Case Information
*1
921-15
Mo.
ORIGINAL
RECEIVED IN COURT OF CRIMINAL APPEALS APR 132015
Abel Acosta, Clerk
Tll The Dovert
Abel Acosta, Clerk
DANd Lay BENNETT
Pettrioner
V.
The State of TeYAS Respondent
Pettriont in backe Mo. 29345-2041 From the 364 th Tittoral bisteret Dodt of Nunt Dainty, TeYAS The Dant of Ameats the The STEH bisteret of TeYAS Pettriont The busteriontary Reutent DANd BenNETT # 293337 Tehran DANIT 3899 state July 98 Nevl Boston, T. 75370 Pettrioner, Mo Se
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Table of Contents
Tabley of Authoritios ..... ii State Meutr Regratiab Deat Adhuzment. ..... 2 statement of The Base ..... 2 Starment of Abedhira History ..... 2 Reasons For Review! ..... 3 statement of Facts ..... 4,5 Rewit The Review Only ..... 5,6 The Appetite Dovet Erects in fandard Tiat The Evident Is Legaty Sufficient to Mustaf A fandard of buat the the efferise of ferecty of a fandard Tistellatent, as bawed as in the Dibietment. Reswit The Review Thio ..... 8 The Appetite Dovet Erects in Adjabit Tiat Thice was sufficient fubense to suwot the Thad Dovet fandard of Thue Ennamentent Affedations Summary ..... 10 Deatfatorte of Seeviac ..... 10 Pepter the Retter ..... 10 Petition to bave into 4.3 (1) Deftes) ..... 11 Unsuked beefaration ..... 11
*3
TABEI TF ADVANCES
Case Law!
Acts V. STATE 834 S.W. 2d 257 (Tef. Deam. Am. 1992). Exeoss V. State 393 S.W. 3d 893 (Tef. Deam. Am. 2010) Exeossal V. VIRDINTA 443 U.S. 319 (1979). Ey Mbre AluTTE 616 S.W. 2d, 626 (Tef Deam Am 231) . . . . . . 4,9 Ey Mbre Clare 397 S.W. 2d 7150 (Tef Deam Am. 1979) . . . . . . 7 state V. Manituso (Deam. Am. 1996) 919 S.W. 2d 96 . Startures Tef Perial Date 32.21 (b) Tef Perial Date 12.425 Tef Perial Date 32.21 (F) . . . . . . . . . . 7 Rules Rule 9.3, Tef L AM. Perf. . . . . . . . . . . . 11
*4
STATEMENT RESEARCHS DRAFT ABOUNENT
IN THE EVENT THIS PREFERENT IS BEANTER, THE PREFERENGE REQUISPS DRAFT ABOUNENT. ABOUNENT WOLLLS ASSIST THE COURT BEEALSCE RESOLUTION OF THE DROUNDS FOR REVIENZ BEPENDS LIPON A BETAITER SYPIPEATING OF THE FIRTS OF THE CASES. FIRTHER, DRAFT ABOUNENT WOLLLS ABOUVE THIS COURT WITH AN OPEEKTIANITY TO QUESTION THE PARTIES BECARENCE THEIR POSITIONS.
STATEMENT OF THE CASE
APPELANT WAS DRAREED WITH THE OFFENSE OF FORCEY BY PASSIVE A FALLMETAL THISTRIMENT, A STATE DRAFT FELTARY, IN VIOLATION OF TEL. PENAL LOBE § 32. 21 (d), THE THISTRIENT, AS APPERLANT HUMANISMUS IT, ALLENES THAT APPERLANT, ON OR ABOUT MARKS IS, 2013, EXTREED BAKES TENLERY STORE, IN B. REENWILLS, TEXAS, WITH THE TIPANT TO BEFFALL OR ALFH IT'S PROPERTOR, AND ISSUED A $475,00 "SAT EXTREPEISES" CONANUY BREAK FOR 2 RANDS AND 1 WESTWATER.
APPELANT EXTREED A FEA OF NOT BILITY. He WAS APPRODED A TEXAS ON THE MERITS, IN THE PESSENSE OF A CHEM, WHO FOUND AUGIL BILITY OF THE OFFENSE AS DRAREED. He ENTHY TO BE SENTRELSED BY THE AUGUSTRE SUBDEE OF THE 364TH DISTRICT COURT, IN HANT CONDITY, TEXAS, KNICREIN! He REPETUED A 13 YEAR PRESON TERM BEENNEE OF EADMANEMENTS, MESDANT TO TEL. PENAL LOBE § 12.425, NOTICE OF APPON WAS TENELY BEVERN AND PERFECTER.
