No. 05-08-01280-CR
Opinion Filed September 23, 2009. DO NOT PUBLISH. Tex. R. App. P. 47
On Appeal from the 283rd Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-26972-MT.
Before Justices MOSELEY, FITZGERALD, and LANG-MIERS.
Opinion By Justice LANG-MIERS.
Shamondra Patterson waived a jury and pleaded not guilty to forgery. After finding appellant guilty, the trial court assessed punishment at two years' confinement in a state jail facility, probated for two years, and a $1500 fine. In two points of error, appellant contends the evidence is legally and factually insufficient to establish that she passed a forged check. We affirm.
Applicable Law
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex. Crim. App. 2005). We review all the evidence in the light most favorable to the verdict, and assume the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable inferences in a manner that supports the verdict. See Rollerson v. State, 227 S.W.3d 718, 724 (Tex. Crim. App. 2007). It is not necessary that every fact point directly and independently to an accused's guilt, but it is enough if the conclusion is warranted by the combined and cumulative force of all the incriminating circumstances. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a factual sufficiency review, an appellate court views all of the evidence in a neutral light to determine whether the fact-finder's verdict of guilt was rationally justified. See Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App.), cert. denied, 128 S.Ct. 282 (2007); see also Marshall v. State, 210 S.W.3d 618, 625 (Tex. Crim. App. 2006), cert. denied, 128 S.Ct. 87 (2007). Unless the record clearly reveals a different result is appropriate, we must defer to the fact-finder's determination concerning what weight to give to contradictory testimony. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). The State was required to prove beyond a reasonable doubt that appellant, with intent to defraud or harm another, passed a forged check to Zubair Ansari that purported to be the act of another who did not authorize the act. See Tex. Pen. Code Ann. § 32.21 (Vernon Supp. 2006). 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). Evidence Presented
Zubair Ansari, the owner of a check cashing store in Garland, testified that on Friday, May 20, 2005, appellant passed him a forged check. Fridays are typically busy because many people bring their weekly payroll checks in to be cashed. Ansari's normal procedure is to ask for identification from each customer, match the identification to the name on the check and the person presenting the check, then retain a one percent fee when cashing the check. Appellant came into the store and presented a payroll check payable to appellant from Instaff Personnel, LLC. Because Ansari had never seen appellant before, he asked her for identification. Appellant gave him a Texas driver's license with her name and picture on it. Ansari had cashed checks from Instaff on previous occasions and knew how they looked. He immediately became suspicious of the check appellant passed to him because "[i]t did not look genuine." Ansari picked up his telephone to call the company and verify the check. As soon as he picked up the receiver, appellant left the store without retrieving her driver's license or the check and without saying one word. Ansari called a detective at the Garland Police Department whom he had worked with on other fraudulent checks. When the detective came to the store, Ansari gave him the check, appellant's driver's license, and a report form Ansari had filled out. On June 27, 2005, the detective showed appellant a photographic lineup. Ansari testified he had to read and sign an instruction sheet before he looked at the lineup. Ansari identified a photograph of appellant as the person who passed the forged check. During cross-examination, Ansari testified he makes a copy of every check and identification that is presented to him, and he retains the copies in his files for about one year. Appellant testified he picked appellant's picture from the photographic lineup because he remembered her face and because he had paid more attention to appellant when she passed him the check because he was suspicious about the check. Ansari testified that although the check was passed to him in 2005 and the trial was taking place three years later, he was confident that appellant was the person who passed him the check. The trial judge asked Ansari if he was certain of his identification in the photographic lineup. The judge was concerned whether Ansari's identification of appellant was based on his memory of seeing the actual person in his store or on reviewing the driver's license photocopy he had retained. Ansari stated he always matched the person standing before him in the store with the person presenting the identification at the time she presents the check. Ansari stated he always pays more attention to those persons who come into the store for the first time. Detective Greg Wright testified he went to Ansari's store after receiving a call from him about a forged check. Wright took the check and a driver's license in appellant's name. Wright created a photographic lineup that he intended to show Ansari. Wright testified he used a different photograph of appellant in the photographic lineup than the photograph on appellant's driver's license. After Ansari read and signed the photographic lineup instruction page, Wright showed him the lineup. Ansari selected appellant's photograph as the person who passed him the forged check. Appellant denied she passed a forged check to Ansari. Appellant testified she has never been to Ansari's check cashing store because she lives in North Dallas and had not been in Garland since 1998. In 2005, appellant was working as a temporary worker with several agencies, but never worked for Instaff. Appellant had never seen the check before, and the address listed on the face of the check was not any place that she had ever lived. Appellant testified she lost her driver's license "sometime in late 2004, early 2005." She did not know where she lost it, so she obtained another Texas driver's license. Appellant testified the driver's license that was presented to Ansari was her original driver's license that she had lost in late 2004 or early 2005. Appellant did not know there was an outstanding warrant for her arrest until a prospective employer running a background check on her application told her about it. Appellant immediately turned herself in to the police. Appellant testified she thought she was out of town on the date the check was passed because she was going to move to Houston and was there checking on schools for her son and jobs for herself. Discussion
Appellant contends the evidence is legally and factually insufficient because Ansari's identification of her as the person who passed the forged check was unreliable. Appellant asserts that because Ansari's encounter with the person who passed the check was brief, and the store was busy that day, Ansari was mistaken about the identify of the person who passed the check. The State responds that the evidence is legally and factually sufficient to support appellant's conviction because the evidence proving identity was not outweighed by any contradictory evidence. At trial, it was not disputed that the check passed to Ansari was forged or that the person who passed the check intended to defraud him. The issue was whether appellant was the person who passed the forged check. There was evidence presented that Ansari saw appellant come into his store, present a forged check for cashing, and present a driver's license with her picture on it. Ansari testified he paid more attention to appellant because she had not been in the store before and he was suspicious about the check she passed to him. Ansari assured the trial judge that he selected appellant's picture from a photographic lineup because she was the person who passed the forged check to him. Appellant, however, testified she believed she was not in town on the date the forged check was passed to Ansari. While she acknowledged that the driver's license presented to Ansari was her driver's license, she testified she lost that license sometime in late 2004 or early 2005. Appellant denied passing the check to Ansari and denied ever being in Ansari's store. As the fact-finder in this case, it was the trial judge's role to reconcile any conflicts in the evidence. See Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The trial judge was free to accept or reject any and all of the evidence presented by either side. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999). Viewing all of the evidence under the proper standards, we conclude it is legally and factually sufficient to show appellant passed a forged check with the intent to defraud or harm Ansari. Thus, it is sufficient to support the conviction. See Roberts, 220 S.W.3d at 524; Vodochodsky, 158 S.W.3d at 509; Davis, 68 S.W.3d 273, 277. We overrule appellant's two points of error. We affirm the trial court's judgment.