Ex Parte Porter

827 S.W.2d 324, 1992 Tex. Crim. App. LEXIS 58, 1992 WL 55272

• Court: Court of Criminal Appeals of Texas
• Decided: March 25, 1992
• Docket: 71177
• Status: Published

Opinions

OPINION ON STATE’S MOTION FOR REHEARING

MALONEY, Judge.

This case is on the State’s motion for rehearing in cause number 71,177. We previously granted Charles Porter, applicant herein, habeas corpus relief in an unpublished opinion delivered February 27, 1991. 803 S.W.2d 720.

Applicant was convicted by a jury of aggravated robbery and was sentenced to life imprisonment. V.T.C.A. Penal Code, § 29.03. In this application, applicant challenges the prior conviction of forgery enhancing the punishment.¹ The offense of forgery is committed if a person “forges a writing with [the] intent to defraud or harm another.” V.T.C.A. Penal Code, § 32.21(b). Under section 32.21:

(1) “Forge” means:

(A) to alter, make, complete, execute, or authenticate any writing so that it purports:

(i) to be the act of another who did not authorize that act; ...

(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it ...

V.T.C.A. Penal Code, § 32.21(a)(l)(A)(i), (a)(1)(C).

The forgery indictment used to enhance applicant’s punishment alleged that applicant “intentionally and knowingly with intent to defraud and harm another, possessed] with intent to pass, a forged writing knowing such writing to be forged of the tenor following: [a copy of the check].” The indictment did not allege that the forged instrument “purported to be the act of another who did not authorize the act” as stated in V.T.C.A. Penal Code, section 32.21(a)(l)(A)(i).

In our unpublished opinion, we held that applicant’s punishment was improperly enhanced because the indictment in the prior forgery conviction failed to allege an essential element of forgery, namely that the forged instrument “purported to be the act of another who did not authorize the act,” and that the prior forgery conviction was, therefore, void since it was predicated on a fundamentally defective indictment.² This Court relied upon Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.1979).

The State contends that we should reconsider our opinion in this case and overrule Minix. In support of its contention, the State argues that a person commits forgery if he (1) forges (2) a writing (3) with intent to defraud or harm another, V.T.C.A. Penal Code, section 32.21(b), and that any allegation in the indictment that the forged instrument “purported to be the act of another who did not authorize the act” is surplusage. We agree and we withdraw our prior unpublished opinion in this case and deny relief.

In Minix the indictment alleged that the appellant “did then and there knowingly, with intent to defraud and harm, forge, by possession with intent to utter the same, a writing as follows: [a copy of the check].” Minix, 579 S.W.2d at 466. On the State’s motion for rehearing, this Court held that “use of the word ‘forge’ in the indictment was insufficient to incorporate by reference the missing element [that the writing purports ‘to be the act of another who did not authorize the act’].” Id. at 467 (opinion on State’s motion for rehearing). By analogy, we relied upon Reynolds v. State, 547 S.W.2d 590 (Tex.Cr.App.1977), a theft case, in reaching our decision.

In Reynolds, this Court held that use of the word “unlawful” in the theft indictment was insufficient to supply the missing element, namely “without the owner’s effective consent.” At that time the theft statute read as follows:

(a) A person commits an offense if, with intent to deprive the owner of property:

(1) he obtains the property unlawfully; or

(2) he exercises control over the property, other than real property, unlawfully-

(b) Obtaining or exercising control over property is unlawful if:

(1) the actor obtains or exercises control over the property without the owner’s effective consent; or

(2) the property is stolen and the actor obtains it from another or exercises control over the property obtained by another knowing it was stolen.

Reynolds, 547 S.W.2d at 593-94 (opinion on State’s motion for rehearing) (quoting V.T.C.A. Penal Code, § 31.03 (1974)).

Similarly, in Casey v. State, 633 S.W.2d 885 (Tex.Cr.App.1982) this Court in comparing section 31.03(b)(1) with section 31.-03(b)(2)³ found that the legislature created one offense but with two separate and distinct ways of committing the offense. Therefore, a theft indictment had to allege whether the appropriation was unlawful because either the property was taken (1) without the owner’s effective consent or (2) the actor knew the property was previously stolen. Casey, 633 S.W.2d at 887.

However, we expressly overruled Casey in McClain v. State, 687 S.W.2d 350 (Tex.Cr.App.1985), stating that the decision in Casey was contrary to “the Legislature’s express purpose in consolidating the theft offenses” because it “attempted to elevate mere matters of proof to ‘distinct elements’ comprising ‘two separate’ offenses.... ” McClain, 687 S.W.2d at 355.

We further criticized Casey in Berg v. State, 747 S.W.2d 800, 807 (Tex.Cr.App.1988) (opinion on Appellant’s motion for rehearing). “The Casey opinion was flawed in that it confused the elements ... of theft with evidentiary matters constituting proof of the commission of the offense.” Berg, 747 S.W.2d at 809. We further stated:

The State need not plead the manner of acquisition or the circumstances surrounding the offense. The manner of acquisition or the circumstance surrounding the offense are merely evidentiary matters and there is no requirement that the State plead evidentiary matters. Thomas v. State, 621 S.W.2d 158 (Tex.Cr.App.1981); McClain v. State, 687 S.W.2d 350 (Tex.Cr.App.1985).

