PD-0070-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/16/2015 6:02:21 PM
Accepted 7/17/2015 8:27:33 AM
July 17, 2015 ABEL ACOSTA
No. PD-0070-15 CLERK
In the
Court of Criminal Appeals
Of the State of Texas
Donald Lynn Ramsey, aka Donald Lynn Ramsay, Appellant
v.
STATE OF TEXAS, Appellee
Trial Court Appellate Court
Cause No. B-4502-13-07 Cause No. 07-14-00249-CR
242 District Court, Swisher County Seventh District of Texas
of Hale County, Texas at Amarillo
_________________________________________________________________
BRIEF OF DONALD LYNN RAMSEY ON THE MERITS
_________________________________________________________________
TROY BOLLINGER
State Bar No. 24025819
600 Ash Street
Plainview, Texas 79072
Tel.: (806) 293-2618
Fax: (806) 293-8802
troy@laneybollinger.com
Attorney for Donald Ramsey
ORAL ARGUMENT WAIVED
STATEMENT REGARDING ORAL ARGUMENT
Appellant waives oral argument.
NAMES OF ALL PARTIES
Appellant:
DONALD LYNN RAMSEY
Counsel for Appellant on Appeal: Counsel for Appellant at Trial:
TROY BOLLINGER Tina Davis-Rincones
SBN: 24025819 SBN: 24030776
600 Ash Street 109 East 6th Street
Plainview, TX 79072 Plainview, TX 79072
(806) 293-2618 (806) 429-0706
(806) 293-8802 Fax
troy@laneybollinger.com
Counsel for the State before the Court of Criminal Appeals:
Stacey M. Goldstein, Assistant State Prosecuting Attorney
PO Box 13046
Austin, TX 78711
(512) 463-1660
(512) 463-5724
information@spa.texas.gov
Counsel for the State at Trial:
J. Michael Criswell, County Attorney of Swisher County, Texas
SWISHER COUNTY ATTORNEY’S OFFICE
Swisher County Courthouse
119 South Maxwell Avenue
Tulia, TX 79088
(806) 995-2214
Trial Judge:
THE HONORABLE ED SELF, Judge Presiding
i
TABLE OF CONTENTS
HEADING PAGE #
STATEMENT REGARDING ORAL ARGUMENT...................................................i
NAMES OF ALL PARTIES..........................................................................................i
INDEX OF AUTHORITIES.......................................................................................iii
STATEMENT OF THE CASE .....................................................................................1
STATE’S ISSUE ............................................................................................................1
RESPONSE TO STATE’S ISSUE...............................................................................1
STATEMENT OF CONTESTED FACTS ..................................................................2
SOLE AND UNLIMITED ACCESS .....................................................................3
KNOWLEDGE OF FORGERY .............................................................................4
CHECK FOR SERVICES RENDERED..............................................................6
SUMMARY OF THE ARGUMENT ............................................................................7
ARGUMENT ..................................................................................................................8
APPLICATION OF FACTS TO STATE’S THEORY ...........................................8
ARGUMENT SUPPORTING THE COURT OF APPEALS..............................11
SUMMARY ............................................................................................................11
STANDARD...........................................................................................................12
APPLICATION .....................................................................................................13
STATE IGNORES CLEAR LONG-STANDING PRECEDENT ....................15
STATE’S ATTEMPT TO SHIFT THEIR BURDEN........................................16
CONCLUSION......................................................................................................18
PRAYER .......................................................................................................................19
CERTIFICATE OF SERVICE ..................................................................................20
CERTIFICATE OF COMPLIANCE.........................................................................21
ii
INDEX OF AUTHORITIES
CASE OR CITE PAGE #
Cases
Clayton v. State, 235 S.W.3d 772 at 778 (Tex. Crim. App. 2007)..............................................13
