Brinjit Velu v. State ( 2009 )

IN THE
TENTH COURT OF APPEALS
No. 10-07-00327-CR
BRINJIT VELU,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 272nd District Court
Brazos County, Texas
Trial Court No. 06-00706-CRF-272
MEMORANDUM OPINION
A jury convicted Brinjit Velu of forgery and the trial court assessed his
punishment at 180 days’ confinement in a state jail, suspended for two years. Velu
challenges: (1) the legal and factual sufficiency of the evidence to support his conviction;
(2) the admission of extraneous offense evidence; (3) the admission of a business records
affidavit; and (4) the inclusion of an allegedly erroneous application paragraph in the
jury charge. We affirm.
FACTUAL BACKGROUND
Velu, an Indian national and master’s student, met Lizzy Kelly on an internet
dating website. Kelly claimed to be a Pennsylvania resident studying in Nigeria. Velu
became interested in Kelly. At some point, Velu agreed to cash a check for Kelly and
wire her the money. Velu received the cashier’s check from Kelly’s aunt. In India,
cashier’s checks are the “most secure financial instruments,” so Velu did not suspect
that the check might be counterfeit. He took the check to Bank of America, where he
maintained an account. The bank accepted the check, but later returned the check with
a letter advising Velu that the check was counterfeit. The bank closed Velu’s account.
Kelly told Velu that her aunt had stopped payment on the check. Velu believed
Kelly and agreed to cash a second check from Kelly’s aunt. Kelly instructed Velu to
take the check to a check-cashing point and send her the money. Velu took the check to
Mr. Payroll, believing that Mr. Payroll was in a better position to verify the check’s
authenticity and tell him whether the check was “genuine or fake.”
Dorothy Johnson received the check from Velu. Johnson noticed that the check
contained handwriting instead of machine printing and omitted the payor’s telephone
number. Velu told Johnson that he was cashing the check for a friend and needed to
wire the money. Johnson, aware of a Nigerian check-cashing scam, became suspicious.
Upon further questioning, Velu motioned for Johnson to “quiet down.” He then told
Johnson that an aunt had asked him to cash the check and wire the money to her niece
in Nigeria. After contacting the bank, Johnson discovered that the check was
counterfeit and contacted police.
Velu v. State Page 2
Officers Tom Jagielski and Kevin Roby spoke with Velu at Mr. Payroll. Velu told
both officers that he had received the check from a friend in Florida and that this was
the second of two checks he had received from this friend. He deposited the first check
into his bank account, but subsequently learned that the check was counterfeit. The
bank returned the check, closed his account, and returned the remaining funds to him.
Velu further told Roby that he received a letter with the second check instructing him to
cash the check at a “check-cashing place[]” instead of depositing the check into his own
bank account. He told Roby that he planned to send the money to a friend in Nigeria.
Velu also told Roby that he thought the money might be stolen. Velu told Jagielski that
he did not deposit the second check into his account because he thought the check was
probably bad since it was written on the same bank by the same person as the first
check. He did not want his new account to be closed.
Velu told investigator Thomas Reitmeyer that he received the check from his
friend, went to Mr. Payroll to cash the check, and planned to wire the money to a friend
in Nigeria. He mentioned Kelly, explaining that she had initially asked him for money,
but he had no money to give. Kelly then told Velu that her mother’s friend would send
him a check and instructed Velu to deposit the check and wire her the money. Velu
said that the first check was post-marked Ireland and written on a bank in Florida. He
told Reitmeyer that he later learned that the check was counterfeit. Kelly told him that
her friend’s mother had stopped payment on the check and would send another check.
At a second interview, Velu offered to log into his email account and show
Reitmeyer the emails from Kelly. Velu refused to consent to a forensic search of his
Velu v. State Page 3
computer. After obtaining a search warrant, Reitmeyer recovered Velu’s computer, a
letter from Velu’s bank advising him about the counterfeit check and the closure of his
account, Western Union receipts, the first counterfeit check, and a bank statement.
Detective Paul Price conducted the forensic search of Velu’s computer. Price
found an email and a chat log involving Kelly. The email contained wiring instructions.
In the chat log, Kelly told Velu that the first check was not cancelled. She asked Velu to
cash the check at a check-cashing point, deduct $250 for himself, the Western Union
charges, and the check-cashing fee, and send her the remaining funds. Velu agreed.
Price found evidence that Velu had been visiting several different dating websites.