PROBEDUAR: MESTORY
THE SUBESEMENT OF PREFERENCES CONDITIONS WAS EXTREED ON FREUARY 17, 2014. PREFERENCES NOTICE OF APPERL WAS TENELY FILMS, ON MARKS 12, 2015, THE STEYD DISTRICT COURT OF APPERLISSED AND HUMANISMUS DRIATON! BY VUSTICE MESSELY APPERLANS PREFERENCES CONDITIONS.
*5
Choudans the Beutend
Choudans the Beutend No. 1
The Appellate Court Eerers the Finkind that the Extrater is LeDary a Finkind of buitt the the offense of Friday of a Finknitial Instrument, as Budden at the Intertient.
Choud the Beutend No. 2
The Appellate Court Eerers the Finkind that there was sufficient Extrater to support the Total Court Finkinds of Tide to Enviantement Allelations.
Lessons the Beutend
The Syme Court of Appents Agreement The Conflittion at this base despite the overwhelming Extrater that Massifies the offense committed as a lesser violation than the one charect. The Sme Court of Appents bthinot brsburde its buty of Beutend to Bonserentrialsly and Impertrally Appy the Law of Jansoul V. Vrebrida, 143 U.S. 319 (1979) and BROOKS V. STATE, 333 S.W. 3.4 343 (TEF BATM. APP. 2010), to a Fite Bonserention of all the Extrater. See AMELIA V. STATE, 934 S.W. 2d 357, 360-61 (TEF. BATM. APP. 1992).
*6
Lirewise, The 6th Court of Appeals was not freely available the Eirdeville Tire nonstained sufficient Eirndal to support the Tera Gaunt's financing of Tear Enhancement Abolations. One of the Enhancement Abolations lasted on the application thatement whenly advised that of Commuting a holiday of instigation in 2007. This based the Range of Enlissement to reflect a second before retonly, as opposed to that of a third before retonly. The strategy must was effected, Resulting in an Illebal sentence of Thertend Years. See of Parte Huitte lille s.w. 1d, 624 (Tev. Eern. Ap. 1991)
Statement of Tears
An March 19, 2013 Portionne Entred "beares" Tenley Sore, in Breenville, Texas, in Seated of Endabement Ranks for Both Man and His Family, Mesha Tavey. He was renisported to this Lobation by his Employer, Erenk. The Appliant was in possession of a bercit bank, Beercule His Mothers Name, From a Short Adlobant He shared with Hee. Undertoad of the Amount of Monies made available on Sall Adloant, the Appliant solicited his Employer for a Company, where to have wintersee differentials was left wiesthands in the balancs. was Outed to the Appliant for Ladders bone, by His Employer, Erenk, a six-lanterenthe Tire "sart Enterperses." 2 Ranks and / wiesthands was selected and made ready for Purdeware, Appliant's bercit bank was rejected 4 so He asked the sales Sore if she would adbert a Company bierk. What she answered in the Appliant were a bierk in the amount of usurid his very Ould Tear and correct, state Issued I. 2 , Sioled his Ould Name to the bierk,
*7 AND LETT THE AMOUNT OF ANS PLEENNASE UNIDERSENANTH THE $4,000 OTHER TO HUM THE HONE LARGEES. APHERLANT WAS AUTHORRIER BY ANS EMPLOYER, A COMPANY ADEMUT, TO MAKE THIS TENSATION. THERE IS NO EXHENITE AMOUNT All these FIRTS TO TUBULATE THAT A FRENCH OF ANY SORT ORLUERES. A TIDE AND EXPREIET I.G. WAS USED BY THE APHERLANT AND ANS TIDE AND EXPREIET SIMILITIES WAS ISSUEED ON THE EVER. NO ONE FROM THE EMPANY OF "SAT ENTERPRETES" EVER EVEN ATTEMPTED TO Aleside EMPLOYS ADJUST ALM. EMPLOYE WERE FEVED BY THE PRESENNT, DEALERS TENNES THE RESENTANTS AN TISUFFICIENT EVER; MAKING THE TIDE MUTURE OF THIS DIFENSE A MISSENCEANOR, AT BEST, ThEFT OF SENTIERS. THERE WAS NEVER ANY TITENT TO BEYEALD OR HARM THE PROPERTATR.
CHRONIC THE REVIENUE No. 1, RESTATED THE APHERLATE EUNIT EVERY IN FIRITING THAT THE EVERY THE EVERY SUFFICIENT TO JUSTLY A FIRITING OF EUNIT FOR THE DIFENSE OF FRENCH OF A FIRINULAR TISTRIMENT, AS ENAREN IN THE TUBULATMENT.
