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586 S.W.2d 870

Reed v. State

Court of Criminal Appeals of Texas

Decided September 26, 1979

Court of Criminal Appeals of Texas · decided 1979-09-26

Key passage — most relied on by later courts

“[D]id then and there, with intent to defraud and harm another, pass to Lynn Arthur that (sic) had been made so that it purported to be the act of another who did not authorize the act and which said writing is to the tenor following: [There appears a copy of both sides of a telegraphic money order payable to and endorsed “Ruby Redmon”.] and the said JERRY PANNELL passed said writing with knowledge that said writing was forged and said writing purports to be and is a sight order for the payment of money; .... (Emphasis added.)”

quoted by 1 later decision, including Pannell v. State

Relies on Landry v. State · Minix v. State · Huggins v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1979-09-26

How this case has been cited

Cited by 9 later decisions — most recently June 1997

9 state decisions

70197919801990decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1 OPINION

PHILLIPS, Judge.

¶2 This is an appeal from an order revoking probation. Appellant was originally convicted of forgery by passing, an offense under V.T.C.A. Penal Code, Section 32.-21(a)(1)(B) and (b). Appellant’s punishment was assessed at imprisonment for five years, probated. Probation was revoked, and appellant was sentenced to imprisonment for two to five years.

¶3 In her second supplemental brief appellant contends that the forgery indictment in this case is fundamentally defective for failure to allege that the writing she passed purported to be the act of another “who did not authorize that act.” See Section 32.-21(a)(l)(A)(i) of the Penal Code.

¶4 The indictment alleges in pertinent part that appellant “did then and there unlawfully and with intent to defraud and harm, forge the writing duplicated below by passing it (knowing it was forged) to Charles Kirkland.” A photocopy of the forged writing (a check) is attached to the indictment. The name of the maker on the check is different from that of the appellant, and the check is made out to appellant. On its face the check purports to be the act of another.

¶5 This Court has recently held that where the forged writing purports to be the act of another, the State must further allege in the indictment that it was the act of another “who did not authorize that act.” Landry v. State, 583 S.W.2d 620 (Tex.Cr.App.1979, Opinion on Appellant’s Motion for Rehearing); Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979). The quoted statutory language constitutes an essential element of the offense and the failure to allege that language renders the indictment fundamentally defective. The indictment in this case is void under the authority of those decisions.

¶6 A fundamentally defective indictment may be collaterally attacked in an appeal from a revocation of probation. Rejcek v. State, 545 S.W.2d 164 (Tex.Cr.App.1977); Huggins v. State, 544 S.W.2d 147 (Tex.Cr.App.1976). Appellant’s conviction, being based on a void indictment, cannot stand.

¶7 The judgment is reversed and the prosecution under the present indictment is ordered dismissed.

¶8 DOUGLAS, J., dissents.

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