Kalissia Kay Kendig v. The State of Texas--Appeal from 272nd District Court of Brazos County

Affirmed and Memorandum Opinion filed December 30, 2003

Affirmed and Memorandum Opinion filed December 30, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-03-00013-CR

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KALISSIA KAY KENDIG, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 272nd District Court

Brazos County, Texas

Trial Court Cause No. 29400F-272

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

Appellant was convicted by a jury of forgery and the court assessed punishment at two years confinement in a state jail facility, probated for five years. See Tex. Pen. Code Ann. 32.21 (Vernon 2003). Appellant challenges her conviction in five issues on appeal. We affirm.

Background

On October 29, 2001, Euleta Clay was at home in Conway, Arkansas, when two individuals walked into her home uninvited. When they finally left, Clay found her checkbook, $4,000 cash, her social security card, and a photo identification were missing. Approximately one week later, appellant cashed one of Clay s missing checks in College Station, Texas. The check was made out to appellant for $6,800, Euleta M. Clay appeared in the signature line, and the memo line on the check indicated it was for school tuition.

Upon presentment of the check, the teller, Angie Vincent, checked her computer to make sure the check was valid. A notation appeared on the computer indicating two checks had a stop-payment on them. Vincent testified she later learned the two check numbers actually indicated a range of checks, not just two, and the check passed by appellant was included in that range.

Appellant claims she did not know the check was forged and that she cashed the check for her boyfriend, whose identification had been stolen. She was told by her boyfriend, Jeremy Blaine, that his grandmother was sending him a check and he had no way of cashing it. She also testified her boyfriend s grandmother had included some extra money to help her with school. Appellant claimed she did not see her boyfriend fill out the check and if she had known it was forged, she never would have agreed to cash it.

I. Legal Sufficiency of the Evidence

Appellant s third point of error challenges the legal sufficiency of the evidence to support the conviction of forgery. Specifically, appellant claims the evidence is legally insufficient to establish the check was signed by an unauthorized person.[1] When reviewing a legal sufficiency claim, we review the evidence in a light most favorable to the verdict in order to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000) (en banc). Whether the evidence is legally sufficient is determined as a matter of law; thus, if the evidence is legally insufficient, the case should never have been submitted to the jury. Oldham v. State, 5 S.W.3d 840, 844 (Tex. App. Houston [14th Dist.] 2000, pet. ref d). The same standard applies regardless of whether the state presents direct or circumstantial evidence. Huntley v. State, 4 S.W.3d 813, 814 (Tex. App. Houston [1st Dist.] 1999, pet. ref d) (en banc).

In order to prove appellant committed the offense of forgery, the prosecution was required to prove beyond a reasonable doubt that appellant (1) with intent to defraud or harm another; (2) passed; (3) a writing; (4) that purported to be the act of another; and (5) that other person did not authorize the act. Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985) (en banc); Tex. Pen. Code Ann. 32.21 (Vernon 2003). Appellant now complains there is no evidence to support the last element, lack of authority. Specifically, appellant claims there is no evidence (1) at the time the check was written, the person who wrote the check had no authority to act for the complaining witness; (2) the check passed by appellant was one of the checks stolen from the house of the complaining witness; and (3) when stop payment on the check was issued. Appellant argues the State presented no direct evidence that Euleta Clay did not authorize the maker of [check number] 1580 to fill the check out. All of the evidence presented is circumstantial . . . Circumstantial evidence, however, may still be legally sufficient to support a conviction. See Colburn v. State, 501 S.W.2d 680, 682 (Tex. Crim. App. 1973).

Viewing the record in a light most favorable to the verdict, checks were stolen from Clay s residence approximately one week earlier. Clay s daughter testified at trial that her mother did not authorize anybody to write checks from her account. The check was in the range of checks included in the stop-payment order. The signature on the check was not Clay s signature. Appellant told Vincent the check was from her grandmother, not her boyfriend s grandmother as she alleged. Vincent testified she would have remembered if appellant had mentioned anything about a boyfriend or his grandmother.

