OPINION
This is an appeal from an order revoking probation. Appellant was originally convicted of forgery by passing, an offense under V.T.C.A. Penal Code, Section 32.-21(a)(1)(B) and (b). Appellant’s punishment was assessed at imprisonment for five years, probated. Probation was revoked, and appellant was sentenced to imprisonment for two to five years.
In her second supplemental brief appellant contends that the forgery indictment in this case is fundamentally defective for failure to allege that the writing she passed purported to be the act of another “who did not authorize that act.” See Section 32.-21(a)(l)(A)(i) of the Penal Code.
The indictment alleges in pertinent part that appellant “did then and there unlawfully and with intent to defraud and harm, forge the writing duplicated below by passing it (knowing it was forged) to Charles Kirkland.” A photocopy of the forged writing (a check) is attached to the indictment. The name of the maker on the check is different from that of the appellant, and the check is made out to appellant. On its face the check purports to be the act of another.
This Court has recently held that where the forged writing purports to be the act of another, the State must further allege in the indictment that it was the act of another “who did not authorize that act.”
Landry v. State,
A fundamentally defective indictment may be collaterally attacked in an appeal from a revocation of probation.
Rejcek v. State,
The judgment is reversed and the prosecution under the present indictment is ordered dismissed.
DOUGLAS, J., dissents.