Opinion issued January 29, 2004
In The
Court of Appeals
For The
First District of Texas
NO. 01-02-01353-CR
NO. 01-04-00050-CR
NO. 01-04-00051-CR
LARRY DEWAYNE BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 21st District Court
Washington County, Texas
Trial Court Cause No. 13,619, Ct. I
Trial Court Cause No. 13,619, Ct. II
Trial Court Cause No. 13, 619, Ct. III
MEMORANDUM OPINION
Appellant, Larry Dewyane Brown, was charged by indictment with three counts of the felony offense of forgery by possession with intent to pass. Appellant pleaded not guilty to a jury, which convicted him of the three counts, and the court assessed punishment at 12 months’ confinement in state jail, to run concurrently. In four issues, appellant contends that the evidence was factually insufficient to sustain a conviction in each of the three counts of the indictment, and legally insufficient to sustain a conviction in count three of the indictment. We affirm.
Background
John Hsu, the owner of Cowboy’s Corner Saloon in Brenham, Texas, employed appellant as the manager of the saloon from late January to late March 2002. It was Hsu’s practice to leave corporate checks, signed with his signature and payee information, at either the saloon’s cash register or in the office of the adjacent motel for employees to tender to the payee designated on the check for payment of goods and services at the saloon.
Around late March 2002, Hsu discovered that appellant had, without his permission, altered three corporate checks by changing the payee information and making two of the checks payable to appellant and one check payable to Rent-A-Center. Hsu fired appellant and reported the offenses to the Brenham Police Department.Legal Sufficiency
Appellant’s third issue, which pertains only to count three of the indictment, alleges that the evidence was legally insufficient to sustain a conviction for forgery. Count three concerned check number 2846, in the amount of $390, which was made payable to Rent-A-Center, dated April 1, 2002, and contained a scratched-out memo notation of “beer.”
In assessing legal sufficiency, we determine whether, based on all of the record evidence, viewed in the light most favorable to the verdict, a rational jury could have found the accused guilty of all of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003). In conducting our review of the legal sufficiency of the evidence, we do not reevaluate the weight and credibility of the evidence, but ensure only that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993).
To establish the elements of forgery by possession with intent to pass, the State must prove that appellant, (1) with intent to defraud or harm another, (2) possessed with intent to pass, (3) a forged writing, (4) knowing such writing to be forged, (5) and such writing had been altered so that it purported to be the act of another, who did not authorize the act. See Tex. Pen. Code Ann. § 32.21 (a), (b) (Vernon 2003).
Appellant contends that a rational jury could not have found beyond a reasonable doubt that he intended to harm or defraud Hsu because appellant altered check number 2846 after he and Hsu disagreed about appellant’s compensation as manager of the saloon. Appellant asserts that because Hsu authorized him to alter the check by making it payable to Rent-A- Center as part of his salary at the bar, the evidence is legally insufficient to establish that appellant had any intent to defraud or harm Hsu. Appellant’s legal sufficiency complaint pertains only to the element concerning whether he possessed the culpable mental state of “intent to defraud or harm,” and we limit our appellate review to that issue.
In a forgery case, the culpable mental state of “intent to defraud or harm” can be inferred if the State proves that the defendant knew that the writing in question was forged. Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). Under the Penal Code, “forge” means to alter, make, complete, execute, or authenticate any writing so that it purports to be the act of another who did not authorize the act. Tex. Pen. Code Ann. § 32.21(a)(1)(A)(i) (Vernon 2003). Because it is undisputed that check 2846 was altered, for the jury to infer intent to defraud or harm, the State had to prove that Hsu did not authorize the alteration. See Huntley, 42 S.W.3d at 814.
Hsu testified that appellant was to be paid on a “profit sharing” plan, by which he received a percentage of the saloon’s monthly profits as his compensation. If the saloon did not return a profit for a particular month, appellant would not be paid. Hsu repeatedly denied that appellant would receive a base salary of $2000 per month plus profit sharing, but acknowledged that he paid appellant one or two $500 bonuses to encourage him to do a good job. Hsu specifically denied that he gave appellant, or anyone else, permission to alter check 2846.