Price found no evidence that Velu was trying to hide something.
After his release from jail, Velu told Kelly that her aunt sent a counterfeit check
and that the police were going to come after her. Kelly logged off the computer. Velu
later discovered that Kelly had several internet profiles, using the same photograph, in
different locations across the United States.
LEGAL AND FACTUAL SUFFICIENCY
In his first point, Velu contends that the evidence is legally and factually
insufficient to show that he acted with the intent to defraud or harm another or knew
that the check was forged.
Standards of Review
Under legal sufficiency review, we 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. Curry v. State,
Velu v. State Page 4
30 S.W.3d 394, 406 (Tex. Crim. App. 2000) (citing Jackson v. Virginia, 443 U.S. 307, 318-19,
99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). We do not resolve any conflict of fact or
assign credibility to the witnesses, as this was the function of the trier of fact. See
Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); see also Adelman v. State, 828
S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim.
App. 1991). Inconsistencies in the evidence are resolved in favor of the verdict. Curry,
30 S.W.3d at 406; Matson, 819 S.W.2d at 843.
Under factual sufficiency review, we ask whether a neutral review of all the
evidence demonstrates that the proof of guilt is so weak or that conflicting evidence is
so strong as to render the jury’s verdict clearly wrong and manifestly unjust. Watson v.
State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006); Johnson v. State, 23 S.W.3d 1, 11
(Tex. Crim. App. 2000). We review the evidence weighed by the jury that tends to
prove the existence of the elemental fact in dispute and compare it with the evidence
that tends to disprove that fact. Johnson, 23 S.W.3d at 7. We do not indulge in
inferences or confine our view to evidence favoring one side. Rather, we look at all the
evidence on both sides and then make a predominantly intuitive judgment. Id.
Analysis
In order to prove the offense of forgery by passing, the State must show that the
defendant: (1) with intent to defraud or harm another (2) passed (3) a writing (4) that
purported to be the act of another and (5) that other persons did not authorize the act.
See TEX. PEN. CODE ANN. § 32.21(a), (b) (Vernon Supp. 2008); Williams v. State, 688
S.W.2d 486, 488 (Tex. Crim. App. 1985). Intent to defraud or harm requires proof of
Velu v. State Page 5
knowledge that the instrument is forged. See Williams, 688 S.W.2d at 488. Intent may be
established by circumstantial evidence. Id. Intent may be inferred if the State
establishes that the defendant knew the instrument was forged. See Beaty v. State, 156
S.W.3d 905, 909 (Tex. App.—Beaumont 2005, no pet.).
The State relied on several facts to establish Velu’s intent and knowledge. Velu
contends that none of these facts support his conviction because each fact is ambiguous.
First, the State relied on the extraneous counterfeit check. Velu contends that the
two checks are dissimilar: the first check was handwritten, the second check was typed,
each check had a different payor, and each check was written on a different account and
different bank. However, both checks involve similar transactions. The two checks
were from the same source, Kelly was the intended recipient of the funds from both
checks, both checks were for $3,000, and Velu planned to wire the funds from both
checks. In fact, Reitmeyer opined that, because the bank advised Velu that the first
check was counterfeit, a “reasonable person would believe that he had prior knowledge
that there was something wrong and that that check, in all likelihood, was false and
should not be attempted to be cashed.” He added that if a person with that knowledge
still attempts to cash the check, then it becomes “kind of a ‘Well, let’s see what happens’
type of situation.” The first counterfeit check is evidence of intent and knowledge. See
Laws v. State, No. 14-00-01093-CR, 2001 Tex. App. LEXIS 7576, at *15 (Tex. App.—
Houston [14th Dist.] Nov. 8, 2001, no pet.) (not designated for publication) (despite
defendant’s claim that he did not know a check was forged, he had engaged in a similar
scheme before committing the charged offense).
Velu v. State Page 6
Second, the State relied on Velu’s conflicting stories: he was cashing the check for
a friend, he was cashing the check for an aunt to send to her niece in Nigeria, he
received the money from a friend in Florida, and he received the check from Kelly’s
mother’s friend in Ireland. Velu contends that “[g]iven a liberal interpretation of [his]
explanations about how he received the check, his stories were consistent with one
another.” Yet, the jury was entitled to consider any conflicts in Velu’s story as evidence
of guilt and bore the burden of resolving such conflicts either for or against him. See
Kemmerer v. State, 113 S.W.3d 513, 516 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)
(“jury could have viewed appellant’s changing versions of the incident as evidence of
guilt.”); see also Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008) (the jury
“may choose to believe some testimony and disbelieve other testimony”); Wyatt v. State,
23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (it is within the exclusive province of the jury to
reconcile conflicts in the evidence).
