David Kitzmiller v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00309-CR
DAVID KITZMILLER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. F-2013-0272-B
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MEMORANDUM OPINION1
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I. Introduction
In three issues, Appellant David Kitzmiller appeals his conviction for
forgery, asserting (1) the evidence is insufficient to sustain his conviction, (2) the
trial court abused its discretion when it denied his motion for directed verdict, and
1
See Tex. R. App. P. 47.4.
(3) the trial court abused its discretion when it denied his motion to suppress.
We affirm.
II. Background
In December 2012, Denton Police Detectives Terry Brooks and Chris
Murphy were engaged in a hotel interdiction2 at the Royal Hotel Suites in Denton,
when, according to Detective Brooks, they received information that Room 249
was experiencing a high volume of foot traffic. The room was registered to
Ashley Howard. As a result of a check for outstanding warrants, Detective
Brooks received confirmation of an outstanding warrant for Howard from Bell
County.
The detectives proceeded to Room 249 and knocked on the door. A
female answered and identified herself as Ashley Howard, whereupon Detective
Brooks informed her that there was a warrant out for her arrest and asked if they
could come inside the room. Howard acquiesced. Detective Brooks testified that
as soon as he entered the room, he smelled a burnt odor of marijuana, so he
inquired if there was anyone else in the room. Howard replied in the affirmative
and pointed toward the bedroom, which was located further down a hallway. As
2
Detective Brooks testified that hotel interdictions involve routine stops at
local hotels that are “hotspots for narcotics and prostitution.” The officers speak
to hotel employees, including managers and maintenance workers, and
investigate reports of suspicious activity and complaints in an effort to minimize
illegal activity.
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part of a “protective sweep,” Detective Brooks entered the bedroom.3 As
Detective Brooks entered the bedroom, he observed Kitzmiller standing a few
feet away. While speaking with Kitzmiller, Detective Brooks continued to scan
the room for any other potential threats. Approximately three or four feet from
where Kitzmiller stood, Detective Brooks noticed a Hewlett-Packard printer on
the nightstand. The printer contained a piece of paper in its paper tray with what
appeared to be counterfeit U.S. currency printed on it.4
Detective Brooks described the paper as “odd” with “several bills . . . on
one sheet of paper . . . several U.S. currency bills.” Specifically, on one side of
the paper, a ten-dollar bill and three twenty-dollar bills were depicted. The
backside of the paper was blank. Sitting next to the printer was a package of
linen paper similar to the paper onto which the images of money had been
photocopied.
Detective Brooks then performed a consensual search of Kitzmiller and
discovered a ten-dollar bill and three twenty-dollar bills taped together in his right
front pocket. The serial numbers of the bills in Kitzmiller’s pocket were identical
3
Detective Murphy explained that a protective sweep is routinely performed
when officers enter a residence to execute a warrant. Its purpose is to ensure
that there is no additional threat somewhere else in the dwelling. He explained,
“You don’t want to put your hands on somebody in a residence and try to go
arrest them if there’s a threat that could possibly come from somewhere
else . . . . That’s why we do a protective sweep to make sure there’s nobody else
around to do harm to other officers.”
4
Detective Brooks testified that the paper was in the tray where printed
paper emerges from the machine.
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to those in the printer tray. When Detective Brooks inquired about the
photocopied currency, Kitzmiller expressed shock and disbelief that someone
had apparently paid him with counterfeit money.5 Fingerprints that were found on
the photocopied money matched Kitzmiller’s.
The jury found Kitzmiller guilty of the offense of forgery, assessed his
punishment at two years’ confinement, and recommended community
supervision. Based on the jury’s recommendation, the judge placed Kitzmiller on
community supervision for two years.
III. Sufficiency and Motion for Instructed Verdict
A. Standard of Review
A challenge to the denial of a motion for instructed verdict is actually a
challenge to the sufficiency of the evidence. Canales v. State, 98 S.W.3d 690,
693 (Tex. Crim. App.), cert. denied, 540 U.S. 1051 (2003). Therefore, we will
review Kitzmiller’s first and second issues together.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
5
Detective Brooks testified, “He had a shocked look. He said, ‘I can’t
believe – or, who paid me with counterfeit money?,’ is what his reply was.”
Detective Brooks further testified that he did not find Kitzmiller’s display of shock
to be genuine.
4
307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014).
