*1 MINIX, Appellant, Alton Texas, Appellee.
The STATE of
No. 56041. Texas, Appeals of Criminal
Court
Panel No. 3.
Jan.
Rehearing Denied Pettis, Beaumont, appellant.
R. Leon McGrath, Hanna, At- James Dist. Tom S. Atty., Ñaman, Asst. Dist. tys., Paul E. Huttash, Beaumont, Atty., Robert State’s Austin, for the State. DALLY, and CLIN- W. C. DAVIS
Before TON, JJ.
OPINION CLINTON, Judge. offense of
Appellant was convicted jury him to be forgery. The found criminal, court as- habitual and the trial Appellant raised punishment at life. sessed brief, original his grounds three error in one to ground error number but we find dispositive. is that by appellant The first contention grant a failing to the trial court erred al- which quash motion to pertinent part: leged in then Minix ... “that Alton to de- intent knowingly, with and there harm, by possession forge, fraud same, to utter the follows:” instrument, made check copy A signed by payable to “Alton Minix” Weinbaum,” the above followed H. “Charles allegation in the indictment. motion trial court overruled a that it ground
quash the indictment on
done
“was
allege that
the act
failed to
or other
owner
without the consent of the
give consent.”
person entitled to
as well
is not
language
motion
appar-
be,
appellant
drafted as it could
*2
en banc.
the court
fails
Before
that the indictment
ently complaining
“to be
allege
writing purports
authorize the
another who did not
the act of
MOTION
ON STATE’S
OPINION
Code,
provided in V.T.C.A. Penal
act” as
FOR REHEARING
32.21(a)(l)(A)(i).1
Sec.
ODOM,Judge.
a well settled rule that when
It is
success-
appellant
haec verba in the indict
original
the check is set out
submission
On
ment,
allege
adverse
required
is not
the trial court’s
fully challenged
State
to be
the indict-
purports
quash
instrument
motion to
ruling
on his
another,
long as the name of
failure of
the act of
so
motion attacked the
ment. That
than the name of the
the act “was
allege
the maker is different
the indictment to
State,
Biering v.
159
owner or
defendant.
Tex.Cr.R.
consent of the
done
without
State,
331,
(1953);
give
263
558
Watts v.
consent.” To
S.W.2d
entitled to
303,
(1942);
158
510
address this
143 Tex.Cr.R.
S.W.2d
that old code cases
the extent
271,
State,
132,
issue,
State,
122 Tex.Cr.R.
54
Tex.Cr.R.
282
Wisdom v.
v.
162
Smith
State,
(1932);
876,
panel
45
Huckaby
533
v.
the unanimous
S.W.2d
cited
S.W.2d
577,
submission,
(1904).
point.
also
original
Tex.Cr.R.
sor which included “without lawful not was prosecution this ty” as “an element of the crime of essential 32.- making under Sec. forgery by State, 162 Tex.Cr.R. forgery.” Smith v. forgery by brought for 21(a)(1)(A), it was (1955). 876 S.W.2d under with intent to utter Sec. possession very similar In the facts were Smith expressly 32.21(a)(1)(C), by reference which set out to the case. The indictment 32.- elements of Sec. incorporates way properly “upon in a its the check of the word (B). Simple use 21(a)(1)(A)and another,” face, purported to be the act of insufficient to indictment is “forge” in the allege that the check was made but did not missing ele by reference the incorporate authority. lawful This Court held without State, Tex.Cr.App., Reynolds v. ment. defective, fatally the indictment was argument that a similar 547 S.W.2d and the case was reversed. indict in a theft allegation of “unlawful” controlling We conclude that Smith missing supply the sufficient to ment was allege that authority, and failure to statutory defi appeared in the element that the act of another purported to be 31.03(b), V.T.C.A., Penal Code Sec. nition in “who did not authorize that act” rendered rejected: fundamentally defective. pleads ‘unlawfully’ “The omitting the conclusion of law only is reversed judgment
For this reason the that conclusion.” necessary facts and the cause is remanded. execute, make, Code, 32.21(a)(l)(A)(i) (A) alter, complete, au- Sec. Penal V.T.C.A. purports: any writing pertinent part: provides so that thenticate (i) to be the act another who did “(a) purposes For of this section: act; authorize the . .” (1) ‘Forge’ means: opinion we have discussed and con- urges that the decision The State State, substantially problem in a sidered the same case is in conflict with Jiminez reflection, upon variety and Jones v. contexts Tex.Cr.App., S.W.2d judgment the matter determin- 771. The best Tex.Cr.App., 545 S.W.2d generally is an indictment ing sufficiency in the indictment in missing element found unduly influenced not be expressly was not considered in that should case pleadings under stat- earlier treatment those cases. Jones discussed failure *3 by repealed the new preceding the knew utes and allege that accused indictment such forged, penal Jiminez Rather we must address the and code. instrument format, the discussed, with alia, purport presented issues are inter the element. that definitions, objectives that purposes Jimi- and of language upholding the the V.T.C.A., Penal purport firmly a code in mind. See against nez clause indictments Introduction, 1.02(2) and challenge say does that the instrument set Code Section V.T.C.A., XIII. out the “act another who Penal Code be of act,” by so not authorize the it did is case the indictment particular In the rule rests on relying “purport” that of offense” re- drawn from the “element the in setting forged out instrument the V.T.C.A.,Penal Code quirements of Section verba, ad- and failed to indictment haec 1.07(a), statutory statement