IN BROOKS V. STATE, 323 S.W. 3d, 383 (TEY. LELM. APP. 2810) THIS HONDRAFIE EUNIT ENTHASTERS THAT "A BICORALS AND POWER ABSTANISED OF THE TAKUSAN U. VIRENIA KEN I SUFFICITING STANDARD IS AS ENAITING A STANDARD AS ANY FIRINAL SUFFICITING STANDARD." IN INSPEATING WITH THE LEMIS FIRING SUFRICTING STANDARD, THE EUNIT DIA NOT TUTTEND THAT THE TUBULITY BE ONE! OF BEFERMUTURING IF THERE IS A "SMITTING OF EVERYTHERE" SUPRETAIL THE JURY'S VERDIDT. THE REVIENUING EUNIT MUST THE TRAD ADEMUTT All THE EVERYTHERE; VERDIDT IN HIDAT MOST FAVORGES TO THE JURY'S VERDIDT, TO BEFERMINE IF THE EVERYTHERE SUPPLIES A FATIONAL AND RANSPARTS FIRITING OF EUNIT, BEYOND A
*8 Lc.
Reasonable Doubt. See Brooks V. State, at N. 20. What THRING All the ETHENDS THIO ABOUT, the PENIEN INL DOUT MUST NOT MISSTATE THE ETHENDS TO BEAR A BESYRED RESHUT.
FREE.
ON WhREN 19, 2013. POTTIONER WAS TRANSPOTED TO AN ESTABLISHMENT LAZED "BEAKES TENDERS." BY HIS EMPLOYED, RAND, A SUR- CONTRADES TO "SAT ENTERPRISES," FOR THE PURPOSE OF EHERMASNIS A PAIR OF ELDABEAMENT PENDS FOR BOTH HINSEPT AND HIS FUNICE, AlesHA TERRY. UNIERTAIL ABOUT THE ANGLANT OF MONTHS ANALLASE ON! THE BEEST DARD the WAS BARRENIS, the SOlLETER HIS EMPLOYER FOR EITHER BASIL OF A LONPAHY DHEW TO AME BOYER THE PAPER OF THE EHERMASN IS ASPIREN TO MAKE. "SAT ENTERPRISES." OWEd THE APPLANT FOR GEORGEAL IARGE AT THE SAME TONE THIS EVENT OCCURREN. He was ENTERSTER WITH A LONPAHY DHEW AND AUTHORTEER TO ISSUE IT, BY A LONPAHY ABOUT, WITH THE UNIERSTANDING THAT He HOLLTS EAMENT HIS EHERMASN TO NO HERE THAN THE ANGLANT ONED TO HIM. IT WAS UPON THESE PERSISSES THAT THE APPLANT ENTERPRISE BEAKES TENDERS TO MAKE HIS EHERMASN. THESE WAS NEVER ANY PERCUNIERIED TATENT TO EFFRUED THE PROPERTIER OF MECHANISISE. THE APPLANT TED THE SALES BEELE ON! SEVERY! BUTTERAIT INSTANCES THAT THE AMOINT IF HIS EHERMASN BOLLH NOT EYEERS AS SHE ATTESTER TO BURING TELM. IN ADVITION, THE APPLANT ALSO ATEMPTEEN TO MAKE THE EHERMASN USING HIS BEEST DARD BEFORE ASKING HER IF SHE WOLL ADCEPT A LONPAHY DHEW. FANILY, APPEE PHERMASNIS THIO PENDS AND ONE WESTWATM, THE APPLANT LSED HIS OWN THE AND LOREEDT I.D. DARD WHEAL ISSUING THE DHEW, SIGNUED HIS VERY OWN THE LOREEDT SIDNATURE BEFORE RANING THE ESTABLISHMENT WITH HIS EHERMASN. YET, RESPITED All HIS EHERMASN IS NOT THE EHERMASN IS NOT THE EHERMASN IS NOT THE EHERMASN
*9 This, The Serm Comet of Apears Form I Turt Pettrinder's Turtent to befeant was Somenow Eerereft From Als Adts, Words, or bonknot. Adeptand to Tepas Perial Dose 32.21 (f) "A Peasant Is Presumed to Turtent to befeant be Arem another If The Peasant Acts with Respect to Tild or more withtrinds if the same Type." only one Dute was give Issuled, And Turt Dute wasant fided. Although the Atechant was first Presented and conducted the A fidedly, no fidedly was Proveri to have otherfeds. To prove A fidedly, And to Abrold Any such Conuition, It Must Be Snioull Turt The act was not Altupleted. The Company listed on the Dute was a letritnate Company. The Dute beelver Fron A tebritnate Adbount. Yet, No one assoftrated with such Comprity five Suffated to support the Prosettitons BELM. An representertive from Saft Entreperses five Complacient Arout this event. No bandes were fided by Saft Entreperses to odde to classify this as a fidedly. Gubedes were, Irstern, fided by the Rescptent, berares Jerefers, the Retortions A had Dute to the Amount of Mabententor Ttert of Service. Aprefants Turtent to befeant bount be "Tirferred" unless It Is proverl Turt Sometrings was fided. To be Turt, someone assoftrated with the Comprity listed on the Turtentent used to make the Transportion Must beve Testimony. As a result, Atechant has feel bonfated if the whomb offense. These sort of biscernments what have been letected him the law been applied to the FARTS Sufts Sufts Dute bunge. See by Rute Clare 597 S.dd. 24 700 (Tef. Bern. AM. 479) No Persuante July could have found Pettrtonted Suftly on this Btudente and He to Etricted to At least one Fite ConEttemention if All the Btudente used The Vobison V. Vebronia and Revers- V. Stute Stantands
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2.
