Opinion
No. 05-05-00636-CR
Opinion issued March 7, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Criminal Court No. 4, Dallas County, Texas, Trial Court Cause No. MA04-84823-E. Affirmed.
OPINION
Following a trial before the court on his not guilty plea, Kenneth Holder was convicted of forgery. See Tex. Pen. Code Ann. § 32.21 (Vernon Supp. 2005). The judge assessed punishment at a $750 fine. In two issues on appeal, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
In 2001, appellant began working as a Dallas Area Rapid Transit (DART) officer. In December 2002, he was injured while chasing a suspect. His injury required back surgery and four months of post-surgery therapy. As a salaried employee, in order to be entitled to full pay, appellant was required to participate in the Alternative Duty Program (ADP). The ADP allows officers who cannot perform their normal patrol duties to perform other lighter duty projects and to receive full pay for a full day's work. That program also provided that one was entitled to be paid for time spent attending doctor's appointments and therapy sessions. Appellant participated in the ADP. His supervisor in 2003 was Sergeant Al Mullins. In May 2003, after about four months in the program, appellant was released from the ADP. However, a year later, in May 2004, appellant was reassigned to the ADP because of aggravation of his pre-existing injury. In 2004, appellant's supervisor in the ADP was Sergeant Clarence Brathwaite. Brathwaite testified there were times when appellant could not be located during work hours. Sometimes the clinic or another officer would ask about appellant's whereabouts. At around 3:30 p.m. on July 15, 2004, Brathwaite questioned appellant about doctor's appointments appellant had scheduled but had not attended. Appellant denied missing any appointments and offered to provide confirmation that all appointments had been kept. Appellant told Brathwaite the doctor's notes were in his car. Appellant asked if he should go to his car and get them. Brathwaite indicated he should. Appellant, however, did not return with the doctor's notes until the next morning, July 16, when he personally gave the notes to Braithwaite. Upon viewing the notes, Brathwaite was suspicious that they were not genuine. His suspicion was aroused because the doctor's notes appellant presented were different, in several respects, from the doctor's notes Braithwaite normally received from the clinic. Braithwaite testified that notes were normally partially typewritten and partially handwritten. The notes appellant produced were entirely typewritten and included a box that the notes Brathwaite normally received did not contain. Further, the notes did not contain the clinic's telephone number, which was normally included. Also, even though the notes were ostensibly written on two different dates, the signatures were identical, and, to Braithwaite's eye, appeared to be "generated." There was also a difference in the size of the Baylor logo contained on the notes appellant presented and the notes Brathwaite normally received. Brathwaite began investigating what he believed to be false documentation. He went to the clinic identified in the notes and spoke with a clerk, Lashundra Isaac. Isaac gave Brathwaite the kind of doctor's note that would normally be presented to a patient after an appointment at that clinic. Although Isaac conceded the signature on the notes appellant provided looked like hers, she denied signing the notes. Sergeant George Ruiz was assigned to conduct a criminal investigation. He testified that Brathwaite was consistent in his testimony that he had obtained the doctor's notes directly from appellant. The notes involved two dates: July 13, 2004 and July 15, 2004. Appellant contended he did not have medical appointments on those dates, but, rather, worked a full day on each of those dates. Appellant's medical records did not reflect that appellant had appointments on those dates. Appellant explained that he went to court as a witness in an assault case on July 12; however, the case did not go to trial because "they" were in trial in a rape case. And, although it is the normal procedure for witnesses to check in with the prosecutor by noon, appellant did not. He sat in the witness room "most of the day that day," although he had been told that sitting for long periods of time was the "worst position" he could be in after back surgery. Appellant stated he had rescheduled the July 13 appointment because he was in too much pain to engage in therapy, and that he worked on records and "clearing affidavits" a full day on July 13. Appellant testified he worked "probably 7:00 to 4:00" on July 14 and also sent an e-mail from within the DART system to Brathwaite on that date to inform him he had an appointment with his neurosurgeon. Appellant did not keep the appointment, however, because he had an infected wisdom tooth, which he had extracted on that day. Appellant admitted that on July 15 at 11:28 a.m., he sent an e-mail from within the DART system to his home computer, and also that other e-mails were sent at 11:29, 11:31, 4:11, 6:03 and 6:05 on July 15. Appellant denied that Brathwaite confronted him on the afternoon of July 15, but stated Brathwaite confronted him before lunch on that date. Appellant testified that from the first day, he felt as if Brathwaite was treating him "harshly." Consequently, appellant kept everything Brathwaite had given him and also kept a personal log with notations about his interactions with Brathwaite. His personal log, however, contained no notation about his July 15 meeting with Brathwaite. Appellant testified that when he was asked for documentation by Brathwaite on July 15, that was the first time he knew he was required to provide such documentation. Appellant said Brathwaite had only told him at orientation that he needed to let him know when he had medical appointments, not that he was required to provide written documentation. Appellant had never seen anyone else provide written documentation either. Nevertheless, on July 15, appellant told Brathwaite he had documentation in his car and offered to go get it. After appellant testified he did not have therapy scheduled for July 15, the following exchange occurred between the prosecutor and appellant:[Prosecutor]: I'll direct your attention to State's Exhibit No. 6. It's an e[-]mail dated July 14th at 4:32. "Sergeant, on Thursday at 10:00 a.m. I have a make-up physical therapy appointment. Court interferred [sic] with it this week."
