Harold Lee Cox v. State ( 1991 )

Cox v. State

NO. 10-90-114-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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          HAROLD LEE COX,

                                                                                            Appellant

          v.

          THE STATE OF TEXAS,

                                                                                            Appellee

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From 87TH Judicial District Court

Freestone County, Texas

Trial Court # 90-036-CR

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O P I N I O N

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          A jury convicted Appellant of forgery by passing and, having found that he had been twice convicted of a felony, set his punishment at twenty-five years in prison. See Tex. Penal Code Ann. § 32.21 (Vernon 1989). Appellant contends that evidence of intent was insufficient to sustain his conviction. This point will be overruled and the judgment affirmed.

          Appellant was hired by J. C. Moore in February or March 1990 to do farm labor. Shortly thereafter, he moved into a house next door to Moore and began to assist him with bookkeeping and check writing. Moore's practice was to sign a blank check and then instruct Appellant to fill in the name of the payee and the amount and, because of this arrangement, Appellant gained access to Moore's checkbooks. Moore discovered in the March bank statement that check no. 1610 had been made payable to Appellant in the amount of $121.50. Moore had not signed or filled in the check or authorized Appellant or any other person to sign it. The State introduced evidence of thirteen other checks which Moore declared to be genuine. A bank teller gave Appellant cash when he presented the check, which he had endorsed on the back. The county's chief jailer identified a commissary sign in sheet containing Appellant's signatures. 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

ety of the child, and: failed to complete a court-ordered substance abuse treatment program; or after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance.Ô  See Id. § 161.001(1)(P). 

            Only one predicate act finding under section 161.001(1) is necessary to support a judgment of termination in addition to a finding that termination is in the child's best interest.  In re A.V., 113 S.W.3d 355, 362 (Tex. 2003).  Based on the jury’s verdict, the trial court made a finding that it was in the best interest of D.W. to terminate J.W.’s parental rights.  Because J.W. does not challenge the sufficiency of the evidence supporting the finding under subsection (P), this ground is sufficient to support the judgment of termination.  See In re T.S.C., No. 10-06-00366-CV, 2007 Tex. App. LEXIS 3390 (Tex. App.—Waco May 2, 2007, no pet.) (mem. op.).  J.W.’s first, second, and third issues are overruled.

Best Interest

It is well-settled that in deciding whether termination would be in the best interest of the child, the trial court may consider this nonexclusive list of factors: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.  Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  See In re S.N., 272 S.W.3d 45, (Tex. App.—Waco 2008, no pet.).  It is unnecessary to prove all of these factors as a condition precedent to parental termination.  In re C.H., 89 S.W.3d 17, 27 (Tex. 2002).

The evidence demonstrated that J.W. had been abusing marijuana since the age of 12, cocaine at the age of 14, and methamphetamines at the age of 16.  She admitted to using marijuana during a previous pregnancy and tested positive for methamphetamines at the hospital when D.W. was born.  She admitted to the use of methamphetamines three days prior to D.W.’s birth.  J.W.’s drug use continued after D.W. was removed by the Department, even though she denied that she had a drug problem.  Her felony probation was eventually revoked due to her many positive drug tests and her refusal to get treatment.  J.W. was incarcerated at the time of trial on a four-year sentence.  While she had started parenting classes, she did not complete them and did not attend counseling as required by her service plan.  Her employment history while she was not incarcerated was spotty at best.  J.W. absconded from Texas and remained a fugitive for almost five years ending in 2007, during which time she became pregnant with D.W.  During the pendency of the case, she was dating a person accused of at least one felony offense and who was also a drug user.  According to the Department, J.W. missed thirteen out of thirty visits with D.W. and also was significantly late for another five or six visits.  At one point during the case, J.W. also left her older child, A.W., with her mother who had recently been arrested for a drug offense.  When the Department investigated, J.W. hid out because she said she was afraid of being arrested in front of A.W.

D.W. was in a placement that he had been in from the time he was three weeks old with foster parents who wanted to adopt him. He was very bonded to the foster parents and to their children, who think of D.W. as their sibling.  D.W. was described as a very happy baby.  D.W. had been evaluated early in the case for potential developmental delays but was doing well at the time of trial.  D.W. was well-integrated into the foster parents’ family unit.  We find that the evidence was both legally and factually sufficient to support the trial court’s finding that termination was in the best interest of D.W.  We overrule J.W.’s issue four.

C.H.

            C.H. was determined to be the father of D.W. during the pendency of this case.  In his first issue, C.H. complains that the trial court erred in determining that he had “engaged in conduct  which endangers the physical or emotional well-being of the child.”  Tex. Fam. Code Ann. § 161.001(E) (Vernon Supp. 2009).  His contention is that because he was incarcerated when he found out that J.W. was pregnant, there was legally and factually insufficient evidence he engaged in any conduct prior to his knowledge of his potential paternity that endangered D.W. either physically or emotionally and additionally that his present environment in prison did not endanger him. 

            Imprisonment alone does not constitute engaging in conduct which endangers the emotional or physical well-being of a child; however, it is a factor properly considered on the issue of endangerment.  Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533-34 (Tex. 1987).  C.H. is incorrect in his assertion that his conduct prior to his knowledge and establishment of paternity cannot constitute endangering conduct sufficient to support a finding under section 161.001(E). While knowledge of paternity is a prerequisite to a showing of knowing placement of a child in an endangering environment under section 161.001(1)(D), it is not a prerequisite to a showing of a parental course of conduct which endangers a child under section 161.001(1)(E).   In re M.J.M.L., 31 S.W.3d 347, 351 (Tex. App.—San Antonio 2000, pet. denied).  C.H. makes no argument that his conduct prior to the birth of D.W. would not demonstrate a course of conduct that endangers the emotional or physical well-being of D.W.  However, C.H. has an extensive criminal history, which includes twelve arrests, three felony convictions, and seven misdemeanor convictions.  C.H. had been incarcerated beginning in 1999 for periods of time aggregating over 5-½ years at the time of trial with another almost two years to do that was remaining on his current sentence.  C.H. had a significant history of past methamphetamine and marijuana use.  Also, C.H. had failed to attempt to contact or provide support for D.W. in any manner since D.W.’s birth even though he knew J.W. was pregnant before the child was born. However, at the same time C.H. maintained contact with, sent gifts to, and provided support for another biological child of his.  Using the appropriate standards, this constitutes both legally and factually sufficient evidence of a course of conduct that endangers the emotional or physical well-being of D.W. We overrule C.H.’s issue one. 

            Because there is sufficient evidence to support the finding under section 161.001(1)(E), it is not necessary to address C.H.’s second and third issues challenging the sufficiency of the evidence to support a subsection 161.001(1)(N) constructive abandonment or subsection 161.001(1)(Q) imprisonment finding.  C.H. does not challenge the finding of termination being in the best interest of D.W.

 

Conclusion

            We find that the evidence is legally and factually sufficient to support the jury’s findings regarding termination of the parent-child relationship between J.W. and D.W.  We find that the evidence is legally and factually sufficient to support the jury’s findings regarding termination of the parent-child relationship between C.H. and D.W.  We affirm the judgment of the trial court.

 

                                                                        TOM GRAY

                                                                        Chief Justice

 

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Affirmed

Opinion delivered and filed December 30, 2009

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