Opinion
No. 07-20-00048-CR
09-11-2020
CATHLEEN ANN WHITE, APPELLANT v. THE STATE OF TEXAS, APPELLEE
On Appeal from the 355th District Court Hood County, Texas
Trial Court No. CR14021 , Honorable Ralph H. Walton, Jr., Presiding
Originally appealed to the Second Court of Appeals, this appeal was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV'T CODE ANN. § 73.001 (West 2013).
MEMORANDUM OPINION
Before PIRTLE and PARKER and DOSS, JJ.
Appellant, Cathleen Ann White, appeals her jury-imposed conviction for the offense of forgery. After finding two punishment enhancement allegations true, the jury returned a sentence of four years' incarceration in the Texas Department of Criminal Justice and a $5,000 fine. Appellant challenges the sufficiency of the evidence to support the conviction as indicted and charged as well as the trial court's decision to admit multiple copies of her prior convictions during the punishment portion of the trial. We affirm the judgment of the trial court.
See TEX. PENAL CODE ANN. § 32.21 (West Supp. 2019).
Factual and Procedural Background
On February 16, 2017, appellant attempted to cash a check at a convenience store in Granbury. However, an employee of the store instructed appellant that she would need to return the following day when the manager would be working. Appellant did return the following day and again sought to cash the check. The check purported to be a payroll check issued by a local restaurant, Pastafina.
The manager of the convenience store, Mohammed Manzoor, was suspicious of the check. He regularly cashed payroll checks from Pastafina, but this check appeared to draw from an incorrect bank. Appellant provided Manzoor with a temporary driver's permit that identified her as "Patricia Conrad," which matched the name of the payee of the check. However, Manzoor described appellant's I.D. as appearing to be "artificial." Due to his suspicions, Manzoor called both the Granbury and Stephenville Pastafina locations. Neither location employed a Patricia Conrad. Manzoor then called the police to report the forgery, but appellant left before the police arrived. An employee of the store wrote down appellant's license plate number, which allowed the police to quickly locate and arrest her.
Appellant was subsequently indicted for the offense of forgery. In charging appellant, the indictment read,
on or about the 16th day of February, 2017, and before the presentment of this indictment, in Hood County, Texas, CATHLEEN ANN WHITE,
Defendant, did then and there intentionally, with intent to defraud or harm another, pass to Mohammed Zahid Manzoor, a forged writing knowing said writing to be forged, and such writing had been so made that it purported to be the act of Gino Halili, a representative of Pastafina Italian Restaurant, who did not authorize the act . . . .
During the resulting trial, after Manzoor testified to the above facts, the State called Gino Halili, the owner of the Pastafina restaurant, to testify. Halili testified that the check that appellant attempted to cash was not issued by him nor did he authorize anyone to issue the check. Halili pointed out that the check appellant attempted to cash was not drawn from the bank that he uses for Pastafina. Further, Halili also testified that the check does not look like the checks he uses to pay payroll to his Pastafina staff. Finally, Halili demonstrated that the signature on the check appellant attempted to cash was not his signature. Claiming that the State had failed to prove that the check appellant attempted to cash was made so that it purported to be the act of Halili, appellant moved to dismiss the case after the State's case-in-chief. The trial court denied appellant's motion. At the close of evidence, the trial court drafted the jury charge. Consistent with the indictment, the charge instructed the jury that the check that appellant attempted to pass purported to be the act of Halili. Neither appellant nor the State objected to the charge. The jury found appellant guilty of forgery.
The State's indictment included a punishment enhancement allegation that appellant had been convicted of two prior felonies. These prior convictions were for fraudulent transfer of a motor vehicle and a two-count conviction for credit card and debit card abuse. During the punishment phase of trial, appellant pled true to both enhancement paragraphs. The State offered an exhibit that contained the judgments of conviction for the offenses identified in the indictment. The State also offered additional exhibits that included copies of these same judgments but also included additional information about the offenses, such as the indictment and the criminal docket. Appellant objected to the admission of the duplicate judgments. The trial court overruled appellant's objection. As part of its punishment evidence, the State also offered judgments of conviction relating to four prior misdemeanor convictions of appellant, two for debit card abuse and two for fraudulent use or possession of identifying information. Appellant did not object to this evidence. The jury found the enhancement paragraphs true and sentenced appellant to four years in prison and a $5,000 fine.
