NOS. 12-16-00087-CR

 12-16-00088-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANTHONY MATHEW LUJAN, 

APPELLANT

V.

THE STATE OF TEXAS,

APPELLEE

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§

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APPEALS FROM THE 244TH 

JUDICIAL DISTRICT COURT

ECTOR COUNTY, TEXAS

MEMORANDUM OPINION

Anthony Mathew Lujan appeals from his convictions for forgery by passing. In one 

issue, he challenges the legal sufficiency of the evidence to support his convictions. We affirm.

BACKGROUND

The State charged Appellant with passing two forged checks. Appellant pleaded “not 

guilty” to both offenses. At trial, Kevin Myers testified that his truck, which contained his 

checkbook, was stolen shortly before August 15, 2014. Detective Wilma Rodriguez with the 

Odessa Police Department testified that when Myers’s vehicle was recovered, some checks were 

missing. She testified that a man named Stephen Winje attempted to cash one of the checks, and 

claimed he received the check from his friend, Edward Palomino, and Palomino’s Uncle “Steel.”

Myers testified that another individual was found in possession of a firearm stolen from his truck 

and tried to pass one of the missing checks. Detective Rodriguez testified that she could not 

develop any leads from this information. At some point, Myers brought her copies of checks that 

had either been passed or attempted to be passed, including two that named Appellant as the 

payee. 
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Gustavo Hernandez, a teller at Wells Fargo Bank at the time of the offense, testified that 

Appellant attempted to cash a check for $2,500 on August 14, 2014. Appellant did not have an 

account with the bank. Hernandez noticed that the signature on the check did not match the 

signature that the bank had on file. Because there was an alert on Myers’s account, Hernandez 

asked Appellant to wait while he verified the signature on the check. Appellant was initially 

calm. But when Hernandez told Appellant that the system was taking a while to verify the 

check, Appellant reached over the counter, took the check and his identification, and left the 

bank without cashing the check. According to Detective Rodriguez, however, the check was 

cashed at Wells Fargo on August 18.

Kelton Smith testified that he owns N-N Out, a convenience and check cashing store. 

Holly Wimberly, a check cashier for N-N Out, testified that Appellant entered the store on 

August 15, 2014, to cash a $2,500 check and provided his identification, social security number,

and fingerprints. She described Appellant as “pretty calm.” Smith testified that he verified the 

check. Wimberly then cashed the check and gave Appellant the cash. When the check was 

returned for insufficient funds, Smith contacted Myers and learned that the check had been 

stolen. Pat Harris, a crime scene technician for the Odessa Police Department, testified that 

Appellant’s fingerprints matched those provided to N-N Out when he cashed one of the checks.

Appellant testified that he is not guilty of forgery by passing. He explained that he 

posted a sign inquiring about work, and a man he thought to be Myers contacted him. On 

August 14, he and Sammy Martinez met with the man outside a convenience store. The man 

gave them a business card and instructed them to pick up trash at three locations and take the 

trash to the dump. It took several trips, totaling approximately eight hundred miles and ten to 

eleven hours, and around $120 in dump fees to complete the job. This was the only job that 

Appellant obtained as a result of posting the sign looking for work.

On August 15, he and Martinez met the man to receive their paychecks. Appellant cashed 

his check at N-N Out on August 15. On August 16, the man contacted Appellant to ask if he 

would accept a second check in his name because Martinez did not have valid identification and 

could not cash his check. On August 17, Appellant met the man to get the second check. He 

cashed the check at Wells Fargo on August 18 and gave the cash to Martinez. 

Appellant testified that he did not know until trial that the man who gave him the checks 

was not actually Myers. He also testified that he did not know that everything was a “sham.” He 
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did not try to contact the fake “Myers” once he discovered that the checks had been forged. Nor 

did he try to contact Martinez, who he heard had moved out of the area. Appellant testified that 

he does not know or have any connections to the other individuals who were found in possession 

of Myers’s stolen checks.

Myers testified that he did not authorize, sign, or fill out the two checks. He further 

testified that he has never had any personal or business dealings with Appellant and has never 

written a check to Appellant. The jury found Appellant guilty of forgery by passing and assessed 

punishment of confinement for two years in a state jail facility. 

 

SUFFICIENCY OF THE EVIDENCE

In his sole issue, Appellant contends that the evidence is legally insufficient to support 

his conviction because the evidence failed to establish that he (1) wrote on, altered, or marked on 

the checks; and (2) knew the checks were forged, altered, or not authorized by Myers. Appellant 

argues that he did nothing more than cash the checks. 