Detective Paul Price began investigating the forgery upon receipt of a package from the bank containing, in part, the check and the police report from the theft at Clay s house. Price obtained a warrant for appellant s arrest, but questioned her first. Price testified that appellant did not seem surprised to learn the check was forged. He also testified appellant admitted she saw her boyfriend fill out the check, including the signature line. Price questioned appellant about her relationship with Blaine and she explained she could not remember everything about the one-week relationship because the two were drinking for much of the week. Although she denied how much she drank during the relationship at trial, on cross examination, appellant admitted that it may have been true.

At first, appellant seemed eager to help with the investigation and told Price she learned Blaine s real name was Tim Spivey and he was in a Harris County jail. Price visited Spivey, but Spivey did not fit the description given by appellant of her boyfriend. Price tried to either meet with appellant or make arrangements for her to view a photo line-up to identify Spivey, but, despite promises to the contrary, she never came to look at the line-up.

Viewing the evidence in a light most favorable to the verdict, we find evidence sufficient to show Clay did not authorize the check passed by appellant. The evidence is legally sufficient to support appellant s conviction because any rational finder of fact could have found the essential elements of the offense beyond a reasonable doubt, including lack of authorization. Therefore, we overrule appellant s legal sufficiency challenge.

II. Factual Sufficiency of the Evidence

Appellant s fourth point of error challenges the factual sufficiency of the evidence on two elements of the forgery conviction: (1) lack of authority and (2) intent to harm or defraud another. In conducting a factual sufficiency review, we view all of the evidence in a neutral light, without favoring either party. Johnson, 23 S.W.3d at 6 7. We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Id. We review the evidence weighed by the jury that tends to support the element in dispute and compare it to the evidence that tends to disprove that element. Johnson, 23 S.W.3d at 7. In so doing, we must give appropriate deference to the jury findings in order to prevent intruding on the fact finder s role as the sole judge of the weight and credibility of the evidence. Id. Therefore, unless the record clearly reveals a different result is appropriate, we must defer to the jury s determination concerning what weight to give contradictory testimonial evidence because resolution often turns on an evaluation of credibility and demeanor. Id. at 8.

The evidence set out above is all the evidence presented regarding lack of authority. Viewing all the evidence in a neutral light, we find there is factually sufficient evidence regarding lack of authority to support the jury findings. Thus, we conclude the findings are not so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

With regard to lack of intent, the only evidence contrary to that set out above in our legal sufficiency review was presented by appellant s own testimony. Appellant denied ever seeing anyone fill out the check. Appellant also claims that because she signed the check in the presence of the teller and presented her correct identification in front of a video camera, she did not possess the requisite intent to defraud. However, giving her true identity does not corroborate lack of intent because the check was made out to appellant; therefore, the only way to cash the check would be for her to identify herself properly as the individual on the check.[2] Appellant also assisted, at least initially with the investigation; however, participation alone does not prove lack of intent.

Intent to defraud or harm may be established by circumstantial evidence. Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985) (en banc). The jury may believe or disbelieve any part of a witness testimony. Oldham, 5 S.W.3d at 845. In this case, the jury chose to reject appellant s testimony, and this court will not disturb a jury s credibility finding.[3] See Jones v. State, 984 S.W.2d 254, 258 (Tex. Crim. App. 1998) (en banc); Oldham, 5 S.W.3d at 845 46. Viewing all the evidence in the record, including evidence favorable to appellant, we cannot say the proof of guilt is so greatly outweighed by contrary proof as to make the finding of guilt clearly wrong and manifestly unjust. Johnson, 23 S.W.3d at 11. Appellant s fourth point of error is overruled.

III. Excited Utterance

In her second point of error, appellant alleges the trial court erred in allowing Kathy Crary to testify about the hearsay statements of her mother, Euleta Clay. During trial, appellant objected to the admission of the statements on two grounds: hearsay and relevance. The trial court overruled both objections and admitted the statements under either the excited utterance exception or then existing mental condition exception.[4] We review the trial court s admission or exclusion of evidence under an abuse of discretion standard. Green v. State, 934 S.W.2d 92, 101 02 (Tex. Crim. App. 1996). The trial court s decision will be upheld as long as it was within the zone of reasonable disagreement. Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990) (en banc). Since we find the trial court did not abuse its discretion in admitting the statements under the excited utterance hearsay exception, we overrule appellant s second point of error.

