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NUMBER 13-05-004-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
___________________________________________________________________
JULIE ANNE FLOWERS, AKA
JULIE ANNE RICHARDSON, Appellant,
v.
THE STATE OF TEXAS, Appellee.
___________________________________________________________________
On appeal from the 105th District Court
of Kleberg County, Texas.
___________________________________________________ _______________
MEMORANDUM OPINION[1]
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Rodriguez
Appellant, Julie Anne Flowers, aka Julie Anne Richardson, was charged with twenty-two counts of forgery, a state jail felony. See Tex. Pen. Code Ann. ' 32.21(b), (d) (Vernon Supp. 2005). The jury returned a verdict of not guilty on counts 1, 2, and 5 through 22, and a verdict of guilty on counts 3 and 4 which charged forgery of a check in the amount of $253.08 made payable to Aaron's Rental.[2] See id. ' 32.21(a)(1)(A)(i) & (B). The trial court sentenced Flowers to one year confinement in a state jail facility, probated for a period of three years. It also assessed a $500.00 fine plus court costs and restitution in the amount of $253.08. The trial court has certified that this case "is not a plea bargain case, and the Defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2)(A). By two points of error, Flowers challenges the legal and factual sufficiency of the evidence to support the verdict. We reverse and remand for a new trial.
I. Standard of Review
In a legal sufficiency review, we consider all of the evidence in the record in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, a rational jury could have found the accused guilty of the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003). The reviewing court considers all evidence admitted at trial, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). This standard applies regardless of whether the case is founded upon direct or circumstantial evidence. Earhart v. State, 823 S.W.2d 607, 616 (Tex. Crim. App. 1991); Rosillo v. State, 953 S.W.2d 808, 814 (Tex. App.BCorpus Christi 1997, pet. ref'd). We measure the legal sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
When reviewing a challenge to the factual sufficiency of the evidence to support the jury's finding, we must determine whether, considering all the evidence in a neutral light, the jury was rationally justified in its finding beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We may find the evidence to be factually insufficient in the following ways: (1) if the evidence supporting the finding, considered alone, is too weak to support the jury's finding beyond a reasonable doubt, then we must find the evidence insufficient; or (2) if, when we weigh the evidence supporting and contravening the finding, we conclude that the contrary evidence is strong enough that the State could not have met its burden of proof, we must find the evidence insufficient. Id. at 485. We again apply a hypothetically correct jury charge analytical construct in the context of a factual-sufficiency review. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.BCorpus Christi 2002, pet. ref'd).
Under either standard, the fact finder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). We must give deference to the fact finder's decisions about the weight and credibility of evidence. See Johnson, 23 S.W.3d at 9.
II. Analysis
A. The Law
If a person forges a writing with intent to defraud or harm another, he commits an offense. Tex. Pen. Code Ann. ' 32.21(b) (Vernon Supp. 2005). Section 32.21 of the Texas Penal Code provides, in relevant part, that "forge" means "to make . . . or execute any writing so that it purports . . . to be the act of another who did not authorize that act." Id. ' 32.21(a)(1)(A)(i). "Forge" also means to pass that writing. See id. ' 32.21(a)(1)(B). Proof of intent to defraud is derivative of other elements; thus, 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. See Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.BHouston [1st Dist.] 1999, pet. ref'd) (op. on reh'g en banc). Because it is undisputed that Flowers executed the check at issue by signing Young's name to it and that she passed it to Aaron's Rental, for the jury to infer intent to defraud or harm, the State had to prove that Flowers did so without Young's authorization. See id.
B. Testimony and Evidence Admitted at Trial
At trial, Flowers, who was hired as a bookkeeper, but who also assumed other responsibilities at Young's bed and breakfast inn, admitted signing Young's name to check number 10530 dated January 12, 2004, that was made payable to Aaron's Rental for a payment on her big-screen television rental contract agreement. She also admitted passing the check to Aaron's Rental. Flowers testified, however, that she had Young's permission to sign and pass the check. Flowers testified that Young borrowed her television in order to honor a coupon being used by the clients of the bed and breakfast where she worked for Young. She explained that in mid-December/January, she and Young discussed reservations and the need for a big screen television. Flowers had a big screen television and was a payment behind on its rental. Flowers testified that "[Young] agreed to make the payment on . . . the big screen TV, and [Flowers] would make up the difference but [Young] would pay the entire amount, and that's exactly what happened . . . ." Flowers testified that they "had discussed it several times before." Additionally, Flowers's February 15, 2004, pay stub reflected a $120.36 deduction from Flowers's paycheck. This amount was approximately half of the $253.08 paid to Aaron's Rental.