Appellant did not testify, nor did any other witness testify concerning the salary agreement between Hsu and the appellant or the reasons for altering check number 2846 to make it payable to Rent-A-Center. The only evidence before the jury concerning appellant’s compensation agreement and the reasons for the alteration of check 2846 came from Hsu. We conclude that a rational jury could have found beyond a reasonable doubt that Hsu did not authorize appellant to alter check 2846 for his own benefit. Therefore, the jury was entitled to infer that appellant possessed the culpable mental state of “intent to defraud or harm.” See Huntley, 42 S.W.3d at 814. Accordingly, after viewing the entire record in the light most favorable to the prosecution, we hold that the evidence was legally sufficient to support count three of the indictment. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Swearingen, 101 S.W.3d at 95.
We overrule appellant’s third issue.
Factual Sufficiency
In issues one, two, and four, appellant contends that the evidence was factually insufficient to sustain his convictions for forgery, as alleged in counts one, two, and three of the indictment, respectively.
Standard of Proof
In reviewing factual sufficiency of the evidence, we consider all the evidence in a neutral light. Swearingen, 101 S.W.3d at 97. We must reverse a conviction if the proof of guilt is so weak as to undermine the confidence of the jury’s determination, or if the proof of guilt, although adequate if taken alone, is greatly outweighed by the proof of innocence. Id. Although we may disagree with the jury’s verdict, we must defer to the jury’s determination of the weight and credibility of the evidence and will reverse the jury’s verdict only to avoid manifest injustice. Id.
Of the elements of forgery by possession with intent to pass, as set forth above, appellant’s factual sufficiency complaints pertain only to the element concerning whether he acted with intent to defraud or harm another. See Tex. Pen. Code Ann. § 32.21(b). Accordingly, we limit our factual sufficiency review to that issue.
The Evidence
Count I – Check 2778
Count one of the indictment concerned check number 2778, in the amount of $200, which was made payable to appellant, dated March 23, 2002, and contained the memo notation “Karaoke (for 2/9/02).” According to appellant, the great weight and preponderance of the evidence establishes that appellant was authorized to alter check 2778 to reimburse him for saloon expenses that he paid out of his own pocket.
Hsu testified that he made check 2778 with “Kim West” as the payee to compensate her for karaoke services at the saloon, and claimed that he did not authorize alteration of the check’s payee to make the check payable to appellant. Hsu admitted that he had occasionally instructed employees to alter checks that he had previously written and signed, but also stated that the employees were supposed to receive permission from him prior to the change. He also conceded, however, that he occasionally ratified a check previously altered by an employee.
Appellant presented evidence that conflicted with Hsu’s version of events. West, who was also known as Clara Rosenkrantz, testified that, because no check to pay her was available, there were times when appellant paid her in cash that she assumed came from the cash register. Katarina Martin, appellant’s girlfriend who worked at the saloon as a waitress and bookkeeper, testified that she was present when Hsu instructed appellant to alter check 2778 as reimbursement for paying West out of his own pocket. Martin stated that it was not uncommon for Hsu to fail to provide enough checks to pay all of the expenses for a particular day and that he often instructed employees to alter checks that he had already signed. Martin further testified that, on occasion, employees would have to pay expenses out of their own pocket because they were not able to take money out of the cash register without Hsu’s authorization. Martin stated that she paid several construction workers out of her own pocket, and, although Hsu reimbursed her, Hsu stopped payment on the reimbursement check. Christopher Nieto, a disc jockey who performed at the saloon, testified that Hsu personally attempted to pay him with a check that had portions “whited out.” Nieto claimed that when he refused to accept the check, Hsu instructed appellant to pay him with cash, and to make the altered check payable to appellant for reimbursement. This practice of altering checks was corroborated by L.B. Brooks, a five-year veteran employee of Hsu. Brooks worked in the office of the adjacent Hilltop Motor Inn and testified that he had been instructed by Hsu to alter checks by “whiting out” the payee information and changing the payee’s name on the check. Brooks claimed that Hsu would sometimes say one thing and do another.
