Chiminh Edvon Johnson v. State ( 2011 )

IN THE
TENTH COURT OF APPEALS
No. 10-09-00205-CR
No. 10-09-00206-CR
No. 10-09-00207-CR
No. 10-09-00208-CR
CHIMINH EDVON JOHNSON,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 82nd District Court
Falls County, Texas
Trial Court No. 8502, Trial Court No. 8503
Trial Court No. 8504 and Trial Court No. 8505
MEMORANDUM OPINION
These four cases involve identical issues and will therefore be decided together.
Four amended indictments charged Chiminh Edvon Johnson with the state-jail felony
offense of forgery of a financial instrument by passing. See TEX. PENAL CODE § 32.21(b),
(d) (Vernon Supp. 2010). A jury found Johnson guilty on the sole count in each of the
four cases and, based on the State’s enhancement allegations, assessed an eight-year
sentence and $2,000 fine in each case, and the trial court ordered the sentences to run
concurrently. Johnson raises three issues in this appeal.
Sufficiency of the Evidence
We begin with the third issue in each case, which asserts that the evidence is
legally insufficient. Based on the four indictments’ allegations, Johnson was charged
with passing a forged writing, knowing such writing to be forged, with intent to
defraud or harm another. Id. § 32.21(a)(1)(B), (d). Johnson asserts that the evidence is
insufficient to show that he had knowledge that the four instruments were forged and
that he thus passed the instruments with intent to defraud or harm.
When reviewing a challenge to the legal sufficiency of the evidence to establish
the elements of a penal offense, we must determine whether, after viewing all 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, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979). Our duty is to
determine if the finding of the trier of fact is rational by viewing all of the evidence
admitted at trial in the light most favorable to the verdict. Adelman v. State, 828 S.W.2d
418, 422 (Tex. Crim. App. 1992). Any inconsistencies in the evidence are resolved in
favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000).
In reviewing the sufficiency of the evidence, we should look at “events
occurring before, during and after the commission of the offense and may
rely on actions of the defendant which show an understanding and
common design to do the prohibited act.” Each fact need not point
directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to
support the conviction. Circumstantial evidence is as probative as direct
Johnson v. State Page 2
evidence in establishing the guilt of an actor, and circumstantial evidence
alone can be sufficient to establish guilt.
...
Under the Jackson test, we permit juries to draw multiple reasonable
inferences as long as each inference is supported by the evidence
presented at trial. However, juries are not permitted to come to
conclusions based on mere speculation or factually unsupported
inferences or presumptions.
...
[C]ourts of appeals should adhere to the Jackson standard and
determine whether the necessary inferences are reasonable based upon
the combined and cumulative force of all the evidence when viewed in the
light most favorable to the verdict.
Hooper v. State, 214 S.W.3d 9, 13, 15-17 (Tex. Crim. App. 2007) (citations omitted).
Intent may be inferred from circumstantial evidence such as the acts, words, and
conduct of the defendant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004).
Proof of intent to defraud or harm another requires proof of knowledge that the
instrument is forged. Palmer v. State, 735 S.W.2d 696, 697-98 (Tex. App.—Fort Worth
1987, no pet.) (citing Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985)). “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.” Huntley v. State, 4 S.W.3d 813, 814 (Tex.
App.—Houston [1st Dist.] 1999, pet. ref’d) (op. on reh’g en banc) (citing Williams, 688
S.W.2d at 488). Circumstances that are “suspicious enough” can support an inference
that the actor had knowledge of the forgery. See Huntley, 4 S.W.3d at 815; see, e.g.,
Palmer, 735 S.W.2d at 698.
The evidence viewed in the light most favorable to the verdict shows that C.L.
Moore, an 86-year-old lifelong resident of Marlin who had banked at Citizens State
Bank in Marlin for fifty-five years, received his monthly bank statement in September
Johnson v. State Page 3
2007 and noticed that money was missing from his checking account. He examined the
photocopied checks that came with the bank statement and immediately noticed that
four checks were forged. Moore notified the bank of the forged checks, and the person
at the bank said she would begin an investigation.
Each of the four checks was made payable to “Chiminh Johnson,” and they were
in the respective amounts of $575.00, $575.00, $375.00, and $575.00, for a total of
$2,100.00. The memo line on three of the checks had the following respective
handwriting: “house repair,” “yard work/housekeeping,” and “repairs, etc.” The
handwritten notation on the $375.00 check was illegible. Moore identified each check as
his but said he did not write, sign, or authorize them. He believed he may have seen
Johnson, but Moore did not know him. He said that Johnson had never done any work
for him.