and the broad “un- “purport” fact and dress the that the incorporation with of the of the offense separate authorized act” elements and by which the prescribed method or manner Furthermore, prose- the Jiminez distinct. suggest it was committed. underlying facts by making, so that forgery cutions were for is, alleges the that That the conflict between the “knowingly, there accused did then and in fact and accused made instrument harm, forge, by and with intent to defraud face the instru- appearance from the of same, a intent to utter possession with out that someone else ment set haec verba a of (setting copy out as follows: purport supply made it was sufficient to order, rearranged writing).” rule. No element under the haec verba portions of applicable tracks for for- prosecutions arises in such conflict 32.21, V.T.C.A., Penal Code: Section uttering possessing gery or he (b) A an offense if person commits with intent utter. intent to de- a with forges judgment original submission is harm fraud or another. modified to der ruled. The State’s motion this indictment extent is ordered dismissed. for rehearing prosecution over- un- (a) (1) “Forge” means: For [*] [******] purposes [*] [*] of [*] section: [*] [*] CLINTON, Judge, dissenting. forged (C) possess a (A) Paragraph of within the is illus- The course this cause taken it in manner with to utter moving difficulties in trative of transitional (B) of this sub- Paragraph specified in into ways penal old code from the division. As of the new one. author course within the mean- instrument is opinion, myself I find in the An original panel altered, (A) been Paragraph it has supporting ing the mo- of if position of anomalous executed, authenticat- made, completed, Broth- tion while other of rehearing act of g., “to be the purports, indict- ed so that it e. only ers now believe not that act.” not authorize defective, fatally But since another who did so.1 ment is fundamentally Indeed, an indictment opinion panel that act” renders of the same Lan majority 57,533, (No. view dry defective. It is obvious delivered 1979) expressly rejects proposition of the Court is otherwise. omitting phrase authorize “who did not penal 2.01 tion of code. Section they might be Whatever else called—es- part: elements, provides pertinent Act necessary con- sential ingredients, is clear to me that the read stituent elements—it shall be in con- “Words phrases substantively according case states to the rules indictment in this text construed exception lodged usage. Words grammar an offense to withstand common V.A.C.C.P., 27.08, acquired a phrases fur- have techni- under Article meaning, whether ther, intelligible plain particular forth in cal or sets otherwise, shall constituting legislative words “ultimate facts” definition offense, 21.02, V.A.C.C.P., accordingly.” be construed see render to an as to exception it invulnerable great body there is On the civil side 27.09, contemplated by form Para- fraud, and it is to that subject law graph A who is Y.A.C.C.P. now, resort to determine may, I do charged forging by possess- ingredients what have held to ing it to utter with intent with intent construction “intent *4 fraud aid of our another, defraud ade- or harm to defraud.” quately informed of his offensive conduct. Paschall, 1087 Anderson 60 S.W.2d v. Averring knowingly, with intent to de- one affirmed, 1933), Worth (Tex.Civ.App. — Fort harm, forged writing a possessed fraud and Anderson, 1050 v. 91 S.W.2d Paschall displaying and it intent to utter 1936) Adopted, states (Comm.App.,Opinion purports writing informs that the to be precisely: act of that “ another who did not authorize meaning in ‘Actual fraud’ has a definite act.2 distinguishing from our law. Its feature
The us types content of before the dishonest in- other of fraud is enough was under more than old Article tention.” State, V.A.P.C., 1925.3 Fifer v. 451 For the fraud is not essence of actionable (Tex.Cr.App.1970) S.W.2d 757 and cases cit- were representations that false intentional- ed. ly made but their maker intended that that pointed they upon be distinction acted forgery spe Now every that offense is a —a Jones, 572, 575 out in v. 45 S.W.2d Wilson Chapter cies of in fraud denounced V.A. 1931) (Comm.App.,Holdings Approved, and T.C., Code, gist Penal offense is Leasing, reiterated court in Custom by the “intent or harm” to defraud another.4 Co., Trust 516 Inc. v. Texas Bank 29,32 Stuebgen State, v. 547S.W.2d (Tex.Cr. (Tex.1974). S.W.2d App.1977). provide The new code does not “fraud,” a definition of “defraud” or fraud From the settled 1.05(b) concerning it in civil apply to by directed Section established rules law, intends de- glean who certain of the Construction I that one sections Code Act, 5429b-2, V.A.C.S., with intent utter a by possessing to construc fraud mitted, “plain intelligible stating case, concedes, words” 2.In the State as it the instant must, “purport” proved facts offense” that the must be “element of offense and just subsidiary but proved because a fact must be latter. not, view, mean a does that such “everything” part is fact a of the that Article knowingly any person in his “If shall have 21.03, V.A.C.C.P.,indicates should be stated possession any instrument of the mak- writing purports the to be that the indictment. Proof offense, ing by law an with intent to which is who did the act of another not authorize true, pass he shall con- use or the samé as be evidentiary