No. 05-01-01632-CR
Opinion Filed August 8, 2003. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the Criminal District Court No. 2, Dallas County, Texas, Trial Court Cause No. F01-54544-HI AFFIRMED
Before Chief Justice THOMAS AND Justices FRANCIS and LANG.
Opinion By Chief Justice Thomas.
Henry Ray Melton appeals his conviction for forgery. After the trial court found appellant guilty and two enhancement paragraphs true, the trial court sentenced appellant to eight years' confinement. In two points of error, appellant contends the evidence is legally and factually insufficient to support the conviction. We affirm the trial court's judgment.
Background
On July 10, 2001, appellant presented a check to a teller at a Bank of America in Pleasant Grove. The check was drawn on an account by "Presbyterian Hospital Dallas," was made payable to "Henry Melton" in the amount of $3,469.06, and was authorized by "Doyle Hawthorne." Appellant filled out a deposit slip to put the funds into his bank account and asked for $900 cash back. When he was asked to do so, appellant gave the teller his driver's license and a bank check cashing card issued in his name. The teller took the identification and the check to her supervisor for approval because the cash-back amount was over the limit the teller could approve. Terry McCormick, the customer service manager, testified that when the teller brought her the check for approval, she immediately recognized the check was a forgery because she was familiar with Presbyterian's checks. McCormick testified the check appellant presented was the wrong color, had the wrong check number sequence, and was not micro-encoded as were all other checks issued by Presbyterian. McCormick telephoned Carolyn Galvon, an employee of Texas Health Resources, and then sent Galvon a facsimile copy of the check. After Galvon told McCormick the check was not issued by Presbyterian, McCormick called 911. Galvon testified Texas Health Resources owns Presbyterian Hospital, and she provides bank reconciliation and account functions for Texas Health Resources. Galvon testified the facsimile copy of a check McCormick sent her had an invalid check number and authorizing signature. Galvon further testified that a person named Doyle Hawthorne was not authorized to sign checks for Presbyterian, and a valid Presbyterian check would be signed by "Douglas Hawthorne." Dallas police officer Christopher Wilkins testified that when he and his partner arrived at the bank, appellant was walking out the door. Wilkins detained appellant while his partner talked to McCormick. When Wilkins asked appellant how he got the check, appellant said he received it in the mail that day. Wilkins questioned appellant about how appellant could receive a check dated July 10th in the mail on July 10th, and asked appellant if he could see the envelope. Appellant said no. When Wilkins asked appellant if Presbyterian owed him money, appellant did not know. After his partner returned with information about the forged check, Wilkins arrested appellant. Appellant then told Wilkins there were men waiting for him in a green truck outside, and one of the men had given him the check. Wilkins looked outside but did not see a truck. Emma Melton, appellant's wife, testified that a man named "Keno" gave appellant the check in payment for a vehicle they were selling. Melton testified she had a Cadillac parked in the lot at her apartment complex with a for sale sign in the back window. Keno asked about the car and Emma told him to call appellant to discuss pricing. Four days later, Keno telephoned appellant and they discussed the price. Appellant told Emma he was selling the vehicle for $3400. On July 10, 2001, Keno came to their apartment in the morning and gave appellant a check. Emma testified she did not see the amount of the check, but she did see Keno hand what appeared to be a check to appellant. Emma saw appellant get into a Ford pickup truck with Keno and another man and drive away. Emma further testified that neither she nor appellant had ever seen Keno before he came to ask about the vehicle. Appellant did not testify during the guilt/innocence phase of trial. Applicable Law
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. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). The standard is the same for both direct and circumstantial evidence cases. See Sutherlin v. State, 682 S.W.2d 546, 548-49 (Tex.Crim.App. 1984); Edwards v. State, 813 S.W.2d 572, 575 (Tex.App.-Dallas 1991, pet. ref'd). In a factual sufficiency review, we determine whether a neutral review of all the evidence demonstrates the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000). The trial court, as fact finder in this case, was the exclusive judge of the credibility of the witnesses and the weight to be given to their testimony. See Jones v. State, 944 S.W.2d 642, 647-48 (Tex.Crim.App. 1996). Discussion
Appellant contends the evidence is legally and factually insufficient to prove he intended to harm or defraud another. Specifically, appellant maintains that the State failed to show that he had the intent to defraud. We disagree. To support appellant's conviction, the State must show 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 2003). 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.). The evidence shows appellant attempted to defraud Presbyterian Hospital and Bank of America when he tried to pass the forged check. Appellant initially told police he received the check in the mail, but could not produce the envelope in which the check was mailed and could not explain why the check was dated the same day he supposedly received it in the mail. Appellant then told police he got the check from another man who was waiting for him in a pickup truck. Police did not see a truck outside. Appellant's wife testified appellant was given the check as payment for their Cadillac. Appellant's false and conflicting explanations for possession of the check is evidence of a "suspicious circumstance" showing appellant had the requisite intent to defraud. See Williams v. State, 688 S.W.2d 486, 488 (Tex.Crim.App. 1985). Viewed under the appropriate standards, we conclude the evidence is legally and factually sufficient to support appellant's conviction. See Young, 14 S.W.3d at 753; Johnson, 23 S.W.3d at 11. Accordingly, we overrule appellant's two points of error. We affirm the trial court's judgment. LINDA THOMAS, Chief Justice.