Ramsey, Donald Lynn A/K/A Donald Lynn Ramsay , 473 S.W.3d 805 ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0070-15
DONALD LYNN RAMSEY, A.K.A. DONALD LYNN RAMSAY, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
SWISHER COUNTY
H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J.,
J OHNSON, K EASLER, R ICHARDSON, Y EARY, and N EWELL, JJ., joined. M EYERS, J.,
filed a dissenting opinion. A LCALA, J., concurred.
OPINION
Appellant was found guilty of forgery, and on appeal the court of appeals reversed
his conviction, holding that the evidence was insufficient because there was no proof that
Appellant had the intent to defraud or harm another. Ramsey v. State, No. 07-14-00249-
CR, 2014 WL 7271488, at *3 (Tex. App.—Amarillo Dec. 17, 2014) (mem. op.) (not
designated for publication). The State Prosecuting Attorney filed a petition for
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discretionary review, which we granted, arguing that the court of appeals did not examine
the totality of the evidence or reasonable inferences therefrom.1 We agree and will reverse
the judgment of the court of appeals.
F ACTS
Jimmie and Jed Owens founded and operated Owens Motor Machine, a company
that performed electrical work. However, State’s Exhibit 3 includes a signature card for
the Owens Motor Machine bank account, which states that the account holder was “J E
OWENS DBA OWENS MOTOR MACHINE.” It further notes that Owens Motor
Machine was a sole proprietorship, that the sole owner of the account was Jimmie, and
that Jed was only an authorized agent on the account. When the State showed the exhibit
to Jed during his testimony and asked him who the owner of that account was, he
responded, “It’s my father.” When asked if there is a place on the card where it says
“owner of the account,” he answered, “Yeah. It’s J.E. Owens on the owner.” Appellant
began working for the company in January or February of 2013. At some point after he
was hired, he was allowed to move into the business shop, which had a cot, bathroom,
and air conditioner. When working around town, Jed would drive himself and Appellant
around in his work truck.2 At night, Jed parked the truck in the shop where Appellant was
1
The ground for review states, “Does an appellate court give proper deference to a jury’s
forgery finding of intent to defraud or harm when it fails to consider the totality of the evidence
and rational inferences therefrom?”
2
It appears Jed and Appellant primarily performed the electrical work because Jimmie
was 84 years old.
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living and would leave it unlocked. Appellant was the only employee of the company
(other than the owners) for approximately six months before the fraudulent check was
passed.
Both Jimmie and Jed were signatories on a checking account for Owens Motor
Machine, and the names of record were “J.E. Owens” (Jimmie) and “J.J. Owens” (Jed).
Jimmie testified that he usually signed checks “J.E. Owens” but sometimes wrote
“Jimmie E. Owens,” and in the past had signed them “Jimmie Owens.” He also stated that
Appellant was always paid by check, and that he would write “contract labor” in the
memorandum line. According to Jed, there were two checkbooks for the account; his
father had one, and he had the other. He kept his in his work truck and said that, aside
from his father, the only other person with access to the checkbook in his truck was
Appellant. He did testify, however, that other people occasionally stopped by the shop to
talk to him about “electrical business.” Jimmie and Jed denied executing the check in
question and were adamant that they did not authorize anyone else to do so. Jed testified
that he is familiar with his father’s distinct handwriting, and the signature on the check
was not his father’s.
On June 11, 2013, Appellant went to Booger Red Liquor, which was located about
a block and a half from the shop where he lived, and tendered to the on-duty clerk a check
payable to himself in the amount of $65. The liquor store clerk honored the check because
the Owenes had previously authorized it to cash Appellant’s paychecks. According to the
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on-duty clerk, Appellant bought cigarettes and beer, and the balance was given to him as
change. The check was signed “Jim E. Owens” and “contract labor” was written in the
memorandum line. At the time of the offense, Jimmie was 84 years old.