Moore testified that he kept his checkbook in a drawer in his bedroom, the
checks had been torn out of his checkbook, but his checkbook had not been stolen. He
had not noticed that checks had been taken out of his checkbook until he received the
bank statement. He remembered that, around the time period of the checks, the lock on
the doorknob of his back door had been “jiggled.” Moore said that when he left his
home for a long period of time, he would lock his doors’ bolt-action locks and leave
through his garage, but if he were leaving for only a brief period, he would lock only
the back door’s doorknob lock.
Kim Solomon testified that she has been Moore’s next-door neighbor for nine
years and that Johnson is her cousin. Johnson has been at her house often. She has
Johnson v. State Page 4
never seen anyone do any work in Moore’s yard; he does his own yardwork.
Juanita Hogg, a bank employee, testified that Moore notified her of the forged
checks, and she began an investigation and alerted all the tellers not to accept any more
checks from Johnson, should he appear again, and to call the police. In her
investigation, Hogg was able to identify each teller who had cashed the four checks.
Hogg testified that the bank’s policy for cashing a bank customer’s check for a payee
who does not have an account is to verify the payee’s identity and then to cash the
check if funds are available. Hogg identified and recognized Johnson at trial because he
had previously had an account at the bank. After Moore had reported the forged
checks, a teller contacted Hogg and told her that Johnson was at the bank asking
questions. Hogg told the teller to answer Johnson’s questions and to stall him and that
she would call the police. Hogg called Marlin Assistant Chief of Police Darrell Allen.
Brandy Rodriquez, a bank teller, testified that she cashed two of the checks for
Johnson after verifying his picture identification and that funds were available. She
identified Johnson as the person for whom she cashed the checks, and she confirmed
that she had been told not to cash any more checks for Johnson if he returned. On
cross-examination, Rodriquez said that nothing unusual or suspicious about Johnson
occurred when she cashed the two checks.
Carolyn Bennett, another bank teller, testified that she cashed the other two
checks for Johnson after verifying his identity. She identified Johnson as the person for
whom she cashed the checks, and he did not seem nervous during those two
transactions. On the second check, which she cashed for him at the walk-up window,
Johnson v. State Page 5
she had Johnson give a thumbprint (stipulated by Johnson as being his) per bank policy
for the walk-up window. On cross-examination, she said there was nothing unusual or
suspicious about either transaction.
Bennett said that after Moore had notified the bank of the forged checks, Johnson
returned to the bank and asked her if Moore had called the bank. She said that Moore
had not called the bank, and, to try to stall him, she said that she would call Moore if
Johnson wanted her to. Bennett had the impression that Johnson was there to cash a
check and that by asking if Moore had called the bank, he was checking to see if it was
clear for him to cash another of Moore’s checks. Bennett said that when she told
Johnson that she would call Moore, Johnson became “very jumpy, very nervous” and
was in a hurry to leave, but police were able to detain him before he left the premises.
Assistant Chief Allen said that he got a call from the bank that Johnson was
there, and he immediately walked over to the nearby bank. He detained Johnson as he
was approaching his vehicle, which was parked in front of the bank. When officers
arrived, Johnson was arrested because he had an outstanding warrant for a probation
violation. Allen attempted to question Johnson about the checks and have him give his
side of the story, but Johnson did not want to talk to him.
The evidence in the light most favorable to the verdict shows that Johnson
cashed four of Moore’s checks on three different days; the checks noted that they were
for work done by Johnson for Moore; Moore did not know Johnson; and Johnson had
not done any work for Moore. The evidence also showed that the checks were stolen
from Moore’s home; Moore did not write or sign the checks; someone may have
Johnson v. State Page 6
“jiggled” the lock on Moore’s back door around the time the checks were stolen; and
Johnson had recent possession of Moore’s checks.
Johnson argues that the evidence in this case is similar (“remarkably on all
fours”) to the facts in Pfleging v. State, 572 S.W.2d 517 (Tex. Crim. App. [Panel Op.]
1978). We disagree; the evidence is more similar to that in the cases cited by the State.
See Huntley, 4 S.W.3d at 814-15; Palmer, 735 S.W.2d at 697-98. Pfleging is dissimilar
because the evidence here, unlike that in Pfleging, includes the following suspicious
circumstances: Johnson “often” visited his cousin who lived next door to Moore, which
would have given Johnson the opportunity to observe Moore’s home and his “comings
and goings;”after cashing the four checks, Johnson appeared at the bank a fifth time to
ask if Moore had called the bank; Johnson became very nervous and jumpy when
Bennett said she would call Moore; Johnson walked away while Bennett was trying to
stall him; and Johnson declined to explain the checks to Assistant Chief Allen.
