Runnels, Carl Lee v. The State of Texas--Appeal from 178th District Court of Harris County

Affirmed and Memorandum Opinion filed February 15, 2005

 Affirmed and Memorandum Opinion filed February 15, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-03-00657-CR

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CARL LEE RUNNELS, Appellant

V.

 THE STATE OF TEXAS, Appellee

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On Appeal from 178th District Court

Harris County, Texas

Trial Court Cause No. 923,631

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M E M O R A N D U M O P I N I O N

Appellant Carl Lee Runnels appeals his conviction for forgery of a commercial instrument on the grounds that: (1) the evidence is legally and factually insufficient to support his conviction; (2) the indictment did not invoke the trial court=s jurisdiction; (3) the sentence imposed exceeds the range of punishment for a misdemeanor offense; and (4) he received ineffective assistance of counsel. We affirm.

Background

On September 8, 2002, Dedra Johnson decided to attend the Houston Texans football team=s first regular season game. She had one ticket to the game, but needed another for her mother. When the women arrived at the stadium, they saw several ticket brokers outside selling tickets to the game. Because the tickets being sold by the stadium were too expensive, Johnson walked across the street to a hotel parking lot, where she purchased a commemorative ticket from appellant. Johnson walked back to the stadium, gave the commemorative ticket to her mother, and the women proceeded to enter the stadium. However, when the ticket attendant scanned the commemorative ticket, it was rejected as having already been used that day. Johnson was then informed by a Houston Texans= representative that the ticket was counterfeit. She walked back to the hotel parking lot and asked appellant to refund the money she had paid for the ticket. When appellant refused, Johnson left to locate a police officer.

On that same day, James Rensimer and a friend decided at the last minute to attend the football game. When they arrived at the stadium, they drove into the hotel parking lot where appellant was selling tickets. They bought two commemorative tickets from appellant for $75.00 each. As Rensimer and his friend drove away from the hotel parking lot, they saw law enforcement officials approach appellant and assumed appellant was being arrested for ticket Ascalping.@ When Rensimer and his friend attempted to enter the stadium, their tickets were also rejected as being counterfeit. Rensimer and his friend directed an off-duty police officer to appellant=s location. By that time, appellant had been taken into custody for selling the counterfeit ticket to Johnson. Both Johnson and Rensimer positively identified appellant as the person from whom they had purchased the counterfeit tickets.

Sufficiency of the Evidence

In his first two issues, appellant contends the evidence is legally and factually insufficient to prove he knew the tickets he sold were forgeries. In a legal sufficiency review, we consider all the evidence in a light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). We affirm the decision if any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App. 1997). In conducting a factual sufficiency review, we view the evidence in a neutral light and set aside the verdict only if (1) the evidence supporting the verdict, if taken alone, is too weak to support a verdict of guilt beyond a reasonable doubt, or (2) the contrary evidence is so strong that the State could not have met its burden of proof beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484B85 (Tex. Crim. App. 2004). We must be deferential to the jury=s findings and avoid substituting our judgment for that of the fact finder. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).

An essential element of forgery is the intent to defraud or harm another.[1] Diggs v. State, 928 S.W.2d 756, 758 (Tex. App.CHouston [14th Dist.] 1996), pet. dism=d, 963 S.W.2d 78 (Tex. Crim. App. 1998). This intent may be inferred from the accused=s conduct and circumstances surrounding the forgery. Turner v. State, 600 S.W.2d 927, 929 (Tex. Crim. App. 1980). The intent may also inferred from evidence the actor had knowledge that the instrument was forged. Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d). Appellant contends the evidence is insufficient to show intent because he did not know the tickets were forgeries.

Trial testimony established that the bar code on the commemorative tickets sold by appellant corresponded to a single season ticket owned by Randy Merritt. Chris Merritt, Randy=s brother, and the owner of A-1 Tickets, had sold the season ticket to a ticket broker in Dallas. At trial, Chris testified that appellant occasionally sold A-1=s excess inventory Aon the street@ prior to events. However, Chris stated he had not given appellant any commemorative tickets to sell for this particular game. Chris also testified that by simply looking at the ticket, he could determine it was counterfeit, and he was confident appellant could also have determined the ticket was counterfeit.

Thus, the State presented evidence the ticket was noticeably counterfeit, and the owner of the ticket had not authorized its sale. Further, the commemorative tickets appellant sold to Johnson and Rensimer that day were for the same section, row number, and seat. In fact, Johnson=s forged ticket was used to attempt to enter the stadium twenty-nine separate times on the day of the game. Viewing the evidence in the light most favorable to the verdict, it is legally sufficient to support appellant=s forgery conviction.

