JUAN PEREZ JR., Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed August 13, 2008.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00970-CR
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JUAN PEREZ JR., Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 004-87545-06
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MEMORANDUM OPINION
Before Justices FitzGerald, Richter, and Lang-Miers
Opinion By Justice Lang-Miers
        Juan Perez, Jr. waived a jury and pleaded not guilty to misdemeanor theft by check. The court found appellant guilty of theft of $500 or more but less than $1500. See Tex. Penal Code Ann. § 31.03(a), (e)(3) (Vernon Supp. 2008). Pursuant to the parties' agreement, the court sentenced appellant to ninety days in jail, but suspended the imposition of confinement and placed appellant on community supervision for nine months. On appeal, appellant contends that the State did not offer any evidence identifying him as the person who committed the theft or that he had the requisite intent to deprive the owner of the property. We affirm.
        We apply well-known standards when reviewing challenges to the legal sufficiency of the evidence. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Lane v. State, 151 S.W.3d 188, 191-92 (Tex. Crim. App. 2004). We view all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences therefrom, any rational trier of fact could have found the defendant guilty of all the elements of the offense beyond a reasonable doubt. Lane, 151 S.W.3d at 191-92 (citing Jackson, 443 U.S. at 319). In a factual insufficiency review, we view all of the evidence in a neutral light and ask whether the fact-finder was rationally justified in finding guilt beyond a reasonable doubt. Grotti v. State, No. PD-134-07, 2008 WL 2512832, at *4, 7 (Tex. Crim. App. Jun. 25, 2008); Watson v. State, 204 S.W.3d 404, 415 (Tex. Crim. App. 2006). Evidence is factually insufficient when the evidence supporting the conviction is so weak that the verdict seems clearly wrong and manifestly unjust, or when the evidence supporting the conviction is outweighed by the great weight and preponderance of the contrary evidence so as to render the verdict clearly wrong and manifestly unjust. Roberts v. State, 220 S.W.3d 521, 524 (Tex. Crim. App. 2007). We may reverse only if the verdict is “manifestly unjust,” “shocks the conscience,” or “clearly demonstrates bias.” Grotti, 2008 WL 2512832, at *4, 7 (quoting Watson, 204 S.W.3d at 426).
        The burden is on the State in any criminal prosecution to prove beyond a reasonable doubt that the accused committed the criminal act charged. See Tex. Penal Code Ann. § 2.01 (Vernon 2003); McCullen v. State, 372 S.W.2d 693, 695 (Tex. Crim. App. 1963). To establish theft, the State was required to prove that appellant unlawfully appropriated property with the intent to deprive the owner of the property. See Tex. Penal Code Ann. § 31.03(a). The State must identify the accused as the person who committed the offense. McCullen, 372 S.W.2d at 695.
        The State's evidence showed that Juan Perez, Jr. opened a checking account on December 7, 2005. On December 8, 2005, he wrote a check on that account to Costco for $33.47, and on December 9, he wrote another check to Costco in the amount of $649.49. Costco employee Kenny Parham testified that he was the cashier who received the $649.49 check drawn on Juan Perez, Jr.'s bank account on December 9 and that he wrote the driver's license number, the expiration date, and the birthdate on the check. When Costco presented the checks for payment about a week later, the bank returned the checks unpaid. On January 2, 2006, Costco sent a certified letter to Juan Perez, Jr. at the address on the checks, notifying him that the checks had been returned and demanding payment. The letter was returned unclaimed. Costco then filed a worthless check affidavit with the Collin County District Attorney's office. The district attorney's office sent letters to Juan Perez, Jr. at the address on the checks and at the address on his driver's license. The letter to the address on the driver's license was returned as “unable to forward, undeliverable.” Sami Glaspy, an investigator in the hot check division of the district attorney's office, testified that she sent Juan Perez, Jr. a letter on July 12, 2006, giving him until July 21 to pay the approximately $800 owed on the two checks. She received a voicemail on July 21 from a person who stated he was Juan Perez, Jr. and had received her letter and wanted to pay. She never heard from him again. The State also offered as evidence the $649.49 check from Juan Perez, Jr. to Costco; a driver license pack (DL pack) for Juan Perez, Jr.; bank account records for Juan Perez, Jr.; and Costco's worthless check affidavit. Appellant did not testify or offer any evidence apart from cross-examination.
