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Date: 11-27-2017

Case Style:

Schnelle Marie Brooks v. The State of Texas

Court of Appeals, Ninth District of Texas at Beaumont

Case Number: 09-16-00077-CR

Judge: Charles Kreger

Court: Court of Appeals, Ninth District of Texas at Beaumont

Plaintiff's Attorney: Logan Pickett

Defendant's Attorney: Timothy A. Hootman

Description: 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.1 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.
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
1 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.
3

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
4

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.2 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.
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 . . . .

2 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.
5

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.
6

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
7

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
8

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
9

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
10

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,
11

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
12

reinstate the appellate factual sufficiency review and has declined to do so.3 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.
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
3 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.
13

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.

Outcome: 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. We therefore overrule Brooks’s third issue and affirm the trial court’s judgment.

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