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Dobbs, 434
S.W.3d at 170. Thus, when performing an evidentiary sufficiency review, we
may not re-evaluate the weight and credibility of the evidence and substitute our
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). Instead, we determine whether the necessary inferences are
reasonable based upon the cumulative force of the evidence when viewed in the
light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex.
Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App.
2013). We must presume that the factfinder resolved any conflicting inferences
in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99
S. Ct. at 2793; Dobbs, 434 S.W.3d at 170.
We measure the sufficiency of the evidence by the elements of the offense
as defined by the hypothetically correct jury charge for the case, not the charge
actually given. Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim. App. 2011) (citing
Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)); see Crabtree v.
State, 389 S.W.3d 820, 824 (Tex. Crim. App. 2012) (“The essential elements of
the crime are determined by state law.”). Such a charge is one that accurately
sets out the law, is authorized by the indictment, does not unnecessarily restrict
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the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried. Byrd, 336 S.W.3d at 246.
The law as authorized by the indictment means the statutory elements of
the charged offense as modified by the factual details and legal theories
contained in the charging instrument. See Daugherty v. State, 387 S.W.3d 654,
665 (Tex. Crim. App. 2013); see also Rabb v. State, 434 S.W.3d 613, 616 (Tex.
Crim. App. 2014) (“When the State pleads a specific element of a penal offense
that has statutory alternatives for that element, the sufficiency of the evidence will
be measured by the element that was actually pleaded, and not any alternative
statutory elements.”).
B. Applicable law
In this case, Kitzmiller committed the offense if the evidence shows,
beyond a reasonable doubt, that he “forge[d] a writing with intent to defraud or
harm another.” See Tex. Penal Code Ann. § 32.21(b) (West 2011). Here,
“forge” means to possess a writing that is altered or made so that it purports to
be the act of another who did not authorize that act, id. § 32.21(a)(1)(A)(i), with
the intent to utter or pass such writing, id. § 32.21(a)(1)(B), (C). A “writing”
includes money. Id. § 32.21(a)(2)(B).
C. Analysis
In his first issue, Kitzmiller asserts that the State failed to prove every
element of the indictment. Specifically, he argues that the State failed to prove
that (1) the United States Government did not authorize him to make the
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currency, (2) Kitzmiller forged the currency, or (3) Kitzmiller possessed the
photocopied currency with the intent to defraud or harm another.
1. Authorization
Kitzmiller first argues that “expert testimony” was required to prove that the
Secretary of the United States Department of the Treasury did not give him the
authority to photocopy U.S. currency. Specifically, he asserts that the State
needed to have either a Secret Service agent or someone from the U.S.
Department of Treasury testify that Kitzmiller was not authorized to make the
currency.
“Circumstantial evidence is as probative as direct evidence in establishing
the guilt of an actor, and circumstantial evidence alone can be sufficient to
establish guilt.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In
this case, the facts are as follows: (1) The officers found Kitzmiller in a hotel that
was known for crime; (2) Kitzmiller was standing a few feet from a home printer
containing a piece of paper with U.S. currency photocopied onto it on one side;
(3) Kitzmiller’s fingerprints were on the photocopied page; (4) a box of linen
paper matching the paper in the printer tray was located beside the printer; (5)
Kitzmiller possessed valid currency taped together in his pocket; (6) the serial
numbers of the taped currency matched the serial numbers of the photocopied
currency; and (7) the surroundings did not appear to be those of a legitimate
printing operation.
7
A juror is not required to check his or her common sense at the door. See
Wright v. State, 571 S.W.2d 24, 25 (Tex. Crim. App. [Panel Op.] 1978) (holding
that jury charges need not define phrases that are commonly understood that
present a fact issue); Anderson v. State, 414 S.W.3d 251, 256 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d) (stating that jurors must use their common
sense in determining whether proof beyond a reasonable doubt has been met);
Perkins v. State, 394 S.W.3d 203, 209 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref’d) (stating that jurors were permitted to rely on their common sense to
conclude that images of a teenage girl—who had undressed in the belief that she
had privacy in the bathroom—“were created and preserved to appeal to deviant
and voyeuristic interests of the viewer, and thus the images are intended or
designed to elicit a sexual response”). To the contrary, jurors are free to use
their common sense and apply common knowledge, observation, and experience
gained in the ordinary affairs of life when giving effect to the inferences that may
reasonably be drawn from the evidence. Boston v. State, 373 S.W.3d 832, 837
(Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013); Obigbo
v. State, 6 S.W.3d 299, 306 (Tex. App.—Dallas 1999, no pet.) (“Appellant’s
insurance claim defies common sense and ordinary life experience.”). In using
their common sense, jurors are not required to ignore commonly-understood
concepts, such as the presence and purpose of serial numbers on currency—or
other everyday items such as appliances and electronics—to uniquely identify a
particular item. See, e.g., Bollinger v. State, 224 S.W.3d 768, 777 (Tex. App.—
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Eastland 2007, pet. ref’d) (“The serial numbers on the guns in Bollinger’s truck
were the same as the serial numbers on the guns Davis reported stolen.”).
