Gaddie, James Willard v. State

Affirmed and Memorandum Opinion filed July 25, 2006 Affirmed and Memorandum Opinion filed July 25, 2006. In The Fourteenth Court of Appeals ____________ NO. 14-05-00509-CR ____________ JAMES WILLARD GADDIE, Appellant V. THE STATE OF TEXAS, Appellee On Appeal from the 185th District Court Harris County, Texas Trial Court Cause No. 1006386 M E M O R A N D U M   O P I N I O N Appellant James Willard Gaddie appeals his conviction for forgery of a commercial instrument. Appellant asserts that the evidence is factually insufficient to support his conviction, and that the trial court erred in admitting an extraneous offense of forgery. We affirm. I. Factual and Procedural Background Appellant reported to the police that he was a victim of identify theft. Later, appellant attempted to cash forged checks using identification that he claimed had been stolen from him. At trial, the State presented evidence of the following events to show how appellant orchestrated the scheme. In late January 2004, appellant ordered a duplicate driver’s license from the Texas Department of Public Safety. The day after, appellant flagged down Officer Rodolfo Madrid of the Houston Police Department, to report that he had been a victim of theft several days before. Appellant explained how the theft occurred, telling the officer that he was having car trouble and an unknown man stopped to help him. According to appellant, this Good Samaritan then drove with appellant (in appellant’s car) to a mechanic to get the car fixed. Appellant did not know the name of the mechanic nor could he say where the mechanic was located. After appellant’s car was fixed, the man and appellant went to a nightclub where both of them became intoxicated. Appellant stated that the mystery man managed to slip appellant’s keys out of his pants’ pockets, went to appellant’s car and stole his ATM card, checkbook, driver’s license, and cellular phone. The man then returned appellant’s keys to him. Appellant claims that it was because of this theft that he ordered the duplicate driver’s license. Appellant, however, did not obtain a new driver’s license number. Several months after this chain of events, on September 25, 2004, an individual, later identified as appellant, walked into a bank and cashed a forged check. Appellant was the payee on the check. He showed the bank teller his driver’s license for identification, the one he claimed had been stolen several months before. A few weeks later, on October 14, 2005,[1] appellant went to another bank and attempted to cash another forged check made payable to him. While in possession of appellant’s driver’s license, the bank teller, Robbie Perry, told appellant that she would need to authorize payment of the check before she could cash it. Appellant told her that he had to turn his truck off but would be right back. Appellant, however, fled on foot and never returned. Both of the bank tellers visually compared the driver’s license photo to appellant at the times appellant attempted to cash the checks and each bank teller stated that the person presenting the check appeared to be the person in the driver’s license photo. In addition, both tellers separately identified appellant in a photospread as the man who presented the forged checks in their respective banks. Appellant was charged by indictment with forgery of a commercial instrument and pleaded “not guilty” to the offense. The jury returned a verdict of “guilty” and sentenced appellant to two years’ confinement in the state jail. II. Analysis A. Is the evidence factually insufficient to support appellant’s conviction for forgery of a commercial instrument? In his first issue, appellant challenges the factual sufficiency of the evidence supporting his conviction for forgery. When evaluating a challenge to the factual sufficiency of the evidence, we view all the evidence in a neutral light and inquire whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). A reviewing court may find the evidence factually insufficient in two ways. Id. First, when considered by itself, the evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, after weighing the evidence supporting the verdict and the evidence contrary to the verdict, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met. Id. at 484–85. In conducting the factual-sufficiency review, we must employ appropriate deference so that we do not substitute our judgment for that of the fact finder. Id. at 481–82. Our evaluation should not intrude upon the fact finder’s role as the sole judge of the weight and credibility given to any witness’s testimony. Cain v. State, 958 S.W.2d 404, 407 (Tex. Crim. App. 1997). In conducting a factual-sufficiency review, we must discuss the evidence appellant claims is most important in allegedly undermining the jury’s verdict. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003). One commits the offense of forgery if he (1) forges (2) a writing (3) with intent to defraud or harm another. Ex parte Porter, 827 S.W.2d 324, 327 (Tex. Crim. App. 1992) (opinion on rehearing); Tex. Pen. Code Ann. § 32.21(a), (b) (Vernon Supp. 2005). Appellant asserts that the evidence is factually insufficient to show his identity.[2] Specifically, appellant points to the following evidence as undermining the jury’s verdict: (1) the mystery man who stole his driver’s license was the one who used it at the banks; (2) the bank tellers’ identifications of appellant were influenced because both tellers previously had viewed his driver’s license photo; (3) because the bank teller at the first bank failed to get a fingerprint, a customary procedure at her bank, she would not likely admit the “truth”—that she never actually compared the driver’s license to the man cashing the check; (4) the bank tellers’ testimony that appellant was thinner when he presented the checks, and the videotape from the second bank showing a lighter-skinned, thinner man suggests that someone other than appellant committed the offense; and finally, (5) the difference between appellant’s signature on his driver’s license and the signatures on the forged checks indicates that someone else committed the offense. The jury, being the sole judge of the facts and credibility of the witnesses, could choose to believe or not believe the bank tellers’ testimony, or any portion of their testimony. