Jonathan Elliott v. State

Opinion issued February 11, 2010. In The Court of Appeals For The First District of Texas ____________ NO. 01-08-00178-CR ____________ JONATHAN ELLIOTT, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 10th District Court Galveston County, Texas Trial Court Cause No. 07CR0762 MEMORANDUM OPINION A jury convicted appellant of forgery and assessed punishment at three years' confinement. See Tex. Penal Code Ann. § 32.21 (Vernon 2003). The trial court entered judgment accordingly. Appellant raises three issues on appeal, claiming (1) ineffective assistance of counsel, (2) that the jury charge was fundamentally defective in that it authorized conviction upon a theory not charged in the indictment, and (3) that the evidence was legally insufficient to support a conviction. We affirm. BACKGROUND On October 16, 2005, shortly after Hurricane Rita hit the Gulf Coast, appellant entered Bob's Grocery Store in Galveston and attempted to cash a $2,000 check from FEMA. The check, which was made out to Ronald Ferrell, had already been signed. According to the store owner, "Bob," appellant said that he did not have any identification because of traffic tickets. Bob cashed the check for appellant but, because he did not present identification, Bob took appellant's picture, took a picture of the check, and had appellant place his thumb print on the check. Bob further testified that he used a coding system in which he matched the cashed checks to the pictures by writing the number of the camera and the number of the picture on each check. During trial, Bob identified appellant as the man in his picture who cashed the FEMA check. Ferrell, the actual payee of the FEMA check, subsequently cashed a social security check in Bob's store in March 2006. Bob testified that the signatures on Ferrell's driver's license and his social security check did not match the signature on the FEMA check. Ferrell did not testify at appellant's trial. In April 2006, the U.S. Treasury Department informed Bob that the check was a forgery and deducted $2,000 from his account. Appellant was convicted of forging the FEMA check and timely appealed, asserting ineffective assistance of counsel, defective jury charge, and legally insufficient evidence. ANALYSIS Ineffective Assistance of Counsel In his first point of error, appellant claims he was denied effective assistance of counsel. We review a charge of ineffective assistance of counsel during the guilt-innocence stage of a criminal trial according to the standard laid out in Strickland v. Washington, 466 U.S. 668, 690, 104 S. Ct. 2052, 2066 (1984); see Roberson v. State, 852 S.W.2d 508, 510 (Tex. Crim. App. 1993); Hernandez v. State, 726 S.W.2d 53, 57 (Tex. Crim. App. 1986) (adopting Strickland test for State of Texas). Under the two-pronged Strickland test, an appellant must show first that in light of all the circumstances viewed at the time of trial, counsel's performance fell below an objective standard of reasonableness under prevailing professional norms. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066. Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective. Cannon v. State, 668 S.W.2d 401, 403 (Tex. Crim. App. 1984). If the defendant is able to meet this burden, he must then prove that a reasonable probability exists that, but for counsel's errors, the result of the trial would have been different. Strickland, 466 U.S. at 692, 104 S. Ct. at 2067. An appellant's failure to satisfy one prong makes it unnecessary for a reviewing court to consider the other prong. Id. at 697, 104 S. Ct. at 2069. A Strickland claim must be "firmly founded in the record" and "the record must affirmatively demonstrate" the alleged ineffectiveness. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). Because the record is usually underdeveloped, direct appeal is often an inappropriate forum in which to bring this type of claim. Id., 9 S.W.3d at 813–14. If trial counsel has not been afforded an opportunity to explain his actions, an appellate court should not find deficient performance unless the challenged conduct was "so outrageous that no competent attorney would have engaged in it." Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). With this type of challenge, judicial review must be highly deferential to trial counsel so as to "avoid the deleterious effects of hindsight." Thompson, 9 S.W.3d at 813. There is also a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. Appellant bases his ineffective assistance of counsel claim on his counsel's failure to (1) employ a handwriting expert, (2) object to Bob's testimony concerning the signatures, and (3) object to bolstering of Bob's testimony by the investigating officer. The record, however, is silent as to why appellant's counsel failed to do these things. Therefore, appellant has failed to rebut the presumption that these were reasonable decisions. See id. at 814. Specifically, appellant has presented no evidence to demonstrate that his counsel's failure to employ a handwriting expert was not sound trial strategy. The record is silent as to whether either side consulted handwriting experts, or, if they did, what their findings indicated. Without more, we do not find that this decision was so outrageous that no competent attorney would have made it. As to the signatures, the opinions of lay witnesses, when competent, are admissible concerning handwriting. Denham v. State, 574 S.W.2d 129, 131 (Tex. Crim. App. 1978). Bob was not presented as an expert witness and testified based only on his own knowledge. He did not testify that the signature on the FEMA check belonged to appellant, only that it did not appear to match the signature on Ferrell's license or Ferrell's social security check. Thus, it was not error for appellant's counsel to fail to object to Bob's testimony regarding handwriting. Appellant's final contention is that his counsel failed to object to bolstering of Bob's testimony by the investigating officer. Again, the record is silent as to counsel's reasoning for this decision. Furthermore, defense counsel's line of questioning could be construed as an attack on Bob's