Therefore, a reasonable juror could have inferred that because Kitzmiller was in
a hotel room photocopying U.S. currency—each note of which bore a unique
serial number—onto linen paper on a home-printer, that he did not have
authorization from the U.S. Government to engage in that activity. See 12
U.S.C.A. § 413 (West 2014) (directing that “[f]ederal [r]eserve notes shall bear
upon their faces a distinctive letter and serial number”); 31 U.S.C.A. § 5114
(West 2003 & Supp. 2014) (authorizing the U.S. Secretary of the Treasury to
engrave and print United States currency on “distinctive paper”).
2. Forgery
Kitzmiller argues next that the State failed to prove the element of actual
forgery as defined by the statute. Specifically, he asserts that evidence
consisting only of one-sided photocopied currency is insufficient to prove forgery,
a necessary element to support his conviction.
“[T]he fact that an instrument does not appear to create a legal obligation,
or otherwise apparent validity, no longer precludes prosecution for forgery.”
Graham v. State, 693 S.W.2d 29, 30 (Tex. App.—Houston [14th Dist.] 1985, no
pet.); see also Lloyd v. State, 574 S.W.2d 159, 160 (Tex. Crim. App. 1978)
(holding that there was no requirement to prove that a check was a valid
obligation because the offense of forgery “does ‘not require that the instrument in
writing be such as to create, increase, diminish, discharge or defeat pecuniary
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obligation’”) (citation omitted). Like here, the issue in Graham was whether the
one-sided bills were writings, as defined by the statute, which purported to be an
act of the United States Government. The appellate court affirmed the conviction
and, in doing so, held that they were. 693 S.W.2d at 30. Therefore, the one-
sided photocopied bills were sufficient to support Kitzmiller’s conviction. See id.
3. Possession with Intent to Defraud
Kitzmiller further argues that the State failed to prove the intent-to-defraud
element. He argues that since the only evidence presented to the jury was that
Kitzmiller was found with the one-sided photocopied money, which was located
in a nearby printer tray, the State proved mere possession, which he contends is
insufficient to prove intent to defraud.
“In the case of forgery, the culpable mental state”—i.e., intent to defraud or
harm—“requires proof of knowledge that the instrument is forged.” Williams v.
State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985) (en banc). This knowledge,
and the intent that is inferred from it, may be established by circumstantial
evidence. See id.
Here, when the detectives asked Kitzmiller about the photocopied
currency, he acted shocked and made a nonsensical comment about someone
paying him with counterfeit money. See Johnson v. State, 425 S.W.3d 516, 520
(Tex. App.—Houston [1st Dist.] 2012, pet. ref’d) (listing as one of the
circumstances that courts have found probative of intent to defraud is when the
defendant gives a false explanation of how he possessed the financial
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instrument); cf. Stuebgen v. State, 547 S.W.2d 29, 32 (Tex. Crim. App. 1977)
(holding evidence of forgery insufficient when record reflected that appellant
made no statement from which it could be inferred that he knew the instrument
was forged). The officers found the valid currency from which the photocopied
currency had been duplicated in Kitzmiller’s pocket, and his fingerprints appeared
on the photocopied money. We hold that this constitutes sufficient evidence to
prove that Kitzmiller had photocopied valid U.S. currency. A reasonable juror
could infer from these facts that Kitzmiller was both aware that the money on the
printer was forged and also that Kitzmiller intended to defraud with the forged
currency. See Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.—Houston [1st
Dist.] 1999, pet. ref’d) (op. on reh’g) (“The intent to defraud or harm another in a
forgery case can be inferred if the State proves an actor has knowledge that the
check is forged.”); see also Lopez v. State, No. 13-08-00732-CR, 2010 WL
1115671, at *6 (Tex. App.—Corpus Christi Mar. 25, 2010, no pet.) (mem. op., not
designated for publication) (pointing out that proof of intent to defraud is
derivative of the other elements in a forgery case; it can be inferred if the State
proves that the defendant knew that the writing in question was forged); cf.
