Donnie Ray Hoodye v. The State of Texas--Appeal from 21st District Court of Bastrop County

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,
AT AUSTIN
NO. 3-92-178-CR
DONNIE RAY HOODYE,

APPELLANT

 
vs.
THE STATE OF TEXAS,

APPELLEE

 
FROM THE DISTRICT COURT OF BASTROP COUNTY, 21ST JUDICIAL DISTRICT
NO. 7594, HONORABLE H.R. TOWSLEE, JUDGE PRESIDING

PER CURIAM

A jury found appellant guilty of forgery. Tex. Penal Code Ann. 32.21 (West 1989 & Supp. 1993). The district court assessed punishment, enhanced by two previous felony convictions, at imprisonment for twenty-five years.

Appellant contends in his first point of error that the court erred by admitting evidence of extraneous offenses when there was no proof that he was the perpetrator of those offenses. In his second point of error, appellant contends that the probative value of the extraneous offenses was outweighed by their unfair prejudice.

 
The Charged Offense

In July 1991, checkbooks belonging to Benton Eskew were stolen from a house in Bastrop. The accounts for which these checks were printed had been closed before the theft. On July 18, one of the stolen checks was cashed by the clerk at a small Bastrop grocery store. The check purported to be signed by Eskew and authorized payment of $50 to appellant, who endorsed it in the clerk's presence. The check bore a notation that it was in payment for "mech," and appellant told the clerk that he had been given the check after he did some work on Eskew's car. Eskew testified that he did not know appellant, did not hire him to work on his car, and did not sign the check in question.

 
The Extraneous Conduct Evidence

Ed Salmela's Testimony. Bastrop police officer Ed Salmela investigated the charged offense. During his testimony, he was questioned by the prosecutor as follows:

 

Q. Now before we come back and talk about that actual transaction that we're here for, let me get some other things at least talked about in brief. Now what I'm going to ask you about is to give the jury some sort of background about whether or not there has been indeed more than one forgery that's taken place in Bastrop County, and what I'm talking about here are the activities of completely separate individuals from this defendant.

 

Okay, so just a general question, have you worked four forgeries along about that same time in this county?

 

A. Yes, sir, I have.

 

Q. Okay. And just in general, do those forgeries appear to be related, and by that I mean are there some common characteristics of those forgeries?

 

A. Yes, sir.

 

MR. DUCLOUX [Defense counsel]: Objection, your Honor, relevancy.

 

MR. SANDERSON [Prosecutor]: Your Honor, we're trying to, obviously, establish --

 

THE COURT: I'll overrule the objection.

 

The officer went on to testify, without further objection, that in each of the forgery cases he had investigated, the forged check had been made payable to the person who presented the check for payment, the payee had properly identified himself, and the endorsement was in handwriting different from that on the face of the check. The latter fact led the officer to believe that more than one person was involved in the criminal activity.

The prosecutor continued to question the officer about the other forgeries, prompting appellant's next objection:

 

Q. Is Mr. Eskew the only person who had their checks stolen and had those checks forged?

 

A. No.

 

Q. Within this forgery ring in which you have been working?

 

A. No, no. No, sir, I have other checks also.

 

Q. Okay, and who else do we have besides Benton Eskew?

 

A. I have Gladys Aldrich. Ms. Aldrich was basically done the same way, she was placed into a nursing home within the city limits of Bastrop and, again, she had her checkbooks and checks at her house and someone broke into her residence and stole approximately a box of checks.

 

MR. DUCLOUX: I need to object, your Honor, I'm not sure exactly what the idea is here but this is highly inflammatory to the defendant and it's hard for him to defend himself against every forgery that's ever taken place in the County of Bastrop.

 

MR. SANDERSON: Your Honor, we're not making that allegation.

 

THE COURT: Pardon me?

 

MR. SANDERSON: We're not making that allegation that this defendant is in any way involved in these other forgeries, all we're trying to do is establish his link with this ring of forgeries which occurred all at the same time, all by people who knew one another, and they were all done in the same way. And there was only three -- we will show three or four, perhaps, different victims. And by "victims" I mean persons who has had their checkbooks stolen.

 

THE COURT: Are you offering it to prove intent?

 

MR. SANDERSON: To prove intent and knowledge.

 

THE COURT: Do you want to comment on that?

 

MR. DUCLOUX: Your Honor, there hasn't been any evidence put on by the defendant to effect the rebutting of -- there hasn't been any defense of the theory of "no intent" at this time.

 

THE COURT: I'll overrule the objection, you may go forward with the evidence.