C OURT OF APPEALS
The court of appeals held that there was insufficient evidence to prove that
Appellant intended to defraud or harm the victim because the State failed to prove that
Appellant knew the check was forged. Ramsey, 2014 WL 7271488, at *3. In discussing
the intent-to-defraud-or-harm element, it said that mere possession, passage, or
presentment of a forged instrument is insufficient to infer intent to defraud, although the
requisite intent can be proven by circumstantial evidence. Id. at *1. It went on to discuss
our decision in Stuebgen v. State, 547 S.W.2d 29, 35 (Tex. Crim. App. 1977), and held
that it controlled the outcome of this case based on the following passage:
In the instant case, the record reflects that appellant made no statement from
which it could be inferred that he knew the instrument was forged.
Appellant was listed as the payee, and appellant did not falsely represent
himself. No evidence was introduced to show that anything appearing on
the check was in appellant’s handwriting. Although appellant had access to
[the victim]’s checkbook, and [the victim] normally paid his employees
personally, we do not find that this evidence is sufficient to discharge the
State’s burden of showing that appellant acted with intent “to defraud or
harm another.”
Id. In its analysis, the court noted that, just as in Stuebgen, Appellant was usually
personally paid; he had access to the checkbook, although there was evidence that other
people had access to the checkbook as well; there was no evidence that the handwriting
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on the check was that of Appellant; he was listed as the payee; and he never falsely
represented himself. Ramsey, 2015 WL at *2 (citing Crittenden v. State, 671 S.W.2d 527,
528 (Tex. Crim. App. 1984)). It also explained that the fact that Jimmie usually signed
checks “J.E. Owens” does not constitute proof that Appellant knew the check was forged
because, although the forged check bore a different signature, Jimmie had executed
checks in at least two other ways before and there is no record evidence that Appellant
knew how Jimmie signed his checks. Id. at *3. For these reasons, according to the court,
any inference that Appellant knew the check was forged would be based on speculation.
Id.
Justice Pirtle, who authored the dissent, would have distinguished this case from
our decisions in Stuebgen and Crittenden and held that there was sufficient circumstantial
evidence to sustain the conviction. Id. at *3–4 (Pirtle, J., dissenting). He argued that the
critical distinction between Stuebgen, and this case is that, in Stuebgen there was no
memorandum on the check stating the purpose for which the check was given.
Also, he distinguishes Crittenden based on the fact that, in Crittenden, there was no
connection between the stolen check and the defendant, the defendant said nothing from
which it could be inferred that he knew the check was stolen, and he did not flee when the
bank would not honor the check. Id. at *4. Instead, Justice Pirtle concluded that the
outcome of this case is controlled by our decision in Williams v. State, 688 S.W.2d 486,
490 (Tex. Crim. App. 1985),
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Here, similar to Williams and unlike Stuebgen and Crittenden, Appellant
attempted to pass an instrument that clearly stated that it was given for a
specific purpose, to-wit: “contract labor.” Furthermore, the evidence
established that he was a former employee of the purported maker of the
check, had access to a checkbook from their account and passed the
instrument at a location where he knew his “paychecks” would be honored.
Reviewing the evidence in the light most favorable to the jury’s verdict, the
evidence in this case circumstantially establishes that Appellant passed the
check under circumstances inferentially representing the check was given
for services rendered.
Ramsey, 2014 WL 7271488, at *4.
T HE LAW
1
When examining the legal sufficiency of the evidence, we consider the combined
and cumulative force of all admitted evidence in the light most favorable to the conviction
to determine whether, based on the evidence and reasonable inferences therefrom, a
rational trier of fact could have found each element of the offense beyond a reasonable
doubt. Jackson v. Virginia, 443 U.S. 307, 318–19 (1979); Merritt v. State, 368 S.W.3d
516, 525 (Tex. Crim. App. 2012). Beyond a reasonable doubt, however, does not require
the State to disprove every conceivable alternative to a defendant’s guilt.3 Merritt, 368
3
We used to measure the sufficiency of evidence in circumstantial cases using the
“reasonable hypothesis analytical” construct. Under that analytical framework, a conviction could
be upheld only if “every other reasonable hypothesis raised by the evidence was negated, save
and except that establishing the guilt of the defendant . . . .” Geesa, 820 S.W.3d at 158. One
reason we disavowed the construct was to prevent usurpation of the fact finder’s exclusive role to
resolve inconsistencies in the evidence, including deciding whether the State’s theory of the case
is more credible than another reasonable, exculpating hypothesis raised by the evidence. Id.