Testifying at trial, Young agreed that he was aware that Flowers was going to sign a check for the rental of a big screen television and that Flowers did so at his direction to ensure that his clients would have a television available to them during their stay at the bed and breakfast. Young testified that "[Flowers], at that point was more or less running what was going on" and he "trusted [his] business to [Flowers] to watch over these type of things." Young stated that he assumed Flowers had rented a television as they had done that in the past. He admitted that Flowers may have told him that they could use hers, "but in the confusion of everything, [he didn't] really remember." He may have known that they were going to use Flowers's television, but not that they were going to rent a television set for $250. Young testified that he thought the rental was for one night, not for a whole week. Flowers said she would bring a big screen television, and Young assumed she was going to rent one for thirty or forty dollars a night. Young testified that he did not authorize Flowers to write a check for her account balance for the television.
Colby Urbanovsky, a former employee of the bed and breakfast inn, testified that he and another co-worker picked up a big screen television from Flowers's house and delivered it to the main house at the bed and breakfast. The television was there for about two weeks, even though the certificate was for one weekend. Urbanovsky also testified that he believed Young knew the television had been brought from Flowers's house because Aaron's Rental did not deliver it.
Regarding the signing of business checks, Young testified that he would give Flowers permission to sign his name on certain checks, but then he would tell her not to sign any other checks. There is also testimony that on a number of occasions, after Flowers had signed his name on checks to vendors, Young authorized those acts as to regular vendors. Aaron's Rental, however, was not one of those vendors. Additionally, Young authorized Flowers to sign his name on a $3,100.00 check made payable to Flowers to be used to buy a new car.[3] Nonetheless, Young testified that he never gave Flowers carte blanche to sign checks. He testified that he told her, "Julie, do not B [y]ou know, if you're going to B [i]f you're in an emergency and you're going to sign one, you must call me and we must talk it over, and I must approve it on an individual basis." Flowers testified that Young did not tell her not to write anymore checks, although he would say not to sign any more of a specific type of check until they talked about it. Finally, Urbanovsky testified that, on occasion, he heard Young tell Flowers to sign a check because he was not there to do so. He also heard Young tell Flowers not to sign any more checks and if she had to, to call him. In addition, other employees testified that, some time after March 2004, they heard Young tell Flowers not to sign any more checks.
C. Legal Sufficiency
By her first point of error, Flowers contends that the evidence is legally insufficient to sustain her conviction for forgery. She asserts that no rational trier of fact could have found beyond a reasonable doubt that (1) claimant, Luther Young, III, had not authorized her to sign his name to a business check made payable to Aaron's Rental and (2) Flowers passed a check with intent to defraud or harm Young.[4] Considering all of the above evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Young did not authorize Flowers to sign his name and pass check number 10530. See Jackson, 443 U.S. at 319; Swearingen, 101 S.W.3d at 97.
Young testified that although he authorized Flowers to sign his name on certain checks, he did not authorize a payment of her Aaron's Rental account balance. Moreover, Aaron's Rental was not one of his regular vendors for which he would authorize checks. He assumed that Flowers, who performed numerous tasks in addition to the bookkeeping at the bed and breakfast inn, had rented a television as they had done in the past, for perhaps thirty or forty dollars a night. Although Flowers testified that Young agreed to make her payment on the big screen television, questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact, see Mosley, 983 S.W.2d at 254, and the jury could have given more credibility and weight to Young's testimony.
Concluding that the jury could have found Young did not authorize the check at issue in this case, the jury was entitled to infer that Flowers possessed the culpable mental state of "intent to defraud or harm." See Huntley, 4 S.W.3d at 814. Accordingly, we hold that the evidence was legally sufficient to support the jury's verdict as to counts three and four of the indictment. Flowers's first point of error is overruled.