 

The officer went on to testify, in answer to questions by the prosecutor, that fifteen checks stolen from Gladys Aldrich had been forged and passed, that one check stolen from Austin Trailer Sales and been forged and passed, and that two checks stolen from Earnest Caro had been forged and passed. Salmela named ten people other than appellant who he believed were involved in this "forgery ring," and described the status of the various charges brought against them. Two of these persons, Verlie Davis and Dondus Green (the latter man believed by Salmela to be the "ring leader") had criminal records which the officer related. The officer testified that these individuals had passed the forged checks at numerous locations in Bastrop beginning in March 1991. In each instance, the forged check had been made payable to the wrongdoer, who in turn made no effort to disguise his or her identity.

Except as quoted above, appellant voiced no pertinent objections to Salmela's testimony. Appellant did object when the State offered in evidence exhibits five, six, and seven, large sheets of paper on which the prosecutor wrote the names of the victims and suspects as the officer testified. Appellant urged that the exhibits were irrelevant, inflammatory, and evidence of extraneous offenses. See Tex. R. Crim. Evid. 402, 403, 404. These objections were overruled.

Gordon Lunsford's Testimony. Department of Public Safety trooper Gordon Lunsford testified that, in August 1991, he went to a Bastrop grocery store in response to a report that Verlie Davis, a man for whom there was an outstanding arrest warrant, was attempting to pass a forged check. Lunsford arrested Davis and seized the check. The check, for $150, was drawn on another account belonging to Benton Eskew, was made payable to Davis, and was purportedly signed by Eskew. Like the check passed earlier by appellant, this check bore a notation that it was in payment for "mech." Although Eskew was not shown this check and did not expressly state that it was a forgery, he did testify that he did not write any check to Verlie Davis. The jury could reasonably infer from the circumstances that this check was another of the checks stolen from Eskew.

At the time of his arrest, Davis had two other checks belonging to Eskew, both for the same account as the check he had attempted to pass. One of these checks was blank, the other was made out for $160 payable to Larry Brown, was purportedly signed by Eskew, and bore the notation that it was for "mech." As with the check Davis attempted to pass, Eskew did not expressly identify either of these checks as among those stolen from him, but he did testify that he had never written a check to Larry Brown. Again, the jury could reasonably infer from the circumstances that these checks were among those stolen from Eskew.

Lunsford testified that Davis had driven to the grocery store in a car with two other persons. One of these persons was appellant, who waited in the car as Davis attempted to pass the forged check. Knowing that an arrest warrant had also been issued for appellant, Lunsford arrested him after taking Davis into custody.

Appellant did not object to Lunsford's testimony describing Davis's attempt to pass Eskew's check and Davis's possession of the other checks belonging to Eskew. Appellant objected only to the admission of the checks themselves in evidence, asserting that the exhibits were irrelevant and that any relevance they might have was outweighed by their unfair prejudice. See Tex. R. Crim. Evid. 402, 403. These objections were overruled.

 
Discussion

Forgery is not a strict liability offense. In order to convict appellant, the State was required to prove that he passed the forged check with intent to defraud another. This, in turn, required the State to prove that appellant knew the check was forged. Pfleging v. State, 572 S.W.2d 517, 519 (Tex. Crim. App. 1978); Stuebgen v. State, 547 S.W.2d 29, 32 (Tex. Crim. App. 1977). The check in question was made payable to appellant and appellant did not misrepresent himself to the clerk to whom he presented the check. There is no evidence that appellant stole the checks from Eskew or that appellant signed Eskew's name to the check. The State argues that, under the circumstances, evidence that appellant was a member of a "forgery ring" operating in Bastrop was admissible to prove appellant knew the check he passed was forged. Whether the challenged evidence in this cause in fact demonstrated the existence of such a ring and appellant's involvement in it, or was otherwise admissible to prove appellant's intent to defraud, is a question we need not decide, because appellant failed to preserve his points of error for review.

Error in the admission of evidence must be preserved by timely objection at trial. Tex. R. App. P. 52(a); Tex. R. Crim. Evid. 103(a)(1). This means that a party must either object each time inadmissible evidence is offered, obtain a "running objection," or object outside the jury's presence in the manner prescribed by rule 52(b). Ethington v. State, 819 S.W.2d 854, 858-59 (Tex. Crim. App. 1991). Appellant did none of these things. After voicing the two early objections quoted above, appellant made no further objection to Salmela's testimony. Appellant never objected to Lunsford's testimony. Although appellant objected to the admission of several exhibits, the substance of the exhibits had been testified to without objection before the exhibits were offered in evidence. Any error in the admission of evidence is cured if the same evidence comes in elsewhere without objection. Id. Points of error one and two are overruled.

The judgment of conviction is affirmed.

 

[Before Chief Justice Carroll, Justices Jones and Kidd]

Affirmed

Filed: December 23, 1992

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