Likewise, viewing the evidence impartially, we conclude it supports the jury=s verdict. Roy Wilson, another ticket broker, testified he saw a man dressed in a Houston Astros cap and jersey selling commemorative tickets in the same hotel parking lot. Appellant testified that he did not sell any commemorative tickets the day of the game and speculated that Johnson might have bought her forged ticket from the man in the Astros cap, rather than from him. Sandy Marshall, appellant=s companion that day, testified Johnson had purchased commemorative tickets from the man in the Astros cap, and had only asked appellant whether the tickets were genuine. Also, appellant stated he replied that he did not know whether the tickets were genuine, and then returned them to Johnson. He stated that Johnson later returned and asked him the location of the man who had sold her the tickets. Appellant testified he did not recall selling tickets to James Rensimer and his friend. Appellant also contends that by remaining in the parking lot continuing to sell tickets, his conduct was consistent with innocence rather than guilt. However, while this evidence may conflict with Johnson=s testimony, the jury alone is charged with reconciliation of such conflicts. Mosley v. State, 983 S.W.2d 249, 254 (Tex. Crim. App. 1998). The State=s evidence, that all of the commemorative tickets sold by appellant that day were for the same seat, reflects appellant=s knowledge that the tickets were forged. We conclude the evidence supporting appellant=s guilt is not so weak as to be unable to support a finding of guilt beyond a reasonable doubt, nor was the contrary evidence so strong that the State=s burden of proof beyond a reasonable doubt could not have been met. Zuniga, 144 S.W.3d at 484B85. Appellant=s first and second issues are overruled.

The Indictment

In his third issue, appellant contends that because the indictment did not state that a commercial instrument was forged, it did not allege a felony offense and failed to invoke the trial court=s jurisdiction.

Jurisdiction must be invoked by properly and completely alleging an offense against the laws of Texas. Ex parte Kirby, 626 S.W.2d 533, 534 (Tex. Crim. App. 1981). An indictment is sufficient if it charges the defendant committed an offense in ordinary and concise language in a manner which enables a person of common understanding to know what is meant. See Tex. Code Crim. Proc. Ann. art. 21.21 (Vernon 1989). The Penal Code provides that forgery is a state jail felony if Athe writing is or purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check, authorization to debit an account at a financial institution, or similar sight order for payment of money, contract, release, or other commercial instrument.@ Tex. Pen. Code Ann. ' 32.21(d) (Vernon 2003). The Penal Code does not define Acommercial instrument@ and, in this case, a specific definition of that term was not contained in the indictment. The State, however, attached a photocopy of the ticket that appellant was charged with forging as Exhibit A. Appellant contends, however, that the face of the indictment does not charge him with a felony offense.

The indictment listed the felony charge as AFORGERYCCOMMERCIAL INSTRUMENT@ and stated that appellant Adid then and there unlawfully, and with intent to defraud and harm, forge the writing duplicated attached hereto as Exhibit A, 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[.]@ We conclude the indictment sets forth, in clear and sufficient language, information regarding the type of writing appellant allegedly forged and the commercial instrument appellant was charged with forging. Accordingly, we find the indictment invoked the jurisdiction of the district court, and appellant=s third issue is overruled.

In his fourth issue, appellant contends he was given a sentence beyond the range of punishment because the jury=s verdict shows only that he was convicted of a misdemeanor offense. Appellant reasons that because the jury=s verdict found him guilty Aas charged in the indictment,@ he was not found guilty of a felony offense. Because we have rejected appellant=s argument in his third issue, appellant=s fourth issue is also overruled.

Ineffective Assistance of Counsel

In appellant=s fifth issue, he contends he received ineffective assistance of counsel because his attorney failed to move to suppress identification testimony based on an improperly suggestive Aone person show-up@ at the scene. Prior to trial, appellant=s attorney filed a motion to suppress identification testimony on the grounds that the Aone person show-up@ was impermissibly suggestive. The record reflects no ruling on this motion, nor that the motion was re-urged at trial. Further, no motion for new trial was filed.

Both the United States and Texas Constitutions guarantee an accused the right to assistance of counsel. U.S. Const. amend. VI; Tex. Const. art. I, ' 10; Tex. Code Crim. Proc. Ann. art. 1.051 (Vernon Supp. 2004). This right necessarily includes Areasonably effective@ assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984); Ex parte Gonzales, 945 S.W.2d 830, 835 (Tex. Crim. App. 1997). To prove ineffective assistance of counsel, appellant must show (1) trial counsel=s representation fell below an objective standard of reasonableness based on prevailing professional norms, and (2) there is a reasonable probability that the result of the proceeding would have been different but for trial counsel=s deficient performance. Strickland, 466 U.S. at 688B96.

In assessing appellant=s claims, there is a strong presumption that trial counsel was competent. Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). We presume counsel=s actions and decisions were reasonably professional and motivated by sound trial strategy. See Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Appellant has the burden to rebut this presumption by presenting evidence illustrating why trial counsel did what he or she did. See id. An appellant cannot meet this burden when counsel=s actions may have been based on tactical decisions and the record does not indicate the reasons for trial counsel=s conduct. See Bone v. State, 77 S.W.3d 828, 830 (Tex. Crim. App. 2002). Without a motion for new trial asserting ineffective assistance, the record is silent as to why counsel acted as he did. When presented with a silent record, this court will not speculate as to why trial counsel did or did not raise objections to the evidence. See Jackson, 877 S.W.2d at 771. In the absence of any evidence to the contrary, we cannot conclude trial counsel=s performance was deficient. See id. Appellant=s fifth issue is overruled.

Accordingly, the judgment of the trial court is affirmed.

/s/ Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed February 15, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

Do Not Publish C Tex. R. App. P. 47.2(b).

[1] The State must also show that the accused passed a writing, purported to be the act of another, who did not authorize the act. Huntley v. State, 4 S.W.3d 813, 814 (Tex. App.CHouston [1st Dist.] 1999, pet. ref=d).