Count II - Check 2866
Count two of the indictment concerned check number 2866, in the amount of $500, which was made payable to Larry Brown, dated March 25, 2002, and contained the memo notation “juice/bounus” [sic]. Appellant contends that the great weight and preponderance of the evidence establishes that appellant was authorized to alter check 2866 to make it payable to appellant so that appellant could cash the check and tender the money into one of the saloon’s cash registers.
Hsu testified that he made check 2866 with the payee as “H-E-B” for “juice” but claimed that he did not authorize either altering the check’s payee to make the check payable to appellant or changing the memo notation to “juice/bounus” [sic]. According to Martin, however, Hsu authorized appellant to alter the check so that appellant could obtain cash and coins for the saloon to operate a second cash register. Neil Kulhanek, the Assistant Vice President of Brenham National Bank, testified that when appellant cashed the check at the bank, a change-order form was processed as a part of the same transaction, which indicated that appellant received cash money and coins for the check. Hsu admitted installing a second cash register at the saloon, but claimed that he supplied the cash out of his own pocket to run the register.
Count III - Check 2846
Count three concerned check number 2846, in the amount of $390, which was made payable to Rent-A-Center, dated April 1, 2002, and contained a scratched-out memo notation of “beer.” According to appellant, the great weight and preponderance of the evidence establishes that appellant was authorized to alter check 2846.
Hsu testified that he made check 2846 with the payee as “Wright Distributing” for “beer.” He claimed that he did not authorize either altering the check’s payee to make the check payable to appellant or to Rent-A-Center or changing the memo notation by scratching out the word “beer.”
Appellant bases this factual sufficiency challenge on testimony indicating that Hsu had authorized appellant to alter other checks in the past and that he openly remitted the check to a Rent-A-Center employee at the saloon.
Analysis
The only direct evidence that conflicted with Hsu’s came from Martin, appellant’s girlfriend, concerning the two checks made payable to appellant. According to Martin, Hsu allowed appellant to alter check 2778, as reimbursement for paying West out of his own pocket, and to alter check 2866 to make it payable to appellant so that appellant could cash the check and tender the money into one of the saloon’s cash registers. By convicting appellant of the three forgeries, the jury necessarily found Hsu’s testimony, that appellant had no authorization to alter the checks’s payees, more credible than Martin’s. To find this evidence factually insufficient, we would have to determine that Hsu was incredible, but thatMartin was credible. We cannot make these credibility assessments from a cold record. After giving proper deference to the jury’s determination of the weight and credibility of the evidence, we cannot conclude that a manifest injustice has occurred. See Swearingen, 101 S.W.3d at 97.
Testimony from the other witnesses merely concerned Hsu’s practice of allowing checks to be altered and appellant’s practice of sometimes paying for goods or services with cash. This testimony, however, was not specific to the three checks in the indictment, and thus fails to render incredible Hsu’s testimony concerning the three checks in the indictment. We properly leave to the jury all decisions to determine the weight and credibility of the evidence concerning Hsu’s general practices of altering checks and allowing appellant to pay for services with cash in determining appellant’s intent. See id.
Based on a neutral review of all of the evidence, we conclude that the proof of appellant’s guilt is not so weak as to undermine confidence in the jury’s determination and make the verdict manifestly unjust. See id. We conclude that the proof of guilt is not so outweighed by proof of innocence as to undermine confidence in the jury’s determination. See id.
We overrule appellant’s first, second, and fourth points of error.
Conclusion
We affirm the judgment of the trial court.
Elsa Alcala
Justice
Panel consists of Justices Nuchia, Alcala, and Hanks.
Do not publish. Tex. R. App. P. 47.2(b).