Court interferred [sic] with it this week; is that what you're talking about on the 12th?
[Appellant]: Yes, sir.
[Prosecutor]: This is two days after the 12th?
[Appellant]: Yes, sir.
[Prosecutor]: What did you mean when you said Thursday?
[Appellant]: I believe I'm talking about the 29th here, because I did not have a scheduled appointment. I never did have a scheduled appointment for the 15th.
[Prosecutor]: Is that then Thursday July 22nd?
[Appellant]: Is it the 22nd or the 29th, the next Thursday?
[Prosecutor]: Well, 15 plus seven would be the 22nd.
[Appellant]: 22nd, yeah, because it couldn't have been the next day. And I've looked at this several times.
[Prosecutor]: Why-you put it out of sequence, didn't you?
[Appellant]: Yes, sir, I did.
[Prosecutor]: Why did you do that?
[Appellant]: All I can say is I made a mistake. It's not easy to think real clearly, I was still on high doses of Hydrocodone and pain medicine at the time.
[Prosecutor]: You didn't have an appointment scheduled —
[Appellant]: I never had one.
[Prosecutor]: — for the 22nd?
[Appellant]: I never had an appointment scheduled for the 15th either.Later, when talking about what time appellant left work on July 15, the following exchange occurred:
[Prosecutor]: So then, on the 15th then, what time did you leave work on the 15th?
[Appellant]: I guess I left around 6:30 on the 15th.
[Prosecutor]: Your last e[-]mail was sometime around 6:00-something.
[Appellant]: I believe around 6:30 on the 15th.
[Prosecutor]: So, then you ran home and got on your computer and your scanner-you have a scanner at the house?
[Appellant]: There's one on my wife's computer.
[Prosecutor]: Is that the one you used to scan in the dentist's excuse when you had an impacted-was it an impacted wisdom tooth?
[Appellant]: Yes. No, what I had was I had an infected wisdom tooth, that's why it was an emergency appointment. It was oozing into my mouth.
[Prosecutor]: So, it was an infected wisdom tooth?
[Appellant]: Yes.
[Prosecutor]: And you scanned that in from your wife's computer at the house because that's where you have a scanner?
[Appellant]: Uh-huh. Yes.Thereafter, appellant denied he had created the documents in question. He testified he had no need to do so because he could "go to the doctor whenever I need to under this program." Appellant also denied having access to Isaac's signature and stated he did not start getting "slips" from her until" after this blowup" when Brathwaite told him he needed to bring slips. However, in response to the prosecutor's question about whether appellant told Brathwaite on July 15 that he had some slips in his car and he would go and get them and bring them back, appellant answered," Well, having one from the dentist's office he wasn't satisfied. I had faxed him or I had scanned him a copy and he wanted the original one, and I had that one from the dentist's office. He was disturbed about it, that he didn't have the original." Laura Wycoff Holder, appellant's wife, testified they had four computers at home; she had two and appellant had two. Her computer, however, was the only one with a scanner. Appellant did not have access to her computer on the date in question and could not have scanned the signatures without her knowledge because she was the computer all evening. Laura testified she checked everything on her computer for evidence that appellant had scanned the documents, but found nothing to indicate he had. She also testified her computer did not have "PDF" capability, and that she did not "think [their] computer is capable of scanning signatures that you can copy, it's made for photos. You can scan a piece of paper, but it's in a picture file, we don't have any way to make it into a document file."
Standards of Review and Applicable Law
The standards of review for legal and factual sufficiency of the evidence are well-established. When deciding whether evidence is legally sufficient to support a conviction, we must assess all the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 126 S. Ct. 481 (2005). When deciding whether the evidence is factually sufficient, we must examine all the evidence without the prism of the light most favorable to the verdict and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). The ultimate question in a factual sufficiency review is whether, considering all the evidence in a neutral light, a fact finder was rationally justified in finding guilt beyond a reasonable doubt. See Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004). Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000) (legal sufficiency review); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9. A trial to the court is a unitary proceeding. Therefore, in reviewing the sufficiency of the evidence, we must review the evidence presented at both guilt/innocence and at punishment. See Barfield v. State, 63 S.W.3d 446, 451 (Tex.Crim.App. 2001). The information was filed under section 32.21(a) of the penal code, which provides in relevant part:(1) "Forge" means:
(A) to alter, make, complete, execute, or authenticate any writing so that it purports:
(i) to be the act of another who did not authorize that act;
(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or
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(B) to issue, transfer, . . . pass . . . a writing that is forged within the meaning of Paragraph (A).
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(2) "Writing" includes:
(A) printing or any other method of recording information;
(b) A person commits an offense if he forges a writing with intent to defraud or harm another.Tex. Pen. Code Ann. § 32.21(a)(1)(A), (B), (2)(A), (b). The trial court, sitting as the fact-finder, was authorized to convict appellant for forgery if it found beyond a reasonable doubt that appellant issued, transferred, or passed a forged writing with intent to harm or defraud another.