        Appellant argues on appeal that the State did not prove identity because Costco's employee Parham did not identify him as the person who presented the check. We agree that the State did not introduce any witness testimony identifying appellant as the person who presented the checks to Costco. Although Parham testified that he was the cashier who received the $649.49 check drawn on Juan Perez, Jr.'s bank account on December 9, he did not testify, and was not asked, whether appellant was the same person who presented the check. Additionally, Parham did not testify, and was not asked, whether he customarily compares the driver's license photograph to the person presenting the check. See Warren v. State, 91 S.W.3d 890, 893-94 (Tex. App-Fort Worth 2002, no pet.). Although Glaspy testified that she sent a letter to Juan Perez, Jr. giving him until July 21 to contact her and that he left her a voicemail on July 21 stating that he received her letter and wanted to pay, she did not testify that the person to whom she sent the letter and who left the voicemail was appellant.
        An in-court identification of the accused is not required; identity may be proven by direct or circumstantial evidence. See Taylor v. State, 684 S.W.2d 682, 684 (Tex. Crim. App. 1984); Sosa v. State, 177 S.W.3d 227, 230 (Tex. App.-Houston [1st Dist.] 2005, no pet.). The trial court could have compared the photograph and signature in the DL pack to appellant and the signatures on the checks and reasonably concluded that appellant was the person who presented the checks to Costco. The trial court, as the trier of fact, was authorized to compare the signature on the driver's license to the signatures on the checks. See Tex. Code Crim. Proc. Ann. art. 38.27 (Vernon 2005); Tex. R. Evid. 901(a), (b)(3); Logan v. State, 48 S.W.3d 296, 301 (Tex. App.-Texarkana 2001), aff'd, 89 S.W.3d 619 (Tex. Crim. App. 2002).
        The trial court had the opportunity to compare the driver's license photograph, the driver's license number, birthdate, expiration date, and signature to appellant and the signatures on the checks and could have reasonably concluded that the same person who signed the checks signed the driver's license. See Tex. R. Evid. 901(b)(3); Haddad v. State, 860 S.W.2d 947, 953 (Tex. App.-Dallas 1993, pet. ref'd). Based on this record, and in the absence of any contrary evidence that appellant's checks were stolen or someone else presented the checks, we conclude that it is a reasonable inference that appellant presented the checks to Costco. See Lewis v. State, 193 S.W.3d 137, 142 (Tex. App.-Houston [1st Dist.] 2006, no pet.).
        Appellant also argues that the evidence is legally and factually insufficient to show he acted with the requisite intent. He argues that the bank records show he had sufficient funds in his account on the dates he wrote the checks to Costco, and, as a result, the State did not prove he intended to deprive Costco of property.         We agree that the bank records show appellant had $705 in his account on the day he wrote the $649.49 check to Costco. Those records also show that appellant had $686 in his account on December 12, 2005, the day Costco deposited the checks into its bank account. However, when the checks were presented to appellant's bank for payment, appellant's bank account balance was a negative $124. Although the reason for the negative balance is unclear, the undisputed evidence showed that the checks were returned to Costco unpaid. The undisputed evidence also showed that appellant's bank account was closed on December 20, about eleven days after the checks to Costco were written, without sufficient funds to cover the checks.
        Appellant also argues that the State did not prove he received notice that the checks were returned to Costco unpaid. However, appellant had actual notice of the returned checks at least by December 13, 2006, the date he posted bond on this charge. See Leon v. State, 102 S.W.3d 776, 784 (Tex. App.-Houston [14th Dist.] 2003, no pet.); Warren, 91 S.W.3d at 896-97. And the evidence showed that, as of the date of trial, May 11, 2007, the checks had not been paid and the property had not been returned to Costco. We conclude a reasonable inference from this evidence is that appellant intended to deprive Costco of the property. See Warren, 91 S.W.3d at 897.
        We resolve appellant's second issue against him.
        We affirm the trial court's judgment.
                                                          
                                                          ELIZABETH LANG-MIERS
                                                          JUSTICE
Do Not Publish
Tex. R. App. P. 47
070970F.U05