Appellant presents two issue by her appeal. By her first issue, appellant contends that the evidence is insufficient to support her conviction for the offense of forgery. Specifically, appellant contends that the evidence fails to establish that the check she sought to pass purported to be the act of Gino Halili, as alleged in the indictment. By her second issue, appellant contends that the trial court reversibly erred when it overruled her objection to cumulative evidence of her prior convictions.
Sufficiency of the Evidence
Appellant's first issue challenges the sufficiency of the evidence to support her conviction for forgery. Essentially, appellant concedes the sufficiency of the evidence as to each essential element of the charged offense; however, she contends that the State failed to provide sufficient evidence to establish that the check she attempted to cash was the result of the purported act of Gino Halili. Appellant contends that the State assumed the obligation to prove this fact when it chose to specifically plead it in its indictment of appellant.
The standard we apply in determining whether the evidence is sufficient to support each element of a criminal offense the State is required to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010). Under that standard, when assessing the sufficiency of the evidence to support a criminal conviction, we consider all the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences to be drawn therefrom, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 912. The jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimonies, and we will not usurp this role by substituting our judgment for that of the jury. Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App. 2012). We also measure the sufficiency of the evidence against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
We must first determine the correct hypothetical jury charge applicable to this case. A hypothetically correct jury 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." Id. "A 'variance' occurs when there is a discrepancy between the allegations in the charging instrument and the proof at trial." Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001). When reviewing a sufficiency challenge based on a variance between the indictment and the proof at trial, only a "material" variance will render the evidence insufficient. Id. at 257. A variance that is not prejudicial to a defendant's substantial rights is immaterial. Id. at 248. "Allegations giving rise to immaterial variances may be disregarded in the hypothetically correct charge, but allegations giving rise to material variances must be included." Id. at 257. The test to determine whether a defendant's substantial rights have been affected by a variance is whether the indictment, as written, informs the defendant of the charge against her sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the indictment would subject the defendant to the risk of subsequently being prosecuted for the same crime. Id.
The offense of forgery requires proof that the defendant "forge[d] a writing with the intent to defraud or harm another." TEX. PENAL CODE ANN. § 32.21(b). As applicable to the present case, "[f]orge" means "to alter, make, complete, execute, or authenticate any writing so that it purports[] to be the act of another who did not authorize that act . . . ." Id. § 32.21(a)(1)(A)(i). Thus, the statutory identification of the offense requires proof that the defendant altered, made, completed, executed, or authenticated any writing so that it purported to be the writing of another with the intent to defraud or harm another.
In the present case, the State indicted appellant as follows:
on or about the 16th day of February, 2017, and before the presentment of this indictment, in Hood County, Texas, CATHLEEN ANN WHITE, Defendant, did then and there intentionally, with intent to defraud or harm another, pass to Mohammed Zahid Manzoor, a forged writing knowing said writing to be forged, and such writing had been so made that it purported to be the act of Gino Halili, a representative of Pastafina Italian Restaurant, who did not authorize the act . . . .Clearly, the identity of the individual who purportedly created the check is not necessary under the statute, provides more information than is statutorily required, and would not subject appellant to the risk of subsequent prosecution for the same offense. As such, the variance is immaterial and will not support a determination that the evidence supporting appellant's conviction was insufficient. See Gollihar, 46 S.W.3d at 248, 257.
Nonetheless, appellant contends that the State assumed the obligation to prove that the check appellant attempted to pass purported to be the act of Halili. Notably, appellant does not challenge the State's proof that appellant passed a writing that purported to be the act of another who did not authorize that act with the intent to defraud or harm another. In addition, our review of the record establishes that the evidence is sufficient to establish that appellant committed the offense of forgery. Since we have determined that the variance involved in the present case is immaterial, appellant's tacit concession that the State proved all material elements of the charged offense as well as our determination that the evidence is sufficient to support the jury's verdict is dispositive of appellant's sufficiency challenge.
