Morren v. State

Full title: Jay Franklin MORREN, Appellant, v. The STATE of Texas, Appellee

Court: Court of Criminal Appeals of Texas, Panel No. 2

Date published: Oct 10, 1979

587 S.W.2d 427 (Tex. Crim. App. 1979)

Opinion

No. 61649.

October 10, 1979.

Appeal from the 32nd Judicial District Court, Mitchell County, Weldon Kirk, J.

R. Leonadis McKinney, III, Colorado City, for appellant.

Frank L. Ginzel, Dist. Atty. and Russell Carroll, Asst. Dist. Atty., Colorado City, Robert Huttash, State's Atty., Austin, for the State.

Before DOUGLAS, PHILLIPS and CLINTON, JJ.

OPINION

CLINTON, Judge.

This is an appeal from an order revoking probation; appellant's sentence was assessed at four years confinement.

For the first time, appellant contends that the indictment supporting the original conviction for forgery by passing¹ on which he was granted probation, is fundamentally defective for, among other things, its omission of the allegation that the forged instrument "purports to be the act of another who did not authorize that act." See V.T.C.A. Penal Code, § 32.21(a)(1)(A) (i).

1 See V.T.C.A. Penal Code, § 32.21(b) and (a)(1)(B).

We have examined the indictment. While it sets out the writing in its entirety and otherwise states every other element of the offense, the indictment does, indeed, fail to include the statutory phrase "who did not authorize that act" or to use other words conveying the same meaning or the sense of the statutory words.² Minix v. State, 579 S.W.2d 466 (Tex.Cr.App. 1979).

2 See Article 21.17, V.A.C.C.P.

In both Ex parte Cryer, ___ S.W.2d ___, No. 62,092 (Tex.Cr.App., delivered July 18, 1979), and Landry v. State, 583 S.W.2d 620 (Tex.Cr.App., 1979, opinion on appellant's motion for rehearing), the Court reaffirms the holding in Minix, just as it did on State's motion for rehearing in Minix itself; it also, on July 18, 1979, overruled a second motion for rehearing in Minix. That an indictment for forgery which fails to allege that the writing purporting to be the act of another "who did not authorize that act" is fundamentally defective is thus settled.³ Appellant is therefore entitled to relief.

3 That the writer no longer agrees with the original Minix opinion, as explicated in my dissenting opinions in Minix on State's motion for rehearing and in Landry v. State, 583 S.W.2d 620 (Tex.Cr.App., 1979, opinion on appellant's motion for rehearing), is of no moment. The Court en banc has clearly declared the law and I must and do defer to its judgment.

Accordingly, the judgment of conviction is reversed, and the indictment as well as the prosecution based upon it are ordered dismissed.

It is so ordered.