Rewuth the Pertew No. 2
The Appellate Court Erects the Husitath Thart There was Sufficient Evideable to SUPPHET TELL COURTS FAMILIPSE OF TELLE ENHANCEMENT AIIEBATIOUS.
APPELIAST WAS BEEN ENHANDED HARVE SECTION 12.1255 of The TEXAS PENNal Duke AND DUNKL AN U'FERMAL PESSEN SENTRALLE, The TID ECHNIES LISTEN SEPPEATELY, FIR ENHANCERENT TEXPOSES ONI POTITONIRES TAKEETMENT WERE BEEN PART OF A CONDUCERENT SENTRALLE ISSUEE EN 1997. THE UTHR COURT IF APRASIS ERECT US STATIGNS THAT "BENNETT PRES DILITY IS A BURGUARY IF A MABITATION EN 2007" AND WAS SEVITENDED TO THE YEARS. THE POTITONIRE DILA HET PEAR DILITY IS ANY SUEH OFFERIE EN 2007. The SEVOLG YEAR PESSEN SENTRALLE APPELIAST REBELVES EN 1997 WAS A CONDUCERENT SENTRALLES ISSUEE FIR THE OUly TID ECHNIERES SYSTEMAT IN HIS DEVANTHAL HISTORY, AND THERE WAS AID FAMILI CONDUCERENT ECHNIER EN THE TIIITAL OFFERIE EFFERES THE SUBSEQUENT OFFERIE OUWERERS. THIS PROTEES THE POTITONIRE ABATENT RESECUCTION WHELE SECTION 12.1255 of The TEXAS PENNAL DULLE, FIR EUEPOSES OF ENHANCERENT. AVERTEMPLESS, POTITONIRE WAS BEEN CONDUCEREN ONI THE TEXMS OF THIS STATITTE AND SENTRALLE TO IS YEARS FOR A STATE SUEL TELUY, AS A RESUELT. EN 2007 THE APPELIAST WAS PROSELTEDS FOR A TREESER IN DURAS DILITY, A STATE SUEL TELUY, HET A BURGUARY, AS THE STATE COURT IF APRASIS SUBDESTS. ENHANCERENT LAWIS POTTAXITALLE TO STATE SUEL TELUY EEN ETHYE FOM THE ENHANCERENT LAWIS THAT BURGN ALD ETHER FELANTEES (see State V. MADRUSO (De AP 1996) 919 S.W. 2d 86), RENUCEING THIS 2007 DANVICITON YEUN THE DETTERIA HISTOR HARVE 12.425 ( ) OF THE TEXAS PENNAL DULLE. THIS REALES ONLY ONE BEIEVANT ENHANCERENT REAENAAN
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4.
DW The Pettritioners Thistment, BANDSING the PulISHMENT RANDS FOR THIS OFFERSE THI BETAVEAL &; AND 10 Years, Pettrioner IS SEEYING AN THeSAI SENTRANe. SEE EY PAPER WHITEIR UIIS S.W. 2A 626 (TEY PERM. AP. 481).
