No. PD-0070-15

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DONALD LYNN RAMSEY, Appellant

a/k/a DONALD LYNN RAMSAY

v.

THE STATE OF TEXAS, Appellee

Appeal from Swisher County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

LISA C. McMINN

State Prosecuting Attorney

Bar I.D. No. 13803300

STACEY M. GOLDSTEIN

Assistant State Prosecuting Attorney

Bar I.D. No. 24031632

P.O. Box 13046

Austin, Texas 78711

information@spa.texas.gov

512-463-1660 (Telephone)

512-463-5724 (Fax)

PD-0070-15

COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS

Transmitted 1/29/2015 9:18:34 AM

Accepted 1/29/2015 3:24:42 PM

ABEL ACOSTA

CLERK
TABLE OF CONTENTS

IDENTITY OF JUDGE, PARTIES, AND COUNSEL.. . . . . . . . . . . . . . . . . . . . . . ii

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Does an appellate court give proper deference to a jury’s forgery finding of intent

to defraud or harm when it fails to consider the totality of the evidence and

rational inferences therefrom? 

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5-9

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

APPENDIX (Opinion of the Court of Appeals)

i
IDENTITY OF JUDGE, PARTIES, AND COUNSEL

* The parties to the trial court’s judgment are the State of Texas and Appellant,

Donald Lynn Ramsey a/k/a Donald Lynn Ramsay.

* The trial Judge was Hon. Edward Lee Self.

* Counsel for the State at trial and before the Court of Appeals was Swisher

County Attorney J. Michael Criswell, 119 South Maxwell, Tulia, Texas 79088.

* Counsel for the State before the Court of Criminal Appeals is Stacey M.

Goldstein, Assistant State Prosecuting Attorney, P.O. Box 13046, Austin, Texas

78711.

* Counsel for Appellant at trial was Tina Davis-Rincones, 109 East 6th Street,

Plainview, Texas 79072.

* Counsel for Appellant before theCourt of Appeals was TroyBollinger, 600 Ash

Street, Plainview, Texas 79072.

ii
INDEX OF AUTHORITIES

Cases

Jackson v. Virginia, 443 U.S. 307 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

Okonkwo v. State, 398 S.W.3d 689 (Tex. Crim. App. 2012).. . . . . . . . . . . . . . . . . . 5

Ramsey v. State, No. 07-14-00249-CR, 2014 Tex. App. LEXIS 13519 (Tex.

App.—Amarillo Dec. 17, 2014) (not designated for publication). . . . . . . . . . 2, 4,7

Stuebgen v. State, 547 S.W.2d 29 (Tex. Crim. App. 1977). . . . . . . . . . . . . . . . . . . . 7

Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012). . . . . . . . . . . . . . . . . . . 8 n.2

Statute

TEX. PENAL CODE § 32.21(b).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

iii
No. PD-0070-15

TO THE COURT OF CRIMINAL APPEALS

OF THE STATE OF TEXAS

DONALD LYNN RAMSEY Appellant

a/k/a DONALD LYNN RAMSAY,

v.

THE STATE OF TEXAS, Appellee

Appeal from Swisher County

* * * * *

STATE’S PETITION FOR DISCRETIONARY REVIEW

* * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

The State Prosecuting Attorney respectfully urges this Court to grant review.

STATEMENT REGARDING ORAL ARGUMENT

The State does not request oral argument.

1
STATEMENT OF THE CASE

A jury convicted Appellant of forgery of a check by passing, enhanced because

it was committed against an elderly person, and sentenced him to six years’

imprisonment and assessed a $1,000 fine. 

STATEMENT OF PROCEDURAL HISTORY

Over a dissent, the court of appeals reversed the trial court’s judgment and

entered a judgment of acquittal. Ramsey v. State, No. 07-14-00249-CR, 2014 Tex.

App. LEXIS 13519 (Tex. App.—Amarillo Dec. 17, 2014) (not designated for

publication). The State did not seek rehearing. 

STATEMENT OF FACTS

Background

Eighty-four-year-old Jimmie Owens and his son Jed owned Owens Motor

Machine. 1 RR 131. Appellant worked for the Owens’ for four to five months and

lived at the business’s shop. 1 RR 103, 133. Jed typically parked his work-truck

inside the shop in the evenings and left it unlocked. 1 RR 134-35. Jed kept the

business’s checkbook in an inside pocket on one of the truck’s doors. 1 RR 127, 134.

