Opinion filed July 27, 2017

In The

Eleventh Court of Appeals 

__________

No. 11-15-00199-CR

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DANNY ORTEZ DANIELS, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 35th District Court

Brown County, Texas

Trial Court Cause No. CR22923

M E M O R A N D U M O P I N I O N

The jury convicted Danny Ortez Daniels of two counts of forgery, and the 

trial court assessed his punishment at confinement for twenty-four months in the

State Jail Division of the Texas Department of Criminal Justice. In two issues on 

appeal, Appellant contends that (1) the evidence was legally insufficient to support 

his conviction and (2) there was a fatal variance between the allegations in 

Appellant’s indictment and the evidence produced at trial. We affirm.
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Background Facts

Calvin Fryar is the owner of Fryar Cattle Company. Fryar Cattle Company 

has a bank account at Citizens National Bank (CNB). Fryar is an authorized 

signatory for checks drawn on this account.

On November 22, 2013, Appellant entered CNB’s branch at Walmart in 

Brownwood. He presented what appeared to be a check drawn on the account 

belonging to Fryar Cattle Company. This purported check appeared to be signed by 

Calvin Fryar and was made out to Appellant for $925.58. Appellant presented his 

Texas identification card to the teller and endorsed the back of the check. The teller 

accepted the check and paid Appellant the amount shown on the check.

Later that same day, Appellant entered CNB’s main branch in Brownwood. 

He again presented what appeared to be a check drawn on the account belonging to 

Fryar Cattle Company. The purported check appeared to be signed by Calvin Fryar 

and was made out to Appellant for $930.98. Appellant presented his Texas 

identification card to the teller and endorsed the back of the check in her presence. 

The teller accepted the check and paid Appellant the amount shown on the check. 

When Calvin Fryar later checked the bank statements for the account, he saw 

the two checks that Appellant cashed. Calvin Fryar did not sign any checks made 

out to Appellant, and he did not authorize anyone to do so on his behalf. A 

representative with CNB confirmed that the two checks that Appellant cashed were 

forgeries.

Analysis

In two issues, Appellant alleges that there was a fatal variance between the 

State’s pleading and proof, which resulted in legally insufficient evidence to convict 

him of forgery. Specifically, he alleges that the evidence was insufficient because 

the evidence offered at trial established that he defrauded or harmed Fryar Cattle 

Company but the indictment alleged that he defrauded or harmed Calvin Fryar. 
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We review a sufficiency of the evidence issue under the standard of review 

set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 

893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.

App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all of the 

evidence in the light most favorable to the verdict and determine whether any 

rational trier of fact could have found the essential elements of the offense beyond a 

reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 

(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the 

evidence admitted at trial, including pieces of evidence that may have been 

improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.

2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to 

the factfinder’s role as the sole judge of the witnesses’ credibility and the weight 

their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts 

for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence, 

and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 

U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting 

inferences, we presume that the factfinder resolved the conflicts in favor of the 

verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235 

S.W.3d at 778.

“[W]e measure the sufficiency of the evidence ‘by the elements of the offense 

as defined by the hypothetically correct jury charge for the case.’” Byrd v. State, 

336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (quoting Malik v. State, 953 S.W.2d 

234, 240 (Tex. Crim. App. 1997)). “Such a charge is one that ‘accurately sets out 

the law, is authorized by the indictment, does not unnecessarily increase the State’s 

burden of proof or unnecessarily restrict the State’s theories of liability, and 

adequately describes the particular offense for which the defendant was tried.’” Id.

(quoting Malik, 953 S.W.2d at 240). A variance occurs when there is a discrepancy 
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between the allegations in the indictment and the proof offered at trial. Id. In some 

instances, a variance between pleading and proof can render the evidence legally 

insufficient to support a conviction. See Johnson v. State, 364 S.W.3d 292, 295–99

(Tex. Crim. App. 2012). A variance that amounts to a failure to prove the statutory 

language that defines the offense as alleged in the indictment will not be tolerated. 

Id. at 295; Byrd, 336 S.W.3d at 246–48.

A person commits a forgery by passing when he passes a writing that has been 

completed so that it purports to be the act of another who did not authorize the act. 

