Johnny Davis v. State

• Court: Court of Appeals of Texas
• Decided: June 30, 2011
• Docket: 13-10-00560-CR
• Status: Published

Opinion

NUMBER 13-10-00560-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

JOHNNY DAVIS, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 94th District Court of Nueces County, Texas.

MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Garza Memorandum Opinion by Justice Garza A jury found appellant Johnny Davis guilty of forgery, a state jail felony, see TEX.

PENAL CODE ANN. § 32.21(d) (West Supp. 2010), and imposed punishment of two years’

confinement in the Texas Department of Criminal Justice–State Jail Division and a $897.42 fine. See id. § 12.35 (West 2003). By a single issue, Davis contends the

evidence is insufficient to support the jury's verdict. We affirm the trial court's judgment.

I. BACKGROUND On June 2, 2009, a fraudulent check in the amount of $897 from Chase Bank

was used to purchase a pallet of tile from Surplus Warehouse. The check was signed

“Thomas Penney.” However, Thomas Penney testified at trial that he did not sign the

check or authorize anyone else to sign it. The sale of the tile at Surplus Warehouse

was completed by a sales associate, Angel Villa. At the time of the purchase, the check

was approved by Surplus Warehouse. Around a month later, it was flagged as

fraudulent by Surplus Warehouse. The detective assigned to the case was Oscar

Zepeda.

A. Thomas Penney Thomas H. Penney testified that he did not know Davis. When asked if he could

identify Davis in court, Penney commented that he had never seen Davis before. After

reviewing the fraudulent check, Penney testified that his name and address properly

appeared on the check. However, he did not have an account with Chase Bank and did

not sign the check; someone forged it. He became aware that his identity had been

stolen after several businesses contacted him about counterfeit checks that were

passed on June 1 and June 2, 2009.

Penney testified that he had never had his check book, driver’s license, or credit

cards stolen before. He had never done business with Surplus Warehouse in the past.

He stated that he had no idea who passed the counterfeit checks.

B. Oscar Zepeda

2 Zepeda testified that he gathered information suggesting that Davis might be

involved in the counterfeit check passed at Surplus Warehouse. He learned from the

police report filed by Surplus Warehouse that the clerk who received the counterfeit

check was Villa. An investigation uncovered four individuals possibly connected to the

counterfeit check. These suspects were organized into four different randomized photo

line ups by Detective Zepeda. The photo lineup was shown to Villa three months after

the check was written; Villa was able to positively identify Davis as the person who had

given him the counterfeit check.

C. Angel Villa Villa testified that he recalled the approximate time of day that the transaction

took place. Villa said that at the time the check was tendered, it was processed through

a “check reader” and was approved. A month after the transaction, the manager of

Surplus Warehouse alerted Villa that the check was counterfeit. When approached by

Detective Zepeda, Villa made a positive photo identification of Davis. Villa also

identified Davis in court. At the time of the purchase, Villa inspected a driver’s license

from Davis which matched the identity on the counterfeit check. Villa testified that he

was certain that Davis passed the check for the purchase of the tile.

II. SUFFICIENCY OF THE EVIDENCE

A. Standard of Review Davis contends the evidence is legally and factually insufficient to support his

conviction. We disagree.

The court of criminal appeals has recently held that there is “no meaningful

distinction between the Jackson v. Virginia legal sufficiency standard and the Clewis

factual sufficiency standard” and that the Jackson standard “is the only standard that a

3 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, 902-03, 913 (Tex. 2010) (plurality

op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Accordingly, we review

claims of evidentiary sufficiency under “a rigorous and proper application of the Jackson

standard of review.” Id. at 906-07, 912.

Under the Jackson standard, “the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Jackson,

443 U.S. at 307; see Brooks, 323 S.W.3d at 898-99 (characterizing the Jackson

standard as: “Considering all of evidence in the light most favorable to the verdict, was

a jury rationally justified in finding guilt beyond a reasonable doubt”).

We measure the legal sufficiency of the evidence by the elements of the offense

as defined by a hypothetically correct jury charge. Coleman v. State, 131 S.W.3d 303,

314 (Tex. App.–Corpus Christi 2004, pet. ref’d) (citing Malik v. State, 953 S.W.2d 234,

240 (Tex. Crim. App. 1997)). “Such a charge [is] one that accurately 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.” Villarreal v. State, 286 S.W.3d

321, 327 (Tex. Crim. App. 2009) (quoting Malik, 953 S.W.2d at 240). The State was

required to prove beyond a reasonable doubt that Davis (1) with intent to defraud or

harm another, (2) passed (3) a writing (4) that purported to be the act of another

4 [Penney] (5) who did not authorize the act. TEX. PENAL CODE ANN. § 32.21(a), (b); see

Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985).

B. Discussion Davis’s challenge to the sufficiency of the evidence is limited to the issue of

identity. Specifically, Davis contends that, “the state failed to elicit sufficient evidence

proving that defendant was the person who passed the forged check.” Davis points to

the fact that Villa’s identification of him came three months after the check was passed

and to the absence of any other witnesses linking Davis to the check. We disagree.

The statute does not require a gallery of accusers; rather, one witness who can

link the accused to the crime is sufficient. See Aguilar v. State, 468 S.W.2d 75, 77 (Tex.

Crim. App. 1971) (holding that the testimony of one eyewitness alone is sufficient to

support jury’s verdict); Leadon v. State, 332 S.W.3d 600, 607 (Tex. App.–Houston [1st

Dist.] 2010, no pet.) (same); Pitte v. State, 102 S.W.3d 786, 794 (Tex. App.–Texarkana

2003) (same). Here, Villa’s testimony identified Davis as the individual who presented

the fraudulent check. Although Villa’s identification of Davis came three months after

the purchase, he positively identified Davis when presented with a photo lineup. Villa

also recalled the time of day when the incident took place, which permits a reasonable

inference that his memory of the events was accurate. Moreover, there was no

controverting evidence presented that cast doubt on Villa’s testimony. Thus, Villa’s lone

testimony was sufficient to support the verdict. See Aguilar, 468 S.W.2d at 77.

Examining the evidence in the light most favorable to the verdict, we conclude

that a rational trier of fact could find Davis guilty of felony forgery beyond a reasonable

doubt. See Brooks, 323 S.W.3d at 898-99. The evidence was therefore legally

sufficient. We overrule Davis’s issue.

5 III. CONCLUSION We affirm the trial court’s judgment.

DORI CONTRERAS GARZA Justice

Do not Publish. TEX. R. APP. P. 47.2(b) Delivered and filed the 30th day of June, 2011.