Mildred Griffin v. State ( 1999 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-98-00061-CR



Mildred Griffin, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0972108, HONORABLE JON N. WISSER, JUDGE PRESIDING

Appellant Mildred Griffin, in a jury trial, was convicted of the offense of passing a forged check. See Tex. Penal Code Ann. § 32.21 (West 1994 & Supp. 1999). The trial court assessed appellant's punishment at confinement in a state jail facility for two years, suspended imposition of sentence, and placed appellant on community supervision for two years.

Appellant asserts that the evidence is legally and factually insufficient to support the jury's verdict and that inadmissible evidence was admitted. We will overrule appellant's points of error and affirm the trial court's judgment.

Facts

Appellant was a member of and had accounts at the Austin Municipal Federal Credit Union. At about 11:30 a.m. on February 14, 1997, appellant presented a check to a credit union employee for which she requested cash. The check for $2778 was dated February 14, 1997 and was payable to and purportedly indorsed by Leilani Burton. The check had been stolen earlier the same morning. Appellant, testifying in her own defense, asserted that she did not know the check had been stolen and did not know the payee's indorsement on the check had been forged. She testified that her son-in-law, Isaac Jerome Thomas, called her and asked her to meet him at the credit union to assist him in cashing a check. Her son-in-law needed appellant's help because he did not have an account at the credit union and the credit union would not cash the check for him. Appellant testified that on prior occasions, she had helped her son-in-law cash checks, that those checks had all been "good," and that she had no reason to believe that this check was "bad."

Appellant testified that when she presented this check to the credit union employee, she explained to the employee that she had encountered problems in 1993 when she cashed third-party checks. She testified that she asked the credit union employee to determine whether the check she presented was "good" before she indorsed and cashed it because she didn't want to cash a bad check. Appellant testified the credit union employee went to "the back" twice and then told appellant that after she indorsed the check they would cash it but would retain $1560 of the check's proceeds until it cleared. Appellant testified that she agreed to this condition and accepted $1218, which she testified she gave to her son-in-law. She explained to her son-in-law that the credit union would pay the balance of $1560 after the check cleared.

The credit union employee who cashed the check testified that she did not remember appellant asking her to ascertain whether the check was good. The employee only had authority to cash checks up to $500 so she sought and received her supervisor's approval to cash the check. She brought the check back to appellant and appellant indorsed the check in her presence. The employee returned to her supervisor who gave her the cash that she in turn gave to appellant. $1560 was retained by the credit union because appellant was indebted to the credit union. However, it had not been determined at that time how much money appellant owed the credit union.

Appellant testified that about an hour after she gave her son-in-law the money, she received a telephone call from a credit union employee who told her the check she had cashed had been stolen. Appellant then went out and found her son-in-law's car parked at his aunt's house. She went home, called the police, and gave them a description of her son-in-law's car and told them he was the person who gave her the check to cash for him. She testified that when the officers attempted to arrest her son-in law, he escaped.

After the payee of the check, Leilani Burton, was notified that her check had been stolen, she went to the police station. While she was talking to an officer at the police station, the officer received a telephone call from appellant. The police officer handed the phone to Burton. While Burton was being cross-examined by defense counsel, she recounted her telephone conversation with appellant as follows:

Q. Okay. Did they make you aware of who took the check?

A. No.

Q. Okay. Have you ever heard the name Isaac Jerome Thomas before?

A. Yes.

Q. Where have you heard that name?

A. From her (indicating [appellant]).

Q. Okay. So have you spoken to her directly?

A. At the police station when she called. The officer gave me the phone.

Q. Okay. So she called the police station while you were there?

A. Yes.

Q. And at that time, did she tell -- the police officer tell you that the person that took the check was Isaac Jerome Davis -- or excuse me, Isaac Jerome Thomas?

MR. COBB: Your Honor, object as to what the police may have told.

MR. TURRO: I'll rephrase the question, Your Honor.

Q. (By Mr. Turro) Okay. Did Ms. Griffin tell you at the time who took the check?

A. She said that her daughter's boyfriend had took -- had made her take the check. That's what she told me.

Q. Made her take the check from where?

A. From where -- that she -- they was together or something and that they had got the check. And she -- she said that he made her cash it.

Q. Okay. So he made her cash the check, but she didn't take the check?

A. I don't know if she took it or not, because I didn't want to talk to her anymore.

Q. Okay. And she didn't have any knowledge at the time -- she didn't tell you she knew the check at the time was not supposed to be his check?

A. No, she just said that she wanted to pay the money back. The officer told her to bring the money back and that he would -- he wouldn't press charges.

Burton was not asked to clarify her testimony by either defense counsel or the prosecutor.