An excited utterance is any statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Tex. R. Evid. 803(2). The critical factor in determining if the statement is an excited utterance is whether the declarant was still dominated by the emotions, excitement, fear, or pain of the event. Lawton v. State, 913 S.W.2d 542, 553 (Tex. Crim. App. 1995) (en banc). Additional factors include the amount of time that has elapsed, whether any intervening circumstances occurred between the event and the statement, and whether the declaration was in response to questioning. Id.; Mosley v. State, 960 S.W.2d 200, 204 (Tex. App. Corpus Christi 1997, no pet.). If the statements are made while the witness is in the grip of emotion, excitement, fear, or pain and they relate to the exciting event, they are admissible even after an appreciable amount of time has elapsed. Penry v. State, 691 S.W.2d 636, 647 (Tex. Crim. App. 1985) (en banc); Jones v. State, 772 S.W.2d 551, 555 (Tex. App. Dallas 1989, writ ref d).

Appellant challenges the statements admitted by the trial court on the following grounds: (1) too much time had passed between the startling event and the statements; (2) while the intrusion was a startling event, any statements made relating to stealing checks do not relate to the intrusion, and stealing checks is not a startling event by itself; and (3) a twenty-minute conversation cannot be an excited utterance. In this case, the prosecution introduced Clay s hearsay statements through the testimony of her daughter, Kathy Crary, which demonstrated two startling events occurred giving rise to the excited utterance: (1) two people walked into her house uninvited, and (2) they stole her checks, $4,000 in cash, her social security identification card and a photo ID. After the intrusion, Clay called one of her daughters, Pam Bass, who lived nearby, and Clay also called the police. Crary received a call from her sister shortly thereafter, and Crary immediately called her mother. When Crary spoke with her mother, approximately 1 hours to 2 hours had passed since the intruders left, and Clay was upset, weeping and traumatized by the events. During their entire conversation, Clay was crying and worried to death the intruders would wipe out her account. Crary testified that the fact her mother s checks were stolen was definitely causing her mother s traumatic state.

Based on this predicate, the trial court allowed the hearsay statements. While the gap in time and the intervening events are factors to be considered, the prosecution has satisfied the critical factor. See Lawton, 913 S.W.2d at 553. It is clear from her daughter s testimony that Clay was still dominated by the emotions, excitement and fear of the events when she made the statements 1 to 2 hours later. She was upset, weeping, and traumatized to the point that she needed her daughter to drive 83 miles to calm her down. Accordingly, we find the trial court did not abuse its discretion in admitting the hearsay statements under the excited utterance exception.

Since we have determined the statements fall within the excited utterance exception, we need not address whether the statements were admissible under the state of mind exception. Point of error two is overruled.

IV. Confrontation Clause

In point of error one, appellant contends the trial court violated her Sixth Amendment right of confrontation by admitting the hearsay statements made by Clay. Admission of hearsay evidence necessarily implicates the Confrontation Clause because the defendant is not given the opportunity to confront an out-of-court declarant. Simpson v. State, 119 S.W.3d 262, 269 (Tex. Crim. App. 2003). Under the Confrontation Clause, a hearsay statement is admissible only if it bears sufficient indicia of reliability. Ohio v. Roberts, 448 U.S. 56, 66 (1980). Thus, the Confrontation Clause bars the admission of certain evidence that would otherwise be admissible under an exception to the hearsay rule. Idaho v. Wright, 497 U.S. 805, 814 (1990). A statement is per se reliable if it falls within a firmly rooted exception to the hearsay rule. Guidry v. State, 9 S.W.3d 133, 149 (Tex. Crim. App. 1999). However, even if a statement does not fall within a firmly rooted exception, it may still be sufficiently reliable if it has particularized guarantees of trustworthiness. Id. at 150.