credibility. On cross-examination by the defense, the investigator testified as follows: Q: You're relying completely and wholly upon Bob; isn't that correct? A: Correct. Q: And that's the crux of your investigation and how you put one and one together . . . to arrest Jonathan Elliott, correct? . . . . The knowledge that you gained through your investigation in dealing with Bob and that photograph, that's the only evidence that you had to conclude that he was the suspect and you needed to go out and arrest him? . . . A: Well, Bob is an honest person. I've been working with Bob for years. For years. I've handled many of his cases. Shortly thereafter, on recross-examination, the following exchange took place: Q: So photographs aren't wholly 100 percent reliable, are they not? A: This one is. Q: This one is reliable because you're friends with Bob, correct? A: I've worked with Bob on many forgery cases, and Bob is known to me as being an honest person. If you're asking if this picture was duplicated, no, sir, Counsel, it wasn't. It would be reasonable to conclude that the defense counsel was attempting to attack Bob's credibility through his questioning of the investigator. Under the Texas Rules of Evidence, a witness may testify as to the truthfulness of another witness after the latter's credibility has been attacked. Tex. R. Evid. 608(2) ("[E]vidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.") (Emphasis added.). We are therefore unable to find that defense counsel's failure to object to this testimony was outrageous or unreasonable. Because we find that appellant failed to meet his burden by showing that counsel's performance was deficient, we do not address the second prong of the Strickland test. We overrule appellant's first point of error. Charge Error In his second point of error, appellant claims that the trial court erred "when it instructed the jury that Forgery is also committed by acts and methods that were not alleged in the indictment." The indictment in this case alleged that appellant did "make a writing so it purported to be the act of Ronald Ferrell, who did not authorize the act . . . ." The charge of the trial court read, in relevant part: Our law provides that a person commits an offense if he forges a writing, with intent to defraud or harm another. Forgery is committed by authenticating any writing so that it purports to be the act of another who did not authorize that act. Forgery is also committed by issuing, transferring, passing, publishing, or otherwise uttering a writing that is forged within the meaning of the preceding sentence. The false making of a writing, to constitute forgery, must be done with intent to defraud or harm another, but it is not required, in order to constitute this offense, that the person in committing it intended to defraud or harm any particular person . . . . . . . Now, if you find from the evidence beyond a reasonable doubt that . . . [appellant] did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Ronald Ferrell, who did not authorize the act . . . then you will find [appellant] guilty as charged in the indictment. (Emphasis added). Appellant argues that there is fundamental error in the jury charge because the indictment did not allege that appellant "issued, transferred, passed, published, or otherwise uttered" a forged writing. As such, appellant claims that the charge enlarged the alleged offense. A jury charge must not enlarge the offense alleged and authorize the jury to convict the defendant on a basis or theory permitted by the jury charge but not alleged in the indictment. See Reed v. State, 117 S.W.3d 260, 265 (Tex. Crim. App. 2003); Castillo v. State, 7 S.W.3d 253, 258 (Tex. App.--Austin 1999, pet. ref'd). The State concedes that "there may be some variance between the indictment, proof and charge." Accordingly, the trial court erred in improperly broadening the indictment by including "issued, transferred, passed, published, or otherwise uttered" in the jury charge as means of committing forgery when the indictment alleged only that appellant "made" a forgery. See Reed, 117 S.W.3d at 265. Because appellant did not object to the charge, (1) he must show egregious harm. See Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984). As previously noted, egregious harm includes errors that deprive the defendant of a valuable right or vitally affect his defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996). In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the entire record. Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). The appellant must have suffered actual rather than theoretical harm. Id. Although the trial court's charge did include other means of committing forgery in addition to "making" a forgery in its instructions, its application paragraph defined forgery in the context of "making a writing" and specifically instructed the jury to determine whether appellant made a writing as charged in the indictment. (2) The Penal Code does not define "make" with regard to the forgery statute. However, the detective who arrested appellant testified that "to make a writing" on a check is to make a signature. There was no evidence that appellant "issued, transferred, passed, published, or otherwise uttered" a forged instrument. The State's evidence clearly centered around proving that appellant "made a forgery" by signing Ferrell's name to the FEMA check without his permission. It should also be noted that the State never argued for a conviction based upon appellant's "issuing, transferring, passing, publishing, or otherwise uttering" a forged instrument. Instead, the prosecutor argued at closing, Let's talk about this 'make a writing' because they made a big deal about that. You heard Sergeant Galvan's testimony. It is well-settled law that a signature constitutes making a writing. . . . A signature constitutes a writing. . . . If I write my signature on a piece of paper, on a check, that's making a writing." In fact, defense counsel pointed out in closing that the State did not charge appellant with "merely passing" a forged instrument, when it might have done so. Nothing else