Both Jimmie and Jed were signatories on the account. 1 RR 120, 131, 133-34. 

Jimmie was listed as “J.E. Owens,” and Jed was listed as “J.J. Owens.” 1 RR 121,

123, 132, 136. Jimmie usually signed checks as “J.E. Owens,” but sometimes signed

2
as “Jimmie E. Owens.” 1 RR 123-24, 136. Jimmie always paid Appellant by check

1

and included the notation “contract labor” on the memo line. 1 RR 125, 127. The

Owens had previously given a nearby liquor store permission to cash Appellant’s

paychecks. 1 RR 150.

In June 2013, Appellant tendered a $65 check payable to him from the Owens

Motor Machine account at the liquor store. Some of the money was used for goods,

and the remainder was given to Appellant as change. 1 RR 151-52. The signature on

the check read “Jim E. Owens,” and “Contract Labor” was written in the memo line. 

1 RR 135; State’s Exhibit 2. 

Neither Jimmie nor Jed had signed or issued the check to Appellant. 1 RR 124,

136. Jed testified that Appellant was their only employee in June 2013, as well as the

preceding six months. 1 RR 136. He also believed that, with the exception of his

father, Appellant was the only other person to have access to his truck. 1 RR 136-38. 

Jed acknowledged that other people sometimes stopped by the shop but stated that

they typically just called him. 1 RR 139-40.

 Jimmie also explained that he signed checks with “Jimmie Owens” a long time

1

ago. 1 RR 129. 

3
Court of Appeals 

A majority of the court of appeals held that the State failed to prove that

Appellant intended to defraud or harm because there was no evidence that Appellant

knew the check was forged. Ramsey, 2014 Tex. App. LEXIS 13519, at *6. It

required evidence of the number of checks previously written and the name appearing

on the signature line before a jury could “logically” infer that Appellant knew whether

the signature was fake or genuine. Id. at *7. The majority also concluded that

Appellant’s knowledge of the forgery cannot be inferred from the fact that it was not

signed “J.E. Owens.” Id. at *6. Jimmie testified that he signed checks using “Jimmie

Owens” and “Jimmie E. Owens.” Id. 

The dissent maintained that the evidence circumstantially established Appellant

knew the check was forged. Id. at *12-13 (Prible, J., dissenting). When Appellant

passed the check noting “Contract Labor” he inferentially represented it was given for

servicesrendered, but the evidence showed that it was not given for servicesrendered. 

Id. at *12. Further, Appellant had access to the checkbook and passed it at a place he

knew it would be honored. Id. 

GROUND FOR REVIEW

Does an appellate court give proper deference to a jury’s forgery finding of intent

to defraud or harm when it fails to consider the totality of the evidence and

rational inferences therefrom? 

4
ARGUMENT

The court of appeals’ consideration of the facts, and reasonable inferences

drawn therefrom, was severely deficient. As a result, it failed to give proper deference

to the jury’s determination that Appellant knew the check was forged. 

When reviewing the sufficiency of the evidence, all of the evidence is

considered in the light most favorable to the verdict to determine whether, based on

that evidence and the reasonable inferences therefrom, the factfinder was justified in

finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19

(1979). The factfinder is the sole judge of credibility and weight given to the evidence

and is permitted to draw multiple reasonable inferencesfrom facts when supported by

the evidence Id. at 319. When there are conflicting inferences, it must be presumed

that the factfinder resolved them in favor of the verdict. Id. at 326.

The offense of forgery includes the elements of intent to defraud or harm

another. TEX. PENAL CODE § 32.21(b). Proof of those elements is established by

showing that the actor knew the writing was forged. Okonkwo v. State, 398 S.W.3d

689, 695 (Tex. Crim. App. 2012). 

Giving proper deference to the jury’s guilty verdict, the State satisfied its burden

to prove that Appellant knew the check was forged because the evidence firmly

established that Appellant forged the check. 

5
First, Appellant was the beneficiary. The check was made out to Appellant

directly, and there is no evidence that anyone else would be motivated to make him

the beneficiary. 

