McFarland v. State

Court of Criminal Appeals of Texas

McFarland v. State

605 S.W.2d 904, 1980 Tex. Crim. App. LEXIS 1275

CourtCourt of Criminal Appeals of Texas

DecidedJuly 2, 1980

Docket64551

StatusPublished

Cited by11 cases

This text of 605 S.W.2d 904 (McFarland v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McFarland v. State, 605 S.W.2d 904, 1980 Tex. Crim. App. LEXIS 1275 (Tex. 1980).

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Opinions

OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for forgery by possession. Following his plea of guilty, appellant’s punishment was assessed at six years.

At the outset, we are confronted with fundamental error which requires reversal in the interest of justice. Art. 40.09(13), V.A.C.C.P.

The indictment under which appellant was prosecuted alleges in pertinent part that appellant did:

“... unlawfully without authority and with intent to defraud and harm, forge the writing duplicated below by possessing it with intent to utter it while knowing it was forged: ...”

It has been held that an indictment for forgery by possession with intent to utter under V.T.C.A. Penal Code, Sec. 32.-21(a)(1)(C) must allege that the writing purported to be the act of another who did not authorize the act. See, Ex parte Lee, (Tex.Cr.App.), 589 S.W.2d 710; Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.). We have further held that the “unauthorized act” element and the “purport” element are separate and distinct elements. See, Roach v. State, 586 S.W.2d 866 (Tex.Cr.App.); Minix v. State, supra.

Although appellant’s indictment alleges that he acted “without authority,” it fails to allege that the writing purported to be the act of another. We hold that such an omission renders the indictment fundamentally defective.

The State maintains that it was not necessary to allege the purport element and relies on Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.). This contention was rejected in Minix v. State, supra at 468, when this Court stated:

“The State urges that the decision in this case is in conflict with Jiminez v. State, Tex.Cr.App., 552 S.W.2d 469, and Jones v. State, Tex.Cr.App., 545 S.W.2d 771. The element found missing in the indictment in this case was not expressly considered in those cases. Jones discussed failure of the indictment to allege that the accused knew the instrument was forged, and Jiminez discussed, inter alia, the purport element. Although the language upholding the Jiminez indictments against a purport clause challenge does say that the instrument set out purported to be the ‘act of another who did not authorize the act,’ it did so by relying on the ‘purport’ rule that rests on setting out the forged instrument in the indictment in haec ver-ba, and failed to address the fact that the ‘purport’ and ‘unauthorized act’ elements [906]*906are separate and distinct. Furthermore, the Jiminez prosecutions were for forgery by making, so that the conflict between the allegation that the accused in fact made the instrument and the appearance from the face of the instrument set out haec verba that someone else made it was sufficient to supply the purport element under the haec verba rule. No such conflict arises in prosecutions for forgery by uttering or forgery by possessing with intent to utter.”

The judgment is reversed and the indictment is ordered dismissed.

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OPINION

TOM G. DAVIS, Judge.

Appeal is taken from a conviction for forgery by possession. Following his plea of guilty, appellant’s punishment was assessed at six years.

At the outset, we are confronted with fundamental error which requires reversal in the interest of justice. Art. 40.09(13), V.A.C.C.P.

The indictment under which appellant was prosecuted alleges in pertinent part that appellant did:

“... unlawfully without authority and with intent to defraud and harm, forge the writing duplicated below by possessing it with intent to utter it while knowing it was forged: ...”

It has been held that an indictment for forgery by possession with intent to utter under V.T.C.A. Penal Code, Sec. 32.-21(a)(1)(C) must allege that the writing purported to be the act of another who did not authorize the act. See, Ex parte Lee, (Tex.Cr.App.), 589 S.W.2d 710; Minix v. State, 579 S.W.2d 466 (Tex.Cr.App.). We have further held that the “unauthorized act” element and the “purport” element are separate and distinct elements. See, Roach v. State, 586 S.W.2d 866 (Tex.Cr.App.); Minix v. State, supra.

Although appellant’s indictment alleges that he acted “without authority,” it fails to allege that the writing purported to be the act of another. We hold that such an omission renders the indictment fundamentally defective.

The State maintains that it was not necessary to allege the purport element and relies on Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.). This contention was rejected in Minix v. State, supra at 468, when this Court stated:

“The State urges that the decision in this case is in conflict with Jiminez v. State, Tex.Cr.App., 552 S.W.2d 469, and Jones v. State, Tex.Cr.App., 545 S.W.2d 771. The element found missing in the indictment in this case was not expressly considered in those cases. Jones discussed failure of the indictment to allege that the accused knew the instrument was forged, and Jiminez discussed, inter alia, the purport element. Although the language upholding the Jiminez indictments against a purport clause challenge does say that the instrument set out purported to be the ‘act of another who did not authorize the act,’ it did so by relying on the ‘purport’ rule that rests on setting out the forged instrument in the indictment in haec ver-ba, and failed to address the fact that the ‘purport’ and ‘unauthorized act’ elements [906]*906are separate and distinct. Furthermore, the Jiminez prosecutions were for forgery by making, so that the conflict between the allegation that the accused in fact made the instrument and the appearance from the face of the instrument set out haec verba that someone else made it was sufficient to supply the purport element under the haec verba rule. No such conflict arises in prosecutions for forgery by uttering or forgery by possessing with intent to utter.”

The judgment is reversed and the indictment is ordered dismissed.

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605 S.W.2d 904, 1980 Tex. Crim. App. LEXIS 1275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcfarland-v-state-texcrimapp-1980.

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