An excited utterance is among the firmly rooted exceptions to the hearsay rule. Lilly v. Virginia, 527 U.S. 116, 126 (1999) (noting the exception is at least two centuries old, currently widely accepted among the States, and carries substantial guarantees of trustworthiness); Penry v. State, 903 S.W.2d 715, 751 (Tex. Crim. App. 1995). Indeed, a statement that is made in the grip of excitement, before the declarant has the opportunity to reflect, may carry more weight with the trier of fact than a comparable statement offered subsequently by the declarant in the relative calm of the courtroom. Lilly, 527 U.S. at 126. A statement that falls within a firmly rooted hearsay exception is so trustworthy that cross examination would add little to its reliability. Wright, 497 U.S. at 820 21. Since we have already found the statements fall within the excited utterance exception, they are deemed per se reliable under the Confrontation Clause. See Guidry, 9 S.W.3d at 149. Therefore, the Confrontation Clause was not violated.

Appellant for the first time alleges Clay s statements should not have been admitted because the declarant was incompetent. Appellant is attempting to disguise this claim under the umbrella of a reliability challenge, claiming that because Clay was suffering from an early stage of dementia, the statements could not bear the sufficient indicia of reliability. Appellant states in her brief: Surely, the statements of a person suffering from dementia cannot be said to have sufficient indicia of reliability to be admitted without violating the Confrontation Clause. If it can, the Sixth Amendment [sic] might as well be erased from the books. However, at no time did appellant object to the reliability of the statements, much less make any indication to the trial court that Clay s competence was in issue. We will not address this issue which appellant raises for the first time on appeal. Tex. R. App. P. 33.1.

Accordingly, we find the Confrontation Clause was not violated because the out of court statements made by Clay fell within a firmly rooted hearsay exception. We overrule appellant s first point of error.

V. Improper Jury Argument

In her final point of error, appellant argues the trial court erred in denying her motion for mistrial following alleged improper jury argument. The prosecution argued during closing that appellant knew what happed in Arkansas, and . . . at the very least, she s covering up for somebody there. Appellant argues the prosecution knew appellant had nothing to do with the intrusion into Clay s house, and the comment was made to inflame the jury with the suggestion that she was involved or covering up for somebody. The trial court sustained appellant s objection, and upon request, instructed the jury to disregard the comment.

We need not decide whether the comment made by the prosecutor was proper because we find that even if it was improper, the trial court s instruction cured any harmful effects. Parr v. State, 606 S.W.2d 928, 930 31 (Tex. Crim. App. 1980). An instruction to disregard will normally cure any error, and we presume the jury complied with the instruction. Wesbrook v. State, 29 S.W.3d 103, 116 (Tex. Crim. App. 2000) (en banc). Only offensive or flagrant error warrants reversal when an instruction to disregard has been given. Id. Thus, if the instruction cured any harm, the trial court did not abuse its discretion in denying the motion for mistrial. Barnes v. State, 70 S.W.3d 294, 309 (Tex. App. Fort Worth 2002, pet. ref d). In this case, we find the trial court s prompt instruction to disregard cured any harm. We overrule appellant fifth point of error.

Conclusion

Having overruled appellant s five points of error, we affirm the judgment of the trial court.

/s/ John S. Anderson

Justice

Judgment rendered and Memorandum Opinion filed December 30, 2003.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.

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

[1] Texas Penal Code 32.21 provides, in part, as follows:

Forge means: (A) to alter, make, complete, execute, or authenticate any writing so that it purports: (i) to be the act of another who did not authorize that act; . . . or (B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A); . . . A person commits an offense if he forges a writing with intent to defraud or harm another.

Tex. Pen. Code Ann. 32.21(a) & (b) (Vernon Supp. 2004).

[2] Appellant, as bearer of the instrument, converted the check into cash. To accomplish this, she was required to make a blank indorsement. If an indorsement is made by the holder of an instrument [without other words] . . . it is a blank indorsement. When indorsed in blank, an instrument becomes payable to [the] bearer and may be negotiated by transfer of possession alone . . . . Tex. Bus. & Com. Code Ann. 3.205(b) (Vernon 2002).

[3] During closing argument, appellant s counsel vigorously argued that this case turns on credibility and whether the jury chose to believe appellant.

[4] The trial court did not specifically state its decision was based on either excited utterance or then existing mental condition; however, the basis of the court s ruling is irrelevant to our determination. If a trial court s decision to admit certain testimony is correct on any theory or law applicable to the case, we will uphold its decision. Romero v. State, 800 S.W.2d 539, 543 (Tex. Cr. App. 1990) (en banc).