Opinion filed September 19, 2019




                                      In The

        Eleventh Court of Appeals
                                   __________

                              No. 11-17-00278-CR
                                  __________

                  ROREY DEMONE BOOTH, Appellant
                                        V.
                     THE STATE OF TEXAS, Appellee

                    On Appeal from the 385th District Court
                           Midland County, Texas
                       Trial Court Cause No. CR48727


                     MEMORANDUM OPINION
      The jury convicted Rorey Demone Booth of the third-degree felony offense
of forgery. See TEX. PENAL CODE ANN. § 32.21(a), (b), (e) (West Supp. 2018). The
State sought to enhance punishment based on two prior state jail felony convictions
and two prior third-degree felony convictions. Appellant pleaded “true” to the
enhancement allegations.      The trial court assessed Appellant’s punishment at
confinement for five years and sentenced him accordingly. We modify and affirm.
      Midland Police Officer Brandon Ward conducted a traffic stop of a vehicle in
which Appellant was one of four occupants (two male and two female) on
January 31, 2017. Appellant was not driving the vehicle. Officer Ward saw
Appellant and the other male passenger “making furtive movements to the center
console”; Officer Ward believed that the “furtive movements” indicated either an
attempt to conceal something or to reach for a weapon.             For safety reasons,
Officer Ward asked the driver to roll down the back passenger window and noticed
the odor of marihuana coming from inside the vehicle. Officer Ward and another
Midland police officer removed Appellant and the other male passenger from the
vehicle, and Officer Ward searched the vehicle. Officer Ward found a white
“potassium pill, 500” in the center console and arrested Appellant for possession of
a dangerous drug.
      During a search incident to arrest, the officers found thirty $20 bills in
Appellant’s front pocket. Some of the bills were misprinted in such a fashion that
they appeared crooked on the paper on which they had been printed. Additionally,
each of the thirty bills had one of two serial numbers. United States Secret Service
Special Agent Javier Duran testified that every Federal Reserve Note has a unique
serial number; no two bills have the same serial number. Special Agent Duran
further testified that the bills that the officers found on Appellant felt thicker than a
normal legitimate bill. The optical variable ink on the bills did not change color
when held up to the light; that flaw was a further indicator that the bills were
counterfeit.
      When Officer Ward searched the trunk of the vehicle, he found receipts from
Dillard’s and Champs, as well as a pair of “Nike Jordan shoes.” The receipts were
dated January 27, 2017, four days prior to the traffic stop. The receipts reflected
purchases that were made with cash. Officer Ward arrested Appellant for forgery.


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      In his first issue, Appellant argues that his initial arrest was illegal and that,
therefore, the evidence obtained as a result of the arrest should have been suppressed.
The State asserts that Appellant waived this complaint.
      Appellant filed a motion to suppress, and the trial court denied the motion.
Normally, that would have preserved the suppression issue for review without
further objection by Appellant during the trial. See Gaines v. State, No. 11-06-
00208-CR, 2007 WL 1026442, at *1 (Tex. App.—Eastland Apr. 5, 2007, pet. ref’d)
(not designated for publication); Greer v. State, No. 11-04-00264-CR, 2006 WL
1720185, at *1 (Tex. App.—Eastland June 22, 2006, no pet.) (not designated for
publication). At trial, however, when the State offered the receipts, shoes, and
counterfeit bills seized from Appellant’s person, defense counsel affirmatively stated
each time: “No objection, Your Honor.” The receipts, shoes, and bills were admitted
into evidence.    The State contends that Appellant’s trial counsel waived the
previously preserved objection when counsel stated, “[n]o objection,” at the time
that the State offered the evidence.
      In Thomas, the Court of Criminal Appeals addressed this issue. Thomas v.
State, 408 S.W.3d 877, 885 (Tex. Crim. App. 2013). The court noted that, although
“[a]n adverse ruling on a pretrial motion to suppress evidence will ordinarily suffice
to preserve error on appeal, and a defendant need not specifically object to the
evidence when it is later offered at trial,” the defendant “must also take care not to
affirmatively indicate that he has ‘no objection’ to the evidence that he [previously]
challenged . . . when it is later offered at trial.” Id. at 881. Such an affirmative
statement, the court said, has long “constitute[d] a ‘waiver’ of the right to raise on
appeal the error that was previously preserved.” Id. at 881–82 (citing Harris v.
State, 656 S.W.2d 481, 484 (Tex. Crim. App. 1983) (other citations omitted)).
      The court added that “the rule that a later statement of ‘no objection’ will
forfeit earlier-preserved error is context-dependent.” Id. Therefore, appellate courts
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should review the entirety of the record to determine whether the record “plainly
demonstrates that the defendant did not intend, nor did the trial court construe, his
‘no objection’ statement to constitute an abandonment of a claim of error that he had
earlier preserved for appeal.” Id. Any ambiguity with regard to whether an
abandonment was intended or understood should be resolved in favor of finding
waiver. Id. at 885–86; see Stairhime v. State, 463 S.W.3d 902, 906 (Tex. Crim. App.
2015).
      To provide context, we point out that, in the testimony that precedes the “[n]o
objection” statement regarding the counterfeit bills, Officer Zackary Owens of the
Midland Police Department testified that he collected counterfeit bills at the scene.
The only objection that Appellant’s trial counsel made was that Officer Owens was
“not qualified to determine whether it’s counterfeit or not. He can testify that he
took in some bills, but not that they’re counterfeit.” Officer Owens then testified
about his training and experience with counterfeit bills and stated that, based on that
training and experience, it was clear to him that they were not real bills.
      Subsequently, when the bills were offered into evidence, Appellant’s trial
counsel stated, “[n]o objection,” and did not refer to Appellant’s motion to suppress.
Appellant’s counsel did not limit his “[n]o objection” statement. Furthermore, there
is no indication that the trial court understood that Appellant intended to continue to
preserve the suppression issue for appeal. The same is true for the receipts and shoes.
Accordingly, we conclude that the record is not such that it “plainly demonstrates
that the defendant did not intend, nor did the trial court construe, his ‘no objection’
statement to constitute an abandonment of a claim of error that he had earlier
preserved for appeal.” Thomas, 408 S.W.3d at 881–82. We hold that Appellant
waived any error with respect to the admission of the receipts, shoes, and counterfeit
bills. We overrule Appellant’s first issue on appeal.


