Randell Ray Bowers v. State

Opinion filed September 19, 2019
In The
Eleventh Court of Appeals
__________
No. 11-17-00256-CR
__________
RANDELL RAY BOWERS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CR24772
MEMORANDUM OPINION
After a bench trial, the trial court convicted Randell Ray Bowers of three
counts of forgery. See TEX. PENAL CODE ANN. § 32.21 (West Supp. 2018). Appellant
pleaded “true” to two prior felonies alleged for enhancement purposes. As a result,
the punishment range for the three forgery convictions was enhanced to twenty-five
years to ninety-nine years or life in prison. See id. § 12.42(d) (West 2019). In each
of the three forgery convictions, the trial court sentenced Appellant to confinement
for life in the Institutional Division of the Texas Department of Criminal Justice.1
In two issues on appeal, Appellant contends that the evidence was insufficient to
support his convictions. We affirm.
Background Facts
Brownwood Police Officer Paul Chrisman testified that he was dispatched on
July 3, 2016, to the residence of Tabitha Porter, Appellant’s girlfriend.
Subsequently, Officer Chrisman arrested Appellant for aggravated assault with a
deadly weapon. Officer Chrisman searched Appellant incident to the arrest to make
sure that Appellant did not have any weapons on him before transporting him to jail.
During the search, Officer Chrisman located a large, oddly shaped bundle
of cash in Appellant’s pocket. Appellant told Officer Chrisman that he wanted
Officer Chrisman to give the money to Porter. However, Officer Chrisman gave the
cash to Brownwood Police Officer Chandra Means.
Officer Means testified that Officer Chrisman asked her to check the bundle
of cash to ensure that it did not contain narcotics. She stated that the bundle of cash
“was kind of odd . . . it was wrapped in, like, a square with several rubber bands.”
Officer Means took the money apart and determined that one $100 bill and two $50
bills were counterfeit. The other bills in the bundle recovered from Appellant’s
pocket consisted of an actual $1 bill and an actual $10 bill. The bundle also
contained “a wad of newspapers and stuff.” Officer Means also searched Porter’s
apartment and located a black bag belonging to Appellant. Officer Means located
more counterfeit bills in the bag.
1
The record reflects that Appellant had seven prior felony convictions, as well as several prior
misdemeanor convictions. Many of the prior convictions involved assaults or weapons. Additionally,
Appellant was also convicted in the same bench trial of aggravated assault with a deadly weapon. The trial
court also sentenced Appellant to confinement for life for the aggravated assault conviction.
2
Catherine Brooks, Porter’s neighbor, testified that, before the police arrived
in response to the alleged aggravated assault, she observed Appellant “walking by,
flashing some money, telling [her] he had plenty of money and that he was going to
leave.”
Brownwood Police Detective Harold Q. Thomas interviewed Appellant after
his arrest. Appellant told Detective Thomas that he received the counterfeit money
from a company named “Garcia Lawn Mowing,” which was located in Temple.
Appellant stated that Ruben Garcia and Garcia’s brother left the money in an
envelope in Appellant’s mother’s mailbox. Appellant admitted that he knew that the
money was “bad.” Detective Thomas researched Garcia Lawn Mowing and was
unable to find any company with that name. Detective Thomas testified that the
manner in which the money was bundled made “it look like [it was] more money
than it [was], it [was] used to present to other people to make purchases.”
Analysis
In two issues, Appellant contends that the evidence was insufficient to support
his three convictions for forgery by possession with intent to utter. “The elements
of forgery by possession with intent to utter are (1) a person (2) ‘forges’ (3) a writing
(4) with[] intent to defraud or harm (5) another.” Burks v. State, 693 S.W.2d 932,
936 (Tex. Crim. App. 1985). As relevant here, “forge” means to possess a writing
that has been altered or made, or so that it purports to be the act of another who did
not authorize that act—with intent to pass, transfer, or otherwise utter a writing that
is forged. PENAL § 32.21(a)(1); see Burks, 693 S.W.2d at 936. A “writing” includes
money. PENAL § 32.21(a)(2)(B).