Crittenden v. State, 671 SW2d 527 (Tex. Crim. App. 1984)...................................................8, 16
Hernandez v. State, 819 S.W.2d 806 (Tex. Crim. App. 1991) ....................................................14
Jackson v. Virginia, 443 U.S. 307 (1979) ................................................................................12, 13
Laster v. State, 275 S.W.3d 512 at 517 (Tex. Crim. App. 2009).................................................12
Pfleging v. State, 572 S.W.2d 517 (Tex. Crim. App. 1978) .........................................................15
Ramsey, 07-14-00249-CR, Seventh Court of Appeals (this case) ......................................1, 4, 5, 6
Stuebgen v. State, 547 SW 2d 29 (Tex. Crim. App. 1977) .................................................8, 15, 16
Tibbs v. Florida, 457 U.S. 31 (1982)................................................................................................13
Williams v. State, 688 S.W.2d 486 at 488 (Tex. Crim. App. 1985) ...........................................14
Statutes
Texas Code of Criminal Procedure,. Article 38.08.......................................................18
Texas Penal Code, Chapter 32 .....................................................................................14
Texas Penal Code, Chapter 32.21(b) ............................................................................14
TEXAS RULES OF APPELLATE PROCEDURE, Rule 38.2(B) ..................................2
TEXAS RULES OF APPELLATE PROCEDURE, Rule 68.11 ...................................20
TEXAS RULES OF APPELLATE PROCEDURE, Rule 9.4) ......................................21
TEXAS RULES OF APPELLATE PROCEDURE, Rule 9.5 .......................................20
Constitutional Provisions
TEXAS CONSTITUTION, Article 1, Bill of Rights, Sec. 10. RIGHTS OF ACCUSED
IN CRIMINAL PROSECUTIONS ............................................................................18
UNITED STATES CONSTITUTION, Amendment V.................................................18
iii
TO THE HONORABLE COURT OF CRIMINAL APPEALS
STATEMENT OF THE CASE
Appellant is satisfied with the State’s description in its
“Statement of the Case”
STATE’S ISSUE
“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?”
RESPONSE TO STATE’S ISSUE
The State’s issue ignores the specific holding of the Memorandum
Opinion. The ruling is that “there was no evidence of record”1 that Mr.
Ramsey knew the instrument was forged. One can neither ‘consider the
totality of’ nor make ‘rational inferences’ from a null set.
1Ramsey, 07-14-00249-CR (this case in the lower Court), Memorandum Opinions,
p4.
1
STATEMENT OF CONTESTED FACTS
TEXAS RULES OF APPELLATE PROCEDURE, Rule 38.2(B)
exempts the responding party from the requirement of creating a
Statement of Facts unless they are “dissatisfied” with the opponent’s
briefing of the ‘Facts’. In the present case, the State’s description of the
facts is stilted to obscure some very basic and necessary issues. Thus
we must create a Statement of Facts to avoid confusion and an incorrect
view of the evidence actually presented.
There are three specific areas in which the State’s contention of
‘Facts’ is merely their interpretation and argument. These are:
That Mr. Ramsey had the sole and “unlimited access” [State’s
PDR Brief (hereinafter SPDFB), p5] to the checkbook from which
the check was allegedly drawn.
That there was ANY evidence presented at trial that Mr. Ramsey
knew the check was forged.
That there was ANY evidence that the check was NOT for work
performed by Mr. Ramsey.
2
SOLE AND UNLIMITED ACCESS
The State’s assertion the Mr. Ramsey was the only person with
access to the checkbook ignores important evidence from the actual
record of the trial. A witness2 did say, as the State alleges, that he
believed that only the Complainant and Mr. Ramsey had access to
his truck [RR, pp. 136-138]. However, that belief of sole access was
immediately belied in the testimony at trial.
The Complainant testified that the checks for Owen’s Machine
Shop were stored in his son’s (Jed Owens) pickup [RR, p126]. Jed
Owens confirmed that this checkbook was stored in his work truck
at the shop with the doors unlocked [RR, pp. 134-135].