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      In his second issue, Appellant contends that the trial court erred when it
entered a judgment of conviction for a second-degree felony against Appellant and
that the judgment should be reformed to reflect a conviction for a third-degree felony
with punishment enhanced to that of a second-degree felony. The State agrees.
      We have the authority to reform judgments when necessary. TEX. R.
APP. P. 43.2(b); see Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim. App. 1993).
We must reform an incorrect judgment “to make the record speak the truth” when
we have the necessary information to do so. French v. State, 830 S.W.2d 607, 609
(Tex. Crim. App. 1992); see Bigley, 865 S.W.2d at 27–28.
      The jury found Appellant guilty of forgery, which, as alleged, was a third-
degree felony. See PENAL § 32.21(e)(1). The trial court properly enhanced the range
of Appellant’s punishment as to this conviction based on Appellant’s prior
convictions, but erroneously reflected a conviction for a second-degree felony
offense in the judgment. See id. § 12.42(a) (West 2019). Although Section 12.42
of the Penal Code increases the range of punishment applicable to the primary
offense, it does not increase the severity level or grade of the primary offense.
Ford v. State, 334 S.W.3d 230, 234–35 (Tex. Crim. App. 2011). Thus, the judgment
should reflect that Appellant was convicted of one count of forgery as a third-degree
felony, enhanced by a prior felony conviction. We sustain Appellant’s second issue
on appeal. See Garza v. State, 298 S.W.3d 837, 845 (Tex. App.—Amarillo 2009,
no pet.) (modifying judgment to reflect correct offense level).
      In his third issue on appeal, Appellant argues that the evidence was
insufficient to support his conviction. We do not agree.
      We review a challenge to the sufficiency of the evidence under the standard
of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323
S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89
(Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we review all
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the evidence in the light most favorable to the verdict and determine whether any
rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638
(Tex. Crim. App. 2010). When we conduct a sufficiency review, we consider all the
evidence admitted at trial, including pieces of evidence that may have been
improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App.
2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to
the factfinder’s role as the sole judge of the witnesses’ credibility and the weight
their testimony is to be afforded. Brooks, 323 S.W.3d at 899. This standard accounts
for the factfinder’s duty to resolve conflicts in the testimony, to weigh the evidence,
and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443
U.S. at 319; Clayton, 235 S.W.3d at 778. When the record supports conflicting
inferences, we presume that the factfinder resolved the conflicts in favor of the
verdict, and we defer to that determination. Jackson, 443 U.S. at 326; Clayton, 235
S.W.3d at 778.
      “The elements of forgery by possession with intent to utter are (1) a person
(2) ‘forges’ (3) a writing (4) with[] intent to defraud or harm (5) another.” Burks v.
State, 693 S.W.2d 932, 936 (Tex. Crim. App. 1985). As relevant here, “forge”
means to possess a writing that has been altered, or made, or so that it purports to be
the act of another who did not authorize that act—with intent to pass, transfer, or
otherwise utter a writing that is forged. PENAL § 32.21(a)(1); see Burks, 693 S.W.2d
at 936.
      To obtain a conviction for forgery, the State must prove that the defendant
acted “with intent to defraud or harm another.” PENAL § 32.21(b); Okonkwo v. State,
398 S.W.3d 689, 695 (Tex. Crim. App. 2013). “When intent to defraud is the mens
rea of the offense, the State must prove facts from which that intent is deducible
beyond a reasonable doubt and, in the absence of that proof, a conviction will not be
                                          6
justified.” Okonkwo, 398 S.W.3d at 695 (citing Stuebgen v. State, 547 S.W.2d 29,
32 (Tex. Crim. App. 1977)). Beyond a reasonable doubt does not require the State
to disprove every conceivable alternative to a defendant’s guilt. Ramsey v. State,
473 S.W.3d 805, 808 (Tex. Crim. App. 2015) (citing Merritt v. State, 368 S.W.3d
516, 525 (Tex. Crim. App. 2012)). “Direct evidence and circumstantial evidence
are equally probative, and circumstantial evidence alone may be sufficient to uphold
a conviction so long as the cumulative force of all the incriminating circumstances
is sufficient to support the conviction.” Id. at 809. Intent may be inferred from
circumstantial evidence, such as words, acts, or conduct. Patrick v. State, 906
S.W.2d 481, 487 (Tex. Crim. App. 1995). However, intent to defraud cannot be
inferred from mere evidence of possession, passage, or presentment of a forged
instrument. Albrecht v. State, 486 S.W.2d 97, 102–03 (Tex. Crim. App. 1972);
Johnson v. State, 425 S.W.3d 516, 520 (Tex. App.—Houston [1st Dist.] 2012, pet.
ref’d).
          This is not the type of counterfeit case where there is direct evidence that a
defendant attempted to pass a counterfeit bill to another person or business. See,
e.g., Word v. State, No. 11-14-00292-CR, 2016 WL 5853224 (Tex. App.—Eastland
Sept. 30, 2016, no pet.) (mem. op., not designated for publication). However, as we
have noted, direct evidence and circumstantial evidence are equally probative.
          The evidence in this case shows that Appellant did not possess one or two
counterfeit $20 bills, he possessed thirty of them—$600 worth. The State argues
that the cash transaction receipts found in the trunk of the vehicle in which Appellant
was a passenger constitutes evidence that Appellant had the intent to defraud. It
would have been ideal if the State could have called a witness from Dillard’s who
remembered Appellant and that he paid with two $20 bills as opposed to some other
combination of bills. However, the fact that the Dillard’s receipt shows a tender of
cash in the exact amount of $40 is a circumstance that the factfinder could consider
                                             7
on the issue of intent to pass the counterfeit twenties that Appellant possessed. The
same is true of the “Nike Jordan shoes,” the other cash-transaction Dillard’s receipt,
and the Champs receipt that also showed a cash transaction. Perhaps it would also
have been ideal if the State had presented evidence as to Appellant’s shoe size as
compared to the Nike shoes or had presented testimony from a Dillard’s employee
or Champs employee who remembered the other transactions. The State presented
neither.
      But in addition to the other evidence that it offered, the State presented
evidence that one of the female passengers in the vehicle told Officer Ward that
Appellant “just went on a shopping spree, basically.” Although that statement is not
reflected in Officer Ward’s report and he could not remember which female
passenger made the statement, Officer Ward testified that the statement is reflected
on the dashcam video that he reviewed. The video was not introduced into evidence.
Officer Ward also testified as to his own observation that the merchandise in the
trunk suggested that “someone just basically just went on a shopping spree.” The
jury was entitled to determine Officer Ward’s credibility.
      We believe that the circumstantial evidence in this case is sufficient to support
a finding that Appellant possessed the counterfeit money with the intent to defraud
or harm. Appellant possessed $600 worth of counterfeit money. There was no
evidence presented that anyone else in the vehicle possessed counterfeit money. The
receipt from Dillard’s shows an amount of cash tendered that would correspond to
the tender of two $20 bills. Further, the officers found another cash transaction
receipt and a pair of new “Nike Jordan shoes” in the trunk of the vehicle. All these
circumstances, when coupled with Officer Ward’s observation that it looked like
“someone just basically just went on a shopping spree” and with the passenger’s
statement that Appellant “just went on a shopping spree, basically,” sufficiently
support the verdict.
                                          8
        When viewed in the light most favorable to the verdict, a rational trier of fact
could have found beyond a reasonable doubt that Appellant committed the offense
of forgery. We overrule Appellant’s third issue.
        We modify the judgment of the trial court to reflect a conviction for a third-
degree felony, and as modified, we affirm the judgment of the trial court.




                                                           JIM R. WRIGHT
                                                           SENIOR CHIEF JUSTICE


September 19, 2019
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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