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). The jury also could choose to disbelieve all or part of appellant’s testimony. Id. Further, a witness may be believed even though some of her testimony may be contradicted and part of her testimony accepted and the rest rejected. See Jackson v. State, 505 S.W.2d 916, 918 (Tex. Crim. App. 1974). We may not substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The videotape, the forged checks, and a copy of appellant’s driver’s license were admitted as exhibits at trial. Whether the man in the videotape was the same man who presented the forged checks was an issue of credibility for the jury to decide. Any discrepancies between appellant’s signature on his driver’s license and the signatures on the forged checks, was also a matter for the jury. Moreover, appellant did not present any evidence demonstrating that these signatures were not the same. Without any other evidence or handwriting samples, the jury could have found that the signatures were the same. Based on the evidence presented at trial, we cannot conclude that the evidence is too weak to support the finding of guilt beyond a reasonable doubt. Viewing this evidence in a neutral light, it is factually sufficient to allow a rational juror to find beyond a reasonable doubt that appellant committed forgery. See Anderson v. State, 621 S.W.2d 805, 808 (Tex. Crim. App. 1981) (holding evidence sufficient when viewing the fact of defendant’s flight from bank premises, together with his assistance in obtaining new identification photo card immediately before forged checks were presented to bank teller via teller machine); Wilson v. State, 605 S.W.2d 284, 286 (Tex. Crim. App. 1980) (holding evidence sufficient when defendant attempted to cash paycheck on which signatures of both payee and maker were forged and that, when asked for identification, defendant falsely stated that he had lost his driver’s license); Stone v. State, 823 S.W.2d 375, 381 (Tex. App.—Austin 1992, writ ref’d) (concluding that jury’s verdict finding defendant guilty of forgery by possession was not so contrary to overwhelming weight of evidence as to be clearly wrong and unjust, though defendant claimed that someone ahead of him in line at check-cashing establishment had left check and false identification at counter); Goodrum v. State, 700 S.W.2d 630, 632 (Tex. App.—Houston [14 Dist.] 1985, writ ref’d) (holding that conviction for forgery was supported by sufficient evidence, including defendant’s presentation of check within hours after it had been stolen and his conflicting stories of how he gained possession of check). Accordingly, we overrule appellant’s first issue. B. Did the trial court abuse its discretion in allowing the extraneous forgery offense into evidence? In his second issue, appellant contends the trial court abused its discretion in allowing evidence of an extraneous offense of forgery because he never received notice of the State’s intent to use it. More specifically, appellant contends the trial court should not have allowed evidence of the October 14, 2005 forgery offense during his trial of the September 25, 2005 forgery offense. The State responds that appellant failed to preserve error for appellate review of this complaint. Thus, we first examine the record to determine if error was preserved in the trial court. At trial, appellant made the following objection in connection with Officer Johnson’s testimony regarding the October 2005 extraneous offense: Q: [The State]: Okay. What was that? A: [Officer Johnson]: Additional case was filed by another bank by another company where he left his driver’s license and the other counterfeit check at that branch. Q:[The State]: Okay. And was that before or after– [Defense Counsel]: Your Honor– Q: [The State]: –September 25th? [The State]: Your Honor, this is the subject of a motion in limine as well. [The Court]: Counsel, you haven’t presented any motions in limine to the Court. [Defense Counsel]: Your Honor, I think we filed a motion in limine in this case. [The Court]: Certainly never presented it. You may proceed. [Defense Counsel]: Your Honor, may we approach? (At the bench, on the record) [Defense Counsel]: Your Honor, I think we reserve the right to raise our motion in limine anytime we get into an issue– [The Court]: Counsel, you never presented it to me. I don’t know how you expect me to just know it’s there. [Defense Counsel]: Your Honor, I didn’t think we’d get into it, but now since we’re getting into it, I’ve got to raise the argument. I’ve got a motion in limine on file. I’d like to present it to the Court. Not only did appellant fail to secure an adverse ruling, he made no other objection to this evidence at trial. Appellant’s only objection was his vague reference to the motion in limine on file; appellant made no objection to any lack of notice.[3] However, on appeal, appellant’s only argument is that the State did not provide notice of its intent to offer evidence of appellant’s October 14, 2005 forgery offense in the trial of his September 25, 2005 forgery offense. An objection at trial must comport with the complaint on appeal. See Broxton v. State, 909 S.W.2d 912, 918 (Tex. Crim. App. 1995) (to preserve error for appellate review, complaint on appeal must comport with objection at trial, and an objection stating one legal theory may not be used to support a different legal theory on appeal); see also Tex. R. App. P. 33.1(a) (to preserve complaint for appellate review, a party must present an objection stating the specific grounds for the ruling desired). Because appellant failed to assert any notice objection at trial, he failed to preserve error. Accordingly, appellant’s second issue is overruled. We affirm the trial court’s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed July 25, 2006. Panel consists of Justices Anderson, Edelman, and Frost. Do Not Publish — Tex. R. App. P. 47.2(b). [1] The parties disagree on the date that appellant attempted to cash the second check. The State contends that it was October 1, 2005, and appellant states it was October 10, 2005. The check is dated October 1, 2005, but the bank teller, Robbie Terry, testified that appellant presented this check on October 14, 2005. [2] Although it appears that appellant filed a pre-trial motion to suppress the photographic identifications, appellant has not raised that motion as a separate issue in this appeal. Thus, in this appeal, we do not address whether appellant’s motion to suppress should have been granted. [3] We note that appellant’s motion in limine by itself does not preserve any error for appellate review. Webb v. State, 760 S.W.2d 263, 275 (Tex. Crim. App. 1988).