in the record suggests that the jury's verdict was based on any of the additional means of committing forgery set forth in the charge. After reviewing entire jury charge, the state of the evidence, the arguments of counsel, and other relevant information from the entire record, we conclude that appellant has not shown that he was egregiously harmed by the erroneous jury charge (3). Accordingly, we overrule appellant's second point of error. Sufficiency of Evidence In his third and final point of error, appellant challenges the legal sufficiency of the evidence to support a conviction for forgery. Specifically, appellant claims the evidence was legally insufficient to establish that he made the writing or that the writing was signed by an unauthorized person. When reviewing a legal sufficiency claim, we review the evidence in a light most favorable to the verdict in order to determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). The same standard applies regardless of whether the state presents direct or circumstantial evidence. Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.—Houston [1st Dist.] 1999, pet. ref'd). We review the evidence based on a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). To obtain a conviction for forgery, the State was required to prove beyond a reasonable doubt that appellant (1) with intent to defraud or harm another, (2) made a writing, (3) that purported to be the act of another, and (4) that the other person did not authorize the act. See Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App.1985); see also Tex. Penal Code Ann. § 32.21 (Vernon 2003). Appellant contends that the evidence adduced at trial was legally insufficient to support elements (2) and (4). We disagree. The indictment alleged that appellant "did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Ronald Ferrell." Appellant claims there was no evidence to support a finding that he made a writing because testimony at trial showed the check was made by the federal government. This interpretation of the charge in the indictment is erroneous. The writing referenced in the indictment was the signature on the check, not the check itself. This is the only conceivable interpretation, given the context of the sentence, and in light of the following phrase: "so it purported to be the act of Ronald Ferrell." As appellant notes, the check itself was clearly made by FEMA. It would be absurd to construe the indictment as alleging that appellant made the actual check and purported that it had been made by Ferrell. Furthermore, appellant's arresting officer testified that the writing on the check was the signature, and that to make a writing meant to make a signature. We therefore conclude that the State was required to present evidence to support a finding that appellant made the signature on the FEMA check, not that he made the check itself. Appellant next contends that "[t]here was never any testimony that Appellant ever signed or made any mark on the check" because the check was already signed before Bob saw it. Circumstantial evidence alone may be legally sufficient to support a conviction. Kutzner v. State, 994 S.W.2d 180, 184 (Tex. Crim. App. 1999),; see Colburn v. State, 501 S.W.2d 680, 682 (Tex. Crim. App. 1973) (finding legally sufficient circumstantial evidence to prove intent to defraud). The jury heard testimony that the man who cashed the forged check claimed to be Ferrell and declared that he had already signed the check. The man was not Ferrell, he was later identified as appellant, and the signature on the check was not that of Ferrell. A rational trier of fact could have concluded that appellant signed the check before entering the store and hence "made a writing." In his final legal sufficiency challenge, appellant claims that "there was no reliable testimony that the act of endorsing or cashing the check was not authorized." For this contention, appellant relies primarily on the fact that the payee, Ferrell, did not testify at trial. However, there was sufficient circumstantial evidence that Ferrell did not authorize the endorsement so that a reasonable juror could have found this element of the crime beyond a reasonable doubt. Bob testified that, after the check was cashed and before the government alerted him about the forgery, the real Ferrell came into his store and was very angry about the forged FEMA check. Moreover, if the jury found that appellant was the person who signed the check, it could also infer that he signed it without permission because FEMA declared the check to be a forgery. These facts, in conjunction with other evidence adduced at trial, could have led a rational trier of fact to find that appellant did not have permission to endorse the FEMA check. We hold that the evidence was legally sufficient to support a conviction for forgery. We overrule appellant's third point of error. CONCLUSION We affirm the judgment of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack and Justices Bland and Massengale Do not publish. Tex. R. App. P. 47.2(b). 1. Appellant's only objection to the charge was the inclusion of a definition of "authenticate," which the trial court sustained and removed from the charge. 2. The charge also provided: Now, if you find from the evidence beyond a reasonable doubt that . . . [appellant] did then and there, with intent to defraud or harm another, make a writing so it purported to be the act of Ronald Ferrell, who did not authorize the act . . . then you will find [appellant] guilty as charged in the indictment. 3. To the extent that appellant's first point of error also contends that trial counsel was ineffective for failing to object to the charge, such claim fails the second prong of Strickland. See Strickland, 466 U.S. at 692, 104 S. Ct. at 2067 (holding that appellant must show reasonable probability exists that, but for counsel's errors, result of trial would have been different). For the same reasons appellant fails to show that he suffered egregious harm from the erroneous charge, he also fails to show that, had counsel objected to the charge, the result of the case would have been different.