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S.W.3d at 525; see Geesa v. State, 820 S.W.2d 154, 160–61 (Tex. Crim. App. 1991).
Direct evidence and circumstantial evidence are equally probative, and circumstantial
evidence alone may be sufficient to uphold a conviction so long as the cumulative force
of all the incriminating circumstances is sufficient to support the conviction. Winfrey v.
State, 393 S.W.3d 763, 771 (Tex. Crim. App. 2013); Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007). The trier of fact is the exclusive judge of the credibility and
weight of the evidence and is permitted to draw any reasonable inference from the
evidence so long as it is supported by the record. Inferences based on mere speculation,
however, are insufficient to support a criminal conviction. See Hooper, 214 S.W.3d at
16–17.
2
The elements of forgery as alleged in the indictment are that (1) Appellant, (2)
acting with intent to harm or defraud, (3) an elderly person, (4) passed, (5) a forged, (6)
writing. T EX. P ENAL C ODE § 32.21(b). The only issue before us, however, is whether
Appellant acted with intent to harm or defraud. To prove the requisite intent, the trier of
fact must be able to reasonably infer that Appellant knew the instrument was forged
beyond a reasonable doubt. Okonkwo v. State, 398 S.W.3d 689, 695 (Tex. Crim. App.
2013).
A RGUMENTS OF THE PARTIES
A. The State
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The State makes two arguments as to why the court of appeals erred. First, the
State asserts that, contrary to the decision of the court of appeals, a jury could have
rationally concluded that circumstantial evidence established Appellant’s guilt. It relies on
the following evidence and inferences to support its argument: (1) Appellant was the
beneficiary of the check, and there was no evidence of a motive for anyone else to forge a
check on his behalf; (2) he had unlimited access to the checkbook in Jed’s truck, which
Jed left unlocked at night in the shop where Appellant lived; (3) to avoid scrutiny,
Appellant passed the check at the liquor store where he had previously cashed his
paychecks; and (4) even if the evidence did not show that Appellant was the forger, it
nonetheless showed that he knew the check was forged. The State asserts that he knew
the check was forged because, although Appellant had completed no compensable work 4
and the memorandum noted that the payment was for “contract labor,” he still accepted
the payment and passed the check. It also asserts that the forged check was similar
enough to actual paychecks executed by Jimmie and Jed to show that the forger was
familiar with how the Owens’s executed paychecks (e.g., including the notation “contract
labor”), but was different enough to show it was forged because Jimmie did not sign
paychecks that way.
4
The parties dispute whether any evidence was offered on this point at trial, but a jury
need not leave its common sense at the door when determining whether a person is guilty. Acosta
v. State, 429 S.W.3d 621, 625 (Tex. Crim. App. 2014). On these facts, it would be rational for a
trier of fact using its common sense to infer that a person would know whether he performed
compensable work and whether he had been paid for that work.
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Second, the State argues that the appellate court’s reliance on our decision in
Stuegben is inapposite because it is a pre-Jackson case that was decided by applying the
now abandoned alternative-hypothesis construct, which does not require the same
deference to the jury’s resolutions of factual issues as the Jackson standard requires. It
also contends that Stuebgen is factually distinguishable because, in this case, Appellant’s
access to the checkbook was nearly exclusive, and “there is a nexus between Appellant
and the check because of the obvious attempt to duplicate the unique manner in which
Jimmie issued Appellant’s paychecks.”
B. Appellant
Appellant argues that the court of appeals reached the right result because there
was no evidence that he knew the check was forged. And, according to Appellant,
because there was no evidence that he knew the check was forged, the court of appeals
did not fail to defer to the verdict because no rational inferences can be drawn from a
“null set.”