IT IS STATE ON AME 10 IF THE COURT OF AMEAS MENHERANNUM THAT PEttrioner BENNETT DIA NOT MALE "AN OBJECTION NOTHER TO THE SUSSTRANE AND THE FRENt OF THE THISTMENT," WHEEL THI FACT ABREHANT WAS WEREB BUTEL A SURGIE OPER TINITY TO SEE THE THISTMENT. NO THISTMENT WAS EYE SEYED TO HAM, PRESONSALLY, NO THISTMENT WAS EYE PRESENTED BY ABSTANTEE BOOKSSE, ATHONOM MANU, REQUESTS WERE MALE. PETTIONER SOLMIT TO RESONS all RESSED TESA I TESUES BETHE THE THISTMENT WAS EYE FESUED, EY SUBMITTENE A ReD 50 "MOTION FOR EYAMMUNG TESA" TO THE SENTTH DISTRICT COURT OF ALUTT EHENRY, TESAS, TO NO AIRS! He HAS BENTED. THE MOTION WAS TETED BY THE DISTRICT WERE, BETHE THE SUSSEQUENT THISTMENT WAS TESUED, AND IS LISTED ON BEEME. SEEYING AN EYAMMUNG TESA IS "AN OBJECTION TO THE SUSSTRANE OF THE THISTMENT," FOR All TITENTS AND PUBLSES. THE STATE THITERDUCER DAY OF THE THISTMENT OF PEttrioners 2007 BONDATSONI WAS PREGREDIES, WHITEYER IT MAY HAVE BECTTED. THIS WELT UNDERSTEEL UNITI NOUG RECEIVE NO DUMERING THISTMENT WAS EYE SEEN BY THE PEttrioner. AND THIS MISTAME DANIERS THE LAMBORAPE OF ENHANCENENT STANDARDS AS THEY PECTAJE TO HIS CASE. AN ABSTANTE COURT REVIEUIS THE RECEIVS AS A WHOIS TO DETERMENE WHITEYER A STATISTAY EYELE HUGGES By THISTEING THE ISSUANE OF AN THeSAI MOTION SENTRANE.
*12 Summary
The Justices of the Court of Agents Based Theat Deviation that the Estimate was sufficient to affirm Retitances, buiusertion, Bonbemintale than to 13 Years. On the Peutitature, the the offense of a state that folly, a forfeely, and theat Deviation to affirm Ergoneous Rea beard Gunablements, this All Beal Based on a brect bed of Falshood.
PAPER THE ROLEF
The The Reasons stated, the Retitance was leamed a true Total to Cause No. 00-14-0050-02. Therefore, Ame Must Pay's That This Quiet Grant Has Returned by Disdertionery Review and Allied Retitances. The Judgement busted beyond, Review's This Cause and Missess The oposition of Remain. It the A New Total.
Respectfully All Remain Retitance, the See
Dertififate of Service
I Heeely deftify that a Tide and Depect Day of The freeclifal Attrion the Disdertionery Review has Been sealed, via United States Maid to Make A. Whikee Me, Must Dubby Distriet Attenday, P.O. Boy Hill, Decealville, Texas, 73403-0441 and on the State Procebitum Attenday, P.O. Boy 13405, Alistral, TY., 13711, by United States Maid on Tars 8th Day of April, 2015
Respectfully All Remain Retitance, the See
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Apeeliant in this freebride "Pertition the bis cectronary Review" is an Isolated Présence of the State and has no abess to Eorier a rperditive, or a very machine. The Restorants want Alow from to Handicatre the Requited of Copies to satisfy the Comer. It is, Theftode, Peayed by the Pretentioned Turt The Holoerete Shakes Seated in the buet of Criminal Aperats will show Meecy and Marke the Remarks of This little Tse Pudases of Expertensly,
Lhishorn Deforation
Apeeliant, Cual Ray Bennett, does Healey suere, Chike the Penrity of Pecrify, Resulant is tittle 23 U.S.C., Turt all the Tristmation Thidleth in this Perition Is Thule and Cueredt is the Best of My
*14 In The Court of Appeals Sixth Appellate District of Texas at Texarkana
No. 06-14-00050-CR
CHAD RAY BENNETT, Appellant V.
THE STATE OF TEXAS, Appellee
On Appeal from the 354th District Court Hunt County, Texas Trial Court No. 29,345
Before Morriss, C.J., Moseley and Burgess, JJ. Memorandum Opinion by Justice Moseley
*15
MEMORANDUM OPINION
After a Hunt County jury convicted Chad Ray Bennett of forgery by passing a financial instrument, a state jail felony, [1] Bennett elected to place the issue of punishment before the trial court. After the trial court found that the State's enhancement allegations were true, Bennett was sentenced to thirteen years' imprisonment. On appeal, Bennett argues that the evidence was legally insufficient (1) to support the jury's finding of guilt, and (2) to elevate his range of punishment to that of a second degree felony.
We find that legally sufficient evidence supports both Bennett's conviction and the enhancement of his sentence, and we affirm the trial court's judgment.
I. Legally Sufficient Evidence Supports Bennett's Conviction
A. Standard of Review
In evaluating legal sufficiency, we review all of the evidence in the light most favorable to the jury's verdict to determine whether any rational jury could have found that Bennett committed forgery of a financial instrument beyond a reasonable doubt. See Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd) (citing Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in
*16 testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at ). "Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Williams v. State, 410 S.W.3d 411, 413 (Tex. App.Texarkana 2013, no pet.) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The hypothetically correct jury charge '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. (quoting Malik, 953 S.W.2d at 240).
