Opinion

Larry Dewayne Brown v. State

Court
Texas Court of Appeals, 1st District (Houston)
Filed
Jan 29, 2004
Status
Published
Cited by
0 cases
Authority
More cited than 35.2%

The opinion

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 ).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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