In his first issue, Appellant contends that there was insufficient evidence that
he possessed the counterfeit money with an intent to pass or otherwise utter as
3
alleged in the indictment. Appellant contends that there was no evidence that he had
formed the intent to pass the counterfeit bills prior to the police taking them from
him. He further contends that, once the police removed the bills from his pocket, he
no longer possessed them. It appears that Appellant makes this contention based
upon the trial court’s statement at the close of evidence that it determined that
Appellant possessed the bills with the intent to pass them because he did attempt to
later pass them to Porter after Officer Chrisman removed the bills from Appellant’s
pocket.
We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010). Under the Jackson standard, we review
all of the evidence in the light most favorable to the verdict and determine whether
any rational trier of fact could have found the elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When conducting a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
4
verdict and defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
We note at the outset that, “[w]hile evidence of a passing or attempted passing
of a forged instrument would certainly aid the State in proving a case of possessing
a forged instrument [with intent to utter], such evidence is not absolutely essential.”
Shipp v. State, 292 S.W.3d 262, 264 (Tex. App.—Texarkana 2009, no pet.) (citing
Burks, 693 S.W.2d at 936). Thus, the State was not required to prove that Appellant
passed or attempted to pass the counterfeit bills in order for him to be convicted of
“forgery by possession.” Burks, 693 S.W.2d at 936. Instead, Appellant could be
convicted if the evidence permitted a rational trier of fact to determine that Appellant
possessed the counterfeit bills with the intent to pass them in the future. See id. We
conclude that the evidence in this case satisfies this requirement. Detective Thomas
testified that Appellant packaged the counterfeit bills in such a manner that indicated
that he intended to present it to others to look like it was more money than it actually
was. Additionally, Brooks testified that Appellant “flashed” the bundle of money to
her and made a comment that he had “plenty of money.” The manner in which
Appellant bundled the money, coupled with his actions and comments to Brooks, is
evidence that Appellant possessed the counterfeit bills with an intent to pass them.
Thus, the offenses of forgery by possession were complete before the police arrived
at the scene. We overrule Appellant’s first issue.
In his second issue, Appellant asserts that there was insufficient evidence to
show that he had the intent to defraud or harm another. Appellant acknowledges a
line of cases holding that, when a person possesses a writing that he knows to be a
forgery, an intent to defraud or harm is inferred. See Williams v. State, 688 S.W.2d
486, 488 (Tex. Crim. App. 1985). In this regard, there is no dispute that Appellant
5
knew the bills were counterfeit. Appellant contends that such a sweeping inference
for all forgery cases impermissibly creates a presumption that is not present in
Section 32.21. We disagree with Appellant’s analysis.
We first note that Williams was an opinion from the Texas Court of Criminal
Appeals. Under Williams, if the State proves that the defendant had knowledge that
a particular writing is forged, proof of intent to defraud is inferred. Okonkwo v.
State, 398 S.W.3d 689, 701 n.16 (Tex. Crim. App. 2013) (Cochran, J., concurring).
However, this inference is “an appellate vehicle employed to review the sufficiency
of the evidence, not a trial vehicle used to prove an element of the State’s case,”
Browning v. State, 720 S.W.2d 504, 506 (Tex. Crim. App. 1986) (quoting Aguilar v.
State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985)) as is the case with a trial-level
presumption. Id. (citing Hardesty v. State, 656 S.W.2d 73, 77 (Tex. Crim. App.
1983)). A permissible inference of this type is not conclusive and does not shift the
burden of proof as a “true presumption” would do. Id. (citing Hardesty, 656 S.W.2d
at 77). It “is simply a circumstance perhaps indicating guilt” from which the
factfinder may or may not infer an intent to defraud or harm another. Id.
As previously noted, the evidence establishes that Appellant knew that the
bills were counterfeit. Despite having this knowledge, Appellant placed the three
counterfeit bills in a bundle wrapped with two actual bills of nominal value along
with pieces of newspaper. He flashed the bundle to Brooks and, when doing so,
commented that he had plenty of money. Based on this evidence, a rational trier of
fact could have found beyond a reasonable doubt that Appellant possessed the
counterfeit bills with an intent to harm or defraud another and that Appellant had an
intent to pass the counterfeit bills. We overrule Appellant’s second issue.
6
This Court’s Ruling
We affirm the judgment of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
September 19, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.2
Willson, J., not participating.
2
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
7