No. 05-02-01111-CR
Opinion Filed November 24, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 195th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-48859-QN.
Before Chief Justice THOMAS and Justices FRANCIS and LANG.
Opinion By Chief Justice THOMAS.
Willie Smith, III appeals his conviction for forgery. Appellant waived a jury trial and pleaded not guilty. The trial court found appellant guilty, found two enhancement paragraphs true, and sentenced appellant to ten years imprisonment. In a single point of error, appellant contends the evidence is legally insufficient to support the conviction. We affirm the trial court's judgment.
Appellant phrases his point of error ambiguously. However, because appellant asks for an "acquittal," we interpret his complaint as a challenge to the legal sufficiency of the evidence and will not conduct a factual sufficiency review for appellant's point of error. See Dorsey v. State, 940 S.W.2d 169, 173 (Tex. App.-Dallas 1996, pet. ref'd).
Background
On March 9, 2002, appellant presented a check to Hanis Akhawala, the manager at FM Food Mart. The check was drawn on an account by "Oak Farms Dairy," made payable to "Willie Smith, III" in the amount of $730.02, stated it was check number "00037809 and paydate: 03/07/02," and was authorized by "Eddie K. Tollison." Akhawala asked appellant for identification and asked whether appellant worked for Oak Farms. Appellant said, "No, I worked for this company six months ago. They gave me this check today." Akhawala noticed the back of the check had already been signed by appellant, but Akhawala asked appellant to sign the check again and to provide his thumbprint. Akhawala wrote appellant's social security number and his work and home telephone numbers on the check. When Akhawala called the work number appellant gave him, it was disconnected. Akhawala called Oak Farms and was told appellant had never worked there. Akhawala instructed an employee to talk to appellant as if he was verifying the check while Akhawala called the police. Akhawala further testified that in order to keep appellant there until police arrived, he told appellant he only had one-hundred-dollar bills and could not make change for appellant. Akhawala asked appellant to give Akhawala twenty dollars and he in turn would give appellant seven one-hundred-dollar bills since appellant's balance from the check would be $680. Appellant gave Akhawala a twenty-dollar bill, and Akhawala said, "I'm holding this 20 and the check because this check is fake." Appellant asked for his identification and the twenty-dollar bill back several times. Akhawala refused and waited for police to arrive. Dallas police officer James Parnell arrived within ten minutes and questioned appellant about the check. Appellant stated the check was money owed to him by Oak Farms for prior employment, and he had received the check in the mail. Appellant stated he had worked at Oak Farms through a temporary service as a contract laborer six months before the check was issued. Parnell contacted Oak Farms and learned the check was not valid. Parnell arrested appellant. Eddie K. Tollison, the chief financial officer for the company that owned Oak Farms, testified check number 00037809 was originally issued to "Steven McClellan" in December 2001 for the amount of $1.94, and the check had not cleared the bank. Tollison further testified he did not authorize anyone to issue a check to appellant. Brad Patten, the human resources director for Oak Farms, testified no person with appellant's name or social security number had been employed by Oak Farms as a contract laborer, a temporary worker, or a permanent employee. Patten had checked the company's records back to 1991. Patten testified Oak Farms would never issue a check directly to a contract or temporary worker. Instead, Oak Farms would issue the check to the temporary service company and, in turn, that service company would issue a check to the worker. Patten further testified that any check issued for work done as long ago as fifteen years earlier would have to be approved by him, and he did not approve any such check. Appellant claimed he received the check in the mail the day before he presented it at the store, and he denied knowing the check was a forgery. Appellant testified he worked as a contract laborer through a temporary service for Oak Farms in the late 1980's. Appellant testified that when he entered the store, an employee took the check from him when appellant asked if the check could be processed. Appellant denied that Akhawala was the person who took the check. Appellant testified the store employee showed the check to Akhawala, and Akhawala told the employee to cash it. Then the employee asked appellant for twenty dollars for the check. Appellant told the employee to give him back the check because he intended to go to the bank, but the employee told appellant to wait. Both Akhawala and the employee repeatedly told appellant to be patient. Appellant waited in the store for the check to be cashed. Then a police officer arrived. Appellant told the officer he had worked for Oak Farms through a temporary service several years ago. Appellant denied telling the officer he worked for Oak Farms six months earlier. Appellant further testified that even though he had not worked for Oak Farms since the late 1980's, he believed the check was for work he did fifteen years earlier. Discussion
Appellant argues the evidence is insufficient to prove he knew the check was forged. Appellant argues that the fact the check appeared normal on its face, was made payable to him, and that he presented the check to the clerk in a normal fashion, along with his identification and thumbprint, shows he did not know the check was forged. The State responds the evidence was sufficient to prove appellant knew the check he presented for payment was forged. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). The State was required to prove beyond a reasonable doubt that appellant, with intent to defraud or harm another, passed a writing that purported to be the act of another, who did not authorize the act. See Tex. Pen. Code Ann. § 32.21 (Vernon Supp. 2004). Appellant does not contend he did not possess the forged check. He argues he did not know the check was forged and did not intend to defraud anyone. Intent to defraud or harm another may be established by circumstantial evidence. See Williams v. State, 688 S.W.2d 486, 488 (Tex.Crim.App. 1985); Davis v. State, 68 S.W.3d 273, 277 (Tex. App.-Dallas 2002, pet. ref'd). Use of deception by a person presenting a forged check is evidence of intent to defraud and harm. See Choice v. State, 883 S.W.2d 325, 329 (Tex. App.-Tyler 1994, no pet.). Viewed in the light most favorable to the verdict, the evidence shows that on March 9, 2002, appellant attempted to defraud Oak Farms Dairy and FM Food Mart when he tried to pass the forged check. The check had originally been issued to someone other than appellant and for a different amount than stated on the check when appellant presented it for payment. Appellant gave conflicting accounts about when he worked for Oak Farms, and there was evidence appellant had never worked for the company. The fact finder resolved the conflicts in the evidence against appellant. We conclude the evidence is legally sufficient to support appellant's conviction. See Marvis v. State, 36 S.W.3d 878, 881 (Tex.Crim.App. 2001). Accordingly, we overrule appellant's sole point of error. We affirm the trial court's judgment.