Third, Velu motioned for Johnson to be quiet when she questioned him about the
check. Velu contends that the meaning behind his gestures is “inconclusive and
speculative.” He testified that he was attempting to clarify things with Johnson, not
silence her. Johnson found Velu’s behavior unusual. Because intent and knowledge
may be inferred from the defendant’s acts, words, and conduct at the time of the
offense, the jury was entitled to consider Velu’s gestures towards Johnson. See Hart v.
State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002).
Fourth, the State challenged Velu’s failure to produce “love letters” evidencing a
relationship with Kelly. Velu argues that the lack of such letters does not establish the
Velu v. State Page 7
absence of an “important relationship.” Velu testified that he cared about Kelly, was
interested in Kelly, and anticipated entering a “committed relationship” with Kelly. He
also testified that Kelly sent him photographs and wanted to meet him. Even without
written evidence of a relationship, the jury could have found that such a relationship
did exist. As the sole judge of the weight and credibility of the evidence, the jury bore
the burden of deciding what to believe. See Lancon, 253 S.W.3d at 707; see also Wyatt, 23
S.W.3d at 30.
Fifth, the State argued that Velu benefited from the transaction. In the chat log,
Kelly instructed Velu to retain $250 for himself, but Velu testified that he did not benefit
financially from the transactions. However, it was not necessary that Velu reap a
benefit. See Landry v. State, 583 S.W.2d 620, 623 (Tex. Crim. App. 1979) (“‘[P]ass’ in the
forgery statute means to offer the forged instrument, and it does not require a showing
that the defendant actually received consideration in exchange for the check.”); see also
McGee v. State, 681 S.W.2d 31 (Tex. Crim. App. 1984) (same); Lee v. State, No. 06-07-
00137-CR, 2008 Tex. App. LEXIS 1048, at *3-4 (Tex. App.—Texarkana Feb. 14, 2008, no
pet.) (not designated for publication) (same).
Finally, the State emphasized Velu’s statements to police that he thought the
check might be bad and the money might be stolen. Velu contends that he did not
know, but merely suspected, that the check was counterfeit. He denied telling the
officers that the second check was written on the same account by the same person. He
did not want to risk the closing of his bank account and believed that Mr. Payroll would
tell him whether the check was counterfeit. He maintains that he was merely a “victim
Velu v. State Page 8
of a check-cashing scam in which good natured and honest people were deceived by
online swindlers into cashing counterfeit checks and sending the money abroad.”
According to Velu, his statements indicate nothing more than criminal negligence. We
disagree.
Velu’s statements are evidence of guilt, suggesting an awareness of the check’s
fraudulent nature. See Laws, 2001 Tex. App. LEXIS 7576, at *13 (defendant admitted
taking the check to the bank to verify its validity). Velu had already attempted to cash a
forged check from the same source and he knew that this first check was forged. As
Reitmeyer testified, this fact is sufficient to cause a reasonable person to conclude that
the second check was also fraudulent and should not be cashed. See id. at *15
(circumstances suggested that genuineness of check should have been questioned).
Bank of America knew about the previous forged check and had already closed one of
Velu’s accounts. The jury could reasonably conclude that Velu, an intelligent man and
a masters student in petroleum engineering, was not the victim of an internet scam, but
knew that this second check was also fraudulent and chose to cash the check at Mr.
Payroll where he perceived a lesser risk of being caught. His unusual behavior towards
Johnson and conflicting stories support such a conclusion. See Hart, 89 S.W.3d at 64; see
also Kemmerer, 113 S.W.3d at 516; Laws, 2001 Tex. App. LEXIS 7576 , at *12 (knowledge
can be established by “suspicious circumstances”, including nervous and unusual
behavior). Additionally, the check bore visible signs of fraud, such as the handwriting
and lack of contact information for the payor. Knowing the check to be fraudulent, but
Velu v. State Page 9
making the conscious decision to attempt to cash it, evidences intent to defraud or harm
another. See Beaty, 156 S.W.3d at 909.