He initially testified that Appellant was the only person with
access to his work truck3 [RR, p136]. However, this statement was
recanted. Testimony was specifically entered that there were two
checkbooks for the account [RR, pp. 140-141]. The other one was in
the continuous possession of his father4. More importantly, under
2 Complainant’s son
3 As was conceded above.
4 The complainant
3
cross-examination, Jed Owens admitted that that several other
individuals had access to the checkbook [RR, pp. 139-140].
A simple reading of the Trial Record shows, conclusively, that Mr.
Ramsey did not have sole or ‘unlimited’ access to the check in
question.
KNOWLEDGE OF FORGERY
The State goes a long way in its Statement of ‘Facts’ to imply
evidence that Mr. Ramsey knew the check was forged. That evidence
is simply not there. This is the primary ground upon which the
Seventh Court of Appeals reversed. The Opinion from that
Honorable Court States:
“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 to that of the appellant”5,
5Ramsey, 07-14-00249-CR (this case in the lower Court), Memorandum Opinions,
p2.
4
“There was no evidence about whether she [receiver of the
check] recognized the signature as genuine”6, and most
important,
“Simply put, there is no evidence of record … that the
appellant knew the instrument was forged”7.
Because of this lack of evidence, the Seventh reversed. The
State’s Statement of ‘Facts’ attempts to create evidence of
knowledge where it simply was not presented at the trial.
The State says that “Neither Jimmie nor Jed had signed or issued
the check to Appellant” [SPDRB, p3]. This was a contention of the
State, but not a proven fact. The Complainant testified that he did
not sign that check and that he authorized no one else to do so. [RR,
p124]. He did, however, admit to requiring pain pills and that they
could possibly make him forget things [RR, p130]. He admitted that
he had written out similar checks to Mr. Ramsey and they would
have been substantially similar to the check in question [RR, pp. 125-
126]. No handwriting expert examined the check to compare to the
handwriting of either the Complainant or to Mr. Ramsey. Neither
6 Ramsey, at 3.
7 Ramsey, at 4.
5
the Bank examiner [RR, pp. 121-122, the lady who received the
check, nor the Complainant’s son [RR, p131] testified that the
signature on the check was not that of the Complainant.
Even if we defer to the State’s belief that the check was not
written out by the Complainant, there is simply no evidence of record
that Mr. Ramsey knew the check was forged8.
CHECK FOR SERVICES RENDERED.
The State asserts that “evidence showed” [SPDRB, p4] that the
check in this question was not for services rendered. They propound
that ‘forgery was proven by the fact that the money was for work he knew
was never performed’ [SPDRB, p5] and that Mr. Ramsey ‘did not
actually do any work for the Owens’ [SPDRB, p8]. It is very interesting
to note that the only support for this ‘fact’ is one cite to Justice Pirtle’s
Dissenting Opinion. If any of the members of this Honorable Court
wonder at this, the Defense offers a simple reason. THIS FACT IS NOT
SUPPORTED IN THE TRIAL RECORD. In fact, it directly controverts
the testimony in this case at trial.
8 As Chief Justice Quinn states unreservedly in Ramsey, p4.
6
Mr. Ramsey worked for the Owens. This is the uncontroverted
testimony of both State fact witnesses [RR, pp 125 &133]. He was
allowed to live in their shop while he was working for them [RR, p 133].
He was paid for his work with checks similar to the one in question in
this case [RR, p 125].
The clear evidence at the trial is that Mr. Ramsey was fired from
the Owen’s employment only when the younger Owens learned of the
problems with this check [RR, pp. 138-139].
The only evidence the record shows is that Mr. Ramsey WAS
working for the Complainant. That is all the testimony, and the
rational inferences that testimony can suggest. The State’s assertion
otherwise is disingenuous at best.
SUMMARY OF THE ARGUMENT
1) The State’s analysis and ‘fact’ presentation is flawed at best.
There is no evidence of record that Mr. Ramsey knew the
instrument was forged.
7
2) The State is asking this Honorable Court to specifically overrule
Stuebgen v. State9 and Crittenden v. State10 and nullify over
thirty years of standing precedent.