Standard of Review and Applicable Law

When reviewing the sufficiency of the evidence, we determine whether, considering all 

the evidence in the light most favorable to the verdict, the jury was rationally justified in finding 

guilt beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). 

The jury is the sole judge of the witnesses’ credibility and the weight to be given their testimony. 

Id. We give deference to the jury’s responsibility to fairly resolve evidentiary conflicts, weigh 

the evidence, and draw reasonable inferences from basic facts to ultimate facts. Hooper v. State, 

214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as probative as direct 

evidence in establishing the accused’s guilt. Id. 

A person commits an offense if he forges a writing with intent to defraud or harm 

another. TEX. PENAL CODE ANN. § 32.21(b) (West 2011). “Forge” means to alter, make, 

complete, execute, or authenticate a writing that purports to be the act of another who did not 

authorize the act. Id. § 32.21(a)(1)(A)(i). Forgery by passing occurs when, with intent to 

defraud or harm another, a person issues, transfers, registers the transfer of, passes, publishes, or 

otherwise utters a forged writing. Id. § 32.21(a)(1)(B). Intent may be established by 

circumstantial evidence. Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985). The 

culpable mental state requires proof of knowledge that the instrument is forged. Id. 
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Analysis

That Appellant did not alter or otherwise mark on the checks is irrelevant. Appellant 

need not be the actual maker of the checks in order to be guilty of forgery by passing. See

McFarland v. State, 605 S.W.2d 904, 907 (Tex. Crim. App. 1980). The jury heard evidence 

that Myers’s checks were stolen, two of the stolen checks were made out to Appellant for a large 

amount of money, and Appellant passed the two checks within days of the checks being stolen.

The record shows that there is no connection between Appellant and Myers, and Myers did not 

authorize or sign the checks. Evidence that the checks were signed and cashed without Myers’s 

authority is prima facie evidence that the checks were forged. See Anderson v. State, 621 

S.W.2d 805, 808 (Tex. Crim. App. 1981); see also Huntley v. State, 4 S.W.3d 813, 814 (Tex. 

App.—Houston [1st Dist.] 1999, pet. ref’d); Choice v. State, 883 S.W.2d 325, 329 (Tex. App.—

Tyler 1994, no pet.). 

The jury also heard evidence that when Wells Fargo attempted to verify one of the 

checks, Appellant took the check and left the bank without cashing it. The jury could infer from 

this behavior that Appellant was concerned by the delay in verification of the check because he 

knew the checked was forged. Appellant’s use of different locations to cash the checks also 

gives rise to an inference that he chose to do so in an effort to avoid arousing suspicion. The jury 

was entitled to infer Appellant’s intent or knowledge from his acts, words, and conduct, 

including any behavior designed to avoid detection. See Hart v. State, 89 S.W.3d 61, 64 (Tex. 

Crim. App. 2002); see also Garcia v. State, 630 S.W.2d 303, 305 (Tex. App.—Houston [1st 

Dist.] 1981, no pet.). 

As sole judge of the weight and credibility of the evidence, the jury bore the burden of 

resolving any conflicts in the evidence and deciding which testimony to believe. See Brooks, 

323 S.W.3d at 899; see also Hooper, 214 S.W.3d at 13. In doing so, the jury was entitled to 

reject Appellant’s explanation as to how he came into possession of the checks. See Brooks, 323 

S.W.3d at 899; see also Hooper, 214 S.W.3d at 13. As evidenced by its verdict, the jury did not 

believe Appellant’s testimony and, rather, believed that he knew the checks were forged. 

Viewing the evidence in the light most favorable to the verdict, the jury was rationally justified 
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in finding Appellant guilty of forgery by passing beyond a reasonable doubt. See Brooks, 323 

S.W.3d at 899. We overrule Appellant’s sole issue.

DISPOSITION

Having overruled Appellant’s sole issue, we affirm the trial court’s judgments. 

JAMES T. WORTHEN

Chief Justice

Opinion delivered August 31, 2016.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(DO NOT PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 31, 2016

NO. 12-16-00087-CR

ANTHONY MATHEW LUJAN,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 244th District Court 

of Ector County, Texas (Tr.Ct.No. C-44,919)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 24, 2016

NO. 12-16-00088-CR

ANTHONY MATHEW LUJAN,

Appellant

V.

THE STATE OF TEXAS,

Appellee

Appeal from the 244th District Court 

of Ector County, Texas (Tr.Ct.No. C-44,920)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, it is the opinion of this court that there was no error in the 

judgment.

It is therefore ORDERED, ADJUDGED and DECREED that the judgment 

of the court below be in all things affirmed, and that this decision be certified to the court 

below for observance.

James T. Worthen, Chief Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.