David Leroy v. The State of Texas

Case Number: 01-15-01054-CR

Judge: Michael C. Massengale

Court: In The Court of Appeals For The First District of Texas

Plaintiff's Attorney:

Alan Keith Curry
Devon Anderson

Defendant's Attorney:

Tonya Rolland

Description: David Leroy entered the First Community Credit Union in Harris County,
Texas and approached a teller’s window. Without prompt from the teller, he
presented her with a First Community Credit Union check, a debit card issued by
BBVA Compass bank, and his State of Texas identification card. The check was
made out to David Leroy on the credit union account of Judy Smith in the amount
of $825. The face of the check indicated that the payment was for “roofing
contractor work.” When the teller inspected the check, she noticed that the
signature on the check “was very shaky,” “all of the security features” normally
located on check were missing or altered, the check “was washed,” and the check
“had a bleach Cloroxy smell.”
The teller left Leroy at the window and took the check and other items to the
back of the office, away from the teller windows. While in the back, she called
Smith to verify whether she had written a check to Leroy. She had not. The teller
also called the credit union’s fraud investigator. The fraud investigator contacted
Smith and again verified that she had not written a check to Leroy. She instructed


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the teller manager to call the police, which she did. The investigator then inspected
the check herself and found that it appeared to be washed and some of the
“identifiers” were no longer on the check.
Leroy waited for 45 minutes to an hour while the teller retained the check
and his other items in the back of the credit union. Over the course of this period of
time, he became “irate.” He walked back and forth between the teller windows
“yelling” at the tellers, telling them that he wanted his identification back, wanted
his cards back, and that he wanted his money.
Eventually, Leroy left the credit union without any of the items that he
originally handed to the teller. He ran across the street, and he was arrested.
At trial, the State introduced the check along with a copy of Leroy’s debit
and identification cards. The teller and fraud investigator identified Leroy as the
man who presented the check, and they identified the check presented on that day.
The teller testified that people who were not members of their credit union
generally did not present all of the documents that Leroy presented without being
prompted to do so. Additionally, the investigator testified that in her 30 years of
experience, a person who is presenting a legitimate check does not leave his check,
identification, and bank card before completing the transaction.
Defense counsel elicited testimony on cross-examination of the teller and
investigator to the effect that Leroy did not misrepresent himself and complied


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with the requirements of cashing a check at the credit union, including allowing
himself to be fingerprinted.
Judy Smith testified that she wrote two checks, one for her dentist and the
other for a donation to a children’s orphanage, and she placed them in her mailbox.
The check intended for the orphanage had the same check number as the one that
Leroy presented at the credit union. Smith testified that she had never had any
contact with Leroy, he never had done any roofing or construction work for her,
and she never wrote him a check. On cross-examination, she admitted that she did
not know who took the check out of her mailbox or who wrote Leroy’s name on it.
She did know that she put the checks in her mailbox in the morning on the same
day Leroy presented them at the credit union, and they were not intended for
roofing work.
The jury convicted Leroy of forgery. At sentencing, the court found the
allegations of two enhancements to be true and assessed punishment at five years
in prison. Leroy appealed.
Analysis
In his sole issue on appeal, Leroy argues that the State presented legally
insufficient evidence to support his conviction because it failed to prove beyond a
reasonable doubt that he had the intent to defraud or harm another.


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In reviewing the legal sufficiency of the evidence to support a criminal
conviction, a court of appeals will determine whether, after viewing the evidence
in the light most favorable to the verdict, the trier of fact was rationally justified in
finding the essential elements of the crime beyond a reasonable doubt. Brooks v.
State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). We measure the evidence “by
the elements of the offense as defined by the hypothetically correct jury charge for
the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). As the
exclusive judge of the facts, the jury may believe or disbelieve all or any part of a
witness’s testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App.
1991). We presume that the fact finder resolved any conflicting inferences in favor
of the verdict, and we defer to that resolution. See Brooks, 323 S.W.3d at 899–900.
On appeal we may not reevaluate the weight and credibility of the record evidence
and thereby substitute our own judgment for that of the factfinder. Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
A person commits the offense of forgery if he “forges a writing with intent
to defraud or harm another.” TEX. PENAL CODE § 32.21(b); Johnson v. State, 425
S.W.3d 516, 520 (Tex. App.—Houston [1st Dist.] 2012, pet. ref’d). The indictment
in this case alleged that Leroy “unlawfully, and with intent to defraud and harm,”
forged a check, “which purported to be the act of another who did not authorize
that act, by possessing it with intent to utter it and while knowing it was forged.”