ARGUMENT
APPLICATION OF FACTS TO STATE’S THEORY
The State sums up its argument that Mr. Ramsey knew the check
was stolen thusly [SPDRB, p5]. The Defense has provided specific
counterpoints.
i. He was the beneficiary,
Being the beneficiary of a check is no evidence that the
receiver knew or should have known the check was forged,
especially when the check was made out exactly as a check he
should have received (and had in fact received in the past).
ii. he had unlimited access to the checkbook,
The Defense has already shown this ‘fact’ to be incorrect, and
will thus not belabor this Honorable Court with more repetition.
9 Stuebgen v. State, 547 SW 2d 29 (Tex. Crim. App. 1977)
10 Crittenden v. State, 671 SW2d 527 (Tex. Crim. App. 1984)
8
iii. there was no evidence of an alternative perpetrator,
As the State’s own brief points out, any ‘alternative
perpetrator’ is irrelevant [SPDRB, pp. 6, 9, 10, & 11].
Additionally, this ‘fact’ relies on an impermissible shifting of the
burden. How does this factor in any way relieve the State’s
burden of providing evidence of Mr. Ramsey’s knowledge or
intent? The answer, of course, is that it does not.
iv. the writing showed familiarity with the payor’s customary style while
slight deviations from that style showed it was fake, and
Here the State really shows the distance from which they
have shifted from the facts in the Record and the requisite burden
of proof. The State is saying that because the check looked like
other proper checks, then Mr. Ramsey knew it was forged. This is
ludicrous. One might infer knowledge when the check was
substantially different. Imputing knowledge from the fact the
check looked correct is just goofy.
“Slight deviations from that style” is a complete creation of
the State. One must ask: What deviations were proven that any
person should have noticed?
9
The Complainant testified to signing a multitude of different
names [RR, pp. 128-129]. Nobody testified that the signature was
not similar or even the same11. The check had a memo line that
was the same as other unchallenged checks. When Mr. Owens
wrote a paycheck, he wrote ‘contract labor’ in the memo field on
the checks [RR, p125]. Each check J. E. Owens did create would
have looked exactly like Check #1313 did. These ‘variations’ exist
nowhere in the record and appear only in the mind of the State’s
attorneys.
v. Appellant passed it at a store where he knew it would not be
questioned.
The State attempted to show that Mr. Ramsey passed a
paycheck in the store he had been permitted to use to cash such
checks [RR, p150]. This is the store that the Complainant had
taken him to cash his check before [RR, pp. 126 & 150 ]. This is
the store that is “a block and a half” from the shop in which he
was living [RR, p142]. The State’s argument that this is evidence
of anything is ridiculous. This is exactly where anyone would go
11 As discussed above
10
with a valid check in these circumstances. If Mr. Ramsey did pass
the check, going anywhere else would have been suspicious12.
vi. knowledge that it was a forgery was proven by the fact that the money
was for work he knew he never performed
As discussed above, this is simply not a statement supported by
the record. In fact, it flies directly in the face of all the testimony in
the trial. Mr. Ramsey did work for, and live in the shop of, the
Complainant.
ARGUMENT SUPPORTING THE COURT OF APPEALS
SUMMARY
Neither access to an instrument nor even passing an instrument
creates the presumption of intent to harm or defraud. The State failed
to produce any evidence, circumstantial or otherwise, to demonstrate
that Mr. Ramsey had the requisite mens rea to be found guilty of this
offense. The Seventh Court of Appeal reversed the Trial Court on the
basis of well-established precedent. The State has produced nothing
that would require this Honorable Court to void that proper judgement.
12 But still no evidence that Mr. Ramsey knew the check was forged.
11
STANDARD
The Supreme Court established the standard for evidentiary
sufficiency in Jackson v. Virginia13. Under the Jackson standard,
evidence is insufficient to support a conviction if, considering all the
record evidence in the light most favorable to the verdict, no rational
fact finder could have found that each essential element of the charged
offense was proven beyond a reasonable doubt14. Evidence is
insufficient under this standard in four circumstances:
(1) the record contains no evidence probative of an element of the
offense;
(2) the record contains a mere modicum of evidence probative of an
element of the offense;
(3) the evidence conclusively establishes a reasonable doubt; and
(4) the acts alleged do not constitute the criminal offense charged15.
