GREEN, TRENTON KYLE

{This case was consolidated with PD-1213-20, Bobby Carl Lennox}

Forgery’s offense level has traditionally been set by the type of writing forged. Subsection 32.21(d) made the forgery of various documents—most commonly checks—a state jail felony. Subsection (e) made the forgery of other instruments—most commonly currency—a third-degree felony. In 2017, the Legislature made both “[s]ubject to” subsection (e-1), a value ladder comparable to that used in the theft statute. Subsection (e-1) says, “If it is shown on the trial of an offense under this section that the actor engaged in the conduct to obtain or attempt to obtain a property or service, an offense under this section is” anything from a Class C misdemeanor to a first-degree felony depending on the value of property or service. Everything valued under $2,500 would be a misdemeanor. The problem presented in these cases is when that happens and why. These cases were decided jointly in separate opinions by one court of appeals, but they came to that court in different postures.

Green was indicted for forgery of a $20 bill as a third-degree felony. The indictment did not allege any purpose for which it was forged. Green filed a motion to quash, alleging that the evidence at trial would show he attempted to pass the counterfeit bill for goods at a local gas station, making the offense a Class C for which the district court had no jurisdiction. The trial court granted the motion to quash. The State appealed.

Lennox was convicted of three counts of forgery of a check, each a state-jail felony. On appeal, he claimed that the values of the checks made the offenses Class B misdemeanors. There was no objection at trial.

The court of appeals affirmed the quashing of Green’s indictment. It recognized that the language “If it is shown on the trial of an offense” typically denotes a punishment issue. It declined to follow that general rule, in part because subsection (e-1) provides for offense-level decreases, not just increases in either offense level or punishment range. Instead, it viewed (e-1) as a negative element: “[T]o prosecute under the original offense-classification scheme [rather than under (e-1)], the State must prove that the defendant forged the writing for a different purpose other than ‘to obtain or attempt to obtain a property or service.’” As a result, prosecutors have no discretion to charge under (d) or (e) by not alleging property or service obtained. And, because the offense level—and jurisdiction—would vary based on the value of any property or service attempted to be obtained, the purpose of the forgery must be alleged. By not doing so, “the State failed to apprise Green of the offense with which he was charged and it failed to allege facts in the indictment necessary to demonstrate that the offense was one that vested jurisdiction in the trial court.”

The court of appeals also granted Lennox relief. Lennox framed the issue as one of illegal sentence, but the court addressed it as unpreserved charge error. The evidence showed that Lennox forged checks to obtain property in the Class B range, yet the charge did not ask the jury to determine Lennox’s purpose in forging the checks. Because the court had determined in Green that the purpose vel non of the forgery is an element, it held that it was error to convict Lennox of a state jail felony in the absence of a finding that he did not have a purpose that would make it a Class B offense. As the evidence was clear that the jury would have found the passed checks were forged to obtain property, i.e., cash, it found egregious harm. The court of appeals reformed the judgment to reflect Class B misdemeanors and remanded for a new trial on punishment.

The State, acting on behalf of two district attorneys, makes disparate arguments. In Green, the State renews its argument that the offense-level increases and decreases of subsection (e-1) are discretionary and so applicable only when alleged. As such, its indictment, which the court of appeals conceded was otherwise facially complete, should not have been quashed. Along those same lines, the State alternatively argues that if subsection (e-1) creates a new element, it effectively creates a new offense. That being the case, the “failure” to allege the purpose of the forgery is actually notice that the State is not alleging an (e-1) offense. In this case, for example, it could be the State saw no indication that Green intended to use the forged currency to obtain property or services. Interpreting the statute thus avoids forcing the State to allege and prove the motive for forgery in all cases, something that could be nearly impossible in many of them.

In Lennox, the State attacks the “elemental” nature of subsection (e-1) on multiple grounds. First, this “purpose” element effectively undoes 47 years of felony treatment of forged commercial instruments without a clear expression of legislative intent. In the vast majority of cases, it would render subsections (d) and (e) nullities. Second, the court of appeals justified its analysis in part on application of Apprendi v. New Jersey, 530 U.S. 466 (2000), but that case requires a jury finding only on facts (other than prior convictions) that increase punishment; the “fact” of purpose in this case would serve to decrease punishment. Third, if the court of appeals is right, then the trial court never had jurisdiction, rendering remand to that court for a new trial on punishment problematic. Fourth, if the Legislature intended for the traditionally felonious nature of these offenses to be reduced to misdemeanors in many cases, its use of phrasing associated with the punishment phase shows that determination is to be made after a jury finding on guilt for the state jail or third-degree felony charged in the indictment.