Opinion
No. 05-03-00595-CR
Opinion Filed July 9, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 204th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F02-55585-Q. Affirmed.
Before Justices MOSELEY, BRIDGES, and LANG-MIERS.
OPINION
The trial court convicted Michael Dennis Keen of forgery and assessed punishment, enhanced by two prior felony convictions, at twelve years confinement. In this appeal from the judgment, appellant's attorney filed a brief in which he concludes the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, 386 U.S. 738 (1967). The brief presents a professional evaluation of the record showing why, in effect, there are no arguable grounds to advance. See High v. State, 573 S.W.2d 807, 811 (Tex.Crim.App. [Panel Op.] 1978). Appellant filed a pro se response to counsel's brief asserting, in six grounds, that there are arguable issues for appeal regarding a defect in the indictment, the legal and factual sufficiency of both the evidence and the enhancement paragraphs, the trial court's rulings on objections, and whether he received ineffective assistance of counsel. We affirm the trial court's judgment. Validity Of The Indictment Appellant first contends the indictment incorrectly charges him with a third-degree felony instead of a Class A misdemeanor. Appellant did not complain about the indictment before trial and, therefore, he has waived any defects. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (Vernon Supp. 2004); Ramirez v. State, 105 S.W.3d 628, 630 (Tex.Crim.App. 2003). Moreover, the indictment is sufficient to invoke the trial court's jurisdiction and charges appellant with the state jail felony of forgery by check. See Tex. Pen. Code Ann. § 32.21(d) (Vernon Supp. 2004). We conclude appellant's first ground does not raise an arguable issue. Sufficiency Of The Evidence Appellant next contends the evidence is legally and factually insufficient to support the trial court's judgment. Specifically, appellant contends the evidence is insufficient to prove he knew the check was forged or his intent to defraud. In reviewing the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the judgment, and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The trial judge, as fact finder, is the sole judge of the witnesses' credibility and the weight to be given their testimony. Joseph v. State, 897 S.W.2d 374, 376 (Tex.Crim.App. 1995). In evaluating the factual sufficiency of the evidence, we determine whether a neutral review of all of the evidence demonstrates the fact finder was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, No. 539-02, 2004 WL 840786, at *7 (Tex.Crim.App. April 21, 2004). In conducting our review, we determine first whether the evidence supporting the verdict, considered by itself, is too weak to support the finding of guilt beyond a reasonable doubt and second, whether evidence contrary to the judgment, balanced against the evidence supporting the judgment, is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. While we are authorized to disagree with the fact finder's determination, our review must be conducted with appropriate deference so as to avoid substituting our judgment for that of the fact finder, and any evaluation should not substantially intrude upon the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000). In adjudicating sufficiency challenges in the Anders context, we decide whether the sufficiency challenge raises an arguable issue for appeal on a case-by-case basis. See Taulung v. State, 979 S.W.2d 854, 857 (Tex.App.-Waco 1998, no pet.). We conduct an independent review of the record and consider the potential evidentiary challenges raised by the evidence. See id. A person commits an offense if he forges a writing with the intent to defraud or harm another. See Tex. Pen. Code Ann. § 32.21(b) (Vernon Supp. 2004). 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). Use of deception in 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.). Trial testimony showed appellant was arrested at a Dallas Check Cashers store after cashier Berla Lazo identified him to police officers as the man who tried to cash a stolen check. The check in question was written on the account of Dirt Services Company, Inc. and made payable to "Larry Freshwater" in the amount of $865. According to Lazo, appellant also gave her a state identification card bearing his photograph and identifying him as "Larry Freshwater." Lazo testified she had watched appellant arrive with another man in a black truck. Dallas Police Officer Booker T. Wolfe testified appellant was trying to leave the store when police officers arrived, and appellant identified himself to Wolfe as "Larry Freshwater." Dallas police did not learn appellant's true identity until he was fingerprinted in the jail. Dennis Lee Eskridge, the owner of Dirt Services Company, Inc., had left the check in the console of his black truck. Eskridge had not filled out the check, and it was being cashed without his permission. When Lazo called to verify the check, Eskridge informed her the check was fraudulent and asked her to call the police. Eskridge also called the police. Because the check had been in his truck, Eskridge then drove to the site where he had parked the truck and discovered it had been stolen. Fresh splash marks at a low water crossing leading from the site indicated the theft had occurred recently. After calling the police to report the stolen truck, Eskridge called Lazo back and she confirmed that a black truck was parked in front of the store. Police officers pulled appellant's nephew, Joshua Amick, from the stolen truck and arrested him for unauthorized use of a motor vehicle. Eskridge later identified a loaded syringe and appellant's billfold as items in the truck that did not belong to Eskridge. Appellant disputed the accounts of the State's witnesses. Appellant admitted he had arrived at the store in the stolen truck. However, appellant testified Amick had told him Amick had borrowed the truck from a friend. Appellant testified he, Amick, and Terry Clayborn, a friend of similar height and appearance, had driven to the store so Clayborn