Viewing all the evidence in the light most favorable to the verdict, the jury could
reasonably conclude, beyond a reasonable doubt, that Velu committed the offense of
forgery. See Curry, 30 S.W.3d at 406. The proof of guilt is not so weak nor the
conflicting evidence so strong as to render the jury’s verdict clearly wrong or manifestly
unjust. See Watson, 204 S.W.3d at 414-15; see also Johnson, 23 S.W.3d at 11. Because the
evidence is legally and factually sufficient to sustain Velu’s conviction, we overrule his
first point of error.
EXTRANEOUS OFFENSE EVIDENCE
In his second point, Velu challenges the admission of (1) evidence regarding the
first counterfeit check; and (2) Western Union transfer receipts. We review a trial
court’s admission of extraneous offense evidence for abuse of discretion. See Page v.
State, 213 S.W.3d 332, 337 (Tex. Crim. App. 2006).
The Challenged Evidence
Outside the jury’s presence, the State sought to offer the first counterfeit check
that Velu cashed at Bank of America, arguing that the evidence establishes intent and
knowledge. For these same reasons, the State sought to admit evidence of several wire
transfers that Velu sent to individuals in the United Kingdom in the seven months
preceding the offense. Velu objected that the evidence is “prejudicial and outweighs the
probative value.” See TEX. R. EVID. 403. The trial court overruled the objection.
Velu v. State Page 10
Extraneous Counterfeit Check
Although Velu had previously objected to admission of the extraneous check,
when the State offered the check into evidence, Velu had “[n]o objection.” Under these
circumstances, he has failed to preserve any complaint regarding admission of the
check. See Swain v. State, 181 S.W.3d 359, 368 (Tex. Crim. App. 2005) (“The affirmative
acceptance of [] previously challenged evidence waived any error in its admission.”); see
also Grisso v. State, 264 S.W.3d 351, 354 (Tex. App.—Waco 2008, no pet.) (Where
“defense counsel affirmatively represents that the defendant has ‘no objection’ to the
evidence, any error in the admission of the evidence is waived even if the error had
been previously preserved by a suppression motion and adverse ruling.”).
Western Union Transfer Receipts
In addition to his Rule 403 objection outside the jury’s presence, when the State
offered the receipts into evidence, Velu objected on the basis of “relevance.” See TEX. R.
EVID. 401. The trial court overruled the objection.
Relevant evidence has “any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than it
would be without the evidence.” TEX. R. EVID. 401. Extraneous offense evidence may
be admissible to show motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. TEX. R. EVID. 404(b). This list is “neither
mutually exclusive nor collectively exhaustive.” Prible v. State, 175 S.W.3d 724, 731 (Tex.
Crim. App. 2005). Extraneous offense evidence is admissible where (1) it is relevant to a
fact of consequence in the case apart from its tendency to prove conduct in conformity
Velu v. State Page 11
with character; and (2) the probative value of the evidence is sufficiently strong so that
it is not substantially outweighed by unfair prejudice. Johnston v. State, 145 S.W.3d 215,
220 (Tex. Crim. App. 2004); see TEX. R. EVID. 403 (Relevant evidence may be excluded if
its probative value is substantially outweighed by the danger of unfair prejudice).
Velu contends that this evidence was admitted to tie him to a Nigerian check-
cashing scam that the State never established or explained. The State argues that the
receipts are relevant to intent and knowledge because they show that: (1) Velu’s
“intention in the instant case -- to wire the money internationally to individuals he had
never met -- was not an isolated occurrence;” and (2) Velu “regularly wired large sums
of money to individuals in foreign countries,” specifically those “in the same area from
which the fraudulent checks originated.”1 The State relies on Parks v. State, 746 S.W.2d
738 (Tex. Crim. App. 1987) and Beasley v. State, No. 01-02-00942-CR, 2004 Tex. App.
LEXIS 6058 (Tex. App.—Houston [1st Dist.] July 8, 2004, pet. ref’d) (not designated for
publication), to support its position.
In Parks, the defendant was convicted of forging a release of lien. See Parks, 746
S.W.2d at 738-39. The State introduced evidence of two earlier forged releases. Id. The
Court of Criminal Appeals noted, “Establishing intent in [forgery] cases is so crucial
and so difficult to do that, as a practical matter, evidence of extraneous offenses is
nearly always admissible.” Id. at 740. The forged releases were relevant because they:
(1) were “very nearly identical” to the charged offense; and (2) “showed that it was
1
The jury charge limited the jury’s consideration of the evidence to intent and knowledge.
