Appellant was convicted by a jury of forgery and sentenced to life in the Texas Department of Corrections under the recidivist statute. By his first ground of error, appellant urges that the evidence was insufficient to convict him of the offense charged. Because we agree with the appellant, we reverse his conviction and enter a judgment of acquittal.
On February 18, 1981, the appellant entered a Kroger store in Dallas, Texas, and attempted to cash a money order. When he presented the cashier with the money order, payable to "Donald Williams," she asked him for his driver's license. He in turn presented her the license of Donald Williams. The cashier also asked him from whom he had gotten the money order. He replied that he had done some work for a lady in Mesquite and that she had paid him with it. The cashier became suspicious, however, when she noticed that the money order was not embossed. After showing the money order to the store manager, the store manager called the police who arrested the appellant, who had remained at the cashier's booth and had not attempted to flee. The money order listed Janice Chaffe *Page 631 as the sender. The State showed that it was unable to locate Janice Chaffe at the address listed on the money order, or any address in the Dallas area.
A person commits the offense of forgery by the passing of a writing that is forged, knowing that it was forged and intending to defraud or harm another. Tex.Penal Code Ann. s32.21(a)(1)(A)(i) and § 32.21(a)(1)(B) (Vernon 1974). While scienter may be established by circumstantial evidence, the burden is on the prosecution to prove each and every element of the offense charged. Stuebgen v. State,547 S.W.2d 29, 31 (Tex.Cr.App. 1977). In the case of forgery, the culpable mental state requires proof of knowledge that the instrument is forged. Id. at 32. No proof that the appellant knew the instrument was forged was presented by the State either directly or circumstantially. The only proof was his explanation that he had received the instrument for work performed.
The State cites several cases in which it relied upon circumstantial evidence to prove scienter. In each case, the defendant's explanation was such that culpability could be inferred from the fact that the accused was caught in a lie.See, e.g., Colburn v. State, 501 S.W.2d 680, 682 (Tex.Cr.App. 1973); Phillips v. State, 488 S.W.2d 97,100 (Tex.Cr.App. 1972); Golden v. State, 475 S.W.2d 273,273-74 (Tex.Cr.App. 1971). In other words, the evidence in these cases proved more than the inaccuracy of defendant's statement. It also showed that the defendant must necessarily have known that his statement was a lie. In this case it cannot be inferred from appellant's explanation that he knew that Janice Chaffe was a nonexistent person. Neither does the evidence show that appellant, rather than the "lady in Mesquite," signed the name of Janice Chaffe on the money order.
Had the appellant stated that Janice Chaffe had given him the money order and that Janice Chaffe was someone that he knew, the evidence would have been sufficient to sustain the conviction for forgery. See Golden v. State, 475 S.W.2d 273,274 (Tex.Cr.App. 1971). However, appellant's statement that he "had received the check as payment for work he had done in Mesquite" does not show beyond a reasonable doubt that he knew that the person listed as the sender on the money order was in fact a fictitious person. See Stuebgen v. State, 547 S.W.2d at 32. To find him guilty the jury would have to speculate that appellant was referring to the person named on the money order as the person who had given him the instrument as payment for work. We conclude that it is not possible for any rational trier of fact to have found beyond a reasonable doubt that the appellant knew that the money order was forged. For this reason, appellant's conviction must be reversed and a judgment of acquittal should be entered.
Additionally, in ground of error four, appellant contends that the trial court erred in denying his motion for mistrial when the prosecutor, during the guilt-innocence phase, made the following argument to the jury:
". . . Maybe I do or don't know whether the defendant did any work for them, where are those people? Where are those people? Or the neighbors from her house where he was suppose to have done this work at. How about the person living next door to Janice Chaffe coming in here and saying, yeah, she existed. Maybe she had another name. She existed, she lives there, I saw him over there. Not one witness did the defendant bring to substantiate the lie that he told Fay Norwood when he passed this check. A provably false statement."
The court sustained the objection that "it's a direct conflict to the defendant's election not to testify." The court instructed the jury to disregard the "last paragraph," then denied the motion for a mistrial. There was no evidence that "neighbors" or "the person living next door to Janice Chaffe" existed and were available to testify. Based on the authorities cited in Garrett v. State, 632 S.W.2d 350,353-354 (Tex.Cr.App. 1982), we find the trial court did commit reversible error. See McKenzie v. State, 617 S.W.2d 211 (Tex.Cr.App. 1981). *Page 632
For the reasons stated above the conviction is reversed. Finding the evidence to be insufficient, a judgment of acquittal must be entered.