Cotton v. State

626 S.W.2d 531

Opinions

OPINION

ODOM, Judge.

This is an appeal from a conviction for forgery. Punishment was assessed at confinement for five years.

At the outset we notice fundamental error which requires reversal in the interest of justice. Art. 40.09, Sec. 13, V.A.C.C.P. The pertinent parts of the indictment under which the appellant was prosecuted and convicted alleged that he

“knowingly and intentionally, with intent to defraud and harm Billy Hill, forge, by possessing with intent to pass to the said Billy Hill, a forged writing known to the defendant to be forged, as follows:

[copy of check omitted].”

This indictment, then, attempted to allege the specific offense of forgery by possession with intent to utter under V.T.C.A., Penal Code Sec. 32.21(a)(1)(C). The indictment does not allege that the writing purported to be the act of another who did not authorize the act. See McFarland v. State, 605 S.W.2d 904, 905 (Tex.Cr.App.). Such an omission rendered the indictment fundamentally defective. McFarland v. State, 605 S.W.2d 904, 905; Landry v. State, 583 S.W.2d 620, 626 (Tex.Cr.App.); Minix v. State, 579 S.W.2d 466, 467-68 (Tex.Cr.App.); see Ex parte Lee, 589 S.W.2d 710 (Tex.Cr.App.); Kulhanek v. State, 587 S.W.2d 424 (Tex.Cr.App.).

The judgment is reversed and the prosecution ordered dismissed.