Second, Appellant had unlimited access to the checkbook because he lived in

the shop where it was kept in an unlocked truck. Additionally, the evidence does not

support an alternative perpetrator theory. While other employees had been in Jed’s

truck before, Appellant was the Owens’ only employee in the four to six months

before the check was passed. 1 RR 139-40. Jed also testified that most people called

him instead of stopping by the shop. 1 RR 139-40. And because he stored the truck

in the shop overnight, the likelihood that persons who entered the shop during

business hours had access to the truck is slight. 1 RR 134-35.

The forged check was close enough to show familiarity but imprecise enough

to show it was forged. Having had received checks from Jimmie in the past,

Appellant knew the specific manner in which he issued his paychecks. Thus, it

included the particular memo-line notation “Contract Labor.” But the use of “Jim E.

Owens” for the signature, a style that was never used by Jimmie when issuing checks,

confirms it was not genuine. 

Appellant’s choice of venue for cashing the check is also consistent with his

forgery scheme. As the court of appeals’ dissent observed, he cashed it at the liquor

6
store because he knew he would not be scrutinized and that it would be honored. 

Finally, even if the evidence did not show that Appellant was the forger, the

evidence would nonetheless show he knew it was forged. As the dissent observed,

Appellant did not actually do any work for the Owens’ to warrant payment, so the

“windfall” payment for his labor is inexplicable, as is his acceptance of payment for

labor not performed. 

Unlike the Court’s 1977 Stuebgen Decision

The majority also erred to conclude that this case is controlled by Stuebgen v.

State, 547 S.W.2d 29 (Tex. Crim. App. 1977). Ramsey, 2014 Tex. App. LEXIS

13519, at *4-6. In that case, the appellant was convicted of forgery for passing a

check belonging to his employer made payable to him with his employer’s forged

signature. Stuebgen, 547 S.W.2d at 31. This Court noted that the employer testified

that appellant had been his employee, he normally paid employees by check, he kept

the checkbook in his truck, and that three to five of his employees, including the

appellant, rode in the truck at the time the check was forged. Id. Finding the evidence

insufficient to show that the appellant knew the check was forged, the Court stated:

In the instant case, the record reflects that appellant made no statement

from which it could be inferred that he knew the instrument was forged.

Appellant was listed as the payee, and appellant did not falsely represent

himself. No evidence was introduced to show that anything appearing on

the check was in appellant’s handwriting. Although appellant had access

to [his employer’s] checkbook, and [his employer] normally paid his

7
employees personally, we do not find that this evidence is sufficient to

discharge the State’s burden of showing that appellant acted with intent

‘to defraud or harm’ another.

Id. at 32.

Stuebgen has no application here. First, it is a pre-Jackson v. Virginia-era case. 

Therefore, Jackson’s ground rules about deferring to the jury’s resolution of the facts

was not yet established, and the Court did not apply such a standard on its own. In

fact, the Stuebgen Court appeared to apply the now-defunct, reasonable alternative

hypothesis standard. Under Jackson—as applied today—it is likely that this Court 2

would reach the opposite conclusion. 

Next, even if Stuebgen is regarded as good law, the quantum of evidence in this

case differs significantly from that in Stuebgen. Here, Appellant’s access to the

checkbook was nearly exclusive, as opposed to Stuebgen’s three to five employees. 

Thus, there is no reasonable, alternative culprit here. Additionally, the evidence

3

strongly supports Appellant’s identity as the forger. Here, there is a nexus between

Appellant and the check because of the obvious attempt to duplicate the unique

manner in which Jimmie issued Appellant’s paychecks.

See Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012) (recognizing that

2

the alternative reasonable hypothesisstandard is no longer applicable when reviewing

legal sufficiency). 

And again, the reasonable, alternative culprit theory relied upon in Stuebgen

3

would be an improper application of the sufficiency standard today. 

8
Conclusion

The fact and circumstances surrounding the passing of the check support the

finding that Appellant forged it himself and therefore intended to defraud or harm

Jimmie Owens. The court of appeals’ decision represents a marked departure from

Jackson’s sufficiency analytical construct, 443 U.S. at 318-19, 326, because it failed

to acknowledge the significance of all the facts and logical inferencesthat support the

jury’s verdict. This Court should grant review and reinstate Appellant’s conviction. 