A credit union employee testified that in 1993 appellant, who was a member and had credit union accounts, indorsed and cashed five third-party checks. Appellant received a portion of each check in cash and the remaining portion was credited to her account. These checks were all returned by the bank upon which they were drawn to the credit union stamped "payment stopped." A credit union employee informed appellant that these checks were returned because they had been stolen and the payee's indorsement forged. Appellant at that time claimed that she cashed each of these checks as an accommodation for different people who were friends of her daughter and that she did not know the checks had been stolen. Appellant testified that she had cashed these checks in the circumstances she had stated at that time. However, at the time of trial, appellant could not remember the names of the people for whom she cashed the checks, and she did not remember whether they were men or women. Although appellant said it was unfair, she had agreed to reimburse the credit union for its loss of funds in the total amount of the five checks. However, appellant only partially repaid the credit union. In due time, the credit union closed appellant's accounts and charged off the balance of appellant's debt. Later, appellant made an application for membership in the credit union and opened an account in order, she said, to save money for her granddaughter. In her new application, appellant used a social security number in which one digit was different from that of the social security number used to open the first account. At trial, appellant testified that she did not have her social security card with her when she opened the new account and that the use of the different social security number was unintentional and due to her faulty memory. A new account was opened for her and that was the account appellant maintained at the credit union at the time she cashed the check in the instant case.

Appellant gave three versions of why she cashed the check as a "favor" to her son-in-law. It was so he could get his car repaired and have a way of getting to work and be able to support his children, including appellant's grandchild. Appellant also said she cashed the check as a favor for her son-in-law's aunt because she was sick and unable to cash it for herself. Appellant also testified that she cashed the check for both her son-in-law and his aunt for them to share the money.

Legal Sufficiency

In her third point of error, appellant urges that the evidence is legally insufficient to support the jury's verdict. In reviewing the legal sufficiency of the evidence, the test is whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1970); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994); Geesa v. State, 820 S.W.2d 154, 156 (Tex. Crim. App. 1991); Moreno v. State, 755 S.W.2d 866, 867 (Tex. Crim. App. 1988). The only matter challenged by appellant is that the evidence is legally insufficient to show that she knew the check she admittedly passed had been stolen and forged. The State urges that the circumstantial evidence is sufficient to show that at the time she passed the check, appellant had knowledge that the check was stolen and that the payee's purported prior indorsement was forged, and therefore that she had the required intent to harm and defraud.

To prove the offense of passing a forged instrument, it is necessary to prove the defendant had the intent to defraud and harm another. This necessarily requires proof that a defendant had knowledge that the instrument passed was forged. See Anderson v. State, 621 S.W.2d 805, 808 (Tex. Crim. App. 1981); Stuebgen v. State, 547 S.W.2d 29, 32 (Tex. Crim. App. 1977); Green v. State, 761 S.W.2d 824, 825-26 (Tex. App.--Dallas 1988, no pet.). That required proof may be established by circumstantial evidence. See Williams v. State, 688 S.W.2d 486, 490 (Tex. Crim. App. 1985); Griffin v. State, 908 S.W.2d 624, 627 (Tex. App.--Beaumont 1995, no pet.).

It is uncontroverted that the check was stolen, the payee's indorsement was forged, and the check was presented, indorsed, and passed by appellant on the same morning that the check was drawn and stolen. If a jury might infer that a defendant stole a check, then the jury might also infer from the same evidence that the defendant knew the indorsement was forged and, therefore, had the intent to defraud or harm the person to whom he subsequently passed it. See Palmer v. State, 735 S.W.2d 696, 698 (Tex. App.--Fort Worth 1987, no pet.); Goodrum v. State, 700 S.W.2d 630, 631-32 (Tex. App.--Houston [14th Dist.] 1985, pet. ref'd); Meade v. State, 641 S.W.2d 345, 346-47 (Tex. App.--Corpus Christi 1982, no pet.).

Appellant made a voluntary admission to Leilani Burton that the jury could construe as an admission that she assisted in the theft of the check. When one passes a forged check which has been stolen and the evidence is sufficient to establish the defendant's theft of the check, the evidence is sufficient to show knowledge of the forgery and, therefore, to show an intent to defraud and harm another person. See Palmer, 735 S.W.2d at 699.

Appellant gave conflicting versions of why and the purpose for which she possessed and passed the check. See Wallace v. State, 813 S.W.2d 748, 752 (Tex. App.--Houston [1st Dist.] 1991, no pet.); Lossman v. State, 668 S.W.2d 504, 507 (Tex. App.--Fort Worth 1994, no pet.); Meade, 641 S.W.2d at 347. Appellant admitted that she had no relationship with either the drawer or payee of the check. In the prior transactions, appellant also had no relationship with the drawers or payees of the checks. According to appellant, she cashed the checks as an accommodation to other persons. However, she received for her own benefit at least a portion of the proceeds of the checks.

We conclude that when the circumstantial evidence is viewed in the light most favorable to the jury's verdict, the jury could rationally find beyond a reasonable doubt that appellant knew when she passed the check that the payee's prior indorsement was a forgery and that she passed the check intending to defraud and harm another. The evidence is legally sufficient to support the jury's verdict. Appellant's first point of error is overruled.