TEX. PENAL CODE ANN. § 32.21(a)(1)(A)(i), (B) (West 2016). The person must have 

passed the writing with the intent to defraud or harm another. Id. § 32.21(b). The 

Penal Code defines “another” as “a person other than the actor.” Id. § 1.07(a)(5) 

(West Supp. 2016). “Person” means “an individual, corporation, or association.”

Id. § 1.07(a)(38). The two counts in the indictment alleged that Appellant, “with 

intent to defraud or harm another, transfer[red] or pass[ed] to [Erica Laing/Citizens 

National Bank], a forged writing, knowing such writing to be forged, and such 

writing had been so made or completed or executed that it purported to be the act of 

Calvin Fryar.” The application paragraphs in the jury charge essentially tracked 

these allegations. The indictment also included a photocopy of the front of each 

check. The checks identified the maker of each check as “FRYAR CATTLE CO. 

c/o Calvin Fryar,” and they identified “Calvin Fryar” as the “Authorized Signature” 

of the maker. Each of the checks was made payable “TO THE ORDER OF Danny 

Daniels.”

Appellant is essentially asserting that Calvin Fryar was the victim of the 

forgeries alleged in the indictment and that the evidence offered at trial established 

that Fryar Cattle Company, a separate legal entity, was the victim. Appellant relies 

on Byrd for this proposition. We disagree with Appellant’s analysis.
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 Byrd is a theft case. 336 S.W.3d at 244. The information in Byrd alleged that 

the defendant appropriated the property of “Mike Morales,” but the evidence offered 

at trial established that “Wal-Mart” owned the property. Id. Furthermore, Morales 

was never mentioned at trial. Id. The issue was whether the variance with respect 

to the name of the owner of stolen property was material. Id. at 245. The court 

noted that Morales was not an employee of the store, did not testify at trial, was not 

referenced by either party at trial, and seemed to have had no connection whatsoever 

to any Wal-Mart store. Id. at 254. The Court of Criminal Appeals overturned the 

theft conviction, noting that “when the discrepancy between the charging instrument 

allegation and the proof at a theft trial is that of an entirely different person or entirely 

different property, that discrepancy is not merely a variance, it is a failure of proof.” 

Id. at 258. 

This case is distinguishable from Byrd. Byrd involved a situation wherein the 

person alleged to be the victim of the theft had no connection to the alleged offense 

whatsoever. Unlike “Mike Morales” in Byrd, Calvin Fryar most definitely had a 

connection to the alleged forgeries. The indictment alleged that Calvin Fryar was 

the person whose signature was forged. As aptly noted by the Dallas Court of 

Appeals, when a check is drawn on a business account, “the maker had to be 

someone who was authorized to act on behalf of the company.” Graves v. State, No. 

05-91-01332-CR, 1993 WL 52532, at *3 (Tex. App.—Dallas Mar. 1, 1993, pet. 

ref’d) (not designated for publication) (emphasis added). 

We conclude that there was no variance between the allegations in the 

indictment and the proof at trial. We first note that photocopies of the front of the 

checks were included in the indictment and that they identified Fryar Cattle 

Company as the owner of the bank account. Accordingly, there is no discrepancy 

between the allegations in the indictment and the proof at trial with respect to Fryar 

Cattle Company. Furthermore, the indictment did not allege that Calvin Fryar was 
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the victim of the forgeries. Instead, the indictment alleged that Appellant acted with 

the “intent to defraud or harm another” (emphasis added). Under the applicable 

definitions cited above, the evidence that Appellant intended to defraud or harm 

Fryar Cattle Company constituted evidence that Appellant intended to defraud or 

harm “another.” 

The State provided evidence that the signatures appeared to be Calvin Fryar’s 

but that Calvin Fryar neither signed the checks nor authorized anyone to do so. The 

State also provided evidence that Appellant passed the forged checks as alleged in 

the indictment. Viewing all of the evidence in the light most favorable to the verdict, 

we conclude that a rational trier of fact could have found the essential elements of 

the offenses beyond a reasonable doubt. We overrule Appellant’s first and second 

issues.

This Court’s Ruling

We affirm the judgment of the trial court.

JOHN M. BAILEY 

JUSTICE

July 27, 2017

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

Willson, J., and Bailey, J.