Consequently, we overrule appellant's first issue.
Cumulative Punishment Evidence
By her second issue, appellant contends that the trial court committed reversible error when it overruled appellant's objection, during punishment, to the State's introduction of cumulative evidence of appellant's prior convictions.
Appellate courts review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Reighley v. State, 585 S.W.3d 98, 103 (Tex. App.—Amarillo 2019, pet. ref'd). We will not disturb the trial court's ruling unless it is outside of the zone of reasonable disagreement. Id.
Admissibility of evidence at the punishment phase of a non-capital felony trial is a function of policy rather than relevancy because, generally, there are no "discreet [sic] factual issues at the punishment stage." Rogers v. State, 991 S.W.2d 263, 265 (Tex. Crim. App. 1999) (en banc). After the trial court makes a threshold determination that an extraneous crime is relevant to sentencing, the State may present evidence about the details surrounding the prior criminal conviction. Haney v. State, 951 S.W.2d 551, 555 (Tex. App.—Waco 1997, no pet.).
While appellant admitted to having been previously convicted of the felony offenses of fraudulent transfer of a motor vehicle and a two-count conviction for credit card and debit card abuse, the State offered the judgments of these convictions by way of a "pen packet," that also contained an affidavit, photo of appellant, and a fingerprint card containing identifying information. The State also offered two other exhibits that contained copies of the judgments as well as the docket sheets and the indictments relating to those convictions. These additional documents provided relevant contextual information about appellant's prior offenses that the jury could consider in assessing a just punishment. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 3(a)(1) (West Supp. 2019); see Murphy v. State, 777 S.W.2d 44, 63 (Tex. Crim. App. 1989) (op. on reh'g) (evidence regarding the defendant's life and characteristics is relevant to the jury's unfettered discretion to assess an appropriate punishment). Because the State's offers included additional information beyond simple duplicates of the prior judgments, we conclude that it was not error for the trial court to allow this punishment evidence to be admitted. See id.
However, even were we to conclude that the trial court erred in admitting the duplicate judgments, we do not reverse unless such error affected appellant's substantial rights. See TEX. R. APP. P. 44.2(b). Claims of evidentiary errors are typically treated as non-constitutional error subject to harmless error analysis. Wilkinson v. State, 523 S.W.3d 818, 824 (Tex. App.—Houston [14th Dist.] 2017, pet. ref'd). "An error affects a defendant's substantial rights when the error has a substantial and injurious effect or influence on the jury's verdict." Id. (citing King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997)). An error is harmless if it had no or only a slight influence on the verdict. Id. (citing Johnson v. State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998)). In assessing harm, a reviewing court must consider everything in the record, including testimony and physical evidence admitted for the jury's consideration, the nature of the evidence supporting its verdict, and the character of the alleged error and how it might be considered in connection with other evidence in the case. Id. (citing Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000)).
Appellant's primary contention is that the admission of duplicate judgments left the jury with the impression that appellant had four felony convictions rather than the two that appellant admitted to and that the State sought to prove. However, the jury heard appellant plead true to the two felony convictions alleged in the indictment for punishment enhancement. On cross-examination, appellant elicited testimony from the State's witness that the judgments contained in the "pen packet" and in the other exhibits were the same judgments. Finally, in the State's closing argument, it specifically referenced the duplicate judgments and clarified for the jury that appellant's criminal history included only two prior felony convictions. Under these circumstances, we cannot conclude that introduction of these duplicate judgments prejudiced appellant's substantial rights. Therefore, any error committed by the trial court in admitting them was harmless.
For the foregoing reasons, we overrule appellant's second issue.
Conclusion
Having overruled each of appellant's issues, we affirm the judgment of the trial court.
Judy C. Parker
Justice Do not publish.