Opinion
No. 05-10-01594-CR
02-08-2012
CRAIG SCOTT HUMPHRIES, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued February 8, 2012
On Appeal from the 282 Judicial District Court
Dist.] 2010, pet. ref'd). In assessing the impact of the harm arising from improper jury argument, we consider: (1) the severity of the misconduct; (2) the measures adopted to cure the misconduct; and (3) the certainty of conviction absent the misconduct. See id.
Dallas County, Texas
Trial Court Cause No. F09-24686-S
OPINION
Before Justices Morris, Moseley, and Francis
Opinion By Justice Morris
A jury convicted Craig Scott Humphries of forgery. He now complains on appeal that there was a material variance between the allegations of the indictment and the proof at trial and that the trial court erred in overruling his objection to the prosecutor's closing argument. We affirm the trial court's judgment.
Factual Background
The indictment in appellant's case alleged that he intentionally and knowingly with intent to defraud and harm another passed to Jeffrey Hall a forged writing knowing such writing had been made so that it purported to be the act of Dick Oswald who did not authorize the act, and that the writing was a check. The indictment included a photocopy of the check, which showed “Crosslink Powder Coatings of Forney” as the payor and “Mark Patterson” as the payee. The check, for $1,236.15, was signed by a “Dick Marion.”
At trial, Dick Oswald explained that he owns a powder coating business in Forney, Texas called Crosslink Powder Coatings of Forney. The company employs no one named Dick Marion, and only Oswald is authorized to write checks for the company. Oswald testified that he does not know anyone named Mark Patterson and had not authorized anyone to write a check from his business account to Mark Patterson.
In April 2008, Oswald's truck was stolen. When it was recovered two days later, three checkbooks that had been inside the truck were missing. One of the checkbooks was for his business account. As soon as he discovered the truck was missing, Oswald closed the account. He identified a photocopy of the check included in the indictment as one of the checks from his business account that had been stolen from his truck. He stated that the handwriting on the check was not his. Oswald testified that he did not know appellant and had never represented himself to be Dick Marion.
Jeff Hall testified that he manages a check-cashing store in Forney, Texas. Hall explained that for each customer who cashes a check, he collects a photograph and fingerprint for the customer, along with a social security number, identifying information, and contact information for the customer's file. On the evening of July 1, 2009, appellant came into the store. One of the store's regular customers had called to say that he had a friend named “Mark Patterson” who had lost his identification and needed to cash a check. The regular customer offered to vouch for Patterson, and Hall told him to send Patterson to the store.
Appellant walked into the store saying that he was Mark Patterson and that his friend had called to vouch for him. Hall began processing appellant as a customer. He photographed him, collected a fingerprint, and obtained a date of birth, social security number, address, and two phone numbers for appellant. He was unable to call the bank to confirm the viability of the account because it was too late in the day, but he recognized the name of the Forney company on the check. Appellant endorsed the check in front of Hall, using the name Mark Patterson. Then Hall cashed the check, minus a fee for processing the check.
Two days later, Hall was notified by the bank that the check was invalid because the account had been closed. He attempted to reach appellant by telephone, but could not. He then contacted the man who had vouched for “Mark Patterson,” who gave him another phone number. Hall called the number and spoke to a man who said that the error in cashing the check had just been a mistake and that he would get the money back to Hall. After that call, Hall never heard from the man again. Hall spoke to Oswald, who told him about the stolen checkbook and said he did not know a Mark Patterson and had not issued that check. Hall then contacted the police.
A Garland police officer tried to locate the individual who had cashed the check using the information Hall had gathered. He could not find a driver's license for a person with that date of birth, and the social security number was traced back to a Hispanic female. The fingerprint, however, was eventually linked to appellant. The officer created a photographic lineup including appellant, and Hall identified appellant as the man who had cashed the check.
Discussion
In his first issue, appellant complains there is a material variance between the allegations of the indictment and the proof at trial. He specifically complains the indictment alleges that the forgery he passed to Hall was purported to be the act of Dick Oswald, whereas the check and other evidence at trial showed the forgery to be the act of a “Dick Marion.” We disagree.
Testimony at trial established that only Dick Oswald was authorized to issue checks on behalf of Crossline Powder Coatings of Forney. Dick Oswald owned Crossline Powder Coatings. There was no Dick Marion associated with Crossline Powder Coatings. Thus, the evidence showed that any check coming from Crossline Powder Coatings would have to be from Oswald to be valid. Appellant, by passing the Crossline Powder Coatings check to Hall, passed a forgery purported to be the act of Oswald, the only person authorized to write such a check - regardless of the name written for the maker of the check.
Moreover, any variance is not material. The indictment, which included a photocopy of the check involved in the offense showing the name of Dick Oswald's company as payor and “Dick Marion” as the maker of the check, informed appellant of the charge against him sufficiently to allow him to prepare an adequate defense. Because the indictment included the complained-of check in its allegations, it did not subject appellant to the risk of being prosecuted later for the same crime. See Gollihar v. State, 46 S.W.3d 243, 257-58 (Tex. Crim. App. 2001). We resolve appellant's first issue against him.
In his second issue, appellant complains that the trial court erred in overruling his objection to the prosecutor's reference to the movie “Catch Me If You Can” in her closing argument. The State had also briefly discussed the movie without objection during jury selection. Appellant contends the argument was improper because it likened his conduct “to a fictional account in a movie of a serial check forger.” Responding to appellant's objection, the trial judge stated, “It's closing argument. What the attorneys say is not evidence. And the jury's smart enough to know it's a movie.”
The prosecutor made the reference to illustrate how, despite the signature of “Dick Marion” on the face of the check, the evidence had shown that the check actually belonged to Dick Oswald, the owner of Crosslink Powder Coatings, and that Oswald had not authorized anyone by the name of Mark Patterson or Dick Marion to write the check. In general, proper jury argument constitutes one of the following: (1) summation of the evidence presented at trial; (2) reasonable deductions drawn from that evidence; (3) answers to the opposing counsel's argument; and (4) pleas for law enforcement. Bryant v. State, 340 S.W.3d 1, 13 (Tex. App.-Houston [1
Here, regardless of whether the prosecutor's argument fell into the traditional categories of proper jury argument, we do not believe he was harmed by it. Any misconduct in making the argument was not severe. The reference to the movie was only a small part of the prosecutor's argument, presented not as proof that appellant was also a serial forger but only to make the point that the signature of the face of the check was immaterial to proof of the offense. In addition, the trial judge noted aloud that the jurors were intelligent enough to know that the reference was to a movie and stated that the attorneys' arguments were not evidence in the case. No evidence at trial refuted the State's proof that only Dick Oswald had authority to write checks for Crosslink Powder Coatings and that appellant had no authority to cash the check as Mark Patterson. Concluding any error in admitting the argument was harmless, we resolve appellant's second issue against him.
We affirm the trial court's judgment.
JOSEPH B. MORRIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101594F.U05