A person commits the offense of forgery "if he forges a writing with intent to defraud or harm another." Tex. Penal Code Ann. § 32.21(b) (West 2011). To forge means either "(A) to alter, make, complete, execute, or authenticate any writing so that it purports: . . . to be the act of another who did not authorize the act," or "(B) to . . pass . . . a writing that is forged within the meaning of Paragraph (A)." Tex. Penal Code Ann. § 32.21(a)(1)(A)(i), (B) (West 2011). Forgery of a financial instrument, such as a check, is a state jail felony. Tex. Penal Code Ann. .
Here, the State alleged that Bennett committed forgery by passing a financial instrument as proscribed in Section 32.21(a)(B) of the Texas Penal Code. In light of its indictment, the State was required to prove that (1) Bennett (2) passed to Brandy Reynolds, an employee of Tim Drake Jewelers, (3) a check for (4) purportedly executed on behalf of SAT Enterprises,
*17
Inc. (SAT), which did not authorize the execution of the check (5) with intent to defraud or harm. [2] Bennett challenges only the last element.
B. The Evidence
At Bennett's trial, Reynolds, the office manager for Tim Drake Jewelers, testified that Bennett entered the jewelry store March 18, 2013, expressing an intention to purchase wedding rings. Bennett informed Reynolds of his budget and picked out two rings and a man's wristwatch that were, collectively, within that price range. Reynolds testified that Bennett first attempted to use a credit card bearing a woman's name to pay for the items. After Reynolds informed Bennett that she could not accept someone else's credit card to pay for the jewelry, Bennett produced his own credit card to Reynolds, but the credit card company declined its use for the purchase. According to Reynolds, Bennett said that "he would write a company check," pulled out an unsigned blank check issued by Bank of America to account holder SAT, and filled out the check in front of her. Reynolds testified that she felt uncomfortable accepting the check, but decided to take it because the transaction "wasn't for a whole lot of money." Before Reynolds turned the jewelry and watch over to Bennett, she photocopied his driver's license and wrote his telephone numbers on the check.
With the check in hand, Reynolds drove to the nearest Bank of America branch. Roxanne Hollingsworth, a bank officer for Bank of America, testified that the SAT account had been closed since October 26, 2010, some two and one-half years before the check was written and passed. Upon receipt of this information, Reynolds called the police, informed them about
*18 the hot check, and provided them with the photocopy of Bennett's driver's license and a description of the jewelry Bennett had taken.
Steve Walden, an officer with the Greenville Police Department, discovered that Bennett was then in jail. At the time of his incarceration, Bennett's personal property was taken from him and placed in a secure area in a locker assigned to Bennett. Upon looking in the locker assigned for the storage of Bennett's personal property on his person at his arrest, Walden located and seized a man's wristwatch and ring. Walden testified that after he informed Bennett of the seizure, Bennett claimed that he had paid cash for those items. Next, Walden asked Bennett's girlfriend, Alicia Tillery (who was visiting Bennett in jail), whether she believed that she was in possession of any stolen property. With teary eyes, Tillery removed a woman's ring from her finger and handed it to Walden. Walden produced the two rings and the wristwatch at Bennett's trial, and they were admitted into evidence. At trial, Reynolds testified that the items seized by Walden were the same items that she gave Bennett in exchange for the hot check. Walden testified that despite his thorough investigation, he could not determine whether SAT was still an ongoing business.
Tillery, who was still in a relationship with Bennett at the time of his trial, admitted that Bennett had no checking account, that he had not worked for SAT, that he had no authority to sign the check on behalf of SAT, and that the signature on the check belonged to Bennett. However, she testified in his favor by attempting to explain how Bennett came to possess SAT's check.
*19 According to Tillery, the check was given to Bennett by a man named "Craig," who lived at the same motel where she and Bennett lived. Tillery claimed that Craig approached Bennett, informed him that he was a contract worker, and offered him a job cleaning properties by mowing and scrapping metal. Bennett accepted the job offer. Tillery testified that Craig and Bennett left together in the mornings, worked together for three days, and returned dirty each night. Tillery stated that on the last day of Bennett's employment, Craig handed a blank, unsigned check to Bennett and instructed him to pay himself by executing the check for no more than .
The State asked Tillery why she failed to previously relay to Walden the story regarding the means by which she alleged that Bennett had come to possess the check. Tillery claimed that even though she was aware that the explanation could help exonerate Bennett, she omitted it because Walden "caught [her] off guard" at the jail. Tillery also claimed that even though Craig was a neighbor, she never confronted him about the dishonored check due to her "very passive" nature. Tillery admitted that even after she had calmed down after Walden's initial interrogation of her wherein he asked about the ring, she never contacted law enforcement in order to set the record straight.