9
PRAYER FOR RELIEF

WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant review and reverse the decision of the court of appeals. 

 Respectfully submitted,

 LISA C. McMINN

 State Prosecuting Attorney

 Bar I.D. No.13803300

 /s/ STACEY M. GOLDSTEIN

 Assistant State Prosecuting Attorney

 Bar I.D. No. 24031632

 P.O. Box 13046

 Austin, Texas 78711

 information@spa.texas.gov

 512-463-1660 (Telephone)

 512-463-5724 (Fax)

10
CERTIFICATE OF COMPLIANCE

The undersigned certifies that according to theWordPerfect word count tool this

document contains 1,594 words, exclusive of the items excepted by TEX. R. APP. P.

9.4(i)(1).

 

 /s/ STACEY M. GOLDSTEIN

 Assistant State Prosecuting Attorney

11
CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the State’s Petition for Discretionary

Review has been served on January 29, 2015, via certified electronic service provider

to:

Hon. J. Michael Criswell

Swisher County Attorney

119 South Maxwell

Tulia, Texas 79088

swisherca@swisher-tx.org

Hon. Troy Bollinger 

600 Ash Street

Plainview, Texas 79072

troy@laneybollinger.com

 /s/ STACEY M. GOLDSTEIN

 Assistant State Prosecuting Attorney

12
APPENDIX
DONALD LYNN RAMSEY AKA DONALD LYNN RAMSAY, APPELLANT v.

THE STATE OF TEXAS, APPELLEE

No. 07-14-00249-CR

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

2014 Tex. App. LEXIS 13519

December 17, 2014, Decided

NOTICE: PLEASE CONSULT THE TEXAS RULES

OF APPELLATE PROCEDURE FOR CITATION OF

UNPUBLISHED OPINIONS.

PRIOR HISTORY: [*1] On Appeal from the 242nd

District Court, Swisher County, Texas. Trial Court No. B4502-13-07, Honorable Edward Lee Self, Presiding.

JUDGES: Before QUINN, C.J., and CAMPBELL and

PIRTLE, JJ. Patrick A. Pirtle, Justice.

OPINION BY: Brian Quinn

OPINION

MEMORANDUM OPINION

Appellant Donald Lynn Ramsey, aka Donald Lynn

Ramsay, appeals his conviction of forgery committed

against an elderly person by contending the evidence is

insufficient to sustain the conviction. We reverse the

judgment.

The standard of review is discussed in Brooks v.

State, 323 S.W.3d 893 (Tex. Crim. App. 2010). We refer

the parties to that opinion in lieu of reiterating its content.

Next, the State alleged, via indictment, that appellant

"with the intent to defraud or harm another, namely

JIMMIE E. OWENS, an elderly individual 65 years of

age or older, pass[ed] to Janna Parson, a forged writing,

knowing such writing to be forged, and such writing had

been so executed so it purported to be the act of JIMMIE

E. OWENS . . . ." The statute upon which the allegation

was founded made it an offense for a person to forge a

writing with the intent to defraud or harm another. See

TEX. PENAL CODE ANN. § 32.21 (b) (West 2011). Because 1

an element of the crime charged required proof that the

accused acted with the intent to defraud or harm [*2]

another, the "State necessarily had to prove that . . . [the

accused] knew that the . . . [item was] forged . . . ."

Okonkwo v. State, 398 S.W.3d 689, 695 (Tex. Crim. App.

2014); accord Stuebgen v. State, 547 S.W.2d 29, 32

(Tex. Crim. App. 1977) (stating that "[w]hile the

requisite culpable mental state . . . [for the offense of

forgery of a writing] is 'intent to defraud or harm,' we

fail to perceive how such culpable mental state can be

shown absent proof of knowledge that the instrument is

forged."). And, while intent may be inferred from

circumstantial evidence such as words, acts, or conduct,

Patrick v. State, 906 S.W.2d 481, 487 (Tex. Crim. App.

1995), intent to defraud cannot be inferred from mere

evidence of possession, passage, or presentment of a

forged instrument. Johnson v. State, 425 S.W.3d 516,

520 (Tex. App.--Houston [1st Dist.] 2012, pet. ref'd).