Velu v. State Page 12
more likely than not that [Parks] had formed an intent to commit the offense pursuant
to a general plan to enrich himself.” Id. at 741.
In Beasley, the defendant opened an account with Union Planters Bank, deposited
several counterfeit checks, and withdrew the funds. See Beasley, 2004 Tex. App. LEXIS
6058, at *1-2. He was convicted of felony aggregate theft. Id. at *1. The State introduced
evidence that Beasley had used this scheme at another bank. Id. at *18. Beasley argued
that he “innocently received the counterfeit checks” and deposited them at his bank. Id.
at *19. The First Court found the extraneous offense evidence relevant “because it
makes the innocent deposit of checks at Planter’s bank less likely.” Id. at *19-21.
Unlike Parks and Beasley, the extraneous offense evidence in this case is not
virtually identical to the charged offense. Although the extraneous offense and the
charged offense both involve wire transfers of money to individuals overseas, there is
no evidence that the extraneous transfers involve funds obtained from a forged check.
The only evidence regarding the source of these funds came from Velu, who testified
that he obtained the money from legitimate sources, i.e., his parents or his employment
with the engineering department at his university. The State offered no evidence
suggesting the funds for these transfers came from an illegal source. See Feldman v.
State, 71 S.W.3d 738, 754 (Tex. Crim. App. 2002) (the proponent of extraneous offense
evidence must show that the evidence has relevance apart from character conformity).
Thus, the extraneous transfer receipts were not relevant to Velu’s intent to defraud or
harm another or his knowledge that the check was forged. The trial court abused its
discretion by admitting this extraneous offense evidence.
Velu v. State Page 13
We must now determine whether this error affected Velu’s substantial rights, i.e.,
whether the “the error had a substantial and injurious effect or influence in determining
the jury’s verdict.” Haley v. State, 173 S.W.3d 510, 518 (Tex. Crim. App. 2005); see TEX. R.
APP. P. 44.2(b). We “consider everything in the record, including any testimony or
physical evidence admitted for the jury’s consideration, the nature of the evidence
supporting the verdict, the character of the alleged error and how it might be
considered in connection with other evidence in the case.” Motilla v. State, 78 S.W.3d
352, 355 (Tex. Crim. App. 2002). We may also consider the jury instructions, the State’s
theory of the case, any defensive theories, closing arguments, voir dire, and the extent
to which the State emphasized the erroneously admitted evidence. See id. at 355-56.
“[S]ubstantial rights are not affected by the erroneous admission of evidence ‘if the
appellate court, after examining the record as a whole, has fair assurance that the error
did not influence the jury, or had but a slight effect.’” Id. at 355.
Velu testified that, in the seven months before the offense, he was contacted as a
winner of the online lottery in the United Kingdom. During that period, he sent several
wire transfers to lottery personnel. Velu testified that these transfers represent fees that
he was told to pay in order to recover his winnings. Reitmeyer found the receipts
suspicious because Velu had mentioned that the counterfeit check came from an
individual in Ireland or the United Kingdom. Although he opined that the transfers
indicated “prior activity” or “prior knowledge,” Reitmeyer found nothing illegal
associated with the receipts. Price found emails to individuals in the United Kingdom,
but found no evidence that they were related to the forgery case.
Velu v. State Page 14
Price did find evidence that Velu was experiencing financial difficulties, which
he found contradictory in light of the transfers. Specifically, Price located only one bank
account that never contained more than $200 in the five month period before the
offense. He also found numerous email solicitations for credit cards and loans in excess
of the average college student. Velu, however, testified that he maintained other bank
accounts in addition to the one identified by Price. Velu used the account Price referred
to for contacting his family in India; thus, he kept only a small amount of money in the
account. Velu testified that he used money from his parents and his employment to
transfer the funds to the United Kingdom.
During closing argument, the State questioned why Velu did not have $250 to
send to Kelly when he had been sending $8,000 in wire transfers to the United
Kingdom. The State expected the defense to argue that Velu was naïve:
If that’s the case, his suspicions should have been raised to the point in
December of 2005, when he’s getting counterfeit checks. He’s supposedly
sent money over to the Lucky Lottery business, but he’s not getting any
money back? He’s wiring $8,000 of money and not getting any back, but
he’s getting checks in the mail from a girl that doesn’t write him any
letters? That doesn’t make any sense, people. It’s because he’s guilty.