The jury could have reasonably inferred that Johnson passed the forged checks
with intent to defraud or harm another because the evidence showed that Johnson was
cashing checks made payable to him for work he did not perform for Moore. Moreover,
from the above-described suspicious circumstances, the jury could have reasonably
inferred that Johnson had knowledge that the checks were stolen from Moore and were
forged. See Huntley, 4 S.W.3d at 814-15; Palmer, 735 S.W.2d at 698-99. Viewing the
evidence in the light most favorable to verdict, we conclude that a rational jury could
have found that Johnson had knowledge that the four checks were forged and that he
passed the checks with intent to defraud or harm. We overrule issue three.
Johnson v. State Page 7
Punishment-Phase Errors
Johnson’s first issue asserts that his sentence is void because it exceeds the
statutory sentencing range, and his second issue asserts that the punishment charge was
erroneous because it included an enhanced punishment range. The State concedes error
on these two issues.
The offense of forgery of a check by passing is a state-jail felony. TEX. PENAL
CODE § 32.21(d). The punishment range for an unaggravated state-jail felony is
confinement in a state jail for not more than two years or not less than 180 days, and in
addition a fine not to exceed $10,000 may be assessed. Id. § 12.35(a, b) (Vernon Supp.
2010). The four indictments each included a habitual-felon enhancement allegation for
two prior and sequential final felony convictions: a 2001 felony conviction for burglary
of a habitation, and a 2004 felony conviction for forgery of a financial instrument.
Johnson pled “true” to both prior convictions in the punishment phase, and the
punishment charge instructed the jury to find “true” the enhancement allegations and
to assess Johnson’s punishment for a period of 2 to 20 years and in addition a fine not to
exceed $10,000. The jury assessed an eight-year sentence and $2,000 fine in each case.
The trial court overruled Johnson’s timely objection to the charge’s punishment
range. His objection was that the punishment range was improperly enhanced to a
second-degree felony because Johnson’s prior conviction for forgery of a financial
instrument was a state-jail felony, not a felony, and the prior felony and state-jail felony
could not be used under subsection 12.42(a)(2) of the Penal Code to enhance the
punishment range to a second-degree felony.
Johnson v. State Page 8
Subsection 12.42(a)(2) provides:
(2) If it is shown on the trial of a state jail felony punishable under
Section 12.35(a) that the defendant has previously been finally convicted
of two felonies, and the second previous felony conviction is for an offense
that occurred subsequent to the first previous conviction having become
final, on conviction the defendant shall be punished for a second-degree
felony.
Id. § 12.42(a)(2) (Vernon Supp. 2010). Johnson is correct, as the Court of Criminal
Appeals has held:
We thus hold that, as used in subsection 12.42(a), the terms “felony” and
“state jail felony” are mutually exclusive;
…
The statute as written also does not impose an increased punishment for
offenders who have two previous convictions in the form of both a single
prior state jail felony and a single prior non-state jail felony. If such lack
of enhancement in either case is in fact an oversight in the statute, it is the
business of the legislature, rather than this court, to correct it.
Campbell v. State, 49 S.W.3d 874, 878 (Tex. Crim. App. 2001); see also Tapps v. State, 294
S.W.3d 175, 182 (Tex. Crim. App. 2009).
A “void” or “illegal” sentence is one that is not authorized by law. See Ex parte
Pena, 71 S.W.3d 336, 336 n.2 (Tex. Crim. App. 2002); Levy v. State, 818 S.W.2d 801 (Tex.
Crim. App. 1991). “A sentence that is outside the maximum or minimum range of
punishment is unauthorized by law and therefore illegal.” Mizell v. State, 119 S.W.3d
804, 806 (Tex. Crim. App. 2003). Johnson’s four eight-year sentences are outside the
maximum range for a state-jail felony without proper enhancement. We sustain issue
one.
Jury charge error requires reversal when the defendant has properly objected to
the charge and we find “some harm” to his rights. Ngo v. State, 175 S.W.3d 738, 743
Johnson v. State Page 9
(Tex. Crim. App. 2005). “Some harm” is shown from the punishment charge’s
erroneous instruction on the punishment range and the jury’s assessment of four eight-
year sentences that are outside the maximum range for a state-jail felony without
proper enhancement. We sustain issue two.
Conclusion
We affirm the judgments of conviction in each case. We reverse that portion of
the judgments assessing punishment of an eight-year sentence and $2,000 fine and
remand them to the trial court for a new trial on punishment only. See TEX. CODE. CRIM.
PROC. ANN. art. 44.29(b) (Vernon Supp. 2010); Abbott v. State, 196 S.W.3d 334, 349 (Tex.
App.—Waco 2006, pet. ref’d).
REX D. DAVIS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Judgments of conviction affirmed
Punishments reversed, causes remanded
Opinion delivered and filed May 4, 2011
Do not publish
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