1 The definition of "forge" includes to "alter,

make, complete, execute or authenticate any

writing so that it purports . . . to be the act of

another who did not authorize that act . . . ." TEX.

PENAL CODE ANN. § 32.21(a)(1)(A)(i) (West

2011).

According to the evidence here, the $65 check

negotiated by appellant was made payable to him and

contained the signature "Jim E. Owens." Listed on the

memorandum line was the phrase "Contract Labor." The

record contains no evidence illustrating who wrote that

information on the item. Nor does it contain evidence

indicating that the handwriting on the instrument was

similar [*3] to that of appellant.

Other evidence illustrated that 1) J. E. Owens,

eighty-five years old, signed his checks as Jimmie E.

Owens, Jimmie Owens, or J. E. Owens; 2) appellant

worked for him and his son Jed; 3) appellant had been

paid in the past with checks written with the words

"Contract Labor" on the memorandum line; 4) the two

authorized signatories on the account were J. E. Owens

who is Jimmie Owens and J. J. Owens who is Jed

Owens; 5) J. E. did not sign or authorize anyone to sign

the check in question; 6) Jed did not sign the check or

authorize another to do so; 7) appellant lived in the
Page 2

2014 Tex. App. LEXIS 13519, *

Owens' shop; 8) the checks were kept in an unlocked

truck; 9) appellant had access to the truck; and 10) others

who came to the shop had access to the truck as well.

The record further discloses that Janna Parson owned

the Booger Red Liquor store, which was located a block

and a half from the Owens Motor Machine shop. She

testified that appellant was a customer and passed that

check on June 11, 2013. Testimony also disclosed that

she had received permission from the Owens to cash

paychecks for appellant. There is no evidence about

whether she recognized the signature on the check as

genuine.

In [*4] Stuebgen v. State, the defendant cashed a

check made payable to him. The name of the account

owner appeared on the check, but the owner testified that

he did not sign the instrument. Additionally, the accused

was an employee of the account owner who also

happened to keep his checkbook in his truck. And, as

here, individuals in addition to the accused had access to

the vehicle and no evidence appeared of record indicating

that the writing on the instrument was similar to that of

the accused. Given these circumstances, our Court of

Criminal Appeals was asked to determine whether

sufficient evidence appeared of record from which a

rational jury could infer, beyond reasonable doubt, that

the accused intended to defraud or harm. In response, the

court said:

In the instant case, the record reflects

that appellant made no statement from

which it could be inferred that he knew the

instrument was forged. Appellant was

listed as the payee, and appellant did not

falsely represent himself. No evidence was

introduced to show that anything

appearing on the check was in appellant's

handwriting. Although appellant had

access to Chitwood's checkbook, and

Chitwood normally paid his employees

personally, [*5] we do not find that this

evidence is sufficient to discharge the

State's burden of showing that appellant

acted with intent "to defraud or harm

another."

Stuebgen v. State, 547 S.W.2d at 32.

We find it difficult to distinguish the material

circumstances in Stuebgen from those before us.

Consequently, we find the outcome in Stuebgen

controlling here. To the extent that access to the checks

and passing the check was not enough to establish intent

to defraud there, it was not enough here. Simply put,

there is no evidence of record from which a rational fact

finder could infer, beyond reasonable doubt, that

appellant knew the instrument was forged and, therefore,

intended to defraud or harm either Owens. See also

Crittenden v. State, 671 S.W.2d 527, 528 (Tex. Crim.

App. 1984) (finding no evidence of intent to defraud

from a record in which the defendant made no statement

from which it could be inferred that he knew the

instrument was forged, he was listed as the payee and he

did not falsely represent himself, no evidence was

introduced to show that anything on the check was in the

defendant's handwriting, there was no showing of any

connection between the check stolen from the service

station and appellant prior to the time he said he

received it in the mail, and he made no attempt to [*6]

flee after his attempt to deposit the check was thwarted).

We do not have a situation like that in Oldham v.

State, 5 S.W.3d 840 (Tex. App.--Houston [14th Dist.]