The State need only prove the offense as stated in Section 31.03(a). To plead ... the offense in terms of Section 31.03(b)(1) and (2) is to plead evidentiary matters which are surplusage and in point of fact give the accused more notice than is constitutionally required, [citing Thomas ].

Id.

In Ex Parte Luna, 784 S.W.2d 369 (Tex.Cr.App.1990), we cited extensively from Berg and overruled Reynolds. In overruling Reynolds, we noted that:

McClain not only overruled Casey expressly, but also overruled Reynolds, sub silentio. As a result, in theft cases, the State need only allege that the person (1) unlawfully appropriated property (2) with the intent to deprive the owner of the property. Failure to allege that the property was appropriated without the owner’s effective consent does not render the indictment fundamentally defective.

Ex Parte Luna, 784 S.W.2d at 371.

Thus, the controlling authorities in this area are Luna, Berg, and McClain. The only elements of theft are those set forth in V.T.C.A. Penal Code, section 31.03(a). The definitional provisions set forth in V.T.C.A. Penal Code, section 31.03(b) are merely evidentiary matters that the State need not plead.

Similarly, the only elements of forgery are those set forth in V.T.C.A. Penal Code, section 32.21(b). The State only has to allege that the person “forge[d] a writing with intent to defraud or harm another.” V.T.C.A. Penal Code, § 32.21(b). Any allegation of V.T.C.A. Penal Code, section 32.21(a)⁴ constitutes an evidentiary matter. Thus, absent a motion to quash for lack of notice, the State is not required to allege in the indictment that the forged instrument “purported to be the act of another who did not authorize the act” since such allegation does not constitute an element of the offense of forgery.⁵ As Judge Clinton pointed out in his dissent to Minix, “the gist of the offense [of forgery] is [the] ‘intent to defraud or harm’ another.” Minix, 579 S.W.2d at 469 (Clinton, J., dissenting) (footnote and citation omitted).

Minix relied upon Reynolds and wrongly elevated an evidentiary matter to the status of an element.⁶ We have disavowed the rationale of Reynolds and now overrule Minix as well.

Accordingly, we hold that the indictment in the prior forgery conviction is not fundamentally defective for failing to allege that the forged instrument “purported to be the act of another who did not authorize the act.” Because the indictment is constitutionally sufficient, the relief sought is denied and applicant’s conviction is affirmed.

1 . V.T.C.A. Penal Code, § 12.42(d).

2 . Defects in indictments presented after December 1, 1985, the effective date of Article 1.14(b), must be raised pretrial or they are waived. Stu-der v. State, 799 S.W.2d 263 (Tex.Cr.App.1990). Studer does not apply to this case because the forgery indictment was presented in 1979.

3 . The theft statute, as it exists today and at the time of the Casey decision, is substantively the same as the one in effect when this Court decided Reynolds. Section 31.03 provides:

(a) A person commits an offense if he unlawfully appropriates property with intent to deprive the owner of property.

(b) Appropriation is unlawful if:

(1) it is without the owner’s effective consent; or

(2) the property is stolen and the actor appropriates the property knowing it was stolen by another.

4 .Section 32.21(a) provides:

For purposes of this section:

(1) "Forge" means:

(A) to alter, make, complete, execute, or authenticate any writing so that it purports:

(1) to be the act of another who did not authorize that act;

(ii) to have been executed at a time or place or in a numbered sequence other than was in fact the case; or

(iii) to be a copy of an original when no such original existed;

(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged within the meaning of Paragraph (A) of this subdivision; or

(C) to possess a writing that is forged within the meaning of Paragraph (A) with intent to utter it in a manner specified in Paragraph (B) of this subdivision.

(2) "Writing" includes:

(A) printing or any other method of recording information;

(B) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and

(C) symbols of value, right, privilege, or identification.

5 . By this decision we are not abrogating the mandates of articles 21.02(7), 21.03, and other provisions of chapter 21 of the Texas Code of Criminal Procedure. A timely motion to quash the indictment would require the State to plead the matters in V.T.C.A. Penal Code, § 32.21(a).

6 . The dissent criticizes us for not mentioning that Minix also cited Smith v. State, 162 Tex. Cr.R. 132, 282 S.W.2d 876 (1955). The dissent contends that Minix relied upon Smith rather than Reynolds and, therefore, the fact that we have overruled Reynolds is irrelevant. However, Smith was decided under the 1925 penal code which states in pertinent part: “He is guilty of forgery who without lawful authority, and intent to injure or defraud, shall make a false instrument in writing purporting to be the act of another[.]” Art. 979, V.A.P.C. (1925). Under that code, the phrases "without legal authority” and "purporting to be the act of another" are essential elements of the offense of forgery. The dissent is correct in the assertion that similar language has been incorporated into the new code; however, as we have previously stated in this opinion, under the new penal code, the phrase "purported to be the act of another who did not authorize the act” is no longer an essential element of forgery.