After Tillery's testimony, the State recalled Walden, who testified that after he initially questioned Tillery at the jail, he spoke with her again on March 22, 2013. During that telephone conversation, although Tillery indicated that she and Bennett would meet with Walden to discuss the matter, neither Tillery nor Bennett appeared at the time set for the meeting. According to Walden, Tillery made no mention of Craig during his original interview of her at the jail or in
*20
their subsequent telephone conversation. Walden opined that Bennett was not given permission by anyone to sign the check because (1) it is highly unusual to pay a day laborer with a blank, unsigned check, and (2) he deemed it odd that Bennett made out the check for less than the full amount that he said had been authorized by Craig.
After hearing the evidence, the jury found Bennett guilty of forgery of a financial instrument by passing.
C. Analysis
Bennett argues that the evidence is insufficient to show that he possessed the intent to harm or defraud. However, "[d]irect evidence of the requisite intent is not required"; instead, intent and knowledge may be inferred "from any facts which tend to prove [their] existence, including the acts, words, and conduct of the accused." Hart v. State, 89 S.W.3d 61, 64 (Tex. Crim. App. 2002) (quoting Manrique v. State, 994 S.W.2d 640, 649 (Tex. Crim. App. 1999)). "Proof of intent to defraud is also derivative of other elements. In the case of forgery, the culpable mental state requires proof of knowledge that the check is forged." Wallace v. State, 813 S.W.2d 748, 751 (Tex. App.—Houston [1st Dist.] 1991, no pet.). "If the State proves that an actor has knowledge that a particular check is forged, proof of intent to defraud is inferred." Id.
Here, Reynolds testified that Bennett first attempted to pay for the jewelry with another person's credit card. When that was refused by Reynolds on behalf of the jewelry store, Bennett made an unsuccessful attempt to use his own credit card, but the credit card company refused to approve the transaction. Even though Bennett did not work for SAT and there was no evidence that he was authorized by that company to sign a check on its behalf, he affixed his signature to
*21 the check (drawn on a long-ago closed account) and passed it to Reynolds. By doing so, he executed a writing so that it falsely purported to be the act of SAT. As he wrote the check, Bennett told Reynolds that he was writing a company check to pay for the personal jewelry. Tellingly, when Walden informed Bennett that he had seized a wristwatch and a ring from his property locker at the jail, Bennett lied and claimed that he had paid cash for those items. Bennett's attempt at that point to disassociate himself from the dishonored check indicated a consciousness of guilt. Also, when Walden asked Tillery whether she was in possession of any stolen items, she tearfully turned over a ring (that was meant to be her wedding ring) to Walden.
Bennett claims that Tillery's testimony demonstrates that he did not have the intent to harm or defraud. However, although Tillery claimed that her neighbor, Craig, had delivered the blank check to Bennett (with something of a carte blanche authorization to fill it out for any figure up to ), she never thereafter attempted to clear Bennett's name or retrieve her cherished possession by reporting the story to law enforcement before trial. Tillery also failed to confront Craig about the "account closed" check. "Because the jury is the sole judge of a witness's credibility, and the weight to be given the testimony, it may choose to believe some testimony and disbelieve other testimony." Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008). The jury, which was in the best position to view Tillery's demeanor, could have determined that she simply concocted her tale about the check in an effort to help Bennett, her boyfriend.
Viewing all of the evidence in the light most favorable to the verdict, we conclude that a rational jury could have found beyond a reasonable doubt that Bennett intended to defraud or
*22
harm SAT by executing the check and to defraud or harm the jewelry store by passing the check to pay for merchandise. Accordingly, we overrule Bennett's first point of error.
II. Sufficient Evidence Supports the Trial Court's Finding of True to the Enhancement Allegations
Next, Bennett asserts that the State failed to present sufficient evidence to prove the proper sequence of his prior felony convictions used for enhancement purposes under Section 12.425 of the Texas Penal Code, which provides,
If it is shown on the trial of a state jail felony . . . that the defendant has previously been finally convicted of two felonies other than a state jail felony . . . , and the second previous felony conviction is for an offense that occurred subsequent to the first previous conviction having become final, on conviction the defendant shall be punished for a felony of the second degree.
