Opinion
NO. 09-16-00077-CR
11-15-2017
SCHNELLE MARIE BROOKS, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 75th District Court Liberty County, Texas
Trial Cause No. CR30936
MEMORANDUM OPINION
A jury convicted appellant, Schnelle Marie Brooks, of the state jail offense of forgery. In three appellate issues, Brooks contends that the evidence is legally and factually insufficient to sustain her conviction and that the State failed to establish that the offense occurred in Liberty County. We affirm the trial court's judgment.
Background
Brooks married Enrique DeLeon in August 1988 and the couple had four children. In 2003, Brooks and DeLeon submitted applications to purchase tuition pre-payment contracts through the Texas Guaranteed Tuition Plan for their youngest two sons. The plan requires the contract owner to make monthly payments as they accrue, by which the future cost of tuition is frozen and secured as of the date of the inception of the contract. DeLeon was the sole purchaser/owner of the contracts; Brooks was not listed as a joint purchaser or owner on the accounts.
Prior to 2003, Brooks and DeLeon had purchased similar education contracts for their two older children. Neither of those accounts nor the funds therein are at issue in this case.
Brooks and DeLeon separated in 2007 and divorced in 2008. In 2009, DeLeon's employer relocated him to Florida, where he remained at least through 2010, before he moved back to Texas. In 2013, DeLeon called the Texas Guaranteed Tuition Plan to inquire about the status of the education account for his and Brooks's second son, as that child had graduated and enlisted in the Navy. In the course of that conversation, DeLeon learned from the plan representative that the accounts for the two younger children had been cancelled more than two years before. After being unable to contact Brooks, DeLeon contacted law enforcement and the Liberty County Sheriff's Department initiated an investigation into the missing funds. Investigators contacted the Texas Comptroller of Public Accounts and obtained copies of various records, including the initial contract application, letters from Brooks with an accompanying certified envelope, an account history, and a copy of the refund check that had been issued after the accounts were cancelled.
The records and evidence at trial indicate that in May 2008, shortly after DeLeon initiated divorce proceedings, Brooks sent a handwritten letter to the Texas Guaranteed Tuition Plan, asking that the plans for the two younger children be downgraded and that the resulting credit on the account be applied to future payments. The letter bore Brooks's authenticated signature as well as a signature purporting to be DeLeon's; however, at trial, DeLeon denied signing the letter or participating in the requested downgrade. In January 2010, well after Brooks's and DeLeon's divorce, another letter bearing both of their names was sent to the Texas Guaranteed Tuition Plan. That letter, typewritten and with no signatures, "confirm[ed] the cancellation of" the two tuition contracts. That letter was sent by certified mail. The envelope it was sent in contained Brooks's name only, and the return address was Brooks's parents' home address. On the same date the cancellation letter was received, Texas Guaranteed Tuition Plan received a contract cancellation form, notarized in Texas and bearing the same date as the typewritten cancellation letter, with Brooks's signature and what purports to be DeLeon's signature. Again, however, DeLeon testified at trial that he did not sign the cancellation form, that he never authorized anyone else to sign a cancellation form on his behalf, and that he never authorized Brooks to cancel the contracts.
Upon receipt of the cancellation form in February 2010, the Texas Comptroller of Public Accounts issued a refund check payable to DeLeon in the amount of $18,020.30, addressed to Brooks's parents' home address. The check was then either cashed or deposited on March 9, 2010, at a Woodforest Bank branch in Cleveland, Texas. The back of the check was endorsed with a signature purporting to be DeLeon's, along with his date of birth and his old Texas driver's license number and expiration date. Underneath DeLeon's name was Brooks's authenticated signature.
Although it was confirmed that the check was negotiated and paid out, the bank's manager testified at trial that it was impossible to tell from the records whether the proceeds were paid in cash that day or deposited into an account holder's account.
Brooks was indicted on one count of forgery of a financial instrument. See Tex. Penal Code Ann. § 32.21 (West 2011). Specifically, the indictment alleged that
on or about the 15th day of February A.D. 2010, in the County of Liberty and State of Texas, . . . SCHNELLE MARIE BROOKS did then and there, with intent to defraud or harm another, execute and/or authenticate a writing so it purported to be the act of Enrique DeLeon, who did not authorize the act, and said writing was a check . . . in the amount of $18,020.30 . . . .
A jury found Brooks guilty of the offense as charged and assessed punishment at 180 days confinement in state jail, to be suspended during a period of community supervision. The court imposed the sentence as recommended by the jury and placed Brooks on community supervision for a period of five years subject to various terms and conditions. One of those conditions was that Brooks pay restitution in the amount of $18,020.30. The trial court certified Brooks's right to appeal, and this appeal follows.
Sufficiency of the Evidence
A person commits the offense of forgery if she "forges a writing with intent to defraud or harm another." Tex. Penal Code Ann. § 32.21(b). For purposes of the offense as charged herein, the act of forging includes altering, making, completing, executing, or authenticating any writing so that it purports to be the act of another who did not authorize that act. See id. § 32.21(a)(1)(A)(i).