He’s -- he knew what was going on. His intent is clear after you get the
first check, and we ask that you find him guilty.
The defense argued that it is not illegal to wire money, the wire transfers did not
connect Velu to any criminal activity, and the receipts were merely admitted to show
that Velu had knowledge that the check was forged. The defense added that Velu
thought he had won the lottery, but was tricked into believing that he had to pay
money in order to receive his winnings. In rebuttal, the State argued that Velu “had
Velu v. State Page 15
been had a few times,” which should have alerted him to “watch out,” but he became a
“willing participant.” The State argued that this was not “the first check with no other
history of [Velu] having any financial obligations, sending money, things to cue him in
that ‘This is wrong, I know this is wrong.”
As the defense noted in closing, the wire transfers are not evidence of any illegal
activity. The record contains no evidence suggesting that the money Velu wired to the
United Kingdom was obtained illegally or, more specifically, came from a forged check.
Rather, Velu identified legitimate sources of the funds and Reitmeyer found no
evidence that the transfers were linked to criminal activity. Neither does the record
connect the wire transfers to the forgery case in any way. The transfers indicate nothing
more than the fact that Velu was duped into believing he had won the online lottery.
Moreover, we have already found the evidence legally and factually sufficient to
sustain Velu’s conviction. It is unlikely that evidence of the wire transfers, which were
unrelated to either criminal activity or the present forgery case, had a substantial or
injurious effect or influence on the jury’s verdict. See Haley, 173 S.W.3d at 518. The
erroneous admission of the evidence is harmless. We overrule Velu’s second point.
BUSINESS RECORDS AFFIDAVIT
In his third point, Velu challenges the admission of a business records affidavit
from the custodian of records of First Coast Community Credit Union. We review
admission of this evidence for abuse of discretion. See Jones v. State, 944 S.W.2d 642, 651
(Tex. Crim. App. 1996).
Velu v. State Page 16
Two letters from First Coast’s member service manager and a copy of the
counterfeit check were attached to the business records affidavit. According to the first
letter, GP Community Federal Credit Union became First Coast in May 2003. Since that
time, all cashier’s checks bear the First Coast name, are not hand-written, include the
President/CEO’s facsimile signature, and contain a certain number sequence. The
counterfeit check was written after the name change, but bore the GP name. The
manager states, “[T]his is not our check, we did not issue this check and will not
honor.” The letter erroneously states that the $3,000 check was for $5,000. In the second
letter, the manager states: “We have no record of this check number, we do not issue
hand written checks and our checks have a facsimile signature.”
Outside the jury’s presence, Velu objected to admission of the affidavit: (1) “It’s
not made at or near the time of the occurrence; and also, it’s swearing to a check that’s a
5,000-dollar check and the check in this case is a $3,000-dollar check”; (2) “[I]t’s
prejudicial and irrelevant”; and (3) “[S]he’s not subject to cross-examination. It’s a
sworn declaration that she looked at the check, and it’s -- I can’t cross-examine her. I
think it’s prejudicial against my client. It’s misleading to the jury.” The trial court
overruled the objections, noting that the affidavit had been on file for more than
fourteen days. See TEX. R. EVID. 902(10).
On appeal, Velu contends that admission of the affidavit violates the
Confrontation Clause because he was unable to cross-examine the affiant regarding the
discrepancy in the amount of the check. The State contends that Velu failed to preserve
this complaint for appeal. We agree.
Velu v. State Page 17
Velu briefly mentioned cross-examination in conjunction with his objection that
the evidence is prejudicial and misleading. Appellate courts have found similar
statements insufficient to preserve a Confrontation Clause complaint. See Austin v.
State, 222 S.W.3d 801, 811 (Tex. App.—Houston [14th Dist.] 2007, pet. ref’d), cert. denied,
U.S. , 128 S. Ct. 1230, 170 L. Ed. 2d 79 (2008) (defendant’s “reference to the inability to
cross-examine the declarant” was mentioned “only in the context of making a hearsay
objection.”); see also Rivera v. State, No. 05-06-00678-CR, 2007 Tex. App. LEXIS 6508, at
*15 (Tex. App.—Dallas Aug. 10, 2007, pet. ref’d) (not designated for publication)
(statement that the defendant had a “right to confront his accusers” was made in the
context of a hearsay objection); Taylor v. State, No. 06-05-00033-CR, 2006 Tex. App.