1999, pet. ref'd). There, the accused represented to the

person to whom she passed the check that she obtained

the instrument from her employer. Yet, she did not work

for the person. Id. at 843-45. The misrepresentation

allowed the fact finder to reasonably infer that the

writing was forged. So, the State's reliance on Oldham is

misplaced.

2

2 In Williams v. State, 688 S.W.2d 486 (Tex.

Crim. App. 1985), another case relied on by the

State, the defendant was asked by the cashier

where he had obtained the money order he

sought to cash, and he replied that he had done

some work for a lady and she paid him with it.

Id. at 488. The utterance was false, and from that

the jury could rationally infer his knowledge of

the forgery. Id. at 490.

Nor does the evidence that J. E. Owens signed the

checks as "J. E. Owens" constitute proof that appellant

knew the check was forged. Again, Owens testified that

he had also signed checks in other ways, such as

"Jimmie Owens" or "Jimmie E. Owens." So, it cannot be

rationally inferred that appellant knew of the forgery

because the signature line did not contain "J. E. Owens"

in this instance. Moreover, to accept the State's

argument would require us to presume that [*7]

appellant knew how Owens signed his checks, but we

found no evidence to support that. Appellant did not

testify; nor did anyone so testify. Nor does the record

contain a description of the number of checks previously

written to appellant and the particular name appearing

on the signature line. It would seem necessary for such

to appear of record before one can logically infer that the

payee somehow knew whether or not the signature on a

2
Page 3

2014 Tex. App. LEXIS 13519, *

later instrument was genuine or fake simply by looking at

the signature.

Based on this record, we find the evidence

insufficient to establish that appellant 1) knew the

instrument was forged or 2) had the requisite intent to

defraud or harm. Consequently, we reverse the judgment 3

and render a judgment of acquittal.

3 Per Bowen v. State, 374 S.W.3d 427, 431-32

(Tex. Crim. App. 2012), we perused the record to

determine if the crime for which appellant was

tried encompassed a lesser-included offense

having evidentiary support. None was found.

Brian Quinn

Chief Justice

DISSENT BY: Patrick A. Pirtle

DISSENT

DISSENTING OPINION

Applying the precedent of Stuebgen v. State and 1

Crittenden v. State, the majority reverses Appellant's

2

forgery by passing conviction by finding the evidence

insufficient to establish that Appellant knew the

instrument was [*8] a forgery or that he had the requisite

intent to defraud or harm another. Because I would

distinguish the facts of this case from those in Stuebgen

and Crittenden, and because I find there is sufficient

circumstantial evidence to sustain Appellant's conviction,

I respectfully dissent.

1 Stuebgen v. State, 547 S.W.2d 29 (Tex. Crim.

App. 1977).

2 Crittenden v. State, 671 S.W.2d 527 (Tex.

Crim. App. 1984).

Although the underlying facts of this case are

appropriately set out in the majority opinion, I will briefly

summarize those facts pertinent to my analysis of the

evidence. On June 11, 2013, Appellant went to the

Booger Red Liquor Store in Tulia, Texas, where he was a

regular customer, and cashed a check for $65. The check

was made out to Appellant and was drawn on the account

of Owens Motor Machine at Centennial Bank. The

account belonged to J.E. Owens and his son, Jed Owens.

A customer service representative of the bank testified

that the account had two authorized signators, "J.E.

Owens" and "J.J. Owens."

The check in question, check number 1313, was

made out to Donald Ramsey and was signed by "Jim E.

Owens." The memo section of the check reflected that it

was for "contract labor." J.E. Owens testified that

although he has signed checks in the past as "Jimmie E.

Owens," he did not sign check number [*9] 1313 and he

did not authorize anyone to sign it for him. He further

testified that he did not authorize delivery of the check

to Appellant and he did not write the words "contract

labor" on the instrument. Jed Owens also testified that

he did not sign the check or authorize its issuance. The

clerk from the liquor store testified that she had

previously been authorized by Jed Owens to cash

Appellant's paychecks. Additional testimony established

that Appellant had previously been employed by the

Owens and had prior access to the location where the

Owens Motor Machine checkbook was stored.