Appellant also asserts that he was not the only person with sole and unlimited
access to the checkbook in Jed’s truck, as the State contends, and that the record shows
that Jimmie possessed a second checkbook for the account. Regarding his knowledge that
the check was not for work he performed, Appellant argues that this was a contested issue
at trial, and he cites evidence that Jimmie recently had back surgery and took pain
medication that could possibly make him forget things. Finally, Appellant also challenges
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the State’s assertion that “[n]either Jimmie nor Jed had signed or issued the check to
Appellant” because, according to him, there was no evidence to that effect.
A NALYSIS
A. The evidence was sufficient for the jury to reasonably infer that Appellant passed the
check with the intent to defraud or harm another.
Although Appellant argues that there was insufficient evidence for the jury to
conclude that neither Jimmie nor Jed signed the check or that Appellant had sufficient
access to steal the check based on conflicting evidence at his trial, the function of
resolving conflicts in the evidence and making reasonable inferences therefrom is
assigned to the jury. Merritt, 368 S.W.3d at 525. Therefore, the issue we must resolve is
not whether a jury could have found Appellant not guilty because there was conflicting
evidence, but whether any rational trier of fact could have found each element of the
offense beyond a reasonable doubt. Id.
Jimmie and Jed testified that neither of them signed the check or authorized its
issuance, but Jimmie also testified that he “possibly” forgets things when he takes his pain
medication. Appellant argued that Jimmie’s pain-medication testimony allowed the jury
to reasonably infer that Jimmie forgot that he actually wrote the check. Based on that
testimony, the jury could have reasonably believed that Jimmie executed the check, but
the jury did not have to believe that and, as is evident by its verdict, it did not.
Similarly, there is conflicting evidence regarding the extent of Appellant’s and
others access to the check in question. On the one hand, Jed testified that there were two
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checkbooks for the account and that he and Jimmie each had one. He also said that people
would occasionally stop by the shop to talk electrical business.5 On the other, Jed kept his
checkbook in his truck, which he left unlocked in the shop at night where Appellant lived.
Consequently, the jury could have inferred that someone other than Appellant somehow
gained access to Jimmie’s checkbook and stole the check. But, if that were the case, then
the jury would also have had to believed that the person who stole the check executed it in
favor of Appellant (instead of himself), knew to write “contract labor” in the
memorandum line, and Appellant somehow innocently came into the possession of the
stolen check. In contrast, the jury also could have resolved the conflicting evidence
against Appellant and reasonably inferred, based on the evidence, that he stole the check,
forged it, and passed it at the liquor store with the intent to defraud and harm Jimmie.
We also agree with Justice Pirtle that Stuebgen and Crittenden are distinguishable.
Both cases were decided before we handed down our decision in Geesa, in which we
disavowed the reasonable-alterative-hypothesis construct,6 and Stuebgen was decided
before Jackson, which clarified the legal sufficiency standard of review. And although
5
There was no evidence that any of the people that would occasionally stop by the shop to
talk to Jed about electrical business had unsupervised access to the truck or any reason to know
that the checkbook was in his truck.
6
See infra, note 3; Wise v. State, 364 S.W.3d 900, 902–03 (Tex. Crim. App. 2012)
(finding sufficient evidence to sustain the conviction after concluding that the court of appeals
misapplied the standard of review for sufficiency by focusing on the possible alternative
explanations, rather than determining whether the jury’s inference was reasonable based upon the
cumulative force of all the evidence when considered in the light most favorable to the verdict”).
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neither decision cites the “reasonable hypothesis” construct, both analytically relied on
negating exculpatory theories raised by the evidence. Crittenden, 671 S.W.2d at 528;
Stuebgen, 547 S.W.2d at 32. In light of Geesa and Jackson, the only standard by which to
review the sufficiency of the evidence in a forgery case, whether based on direct or
circumstantial evidence, is the standard of review set out in Jackson.
The court of appeals reached the wrong result because it incorrectly applied the
Jackson legal sufficiency standard, which requires that the combined and cumulative
force of all the evidence be viewed in the light most favorable to the conviction. After
properly applying the Jackson standard, we find the evidence sufficient to uphold
Appellant’s conviction. We sustain the State’s ground for review, reverse the judgment of
the court of appeals, and reinstate Appellant’s conviction for forgery.
Hervey, J.
Publish
Delivered: October 28. 2015