D. Factual Sufficiency
In her second point of error, Flowers complains that the evidence is factually insufficient to sustain her conviction for forgery on counts 3 and 4. More specifically, Flowers complains that the evidence is factually insufficient to establish the "not authorized" element of the offense. After considering all the evidence in a neutral light, see Zuniga, 144 S.W.3d at 484, we agree.
Summarizing the testimony and evidence set out above, Flowers testified that she had discussed the television arrangement with Young and had his permission to sign and pass the check to Aaron's Rental. Almost half of the amount paid to Aaron's Rental was, in fact, deducted from Flowers's February pay check. A former employee testified that he helped transport the television from Flowers's home and believed Young knew it had been brought from her house. According to Young, Flowers was running the bed and breakfast at that time. He trusted her to watch over things. They had rented televisions in the past. Young agreed that Flowers was going to sign a check, at his direction, for the rental of a big screen television for his clients' use. Although Young testified that he assumed Flowers was going to rent a television as they had done before and that did not authorize a check to be written to Aaron's Rentals, he admitted Flowers may have told Young that they could use her television. While the amount of the rental appears to be at issue, the authorization of the signing of a check for the rental of a television is not, because Young had agreed to the rental of a television set for his clients. Moreover, in the past, Young had authorized Flowers to write, sign his name, and pass checks after she had done so.
Considering all the evidence in a neutral light, we conclude the jury was not rationally justified in its finding beyond a reasonable doubt. When measuring Young's testimony that he did not give Flowers specific authorization to write the check to Aaron's Rental against his testimony that he may have given Flowers permission to use her television against the following: (1) the circumstances surrounding the event including Young's subsequent authorization of business checks signed and passed by Flowers for business and personal purposes; (2) the testimony supporting Young's knowledge that Flowers's television was to be used and was, in fact, used for his clients' stay at the bed and breakfast; (3) Young's testimony that Flowers was more or less running what was going on and that he trusted Flowers to watch the business; and (4) the pay stub that reflected that almost one-half of the payment had been deducted from Flowers's paycheck as a reimbursement to Young, we conclude that the contrary evidence is strong enough that, on this record, the State did not meet its burden of proof. See Zuniga, 144 S.W.3d at 485. Thus, while giving deference to the fact finder's decisions about the weight and credibility of evidence, see Johnson, 23 S.W.3d at 9, we conclude the evidence supporting the "not authorized" element is factually insufficient. Flowers's second point of error is sustained.
III. Conclusion
Accordingly, based on the factual insufficiency of the evidence, we reverse the jury's guilty verdict on counts 3 and 4 and remand for a new trial.[5]
NELDA V. RODRIGUEZ
Justice
Do not publish.
Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and
filed this 18th day of May, 2006.
[1]All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.
[2]In relevant part, Charge 3 of the indictment read as follows:
[D]efendant . . . on or about January 12, 2004, in, KLEBERG County, Texas, did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Luther Young, III, who did not authorize the act, and said writing was a check of the tenor following: #10530 payable to Aaron's Rental for $253.08 on 1/12/04, . . .
Charge 4 identified the elements identified in Charge 3 and added that Flowers passed "to Aaron's Rental a forged writing, knowing such writing to be forged."
[3]Flowers told Young she had an insurance check coming with which she would repay him. At the time of trial, Flowers had not repaid the loan.
[4]Flowers also generally contends that the evidence is legally insufficient because the State failed to prove that this check was signed and passed in Kleberg County, Texas, as alleged in the indictment. However, in accordance with rule 38.1(h) of the Texas Rules of Appellate Procedure, we will only consider contentions that are supported by clear and concise arguments with appropriate citations to authorities and the record. See Tex. R. App. P. 38.1(h); Rhoades v. State, 934 S.W.2d 113, 119 (Tex. Crim. App. 1996) (en banc).
[5]We note that Flowers prays only for reversal and acquittal. However, because our disposition is based on factually insufficient evidence, the remedy is to remand for a new trial. See Zuniga v. State, 144 S.W.3d 477, 482 (Tex. Crim. App. 2004) (providing that reversal of the judgment and remand for a new trial is the proper remedy when a court of appeals finds that evidence is factually insufficient).