support- showing that act is but an fined . ing the fact of intent to ultimate If defraud any harm. 21.03, reconciliation between statement, by Judge Tom Davis 4. That written provisions V.A.C.C.P. and approved by the then as a Court, Commissioner Penal Code of Criminal Procedure Code is deemed by Presiding approvingly quoted may appropriate, we accom- opinion Judge in Baker unanimous Onion in the plish by holding “everything” that in the for- (Tex.Cr.App.1977), a 552 S.W.2d “appearance” mer face of refers to the forgery by passing case. com- that an offense has been is an accused claims check that in fact commits is informed State 32.21(a)(1)(C) writing offense possessed denounced Section the accused a false he (b). prohibition true. penal thrust of the intended to as is the fraudulent intent that motivates one demonstrated, then, What has been is to possess forged writing oppor- until an involving that in matters fraud false tunity presented. it is utter The dishon- representation making the vice is in the objective est intention is conscious accepted with intent that it and relied be desire to whom the knowledge upon than of the maker rather is presented will act on to the benefit of it is fur- representation false presenter and the correlative detriment thermore, objective, of another. form or hold To writing provides notice that utter a desire, necessarily must have ac- one passed as true is be intended to cepted may notion writing purports be actually false—the But, be it in civil appears what be. Every as- an act that was not authorized. fraud, actually know one need not in context of for- pect of offensive intent to be writing purports the act of another in the indict- presented conduct was bidden It who did not authorize that act. ment in this cause. consciously enough' engage that one Indeed, may argued that more was exercise, concerning the whatever mental elaborate, using To necessary. set out than they facts and circumstances as are con- elsewhere, suggested the facts the idiom be, conjure ceived him to sufficient to grand jury found that are identified up Thus, the evil intent to defraud. short *5 thereby in its communicated indictment of mental certitude the false nature date in to the accused stated guess, be- writing, may one surmise or designated location defendant did: indeed, may even be lieve that one is— knowingly you 1. were aware — foolhearty enough hope. to act fond existence of your nature of conduct and follow psychic processes Whatever it; surrounding the circumstances writing awareness of a of characteristics had the conscious you 2. with intent — hand, consequence is that comes to if the objective engage to or desire by ut- an intent to defraud formulation of result; conduct or cause the possessor to tering inform the induce an- to meant to you 3. writing purports to the act another defraud— rely representations other to who not authorize it is redundant did appearing on the face communication. false, to the one or more of which Moreover, as the Code again directed another; monetary detriment Act, word we find that Construction pur- writing you possessed forge 4. —the meaning when used particular “utter” who ports be the act of another to writing in connection with a that labels the act; authorize from forged. as false or Thus care, by possessing you 5. had actual — Dictionary, Law Revised 4th Edi- Black’s management of custody, control instructed, utter, tion, “To as 1716 we are writing; against forgery coun- used in a statute you to meant terfeiting, ... means offer utter — true another in as false instrument, representation, with consideration; monetary exchange actions, genu- words that the same is where, here, you possessed 7. a ine.” Thus —what utter, the face of displayed here on alleges possession with intent check Thus, we sess with intent “to utter.” must 5. The former couched in terms statutes were meaning pass,” intended “pass” ascertain the of “use of “utter” as Articles 996 and “use or however, Legislature P.C., code, proscribes rather than new of, issue, transfer, pass” than 125 register the Old Code more the transfer “to years pos- ago. publish, pass, utter” and to or otherwise along identifying your data bears name as purported signature
payee
Charles H. Weinbaum. short, by grand jury its indictment the
communicating to the accused that these facts as
are the we have found them and through prosecuting its at- Meeting
torney, expects prove. all the requirements,
statutory providing am- notice,
ple the indictment did not suffer the
deficiency quash.6 claimed in the motion court, therefore,
The trial did not err
overruling it.
DOUGLAS, J., joins.
William A. W. CHANCE a/k/a A.
Duke, Appellant, Texas, Appellee.
The STATE of
No. 57449. *6 Texas, Appeals
Court Criminal
Panel No. 1.
Feb. 1979.
Rehearing En Banc Denied provide any Erroneously styled quash, amendment would additional a motion Thus, pleading templated by actually exception factual deni- to form con- information to accused. 27.09, Paragraph prejudice substan- al of did not “his V.A.C. the motion 21.19, C.P., court, such, rights.” tial and as if sustained the trial If the mandate of “shall not the indictment would have amend- is followed V.A.C.C.P. 28.09, V.A.C.C.P., insufficient, trial, judg- ed in accordance with Article be held ment by nor shall the affected, interlining writing proceedings maker or other thereon be ” any act.” “did not authorize the That reason of defect of form . . .