LEXIS 327, at *3, 6 (Tex. App.—Texarkana Jan. 13, 2006, no pet.) (not designated for
publication) (statement, made amidst a hearsay objection, that the State could “bring[]
in the person so that we have the right to confront them and to cross-examine them”
was a “hybrid argument” under both federal and state rules).
In Austin, the Fourteenth Court stated, “Even if such a minor reference to cross-
examination could be construed to include a Confrontation Clause objection, ‘[w]hen a
defendant’s objection encompasses complaints under both the Texas Rules of Evidence
and the Confrontation Clause, the objection is not sufficiently specific to preserve
error.’” Austin, 222 S.W.3d at 811 (quoting Reyna v. State, 168 S.W.3d 173, 179 (Tex.
Crim. App. 2005)). Velu’s objection could be construed as one based on either the
Velu v. State Page 18
Confrontation Clause or the Rules of Evidence. Accordingly, his third point is not
preserved for appellate review.2
JURY CHARGE
In his fourth point, Velu contends that the application paragraph in the jury
charge was erroneous.
The indictment alleged that Velu “with intent to defraud or harm another,
transfer[ed] or pass[ed] to Dorothy Johnson a forged writing, knowing such writing to
be forged, and such writing had been so altered, made or completed that it purported to
be the act of GP Community Federal Credit Union, who did not authorize the act, and
said writing was a check…” The application paragraph states:
Now if you find from the evidence beyond a reasonable doubt that on or
about December 19, 2005 in Brazos County, Texas, the defendant, BRINJIT
VELU, did, with the intent to defraud or harm another, transfer or pass a
writing to Dorothy Johnson so it purported to be the act of GP
Community Federal Credit Union, who did not authorize the act, and said
writing was a check of the tenor set forth in the indictment, then you will
find the defendant guilty.
Velu contends that the application paragraph erroneously omitted the “knowledge
element” included in the indictment.
2 Even had Velu’s objection been preserved, the error, if any, was harmless because the same or
similar testimony was introduced elsewhere without objection. See Lasher v. State, 202 S.W.3d 292, 295 n.1
(Tex. App.—Waco 2006, pet. ref’d); see also Broussard v. State, 163 S.W.3d 312, 318 (Tex. App.—Beaumont
2005, no pet.). Before admission of the affidavit, Johnson testified that cashier’s checks are “usually typed
all the way, except for the signature,” not hand-written as the check she received from Velu. She testified
that all the valid cashier’s checks that she had observed were machine printed. She also testified that,
unlike most cashier’s checks, Velu’s check did not list a telephone number for the bank. Johnson
contacted the bank, which confirmed that the check was fraudulent. Velu later admitted that the check is
“fake, counterfeit” having “already been confirmed at Mr. Payroll.” He agreed that the bank denied
authorizing the check. The record contained other evidence, besides the complained-of evidence,
showing that the check was forged.
Velu v. State Page 19
When reviewing a jury charge, we first examine the charge for error. See Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (citing Middleton v. State, 125 S.W.3d
450, 453 (Tex. Crim. App. 2003)). A jury charge must include all essential elements of
the offense. See Martin v. State, 200 S.W.3d 635, 639 (Tex. Crim. App. 2006).
Knowledge is not a statutory element of the forgery offense. See TEX. PEN. CODE
ANN. § 32.21(a), (b). Intent to defraud or harm is the culpable mental state and is
established by proof of knowledge. See Williams, 688 S.W.2d at 488. Thus, the trial
court’s application paragraph alleges all the essential elements of the forgery offense.
See Martin, 200 S.W.3d at 639; see also Williams, 688 S.W.2d at 488. In particular, it alleges
the requisite culpable mental state, i.e., intent to defraud or harm. See Williams, 688
S.W.2d at 488; see also TEX. PEN. CODE ANN. § 32.21(b); Jones v. State, 571 S.W.2d 191, 192-
93 (Tex. Crim. App. 1978) (“An indictment that ‘allege[s] that the act was committed
‘with intent to defraud or harm another,’ which is the essential mental element,’” but
does not allege knowledge, is not fundamentally defective.). Accordingly, the charge is
not erroneous. We overrule Velu’s fourth point.
The judgment is affirmed.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed February 25, 2009
Do not publish
[CR25]
Velu v. State Page 20