in Re Richard Ohendalski ( 2005 )

IN THE

TENTH COURT OF APPEALS

 

No. 10-05-00395-CV

In re Richard Ohendalski

Original Proceeding

MEMORANDUM  Opinion

          The petition for writ of prohibition is denied.  Petitioner’s motion to immediately issue the requested writ of prohibition is dismissed as moot.

PER CURIAM

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Petition denied

Opinion delivered and filed November 23, 2005

[OT06]

gnatures. The State presented no direct evidence of the actual signer of check no. 1610.

          We believe the rule enunciated in Sheffield v. State, 645 S.W.2d 571, 573 (Tex. Crim. App. 1982) (quoting Pfleging v. State, 572 S.W.2d 517, 519 (Tex. Crim. App. 1978) applies here:

Under this statute, the definition of forgery requires as an element of the offense an intent to defraud or harm . . . .

Thus, it is clear that intent to defraud or harm is a necessary element of the offense of forgery and the burden is upon the State to prove every element of the offense charged . . . .

The State may, of course, establish intent to defraud or harm by circumstantial evidence.

Sheffield, 645 S.W.2d at 573.

          Appellant's sole point attacks the sufficiency of the evidence to sustain his conviction. Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989).   A conviction based on circumstantial evidence cannot be sustained if the circumstances do not exclude every other reasonable hypothesis except that of the defendant's guilt. Johnson v. State, 673 S.W.2d 190, 195 (Tex. Crim. App. 1984). Every circumstantial evidence case must be tested by its own facts to determine the sufficiency of the evidence to support the conviction. Id.

          We believe that the nature of the relationship which developed between Moore and Appellant, that Appellant had access to Moore's checkbooks without authority to sign checks, and the facts surrounding the presentation of check no. 1610 to the bank by Appellant, exclude every reasonable hypothesis other than Appellant's guilt. See Johnson, 673 S.W.2d at 195.

          Viewing the evidence in the light most favorable to the verdict, we believe that any rational trier of fact could have found the essential elements of the crime, including intent to defraud or harm, beyond a reasonable doubt. See Butler, 769 S.W.2d at 239. We overrule Appellant's point and affirm the judgment.

                                                                                 BILL VANCE

                                                                                 Justice

Before Chief Justice Thomas, Justice Cummings,

          and Justice Vance

Affirmed

Opinion delivered and filed February 7, 1991

Do not publish