Minix v. State

579 S.W.2d 466, 1979 Tex. Crim. App. LEXIS 1303

• Court: Court of Criminal Appeals of Texas
• Decided: January 24, 1979
• Docket: 56041
• Status: Published

Opinions

OPINION

CLINTON, Judge.

Appellant was convicted of the offense of forgery. The jury found him to be an habitual criminal, and the trial court assessed punishment at life. Appellant raised three grounds of error in his original brief, but we find ground of error number one to be dispositive.

The first contention by appellant is that the trial court erred by failing to grant a motion to quash the indictment which alleged in pertinent part:

“that Alton Minix ... 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 instrument, a check made payable to “Alton Minix” and signed by “Charles H. Weinbaum,” followed the above allegation in the indictment.

The trial court overruled a motion to quash the indictment on the ground that it failed to allege that the act “was done without the consent of the owner or other person entitled to give consent.” Although the language of the motion is not as well drafted as it could be, appellant is apparently complaining that the indictment fails to allege that the writing purports “to be the act of another who did not authorize the act” as provided in V.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i).¹

It is a well settled rule that when the check is set out haec verba in the indictment, the State is not required to allege that the forged instrument purports to be the act of another, so long as the name of the maker is different than the name of the defendant. Biering v. State, 159 Tex.Cr.R. 331, 263 S.W.2d 558 (1953); Watts v. State, 143 Tex.Cr.R. 303, 158 S.W.2d 510 (1942); Wisdom v. State, 122 Tex.Cr.R. 271, 54 S.W.2d 533 (1932); Huckaby v. State, 45 Tex.Cr.R. 577, 78 S.W. 942 (1904). See also Jiminez v. State, 552 S.W.2d 469 (Tex.Cr.App.1977), in which both the payee and maker were different names than the defendant. However, V.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i) requires additionally that the instrument must purport to be the act of another “who did not authorize that act.” Young v. State, 529 S.W.2d 542 (Tex.Cr.App.1975). In that respect the present forgery statute did not change its predecessor which included “without lawful authority” as “an essential element of the crime of forgery.” Smith v. State, 162 Tex.Cr.R. 132, 282 S.W.2d 876 (1955).

In Smith the facts were very similar to the present case. The indictment set out the check in a way that properly “upon its face, purported to be the act of another,” but did not allege that the check was made without lawful authority. This Court held that the indictment was fatally defective, and the case was reversed.

We conclude that Smith is controlling authority, and failure to allege that the writing purported to be the act of another “who did not authorize that act” rendered the indictment fundamentally defective.

For this reason the judgment is reversed and the cause is remanded.

Before the court en banc.

1 . V.T.C.A. Penal Code, Sec. 32.21(a)(l)(A)(i) provides in pertinent part:

“(a) For purposes of this section:

(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 the act; . .”