Wilson v. State

• Decision Date: 17 September 1980
• Docket Number: No. 59221,No. 1,59221,1
• Citation: 605 S.W.2d 284
• Parties: McArthur WILSON, Appellant, v. The STATE of Texas, Appellee
• Court: Texas Court of Criminal Appeals

Page 284

605 S.W.2d 284

McArthur WILSON, Appellant, v. The STATE of Texas, Appellee.

No. 59221.

Court of Criminal Appeals of Texas, Panel No. 1.

Sept. 17, 1980.

Edgar A. Mason, Dallas, for appellant.

Henry Wade, Dist. Atty., Ronald D. Hinds, Gerry H. Holden and Clifford Wayne Huff, Asst. Dist. Attys., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before ONION, P. J., and PHILLIPS and CLINTON, JJ.

OPINION

PHILLIPS, Judge.

This is an appeal from a conviction for forgery. Punishment, enhanced by a prior felony conviction, is punishment for 20 years.

Appellant challenges the sufficiency of the evidence to sustain the conviction. He also alleges that the indictment is fundamentally defective, the trial court admitted improper hearsay testimony, and the prosecutor engaged in improper jury argument.

Appellant entered Kelly's Package Store in Dallas and asked D. D. Patteson, the store owner, to cash a paycheck in the amount of $335.89 drawn on the account of Town and Country Toyota, Inc. The check was made out to Charles Caldwell, and was signed "C. H. Cullum." Patteson asked for identification, and appellant replied that he had lost his driver's license. Patteson told his wife to call Town and Country Toyota to find out if the check had been properly issued. Mrs. Patteson was informed that the check was stolen. She called the police; they arrived and arrested appellant.

Dallas police officer J. W. McClendon found a driver's license on the front seat of appellant's car, which was parked outside the store. According to McClendon the license had appellant's picture and the name "McArthur Wilson" on it. Appellant subsequently told McClendon that his name was McArthur Wilson.

Wanda Stanley, the business manager of Town and Country Toyota, testified that only she and Hugh McGee, Jr., the president of the company, had authority to sign checks drawn on the company account. No Charles Caldwell, C. H. Cullum, or McArthur Wilson ever had been employed at Town and Country Toyota. Stanley testified that the signature "C. H. Cullum" on the check was unauthorized. Stanley discovered that the check was missing two days prior to the commission of the offense.

The indictment alleged that appellant . . . knowingly and intentionally with intent to defraud and harm another, possess(ed) with intent to pass to D. D. Patteson, a writing which then and there purported to be but was not the authorized act of C. H. Cullum, said writing being of the tenor following: (a photostatic copy of the check then being attached to the indictment) said defendant knowing the same to have been forged, . . .

Appellant urges that the evidence is insufficient to show that he knew the check was forged, as required to show the alleged intent to defraud and harm. See Jones v. State, 545 S.W.2d 771 (Tex.Cr.App.1977, Opinion on State's Motion for Rehearing). Appellant relies chiefly on Stuebgen v. State, 547 S.W.2d 29 (Tex.Cr.App.1977) and Pfleging v. State, 572 S.W.2d 517 (Tex.Cr.App.1978). Those cases are distinguishable, however. In Stuebgen and Pfleging the defendants cashed and attempted to cash, respectively, checks made out to them. The makers' signatures on the checks were forged. We held in each case that although the state proved that the check was forged, there was no evidence to indicate that the defendant knew the check was forged. We expressly noted in Stuebgen that the defendant did not not falsely represent himself.

The circumstances in this case, however, are sufficient to show appellant's knowledge that the check was forged. By attempting to cash the paycheck made out to Charles Caldwell, appellant falsely held himself out as Caldwell. ¹ It is apparent that the signatures of both the payee and the maker of the check were forged, because no one under the name Charles Caldwell or C. H. Cullum ever had worked for Town and Country Toyota. When asked for identification appellant falsely stated that he had lost his driver's license. These circumstances show a fraudulent intent on appellant's part. Taken as a whole, the evidence indicates that appellant had guilty knowledge of the forged maker's signature.

In Baker v. State, 552 S.W.2d 818 (Tex.Cr.App.1977), we held on facts functionally identical to those of the present case that the defendant's action in attempting to prevent someone from taking the license plate number of his car showed guilty knowledge. Combined with the other circumstances of the case, the defendant's action rendered the evidence sufficient to sustain the conviction. See also Lloyd v. State, 574 S.W.2d 159 (Tex.Cr.App.1978). Proof of intent generally is circumstantial. Alonzo v. State, 591 S.W.2d 842 (Tex.Cr.App.1979); Dillon v. State, 574 S.W.2d 92 (Tex.Cr.App.1978). We hold that the evidence in this case is sufficient to show that appellant knew the check was forged, and to show his intent to defraud and harm. The evidence is sufficient to sustain the conviction.

Appellant urges that the indictment fails to allege an offense. The indictment, set forth above, alleges all the elements of an offense under V.T.C.A. Penal Code, § 32.21(a)(1)(C) and (b). It is not fundamentally defective. See Ross v. State, 594 S.W.2d 100 (Tex.Cr.App.1980); Roach v. State, 586 S.W.2d 866 (Tex.Cr.App.1979).

Appellant contends that McClendon's testimony regarding appellant's name and picture on the driver's license that McClendon found in appellant's car was inadmissible hearsay. We disagree. A witness may assert the existence of a fact if his knowledge of that fact was gained through personal observation and reasonable inferences from that observation. 1A Ray, Texas Evidence § 793, p. 30 (3d ed. 1980); 2 Wigmore, Evidence, §§ 657-659 (Chadbourn rev. 1978). If the fact asserted is within the witness's personal knowledge, no hearsay problem arises. See Wigmore, supra, § 1361.

In the present case McClendon's testimony that he saw a driver's license on the front seat of appellant's car was based on his personal observation of the license on the seat, and his inference from its appearance that it was a driver's license. Similarly, McClendon's testimony that the license had appellant's name and picture on it was based...