Tex. Penal Code Ann. 12.425(b) (West Supp. 2014). In its indictment, the State included the following enhancement allegations: And it is further presented in and to said Court that, prior to the commission of the indicted offense, on the 30th day of MAY, 1997 A.D., in cause number F9621781JU in the 291st JUDICIAL DISTRICT COURT of DALLAS County, Texas, the Defendant was convicted of BURGLARY OF A HABITATION and said conviction is a final conviction;
And it is further presented in and to said Court that, prior to the commission of the indicted offense, on the 10th day of MAY, 2007 A.D., in cause number F07398641 in the CRIMINAL DISTRICT COURT NO. 2 of DALLAS County, Texas, the Defendant was convicted of BURGLARY OF A HABITATION and said conviction is a final conviction.
The trial court's judgment reflects that Bennett entered a plea of true to the State's enhancement allegations, and Bennett does not argue on appeal that the judgment is incorrect with respect to his plea. Instead, he argues (1) that " he state failed to . . prove that
*23 [Bennett's] 2007 conviction was subsequent to his 1997 conviction" [3] and (2) that the State did not prove "that the 1997 conviction had become final before the second alleged offence [sic] occurred." 4 "Generally, a defendant's true plea to an enhancement paragraph relieves the State of its burden to prove habitual offender status, and the defendant waives any complaint that the evidence is insufficient to support it." Roberson v. State, 371 S.W.3d 557, 560 (Tex. App.Houston [1st Dist.] 2012), aff'd, 420 S.W.3d 832 (Tex. Crim. App. 2013) (citing Harvey v. State, 611 S.W.2d 108, 111 (Tex. Crim. App. 1981)); see Wilson v. State, 671 S.W.2d 524, 525-26 (Tex. Crim. App. 1984). "The fact that a defendant entered a plea of 'true,' however, 'must be affirmatively reflected by evidence in the record." Wise v. State, 394 S.W.3d 594, 598 (Tex. App.—Dallas 2012, no pet.) (quoting Wilson, 671 S.W.2d at 526). Where, as in this case, the reporter's record contains no evidence of a plea to the enhancement allegations, a defendant may challenge the sufficiency of the evidence to support the trial court's finding of true to the enhancement allegations. Id. at 599-600; Henry v. State, 331 S.W.3d 552, 555 (Tex. App.Houston [14th Dist.] 2011, no pet.).
*24
Here, the State introduced copies of the judgments of conviction in both the 1997 case and the 2007 case into evidence. [5] The 1997 judgment of conviction reflects that Bennett entered a plea of guilty to the offense of burglary of a habitation and was sentenced to seven years' imprisonment. [6] The 2007 judgment of conviction recited that Bennett pled guilty to the offense of burglary of a habitation pursuant to a plea agreement and that he was sentenced to four years' imprisonment. Thus, the punishment evidence demonstrates that the 1997 and 2007 convictions were final convictions. Since we take notice that the year 1997 (the date of the first conviction) precedes the year 2007 (the date of the second conviction) by a decade and Bennett was sentenced to serve seven years' imprisonment on the first charge, we find that the State proved that the 1997 case antedated the 2007 case. Because we find that sufficient evidence supports the trial court's finding of true to the enhancement allegations, we overrule Bennett's last point of error.
III. Conclusion
We affirm the trial court's judgment.
Bailey C. Moseley Justice
Date Submitted: February 23, 2015 Date Decided: March 12, 2015 Do Not Publish
*25
NOTES
Tex. PENAL CODE ANn. § 32.21(d) (West 2011).
copy of the allegedly forged check was made a part of the indictment.
Bennett also complains that the indictment did not allege that the 2007 conviction was subsequent to the 1997. Because he made an objection neither to the substance nor to the form of the indictment, we need not address this complaint. See Tex. Code Crim. Proc. Ann. art. 1.14(b) (West 2005). "[I]t is not necessary to allege prior convictions for the purpose of enhancement with the same particularity which must be used in charging on the primary offense.'" Derichsweiler v. State, 359 S.W.3d 342, 349 (Tex. App.—Fort Worth 2012, pet. ref'd) (quoting Williams v. State, 980 S.W.2d 222, 226 (Tex. App.—Houston [14th Dist.]1998, pet. ref'd)). "Nor is it necessary to allege the sequence of the prior convictions." Id. "Rather, the notice must enable the accused 'to find the record and make preparation for a trial of the question whether he is the convict named therein.'" Id. (quoting Brown . State, 636 S.W.2d 867, 868 (Tex. App.—Fort Worth 1982, no pet.)).
Generally, "'a probated sentence is not a final conviction for enhancement purposes unless it is revoked.'" Ex parte White, 211 S.W.3d 316, 319 (Tex. Crim. App. 2007) (quoting Ex parte Langley, 833 S.W.2d 141, 143 (Tex. Crim. App. 1992)).
The dates of the convictions show that the 2007 conviction occurred subsequent to the 1997 conviction.
During punishment, Bennett testified that he served this sentence.