Robert J. Wilson v. The State of Texas--Appeal from 18th District Court of Johnson County

NO. 10-90-021-CR

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

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ROBERT J. WILSON,

Appellant

v.

THE STATE OF TEXAS,

Appellee

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From 18th Judicial District Court

Johnson County, Texas

Trial Court # 26214

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O P I N I O N

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This is an appeal by defendant Wilson from conviction for forgery of a release of lien with intent to defraud and harm another for which he was sentenced to the Texas Department of Corrections for 3 years, probated.

Defendant Wilson was indicted for forgery by "unlawfully and intentionally, with intent to defraud and harm another, make a writing" purporting to be the act of Roland Walden who did not authorize the act of said writing. The writing purported to be a release of a lien by the First National Bank of Joshua on a described piece of property. Defendant had borrowed money to finance the construction of a house on the property involved. After the house did not sell, the bank extended defendant the privilege of paying the note out on an installment basis. The bank retained a first lien against the property as part of the security for payment of defendant's debt. Defendant then sold the property and house to Mr. and Mrs. Walter Schneider with defendant retaining a second lien inferior to the Joshua Bank's lien. Defendant continued to be obligated and made payments to the bank on his indebtedness.

In April 1987 defendant prepared a release of lien to the Joshua Bank on the property forging the names of Roland Walden, the president, and others, and mailed the release to the County Clerk's office for recording. On the same day, defendant transferred his lien to the First National Bank in Burleson in order to reduce his debt at that bank. The Burleson Bank thought they were receiving a first lien, otherwise it would have paid defendant less for the note he sold the bank.

After recording, the release was returned to the Joshua Bank since defendant's return address was not in the customary location. Upon receipt by the Joshua Bank the signatures were verified to be forgeries and an investigation revealed defendant's note had not been paid and the lien securing such note had not been released. The bank then contacted its attorney, Honorable Burton Baker, to investigate the matter. Mr. Baker spoke with defendant and asked him about the release. Defendant responded, "I don't know for sure, but I think I know who did this. I don't want to get them in trouble and I don't want to get myself in trouble". Mr. Baker then prepared a forgery affidavit and filed it of record.

On May 1, 1987, a letter written by defendant to Ron Walden, President, and Board of Directors, First National Bank in Joshua, admitted the forgery, accepted "full responsibility for any actions" and offered to sign "any forgery affidavits or other documents that are requested by any parties".

Thereafter defendant was indicted for forgery of the release of lien, convicted by a jury and sentenced by the judge to 3 years in TDC, probated.

Defendant appeals on 2 points.

Point 1 asserts "the trial court erred in overruling [defendant's] motion to quash the indictment for failure to allege the person intended to be harmed or defrauded".

The indictment alleged that "Robert J. Wilson, defendant, on or about the 16th day of April 1987, * * in the County and State aforesaid, did then and there unlawfully and intentionally, with intent to defraud and harm another, make a writing so that it purported to be the act of Roland Walden who did not authorize the act and said writing was a release of lien [on described property]".

Defendant asserts that because the indictment failed to name the party defrauded and harmed there was a failure to give notice on which to prepare a defense. Defendant filed a motion to quash alleging the failure to identify who was intended to be harmed or defrauded. The trial court overruled the motion to quash.

The indictment tracks the applicable portions of Texas Penal Code Section 32.21 which is the Forgery Statute, and states "a person commits an offense if he forges a writing with intent to defraud or harm another".

Article 21.05, Texas Code of Criminal Procedure states: "Particular Intent, intent to defraud; where a particular intent is a material fact in the description of an offense, it must be stated in the indictment, but in any case where an intent to defraud is required to constitute an offense, it shall be sufficient to allege an intent to defraud, without naming therein the particular person intended to be defrauded".

Our Court of Criminal Appeals holds that where an indictment for forgery fails to allege the particular person the defendant intended to defraud or harm, that such allegation is unnecessary, citing Article 21.05, V.A.C.C.P. Teamer v. State, Ct.Crim.Appls, 557 S.W.2d 110; Jiminez v. State, Ct.Crim.Appls, 552 S.W.2d 469.

Defendant acknowledges that the indictment is legally sufficient to allege an offense; but contends that it failed to give him notice of the person "intended to be harmed", which he says deprived him of his ability to prepare a defense.

There were only three possible persons (or entities), which could have been harmed by the forgery of the release of the first lien--or which defendant could have "intended be harmed" by the forgery of the release of the first lien: the Burleson Bank, which purchased the second lien note from defendant believing it to be a first lien and relying that the original first lien in favor of the Joshua Bank had been released; the Joshua Bank which owned the first lien, and which the forged released purported to release; and the Title Company who assumed or would assume that the first lien had been released upon their examination of the County Clerk's records. Defendant was a lawyer; was the obligor on the first lien note to the Joshua Bank; was the beneficiary of the second lien note to himself; had to be aware of the foregoing; and could not be surprised by evidence thereof.

We do not think that defendant was denied any requisite item of notice; but assuming, without deciding, that he was so denied, that denial, under this record, could in no way prejudice his substantial rights, by impacting his ability to prepare a defense. Article 21.19 C.C.P.; Janecka v. State, Ct.Crim.Appls, 739 S.W.2d 813, 819; Adams v. State, Ct.Crim.Appls, 707 S.W.2d 900, 903.

Point 1 is overruled.

Point 2 asserts "the evidence is insufficient to support a conviction for forgery with the intent to defraud or harm another".

Defendant contends the evidence failed to prove he forged the writing or in any way personally participated in the filing of the release of lien, and further contends that there was no evidence of the intent to defraud or harm another on his part.

It is undisputed that the release of lien was forged; and defendant in his letter of May 1, 1987, to the Joshua Bank president and Board of Directors stated, "I recently fabricated and filed of record in Johnson County, Texas, a release by your bank of the perfected first lien mortgage ($55,412.29) recorded in Volume 1224, page 885 of the Deed of Trust Records of Johnson County, Texas. * * * I accept full responsibility for my actions * * * I will sign any forgery affidavits or other documents that are requested by any parties * * * ".

The record reflects that defendant did not bring anyone's attention to the transaction until lawyer Burton Baker had investigated and asked defendant about the matter. Defendant only admitted the forgery after getting caught by the Joshua Bank. The letter of May 1, 1987, was written after defendant had been caught.

Intent to defraud may be established by circumstantial evidence. Pfleging v. State, Ct.Crim.Appls, 572 S.W.2d 517; Stuebgen v. State, Ct.Crim.Appls, 547 S.W.2d 29. See also Thomas v. State, Ct.Crim.Appls, 164 S.W.2d 852.

The jury was authorized to believe that defendant forged the release of lien and that he did so with the intent to defraud and harm another.

Point 2 is overruled.

FRANK G. McDONALD

Chief Justice (Retired)

Before Chief Justice Thomas, Chief

Justice McDonald (Retired) and

Justice Hall (Retired)

Affirmed

Opinion delivered and filed February 14, 1991

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