Johnny Davis v. State ( 2011 )

NUMBER 13-10-00560-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JOHNNY DAVIS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 94th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Garza
Memorandum Opinion by Justice Garza
A jury found appellant Johnny Davis guilty of forgery, a state jail felony, see TEX.
PENAL CODE ANN. § 32.21(d) (West Supp. 2010), and imposed punishment of two years’
confinement in the Texas Department of Criminal Justice–State Jail Division and a
$897.42 fine. See id. § 12.35 (West 2003). By a single issue, Davis contends the
evidence is insufficient to support the jury's verdict. We affirm the trial court's judgment.
I. BACKGROUND
On June 2, 2009, a fraudulent check in the amount of $897 from Chase Bank
was used to purchase a pallet of tile from Surplus Warehouse. The check was signed
“Thomas Penney.” However, Thomas Penney testified at trial that he did not sign the
check or authorize anyone else to sign it. The sale of the tile at Surplus Warehouse
was completed by a sales associate, Angel Villa. At the time of the purchase, the check
was approved by Surplus Warehouse. Around a month later, it was flagged as
fraudulent by Surplus Warehouse. The detective assigned to the case was Oscar
Zepeda.
A. Thomas Penney
Thomas H. Penney testified that he did not know Davis. When asked if he could
identify Davis in court, Penney commented that he had never seen Davis before. After
reviewing the fraudulent check, Penney testified that his name and address properly
appeared on the check. However, he did not have an account with Chase Bank and did
not sign the check; someone forged it. He became aware that his identity had been
stolen after several businesses contacted him about counterfeit checks that were
passed on June 1 and June 2, 2009.
Penney testified that he had never had his check book, driver’s license, or credit
cards stolen before. He had never done business with Surplus Warehouse in the past.
He stated that he had no idea who passed the counterfeit checks.
B. Oscar Zepeda
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Zepeda testified that he gathered information suggesting that Davis might be
involved in the counterfeit check passed at Surplus Warehouse. He learned from the
police report filed by Surplus Warehouse that the clerk who received the counterfeit
check was Villa. An investigation uncovered four individuals possibly connected to the
counterfeit check. These suspects were organized into four different randomized photo
line ups by Detective Zepeda. The photo lineup was shown to Villa three months after
the check was written; Villa was able to positively identify Davis as the person who had
given him the counterfeit check.
C. Angel Villa
Villa testified that he recalled the approximate time of day that the transaction
took place. Villa said that at the time the check was tendered, it was processed through
a “check reader” and was approved. A month after the transaction, the manager of
Surplus Warehouse alerted Villa that the check was counterfeit. When approached by
Detective Zepeda, Villa made a positive photo identification of Davis. Villa also
identified Davis in court. At the time of the purchase, Villa inspected a driver’s license
from Davis which matched the identity on the counterfeit check. Villa testified that he
was certain that Davis passed the check for the purchase of the tile.
II. SUFFICIENCY OF THE EVIDENCE
A. Standard of Review
Davis contends the evidence is legally and factually insufficient to support his
conviction. We disagree.
The court of criminal appeals has recently held that there is “no meaningful
distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis
factual sufficiency standard” and that the Jackson standard “is the only standard that a
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reviewing court should apply in determining whether the evidence is sufficient to support
each element of a criminal offense that the State is required to prove beyond a
reasonable doubt.” Brooks v State, 323 S.W.3d 893, 902-03, 913 (Tex. 2010) (plurality
op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we review
claims of evidentiary sufficiency under “a rigorous and proper application of the Jackson
standard of review.” Id. at 906-07, 912.
Under the Jackson standard, “the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.” Jackson,
443 U.S. at 307; see Brooks, 323 S.W.3d at 898-99 (characterizing the Jackson
standard as: “Considering all of evidence in the light most favorable to the verdict, was
a jury rationally justified in finding guilt beyond a reasonable doubt”).
We measure the legal sufficiency of the evidence by the elements of the offense
as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,
314 (Tex. App.–Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,
240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s burden of
proof or unnecessarily restrict the State's theories of liability, and adequately describes
the particular offense for which the defendant was tried.” Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240). The State was
required to prove beyond a reasonable doubt that Davis (1) with intent to defraud or
harm another, (2) passed (3) a writing (4) that purported to be the act of another
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[Penney] (5) who did not authorize the act. TEX. PENAL CODE ANN. § 32.21(a), (b); see
Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985).
B. Discussion
Davis’s challenge to the sufficiency of the evidence is limited to the issue of
identity. Specifically, Davis contends that, “the state failed to elicit sufficient evidence
proving that defendant was the person who passed the forged check.” Davis points to
the fact that Villa’s identification of him came three months after the check was passed
and to the absence of any other witnesses linking Davis to the check. We disagree.
The statute does not require a gallery of accusers; rather, one witness who can
link the accused to the crime is sufficient. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.
Crim. App. 1971) (holding that the testimony of one eyewitness alone is sufficient to
support jury’s verdict); Leadon v. State, 332 S.W.3d 600, 607 (Tex. App.–Houston [1st
Dist.] 2010, no pet.) (same); Pitte v. State, 102 S.W.3d 786, 794 (Tex. App.–Texarkana
2003) (same). Here, Villa’s testimony identified Davis as the individual who presented
the fraudulent check. Although Villa’s identification of Davis came three months after
the purchase, he positively identified Davis when presented with a photo lineup. Villa
also recalled the time of day when the incident took place, which permits a reasonable
inference that his memory of the events was accurate. Moreover, there was no
controverting evidence presented that cast doubt on Villa’s testimony. Thus, Villa’s lone
testimony was sufficient to support the verdict. See Aguilar, 468 S.W.2d at 77.
Examining the evidence in the light most favorable to the verdict, we conclude
that a rational trier of fact could find Davis guilty of felony forgery beyond a reasonable
doubt. See Brooks, 323 S.W.3d at 898-99. The evidence was therefore legally
sufficient. We overrule Davis’s issue.
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III. CONCLUSION
We affirm the trial court’s judgment.
DORI CONTRERAS GARZA
Justice
Do not Publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
30th day of June, 2011.
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