Omitting the formal parts, the indictment in the

instant case charged that Appellant:

"did then and there, with intent to

defraud or harm another, namely Jimmie

E. Owens, an elderly individual 65 years

of age or older, pass to Janna Parson, a

forged writing, knowing such writing to

be forged, and such writing had been so

executed so it purported to be the act of

Jimmie E. Owens, who did not authorize

the act . . . ."

A person commits the offense of forgery if he

forges an instrument with intent to defraud or harm

another. While it is true that the State must establish 3

every element of the offense charged, [*10] the intent to

defraud or harm another may be established by

circumstantial as well as direct evidence. Williams v.

State, 688 S.W.2d 486, 490 (Tex. Crim. App. 1985). In

Williams the Court of Criminal Appeals found the

evidence was sufficient to discharge the State's burden

of showing that the accused acted with intent to defraud

or harm another when it established he made an

affirmative statement that he received the money order

he was attempting to pass in exchange for work

performed, when other evidence established that the

instrument had been stolen.

3 The definition of "forge" includes to "alter,

make, complete, execute or authenticate any

writing so that it purports . . . to be the act of

another who did not authorize that act . . . ." TEX.

PENAL CODE ANN. § 32.21(a)(1)(A)(i) (West

2011). The definition also includes to "issue,

transfer, register the transfer of, pass, publish, or

otherwise utter a writing that is forged within the

meaning of Paragraph (A)." Id. at §

32.21(a)(1)(B).

The Stuebgen case is distinguishable. In that case

the Court found that the element of "intent to defraud or
Page 4

2014 Tex. App. LEXIS 13519, *

harm another," found in section 32.21(b), necessarily

implicated a culpable mental state that included "knowing

[the forged instrument] was forged at the time of the

passing," an element specifically required [*11] under

the former Penal Code. See Articles 996, 979 VERNON'S

ANN. PENAL CODE. Cf. TEX. PENAL CODE ANN. § 32.21(b)

(West 2011). Similar to the facts of this case, in Stuebgen

the accused passed a check made payable to himself and

purportedly signed by his employer. The Court of

Criminal Appeals held that since the accused made no

statement from which it could be inferred that he knew

the instrument was forged, the evidence was insufficient

to discharge the State's burden of showing he acted with

the intent to defraud or harm another. It should be noted,

however, that unlike the record in this case, the record in

Stuebgen does not reflect the forged instrument contained

a memo concerning the purpose for which the instrument

was given.

In Crittenden the Court of Criminal Appeals reversed

a forgery conviction because the State failed to show the

accused had knowledge that the instrument was forged. In

that case, the accused attempted to open a checking and

savings account by depositing a forged check. When the

bank teller questioned the instrument and called the

owner of the account, she was told the check had been

stolen. The police were summoned and the accused

explained he thought the check was from his attorney,

[*12] representing proceeds from a personal injury case.

Because there was no showing of any connection

between the accused and the stolen check, he made no

statements from which it could be inferred that he knew

the check was stolen, and he made no attempt to flee after

his attempt to deposit the check was thwarted, the Court

found the evidence was insufficient to show that he had

the intent to defraud or harm another.

I find that the instant case to be more appropriately

governed by the holding in Williams. Here, similar to

Williams and unlike Stuebgen and Crittenden, Appellant

attempted to pass an instrument that clearly stated that it

was given for a specific purpose, to-wit: "contract

l a b o r . "

Furthermore, the evidence established that he was a

former employee of the purported maker of the check,

had access to a checkbook from their account and passed

the instrument at a location where he knew his

"paychecks" would be honored. Reviewing the evidence

in the light most favorable to the jury's verdict, the

evidence in this case circumstantially establishes that

Appellant passed the check under circumstances

inferentially representing the check was given for

services rendered. As such, because [*13] the testimony

of J.J. Owens and Jed Owens circumstantially

e s t a b l i s h e d

that the check was not issued to Appellant for services

rendered, I believe a rational and fair-minded juror could

conclude beyond a reasonable doubt that Appellant

k n e w

the instrument was forged when he passed it.

Accordingly, I would overrule Appellant's sufficiency

issue and affirm the judgment of conviction. See

Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61

L.Ed.2d 560 (1979); Brooks v. State, 323 S.W.3d 893,

895 (Tex. Crim. App. 2010).

Patrick A. Pirtle

Justice

Do not publish.