Factual Sufficiency

In her second point of error, appellant contends that the evidence is factually insufficient to support the jury's verdict. She claims that the evidence is factually insufficient to prove that she knew the purported indorsement by the payee was forged. Therefore, she argues the evidence was factually insufficient to prove the necessary element of the offense that she passed the check with the intent to defraud or harm another. In reviewing the factual sufficiency of the evidence, we view all of the evidence "without the prism of the light most favorable to the prosecution." See Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.--Austin 1992, pet ref'd untimely filed). In performing a factual sufficiency review, appellate courts are required to give deference to the jury's verdict and to examine all of the evidence impartially setting aside the jury's verdict "only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (quoting Clewis, 922 S.W.2d at 129).

After considering and weighing all of the evidence, which we have summarized, and giving deference to the jury's verdict, we cannot conclude that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Point of error two is overruled.

Admissibility of Prior Transactions

In points of error three, four, and five, appellant asserts that the trial court erred in admitting "evidence of other acts when such evidence was irrelevant," that "the State failed to prove such extraneous acts beyond a reasonable doubt," and that the trial court improperly admitted this evidence "when the probative value of such evidence was substantially outweighed by the danger of unfair prejudice." Out of the presence of the jury, the trial court conducted a hearing to determine the admissibility of evidence relating to appellant's cashing of the five third-party checks in 1993. A credit union employee testified that in 1993 appellant, who was a member and maintained credit union accounts, indorsed and cashed five third-party checks. All of these checks had been returned unpaid to the credit union by the bank upon which they had been drawn, marked "payment stopped." At that time, the credit union employee told appellant that the checks had been returned because they had been stolen and the payee's prior indorsement had been forged. No proof was offered to show that these five checks had been in fact stolen and the payee's indorsement forged. Over appellant's objection, the trial court ruled the State could show that appellant had been told these checks had been stolen because "based on the State's theory there is some relevancy and the relevancy outweighs any undue prejudicial effect."

During trial, the State offered as Exhibit 3 the business records of the credit union relating to appellant's accounts. After some of the records were removed from the file, the State re-offered Exhibit 3 and defense counsel stated that there was "no objection" to the exhibit. Exhibit 3 includes copies of the front and back of each of the five checks stamped "payment stopped" and bearing the purported prior indorsement of the payee and appellant's indorsement. Exhibit 3 also included credit union employee's hand-written notes relating to cashing the checks, appellant's applications for credit union membership, and several monthly statements of appellant's accounts. Appellant did not object to the admission in evidence of Exhibit 3 and affirmatively stated there was "no objection" to the exhibit. The exhibit was evidence of the same matters to which appellant objected in the pre-admission hearing. A defendant may not complain on appeal about the admission of evidence when the record shows that the same evidence was admitted without objection. See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993); Johnson v. State, 803 S.W.2d 272, 290-91 (Tex. Crim. App. 1990); Mutcher v. State, 514 S.W.2d 905, 919 (Tex. Crim. App. 1974); Roy v. State, 891 S.W.2d 315, 325 (Tex. App.--Fort Worth 1994, no pet.); Macias v. State, 776 S.W.2d 255, 259 (Tex. App.--San Antonio 1989, pet. ref'd). The error now claimed on appeal was not preserved for appellate review. Because the errors claimed were not preserved for appellate review, points of error three, four, and five are overruled.

The judgment is affirmed.

Carl E. F. Dally, Justice

Before Justices B. A. Smith, Yeakel and Dally^*

Affirmed

Filed: September 16, 1999

Do Not Publish

^* Before Carl E. F. Dally, Judge (retired), Court of Criminal Appeals, sitting by assignment. See Tex. Gov't Code Ann. § 74.003(b) (West 1998).

e have summarized, and giving deference to the jury's verdict, we cannot conclude that the jury's verdict is so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. Point of error two is overruled.

Admissibility of Prior Transactions

In points of error three, four, and five, appellant asserts that the trial court erred in admitting "evidence of other acts when such evidence was irrelevant," that "the State failed to prove such extraneous acts beyond a reasonable doubt," and that the trial court improperly admitted this evidence "when the probative value of such evidence was substantially outweighed by the danger of unfair prejudice." Out of the presence of the jury, the trial court conducted a hearing to determine the admissibility of evidence relating to appellant's cashing of the five third-party checks in 1993. A credit union employee testified that in 1993 appellant, who was a member and maintained credit union accounts, indorsed and cashed five third-party checks. All of these checks had been returned unpaid to the credit union by the bank upon which they had been drawn, marked "payment stopped." At that time, the credit union employee told appellant that the checks had been returned because they had been stolen and the payee's prior indorsement had been forged. No proof was offered to show that these five checks had been in fact stolen and the payee's indorsement forged. Over appellant's objection, the trial court ruled the State could show that appellant had been told