The Jackson standard acknowledges the responsibility of the fact
finder to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts16. Any
13 Jackson v. Virginia, 443 U.S. 307 (1979)
14 Jackson, at 317-319 and Laster v. State, 275 S.W.3d 512 at 517 (Tex. Crim.
App. 2009).
15 Jackson, at 314; and Laster, at 518.
16 Jackson, at 318-319; and Clayton v. State, 235 S.W.3d 772 at 778 (Tex. Crim.
12
reviewing court presumes the fact finder resolved any conflicts in the
evidence in favor of the verdict and defers to that resolution, provided
that the resolution is rational and supported by the record17. An
Apellate Court may not, however, create evidence of an element where
none appears in the record.
If an appellate court finds the evidence insufficient under this
very stringent standard, it must reverse the judgment and enter an
order of acquittal18.
APPLICATION
There are several offenses under the Texas Penal Code that
contain the intent to defraud or harm as an element of the offense.
Among them are forgery, credit card or debit card abuse, fraudulent
transfer of a motor vehicle, and securing execution of a document by
deception19. Forgery is specifically defined: “A person commits an
offense if he forges a writing with intent to defraud or harm another”20.
App. 2007).
17 Jackson, at 326.
18 Tibbs v. Florida, 457 U.S. 31 (1982).
19 Texas Penal Code, Chapter 32.
20 Texas Penal Code, Chapter 32.21(b).
13
A person acts with intent when it is his conscious objective or
desire to engage in the conduct or cause the result21. The Defense
acknowledges that the intent to harm or defraud may be proven by
circumstantial evidence22. Unless a Defendant concedes intent at trial,
the State must necessarily rely on circumstantial evidence to establish
that element of the offense. The totality of the evidence here, however,
falls well short of anything that may have supported such an inference
in other cases. The State merely proved that Mr. Ramsey had access to
the instrument. We will assume additionally, for the purposes of
argument, that the State proved that Mr. Ramsey passed the check.
What they did not prove or even address at trial was the intent required
to support a criminal conviction.
When the intent to harm or defraud is an element of the offense,
the State must prove facts from which such intent is deducible beyond a
reasonable doubt and in the absence of such proof, the conviction cannot
stand23.
21 Hernandez v. State, 819 S.W.2d 806 at 810 (Tex. Crim. App. 1991).
22 Williams v. State, 688 S.W.2d 486 at 488 (Tex. Crim. App. 1985).
23 Stuebgen v. State, at 32.
14
As discussed at length above, there is no evidence establishing
that Mr. Ramsey had the intent to defraud or harm the complainant or
any other person. The inclusion of the requirement "with intent to
defraud or harm," in the Forgery statute precludes any interpretation
that the presentation or passing of a forged instrument is a per se
violation. Since no evidence of record is available to show intent to
defraud or harm, the conviction must be reversed24.
STATE IGNORES CLEAR LONG-STANDING PRECEDENT
Established precedent exists directly on point to the issues of this
case. These were fully enumerated by the Appellate Court. Still, the
State is asking this Honorable Court to ignore this precedent, remove a
required burden from the State, and specifically overrule existing case
law that has been binding precedent for over thirty years.
The Memorandum Opinion of the Seventh Court of Appeals
clearly discusses the direct correlation between this case and Stuebgen.
We will not indulge in repetition of Chief Justice Quinn’s analysis.