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The only issue on appeal is whether the evidence showed that Leroy acted
with intent to defraud or harm another. To prove the requisite intent, the trier of
fact must be able reasonably to infer beyond a reasonable doubt that Leroy knew
the check was forged. See Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App.
2015). In reviewing the evidence to determine whether the jury reasonably could
have made this inference, the court looks to the totality of the circumstances and
weighs all of the facts. See Johnson, 425 S.W.3d at 524.
Intent to defraud or harm may be established by circumstantial evidence.
Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985); Johnson, 425
S.W.3d at 520. There is no bright-line rule establishing what the State must present
to show intent to defraud or harm another. See Johnson, 425 S.W.3d at 520–24;
Griffin v. State, 908 S.W.2d 624, 627–28 (Tex. App.—Beaumont 1995, no pet.).
The mere possession, passage, or presentment of a forged instrument does not
support an inference of intent to defraud. Parks v. State, 746 S.W.2d 738, 740
(Tex. Crim. App. 1987). Courts have looked to numerous factors to determine
whether the State produced sufficient evidence to show that a defendant had the
requisite intent. See Johnson, 908 S.W.2d at 520–24; Griffin, 908 S.W.2d at 627–
28.
Leroy argues that this case is similar to the cases of Pfleging v. State, 572
S.W.2d 517 (Tex. Crim. App. [Panel Op.] 1978), Stuebgen v. State, 547 S.W.2d 29


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(Tex. Crim. App. 1977), and Johnson v. State, 425 S.W.3d 516 (Tex. App.—
Houston [1st Dist.] 2012, pet. ref’d), in which the evidence presented was found to
be insufficient to support a finding of intent to defraud or harm another.
In comparing this case to Pfleging and Stuebgen, Leroy identifies the facts
that he was listed as the payee on the check and that he did not falsely represent
himself when he presented the check. He also notes that the State introduced no
evidence to show that anything appearing on the checks was in his handwriting or
that he ever made a statement from which it could be inferred that he knew the
check was forged. The Court of Criminal Appeals relied upon these same factors in
finding that the State had produced legally insufficient evidence to support an
inference that each appellant knew the instrument was forged. See Stuebgen, 547
S.W.2d at 32; Pfleging, 572 S.W.2d at 519–20.
With respect to Johnson, the court found that the only circumstantial
evidence the State produced to show the appellant’s knowledge that a money order
was forged was an “unaltered payment amount” on the instrument and a “short
thirty-six hour timeframe between theft and presentment.” Johnson, 425 S.W.3d at
524. The court held that this evidence was insufficient to enable the jury to infer
the appellant’s intent. Id. The State in Johnson also attempted to prove the
appellant’s intent by introducing evidence showing that he had no relationship with
the purchaser of the forged money order. Id. at 522. The court found that this


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evidence did not lead to an inference that he knew the money order was forged
because the actual purchaser of the money order, the complainant, was not the
person listed on the instrument at the time the appellant presented it. Id. The court
reasoned that the State had to show that the appellant had no relationship with the
person actually listed on the instrument to create an inference that he knew the
money order was forged. Id.
This appeal is distinguishable from the cases relied upon by Leroy. The State
may produce evidence of numerous different factors to prove that a defendant had
the requisite intent to defraud or harm another. See id.; Griffin, 908 S.W.2d at 627–
28. Unlike Pfleging, Stuebgen, and Johnson, in this case the State produced
evidence of additional suspicious circumstances that were not present in those
cases. This evidence includes the facts that: there was a short amount of time
between the theft and presentment of the check; by presenting his identification
and bank card without prompting Leroy acted unusually for a person who was not
a member of the credit union; and he had no relationship with Smith (the actual
maker of the check). The State also demonstrated that Leroy became “irate” while
waiting for the teller to return with his documents, and he left the credit union
without his identification, his bank card, or the check. From this evidence, the jury
could have concluded that Leroy fled the scene. See Hart v. State, 682 S.W.2d 346,


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347 (Tex. App.—Dallas 1984, pet. ref’d) (holding that defendant’s leaving check
cashing center without cash or check was attempt to flee).
A defendant’s attempt to flee is a “suspicious circumstance” from which the
jury can infer that the defendant knew a check was forged. See Baker v. State, 552
S.W.2d 818 (Tex. Crim. App. 1977); Taylor v. State, No. 01-03-00173-CR, 2004
WL 550180 at *2 (Tex. App.—Houston [1st Dist.] Mar. 18, 2004, pet. ref’d)
(mem. op., not designated for publication). In addition, an appellant’s lack of any
relationship with the payor, even though he was the payee on the check, taken in
connection with his unexplained, personal, recent possession, and passing as his of
one of the payor’s stolen checks, is sufficient evidence to establish that the
appellant knew the check was forged, and therefore his intent to defraud or harm
another. See Johnson, 425 S.W.3d at 522; see also Huntley v. State, 4 S.W.3d 813,
815 (Tex. App.—Houston [1st Dist.] 1999, pet. ref’d). And finally, a “short time
frame between theft of a financial instrument and passage of the forged document
has contributed to the totality of the circumstances in cases inferring an intent to
defraud.” Johnson, 425 S.W.3d at 523.
Viewing the evidence in the light most favorable to the verdict, we conclude
that based on the totality of the circumstances a rational jury reasonably could have
inferred beyond a reasonable doubt that Leroy knew the check was forged. See
Brooks, 323 S.W.3d at 899; Johnson, 425 S.W.3d at 524. Therefore, the evidence
was legally sufficient to support the conviction.
We overrule his sole issue.

Outcome: