Landry v. State

¶1OPINION ON APPELLANT’S MOTION FOR REHEARING

¶2Appeal is taken from a conviction for forgery by passing. V.T.C.A. Penal Code, Sec. 32.21(a)(1)(B) and (b). Punishment, enhanced by two prior felony convictions, was assessed at life. V.T.C.A. Penal Code, Sec. 12.42(d).

¶3On original submission the panel, with one judge dissenting, held that the indictment was not fundamentally defective for failing to allege that the person [whose act the instrument purports to be] “did not authorize that act.” See Sec. 32.-21(a)(l)(A)(i), supra. This holding is contrary to our prior decision in Minix v. State, Tex.Cr.App., 579 S.W.2d 466 (1979).

¶4Sec. 32.21, supra1 proscribes three modes of committing forgery. The first mode, “making”2 a forged writing, is contained in Sec. 32.21(a)(1)(A), supra. The second mode, “presenting” a forged writing, is contained in Sec, 32.21(a)(1)(B), supra, and expressly incorporates the definition of a forged writing as one “made” in a manner contained in See. 32.21(a)(1)(A), supra. The third mode, possession with the intent to utter, is contained in Sec. 32.21(a)(1)(C), and expressly incorporates the first two modes as part of the definition of the offense.

¶5In the present case the appellant was indicted for passing a forged writing, an offense included in the second mode of committing forgery. The indictment, omitting the formal parts, alleged that the appellant:

“did then and there with intent to defraud and harm intentionally forge by passing to Sharon Weiler, a writing as follows:”

¶6The writing, a check, was set out in its entirety in the indictment. The names of both the maker and the payee were differ*626ent from that of the appellant. The jury charge reflects that the applicable manner in which the writing was forged is contained in Sec. 32.21(a)(l)(A)(i), supra, in that the writing purported “to be the act of another who did not authorize that act.” This language was not alleged in the indictment.

¶7In Minix v. State, supra, the defendant was indicted for possession of a forged writing with the intent to utter it, the third mode of committing forgery. The writing that formed the basis of the prosecution, a check, was set out in the indictment. Minix was named as the payee of the check, but a Charles H. Weinbaum was shown as the maker. In Minix, as in the present case, no allegation was made regarding the manner in which the writing was forged as contained in Sec. 32.21(a)(1)(A), supra. Again the record reflects that the applicable provision was that contained in Sec. 32.-21(a)(l)(A)(i), supra.

¶8The State is not required to allege that the forged writing purports to be the act of another if that writing is set out haec verba in the indictment and both the name of the maker and payee are different from the defendant’s name. Ames v. State, Tex.Cr.App., 499 S.W.2d 110. Thus, in the present case we are not concerned with the absence of the language “purports to be the act of another.” Instead we are concerned only with the absence of the remainder of the language contained in Sec. 32.-21(a)(l)(A)(i), supra, “who did not authorize that act.”

¶9In Minix v. State, supra (Opinion on State’s Motion for Rehearing), this Court addressed the identical issue. The Court first observed that the language, “who did not authorize that act,” was the prodigy of the language contained in the prior forgery by “making” statute, Art. 979, V.A.P.C. (1925).3 Art. 979, supra, required that the act be “without lawful authority.” The Court noted that in Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876, an indictment for forgery by making was rendered fundamentally defective by omission of the language “without lawful authority.” Holding that Smithwas “on point,” the Court in Minixheld that the indictment was fundamentally defective because of the absence of the allegation “who did not authorize that act.”

¶10The panel decision in the present case concluded that “the question of whether the purported act was authorized is a notice issue relating to which type of forged writing is involved in the case.” We cannot agree.

¶11In order to prove that appellant committed the offense of forgery by passing, the State must show that the appellant with intent to defraud or harm another:

(1) passed

(2) a check

(3) that purported to be the act of another;

(4) and that other person did not authorize that act.

¶12See Sec. 32.21(a)(1)(B), supra. If the State failed to prove the essential element that the other person did not authorize the act, the conviction could not stand. Young v. State, Tex.Cr.App., 529 S.W.2d 542.

¶13The indictment in the present case alleged that appellant passed a check. The check, as set out in the indictment, is sufficient to supply the allegation that the check purported to be the act of another. These acts alone are not sufficient to allege the forgery offense involved here. Unless the appellant was not authorized to act for the person whose act the check purported to be, he committed no forgery offense.'

¶14It is fundamental that an indictment must allege all essential elements of the offense sought to be charged. Holcomb v. State, Tex.Cr.App., 573 S.W.2d 814. This is and has been an elementary rule of law under new and old code cases alike. Ex parte Winton, Tex.Cr.App., 549 S.W.2d 751; Reynolds v. State, Tex.Cr.App., 547 S.W.2d 590; Ex parte Cannon, Tex.Cr.App., 546 S.W.2d 266; Selvidge v. State, 126 Tex.*627Cr.R. 489, 72 S.W.2d 1079. Thus, our holding herein does not, as the dissent suggests, mark a return to old code factual pleading.

¶15The State argues that reliance on Smithis misplaced as Smithis a “making” case with no application in either “presenting” or “possession” cases. The State relies on Brown v. State, 60 Tex.Cr.R. 505, 132 S.W. 789, in support of this position. Brownfurnishes no reasoning in support of such a distinction under the current statutory scheme, nor do we perceive any.

¶16We hold the indictment in the present case is fundamentally defective.

¶17The Appellant’s Motion for Rehearing is granted, the judgment is reversed and the prosecution under the present indictment is ordered dismissed.