24 Pfleging v. State, 572 S.W.2d 517 at 520 (Tex. Crim. App. 1978).
15
Crittenden v. State25 is also directly on point. In the
Crittenden opinion, the Court of Criminal Appeals reversed the
defendant's forgery conviction because the evidence was legally
insufficient to show the intent to defraud. In Crittenden, as in this
case, the Defendant did not make any statements from which an
inference that he knew the instrument was forged could be made. In
this case, as in Crittenden, the Defendant's presumption of innocence
could not be disregarded. The State has the burden to prove guilt
beyond a reasonable doubt and the burden cannot be shifted to the
defendant to prove he was not guilty. This the State has attempted
here.
STATE’S ATTEMPT TO SHIFT THEIR BURDEN
The State’s attempt to relying on the non-existent ‘facts’ of
“unlimited access”, “slight deviations” and “the money was for work he
knew was never performed” [SPDFB, p5] are not the end of their
shenanigans. Equally offensive is their subtle attempt to shift the
burden of proof to Mr. Ramsey. In the State’s brief they point to the
25 Crittenden v. State, 671 S.W.2d 527 (Tex. Crim. App. 1984)
16
absence of “alternative perpetrator” evidence [SPDFB, pp. 6 & 11] as
support for the Appellant’s conviction.
The State has the sole burden of proof and it failed to present any
evidence of Mr. Ramsey’s requisite mental state. The State argues that
the intent to defraud or harm can be inferred by Mr. Ramsey's failure to
show an ‘alternative culprit’. This reasoning can only rest on the fact
that Mr. Ramsey did not produce evidence or testify to provide an
explanation for his possession of the instrument or an indication of
whom else might have created the instrument.
Accepting this State's argument would render a defendant's mere
possession or passing of an instrument, coupled with that defendant's
decision not to testify at trial, sufficient evidence of intent to defraud.
This cannot be given any credence as it flies in the face of the
fundamental law of the land.
“No person shall be … compelled in any criminal case to be
a witness against himself.26”
“In all criminal prosecutions the accused … shall not be
compelled to give evidence against himself27”
26 UNITED STATES CONSTITUTION, Amendment V
17
“The failure of any defendant to so testify shall not be
taken as a circumstance against him.28"
CONCLUSION
The Seventh Court of Appeals clearly laid out the failures of proof
at the Trial Court level. The State’s brief fails to point to any actual
facts or logic to support ignoring those failures. The State instead
points to non-existent ‘facts’ in the record, ignores a specific element of
proof, and requests this Honorable Court to ignore or specifically
overturn existing precedent. Nothing in this case supports any of these
results.
PRAYER
Appellant prays this Honorable Court sustain these arguments,
deny the remedy requested by the State, and sustain the decision of the
Seventh Court of Appeals in this matter.
27 TEXAS CONSTITUTION, Article 1, Bill of Rights, Sec. 10. RIGHTS OF
ACCUSED IN CRIMINAL PROSECUTIONS.
28 Texas Code of Criminal Procedure,. Article 38.08.
18
Respectfully Submitted,
/s/ Troy Bollinger
TROY BOLLINGER
State Bar No. 24025819
600 Ash Street
Plainview, Texas 79072
Tel.: (806) 293-2618
Fax: (806) 293-8802
troy@laneybollinger.com
Attorney for Appellant
19
CERTIFICATE OF SERVICE
Pursuant to Tex. R. App. Pro. R. 9.5(a) & (e) and 68.11, I certify that on or
before July 16, 2015, Appellate Counsel served a copy of the attached document to
the District Attorney’s Office for Swisher County and the State’s Assistant
Prosecuting Attorney, and mailed a copy to Appellant, Donald Ramsey.
_/s/ Troy Bollinger .
TROY BOLLINGER
Counsel for the Appellant
20
CERTIFICATE OF COMPLIANCE
I, Troy Bollinger, attorney for Donald Ramsey, certify that this document was
generated by a computer using Microsoft Word which indicates that the word
count of this document is 3,747 words as required by Tex. R. App. P. 9.4 (i).
_/s/ Troy Bollinger .
TROY BOLLINGER
Counsel for the Appellant
21
Ramsey, Donald Lynn A/K/A Donald Lynn Ramsay
Combined Opinion