In her first and second issues on appeal, Brooks contends that the evidence is legally and factually insufficient to support the jury's guilty verdict. It is now settled that the legal sufficiency standard established in Jackson v. Virginia "is the only standard that a 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, 895 (Tex. Crim. App. 2010); Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). Under the legal sufficiency standard established in Jackson, we view the combined logical force of all evidence admitted at trial in the light most favorable to the verdict to determine whether any rational trier of fact could find the essential elements of the crime beyond a reasonable doubt. Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Due deference must be afforded to the jury's responsibility "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007) (quoting Hooper, 214 S.W.3d at 13). We therefore resolve all reasonable inferences in favor of the jury's verdict. Tate v. State, 500 S.W.3d 410, 417 (Tex. Crim. App. 2016).
The testimony adduced at trial was conflicting in some respects. For example, the branch manager for the bank that cashed or deposited the check testified regarding his firm belief that bank procedures would have been followed by the teller involved in the transaction, and that she "would see the driver's license" of the person cashing the check, suggesting that DeLeon had to have been present for the check to be cashed. DeLeon, on the other hand, was equally adamant that he neither signed the check nor traveled to Texas to help Brooks cash it. Similarly, the presence of a notary stamp on the cancellation form with DeLeon's signature would imply that an independent notary properly verified the identity of the person signing that form as DeLeon. However, the notary whose stamp appears on the form testified at trial that, although she was supposed to keep records as a notary, she did not do so. She also testified that she could not recall who brought that form to her and that she would be "absolutely guessing" if she said it was the people whose names are actually on the document. She also asserted that she was frequently busy, "too easy" and "too trust[ing]," indicating that she did not always follow the formalities of requiring identification before notarizing documents, just as she did not follow the formalities of keeping records. Consistent with that, DeLeon testified that the signature on the cancellation form is not his, that he was in Florida when the cancellation form was notarized, and that he did not appear before any notary public in Texas.
In light of the conflicting testimony, Brooks argues that the jury's guilty verdict cannot be sustained because it violates the "equal inference rule" in two instances. First, Brooks asserts that "the inference from [the notary being too trusting] to [DeLeon] not being present is as likely as the inference from too trust[ing] to [DeLeon] being present." Second, Brooks argues that the conflicting testimony of DeLeon and the bank manager could equally support either of two inferences: (a) that the manager was correct about bank policy being followed and DeLeon was lying about not being present; or (b) that DeLeon was being truthful about not being present and the bank manager's testimony about bank policy was not conclusive. Brooks argues that, since both inferences are equally plausible, the jury's selection of either one over the other is improper. This argument mischaracterizes the equal inference rule.
The equal inference rule "provides that a jury may not reasonably infer an ultimate fact from 'meager circumstantial evidence which could give rise to any number of inferences, none more probable than another.'" Hancock v. Variyam, 400 S.W.3d 59, 70-71 (Tex. 2013) (quoting Hammerly Oaks, Inc. v. Edwards, 958 S.W.2d 387, 392 (Tex. 1997)). The rule's application is limited to cases in which the circumstantial evidence presented is so slight that any inference the fact-finder were to draw therefrom is purely a guess, amounting to no evidence at all. Morton Int'l v. Gillespie, 39 S.W.3d 651, 658 (Tex. App.—Texarkana 2001, pet. denied). To illustrate, the Texas Supreme Court has described a case that exemplifies the type of situation in which the equal inference rule would apply:
[In Litton Industrial Products, Inc. v. Gammage, 668 S.W.2d 319 (Tex. 1984)], the Deceptive Trade Practices Act applied if, but only if, a ratchet adapt[o]r was sold after the Act's effective date. Similar adaptors had been sold both before and after this date, and nothing in the record provided a clue about the particular adaptor's date of manufacture or sale. Thus, the meager circumstantial evidence gave rise to equal inferences, not because two or more reasonable inferences could be drawn, but because there was no reasonable basis in the record
for inferring either that the ratchet adaptor was or was not sold after the effective date of the DTPA.Lozano v. Lozano, 52 S.W.3d 141, 148 (Tex. 2001) (Phillips, C.J., concurring and dissenting). Thus, the absence of corroborating evidence is key. Where, on the other hand, there exists circumstantial evidence that would reasonably support more than one inference, it is the exclusive role of the fact-finder to decide which inference is more reasonable, deferring to his exclusive right to assess witness credibility and to weigh evidence he chooses to believe however he deems appropriate. Id. at 148-49; see also Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). In this case, the circumstantial evidence supporting the jury's verdict cannot be characterized as so meager or slight that it amounted to no evidence at all but rather as conflicting evidence that could reasonably support more than one inference depending on which evidence or testimony the jury found most credible.
For example, while the bank manager was adamant that bank procedures would have been followed, he also acknowledged that he could not say that the bank rules are always followed. Moreover, he could not testify from personal knowledge about what happened that day because he was not present when the check was cashed. Therefore, while he could testify unequivocally that the check should not have been cashed without DeLeon being present, he could not testify that it actually
was not. DeLeon, on the other hand, testified from personal knowledge that he was in Florida both when the account cancellation form was executed and notarized in Texas and when the check was cashed in Texas. He also denied authorizing Brooks to sign his name on the check, to cash the check, or to have any of the proceeds from the check. Similarly, while the jury was provided evidence of what a notary stamp on a document should indicate, the notary herself indicated that she did not follow the required formalities as a notary, and DeLeon testified affirmatively that the signature on the cancellation form is not his.