could cash the check. Appellant did not know where Clayborn had acquired the check nor did he know it was stolen. Appellant testified Clayborn passed the stolen check and Freshwater identification to Lazo. Appellant suggested Lazo must have become confused about which of the two men gave her the check. When the police arrived, Clayborn had bolted from the store, leaving the unsuspecting appellant behind. Appellant claimed that a second store cashier, who did not testify at trial, told the police about Clayborn. Appellant denied identifying himself as "Larry Freshwater." Appellant also claimed he heard one officer tell another officer that the Freshwater identification would not come back to him and he was cleared. Lazo agreed that when interviewed by the police, she and a second cashier had told officers there was a second man. However, Lazo testified she did not see the second man, and she did not waiver at trial in her identification of appellant as the man who had passed her the check. Wolfe admitted it was possible that the second cashier had told him there was a second man, but he did not follow up on her account because Lazo had positively identified appellant as the man who passed the check. Wolfe testified he did not see anyone running from the store. Wolfe admitted it was possible he said the identification would not come back to appellant, but he denied hearing an officer say appellant was cleared. The witnesses also disagreed about whether appellant is pictured in the "Larry Freshwater" identification card. Lazo and Wolfe testified the photograph on the card depicts appellant. Appellant disagreed, stating the photograph is of Clayborn. Faced with conflicting evidence, the trial court chose to believe Lazo and Wolfe rather than appellant. Because appellant was present in the courtroom, the trial court was in a position to evaluate whether appellant was the man pictured in the Freshwater identification card. Evidence showing appellant arrived in a recently stolen truck, that he presented a forged check stolen from the truck, that the check was not made out to him, that he presented a false identification bearing his picture, that he tried to leave the store as the police arrived, and that he falsely identified himself to a police officer, constitutes legally and factually sufficient evidence to show he knew the check was stolen and he intended to defraud and harm. See Choice, 883 S.W.2d at 329. We conclude appellant does not raise an arguable issue regarding the legal and factual sufficiency of the evidence. See Jackson, 443 U.S. at 319; Zuniga, 2004 WL 840786, at *7. Sufficiency of Proof of Enhancements Appellant next contends there is an arguable issue regarding the legal and factual sufficiency of the evidence supporting the enhancement paragraphs. The record shows appellant entered both oral and written pleas of true to the enhancement paragraphs. Appellant's plea of true to the enhancement paragraphs relieved the State of its burden to prove a prior conviction alleged for enhancement. Harvey v. State, 611 S.W.2d 108, 111 (Tex.Crim.App. 1981); Manning v. State, 112 S.W.3d 740, 744 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd). Thus, we conclude appellant has not raised an arguable issue. Evidentiary Rulings Appellant next contends the trial court erred in sustaining his objections to certain testimony. Because appellant prevailed on the challenged rulings, we conclude no arguable issue is raised. Ineffective Assistance of Counsel In his final ground, appellant contends he received ineffective assistance of counsel. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Hernandez v. State, 988 S.W.2d 770, 770 (Tex.Crim.App. 1999). To prevail on his claim, appellant must show (1) counsel's performance fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for trial counsel's errors, the result would have been different. See Strickland, 466 U.S. at 687-88, 694. Our review of counsel's performance is highly deferential, and we presume counsel provided reasonable assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex.Crim.App. 2002). Ordinarily, counsel should not be condemned as unprofessional or incompetent without an opportunity to explain the challenged actions. Id. at 836. When the record is silent regarding counsel's reasons for his conduct, we will defer to counsel's decisions if there is at least the possibility that the conduct could have been legitimate trial strategy. Ortiz v. State, 93 S.W.3d 79, 88-89 (Tex.Crim.App. 2002), cert. denied, 538 U.S. 998 (2003). In most cases, the record on direct appeal is insufficient to review claims of ineffective assistance of counsel. See Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999). Appellant first admits the record shows his agreement that his attorney had done all he asked counsel to do, that he voluntarily waived a jury trial, that he agreed he did not need other witnesses, he was aware of his situation and understood the risks involved in proceeding with his pleas of not guilty and true. However, appellant alleges "[t]he record for this direct appeal does contain sufficient evidence to make another conclusion." Having asserted that another conclusion can be drawn, appellant does not explain the other conclusion to which he alludes. Rather, appellant sets forth summaries of cases finding ineffective assistance of counsel on various grounds including failure to consult and advise, failure to investigate the case, and failure to present evidence and cross-examine witnesses. Appellant does not explain how any of the citations he sets forth are applicable to this case. Thus, appellant has not shown either that appellate counsel's performance fell below an objective standard of reasonableness or that he suffered any harm. See Strickland, 466 U.S. at 687, 694. We conclude appellant's final ground does not present an arguable issue. Conclusion We have reviewed the record, counsel's brief, and appellant's pro se response. We agree the appeal is frivolous and without merit. We find nothing in the record that might arguably support the appeal. We affirm the trial court's judgment.