Johnson, 425 S.W.3d at 521–22 (concluding that intent-to-defraud element could
not be inferred from appellant’s lack of explanation for his possession and
presentment of money order).6 Because we hold that a rational jury could have
6
A jury convicted Johnson of forgery of a money order. Johnson, 425
S.W.3d at 517. The evidence showed that the complainant had purchased a
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found beyond a reasonable doubt all the elements of forgery, we overrule
Kitzmiller’s first and second issues.
IV. Motion to Suppress
In his third issue, Kitzmiller asserts that the police lacked specific,
articulable facts to believe that he posed a threat or danger to them or anyone
else.
A. Standard of Review
We review a trial court’s ruling on a motion to suppress evidence under a
bifurcated standard of review. Amador v. State, 221 S.W.3d 666, 673 (Tex.
Crim. App. 2007); Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997).
We give almost total deference to a trial court’s rulings on questions of historical
money order from Western Union to pay rent; her apartment complex was listed
as the payee and the complainant’s name and address were listed on the
“purchaser” line. Id. at 518. The complex never received the money order, and
the copy of the money order provided by Western Union reflected that both the
purchaser and payee lines had been altered; the complainant’s name had been
replaced with “Shoust,” and the payee’s name had been replaced with Johnson’s
name. Id. The complainant testified that she did not know Johnson and had not
authorized him or anyone else to alter the money order. Id. The investigating
police officer testified that he did not try to locate or identify Shoust or to contact
or interview Johnson to ask him how he came into possession of the money
order; he further testified that the results of his investigation showed only that
Johnson was the person who negotiated the money order but not that he was the
person who stole or altered it. Id. There was no testimony by Shoust to disclaim
a relationship with Johnson or any evidence indicating that Shoust might not
exist, and no evidence tying Johnson to the theft of the money order or its
alteration. Id. at 522, 524. In light of the complete absence of evidence about
the payor on the forged money order, the court concluded that the evidence was
insufficient to find intent to defraud and reversed the trial court’s judgment of
conviction. Id. at 524.
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fact and application-of-law-to-fact questions that turn on an evaluation of
credibility and demeanor, but we review de novo application-of-law-to-fact
questions that do not turn on credibility and demeanor. Amador, 221 S.W.3d at
673; Estrada v. State, 154 S.W.3d 604, 607 (Tex. Crim. App. 2005); Johnson v.
State, 68 S.W.3d 644, 652–53 (Tex. Crim. App. 2002).
B. Analysis
The court of criminal appeals has stated that
[w]hen conducting an in-home arrest, a police officer may sweep the
house only if he possesses an objectively reasonable belief, based
on specific and articulable facts, that a person in that area poses a
danger to that police officer or to other people in the area. As the
Supreme Court also concluded, this sweep must stay within the
appropriate scope and may last long enough to “dispel the
reasonable suspicion of danger.”
Reasor v. State, 12 S.W.3d 813, 817 (Tex. Crim. App. 2000).
The detectives testified to the following facts: (1) the hotel was a known
haven of illegal activity; (2) the detectives had received a report of high foot traffic
coming out of that specific room; (3) Howard, to whom the room was registered,
had an outstanding warrant for her arrest; (4) Howard gave the detectives
consent to enter the room; (5) one of the detectives smelled burnt marijuana; (6)
based on Howard’s warrant and the reported foot traffic, the detectives were
concerned that Howard was involved in illegal activity; (7) Howard informed the
detectives that another individual was in the bedroom; (8) the detectives did not
search through drawers, cabinets, or underneath anything; and (9) the
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photocopied money, printer, and linen paper were all in plain view when the
officers entered the room.
Given the circumstances in this case, we hold that the detectives
possessed an objectively reasonable belief that the person Howard referred to as
in the bedroom could have posed a danger to the detectives and that they
therefore were justified in performing a protective sweep. For that reason, the
trial court did not err by denying Kitzmiller’s motion to suppress, and we overrule
Kitzmiller’s third issue.
V. Conclusion
Having overruled all of Kitzmiller’s issues, we affirm the trial court’s
judgment.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: MEIER, GABRIEL, and SUDDERTH, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: July 23, 2015
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