Moreover, the jury members were able to see for themselves the signatures purported to be that of DeLeon on the notarized cancellation form and on the back of the check, and to compare those with various samples of DeLeon's authenticated signature, including from his driver's license, social security card, court documents, and exemplar signatures made in the presence of the jury at the time of trial. They also had the opportunity to see Brooks's signatures on the cancellation form and on the back of the check and to compare those with other documents verified to have been signed by her. It was within the province of the jury to compare the signatures and decide whether DeLeon signed the cancellation form and the refund check or whether Brooks forged DeLeon's signature on both. See, e.g., Grothe v. Grothe, No. 11-14-00084-CV, 2016 WL 1274059, at *2 (Tex. App.—Eastland Mar. 31, 2016, no pet.) (mem. op.) (holding that members of the jury could have compared the signatures on each document admitted with the signature on a contested will to determine whether they believed the signature on the purported will was genuine); see also Tex. R. Evid. 901(b)(3) (permitting expert witness or fact-finder to determine authenticity of questioned signature by comparing with specimen known or found by court to be genuine). As the jury found Brooks guilty of forgery, we must presume that they resolved all of these issues in favor of the verdict rendered, and we must defer to that resolution on appeal. See Jackson, 443 U.S. at 326. According that deference, and viewing all of the admitted evidence in the light most favorable to the prosecution, we find that there is sufficient evidence by which the jury could have found each element of the offense alleged beyond a reasonable doubt. We therefore overrule Brooks's first issue.
In her second issue, Brooks acknowledges that the Court of Criminal Appeals eliminated appellate review for factual sufficiency. See Brooks, 323 S.W.3d 893 at 895. Nonetheless, she urges this Court to conduct such a review anyway, suggesting that the Brooks Court's view on the sufficiency standard "is highly debatable." The Court of Criminal Appeals has been given the opportunity to overturn Brooks and reinstate the appellate factual sufficiency review and has declined to do so. As an intermediate appellate court, we are required to follow binding precedent in cases decided by the Court of Criminal Appeals. State v. DeLay, 208 S.W.3d 603, 607 (Tex. App.—Austin 2006), aff'd sub nom, State v. Colyandro, 233 S.W.3d 870, 871 (Tex. Crim. App. 2007). Thus, this Court is still bound by that precedent, and we decline the invitation to disregard it. We therefore overrule Brooks's second issue.
For example, in the case cited by Brooks in her brief, Edwards v State, 497 S.W.3d 147 (Tex. App.—Houston [1st Dist.] 2016, pet. denied), the appellant filed a petition for discretionary review regarding that very issue, and the Court of Criminal Appeals denied the petition.
Venue / Jurisdiction
In her third issue on appeal, Brooks complains that the venue alleged in the indictment was not proven by a preponderance of the evidence. Specifically, Brooks contends that the evidence at trial was insufficient to establish that Brooks "executed or authenticated the check in Liberty County." At the conclusion of the State's case at trial, Brooks unsuccessfully sought a directed verdict on the basis that there was no evidence "that the forgery happened in Liberty County."
The Code of Criminal Procedure contains a number of specific venue statutes relating to the prosecution of various offenses. Pertinent to this case, section 13.02 provides that "[f]orgery may be prosecuted in any county where the writing was forged, or where the same was used or passed, or attempted to be used or passed, or deposited . . . ." Tex. Crim. Proc. Code Ann. § 13.02 (West 2015). The venue alleged in the indictment must be proven by a preponderance of the evidence. Id. § 13.17 (West 2015).
The testimony of the manager of the bank that cashed the check at issue herein established that it was passed at the branch in Cleveland, Texas. Although no witness specifically testified that Cleveland, Texas is in Liberty County, that fact has not been disputed, and this Court may take judicial notice of the location. See Barton v. State, 948 S.W.2d 364, 365 (Tex. App.—Fort Worth 1997, no pet.) (holding that an appellate court can take judicial notice of "geographical facts [that] are easily ascertainable and capable of verifiable certainty"). Furthermore, in her argument for a directed verdict at trial, Brooks conceded that there was evidence that the check was cashed in Liberty County, but argued that that evidence did not amount to evidence that it was signed in Liberty County. As the statute does not require that the act of signing take place in a specific location, we find the evidence that the check was either cashed or deposited in Liberty County sufficient to establish venue therein. See Ware v. State, 475 S.W.2d 282, 284 (Tex. Crim. App. 1971). We therefore overrule Brooks's third issue and affirm the trial court's judgment.
AFFIRMED.
/s/_________
CHARLES KREGER
Justice Submitted on August 7, 2017
Opinion Delivered November 15, 2017
Do Not Publish Before McKeithen, C.J., Kreger and Johnson, JJ.