubt that the appellant knew that the money order was forged." Williams, supra, at 631.

Dissenting to the majority opinion, Justice Sparling distinguishes Stuebgen, supra, from the facts in the instant case and opines that the instant case is controlled by this Court's holdings in Colburn v. State, 501 S.W.2d 680 (Tex.Cr.App.1973) and Golden v. State, 475 S.W.2d 273 (Tex.Cr.App.1972). We find the reasoning of Justice Sparling to be sound.

The facts in Colburn, supra, are almost a mirror image of the facts in the instant case. In Colburn, the defendant presented Barbara Lockwood, manager of the United Dollar Store in Gladewater, a check which he used to pay for merchandise he received. The check, payable to the order of R.P. Colburn in the amount of $55.70 was purportedly made and signed by one Howard W. Hopkins. Barbara Lockwood testified she saw the defendant endorse and place his address on the check and saw the cashier place on the check the number of the defendant's license to operate a motor vehicle. The defendant said he had received the check for hauling pulpwood and gave specific assurance that it was a good check. Barbara Lockwood further testified that the check was returned from the First National Bank of Gilmer, marked "No Account." She testified she made efforts to locate a Howard W. Hopkins but was unable to find such a person. A special investigator for the District Attorney's office testified that he had tried to find a person by the name of Howard W. Hopkins by making a "survey" of the gas company, water company, telephone company, and the bank on which the check was written. He also testified that he had checked with law enforcement authorities in Gregg and Upshur Counties and made investigations in all of the banks in Upshur County to determine whether there was a person by the name of Howard W. Hopkins. Although he located people by the name of Hopkins he was unable to find anyone by the name of Howard W. Hopkins. This Court found that there was sufficient circumstantial evidence for the trial court to find the check was forged; that the defendant knew that it was forged, and that he presented it to Barbara Lockwood with the intent to defraud. (See also Golden, supra where the evidence was found sufficient to prove knowledge the instrument was forged where the defendant stated that the maker of the check was an insurance man and the evidence showed that no such person existed.)

In Stuebgen, supra, the facts are clearly distinguishable from the instant case. In Stuebgen the defendant passed a check payable to himself and purportedly signed by his employer, Chitwood. Chitwood not only existed, but testified that he did not give the defendant permission to sign his name or use his personal check. Chitwood further testified, however, that he kept his checkbook in his pickup, and that three to five employees rode in his pickup daily during that period, including the defendant. This Court held that since the...