State v. Green

682 S.W.3d 253

The STATE of Texas, Appellant

v.Trenton Kyle GREEN, Appellee

Bobby Carl Lennox aka Bobby Carl Leanox, Appellant

v.The State of Texas

NO. PD-1182-20

NO. PD-1213-20

Court of Criminal Appeals of Texas.

DELIVERED: January 17, 2024

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS, GREGG COUNTY

ON STATE’S PETITION FOR DISCRETIONARY REVIEW FROM THE SIXTH COURT OF APPEALS, LAMAR COUNTY

Vincent Botto, for Appellee in PD-1182-20.

Brendan Wyatt Guy, for Appellant PD-1182-20.

Troy Hornsby, for Appellant in PD-1213-20.

Gary D. Young, Paris, Jeffrey Shell, Rockwall, for State in PD-1213-20.

OPINION

Slaughter, J., delivered the opinion of the Court in which Keller, P.J., Hervey, Richardson, Newell, Keel, Walker, and McClure, JJ., joined.

In these consolidated cases, we must interpret the 2017 amendments to Texas Penal Code Section 32.21, the forgery statute. See Tex. Penal Code § 32.21. The statute provides that a person commits an offense if he "forges a writing with intent to defraud or harm another." Id. § 32.21(b). This base-1evel offense is a Class A misdemeanor. Id. § 32.21(c). In 2017, the Legislature added a new subsection, (e-1), which sets forth an alternative "value ladder" offense-classification scheme. See id. § 32.21(e-1). Pursuant to this value-1adder provision, "[i]f it is shown on the trial of an offense that the actor engaged in the conduct to obtain or attempt to obtain a property or service," then the offense classification is based on the value of any property or services at issue. Id. The possible offense level starts at a Class C misdemeanor (for forgeries involving property or services valued at less than $100) and extends to a first-degree felony (for forgeries involving property or services valued at over $300,000). Id. This value-1adder provision, however, did not replace two original subsections in Section 32.21 setting forth exceptions to the default offense classification—subsections (d) and (e). Those original subsections independently provide that forgery of a specified type of writing (regardless of the defendant’s purpose for committing forgery or the value of any goods or services involved) is a state-jail felony or a third-degree felony, respectively. See id. § 32.21(d) (providing that it is a state-jail felony to commit forgery of one of the enumerated types of financial instruments), (e) (providing that it is a third-degree felony to commit forgery of currency or other governmental records or instruments). But the 2017 amendments also added language to subsections (d) and (e) stating that those provisions are "[s]ubject to Subsection (e-1)." Id.¹ The question we must resolve here is how to apply Section 32.21’s competing offense-classification provisions when, based on the facts of a given case, an offense could fall either under the value ladder in subsection (e-1) (based on the defendant’s purpose of obtaining property or services), or the type-of-writing provisions in subsections (d) and (e) (based on the particular type of writing at issue), with the offense potentially receiving a vastly different classification and range of punishment depending on which subsection applies.

This question was first presented to the Sixth Court of Appeals in two separate cases. See State ν. Green, 613 S.W.3d 571 (Tex. App.—Texarkana 2020); Lennox ν. State, 613 S.W.3d 597 (Tex. App.—Texarkana 2020) (op. on reh’g). Though the cases are procedurally distinguishable, in both cases the defendants were charged with felonies under the type-of-writing provisions in Section 32.21(d) and (e). Each defendant argued that he was instead entitled to be prosecuted and convicted under the value ladder in subsection (e-1), based on his purpose of obtaining property through the forgery. Notably, if the value ladder were held to apply, each defendant’s offense would have been classified as a Class C or Class B misdemeanor, given the relatively low dollar value of the property at issue.

To resolve this issue, the court of appeals reached three main conclusions about Section 32.21, as amended:

(1) The "[s]ubject to Subsection (e-1)" clause in subsections (d) and (e) means that those provisions are subservient to the provisions in subsection (e-1); thus, when subsection (e-1) applies to the facts of the case (i.e., the defendant committed forgery "to obtain or attempt to obtain a property or service"), the offense classifications in subsection (e-1) control over those in subsec- tions (d) or (e). Green, 613 S.W.3d at 583.

(2) Subsection (e-1) constitutes a statutory element that must be litigated at the guilt phase of trial, rather than a punishment-phase issue. Id. at 590.

(3) Because Subsection (e-1) is controlling over Subsections (d) and (e), if the State wants to bypass the value ladder in subsection (e-1) to instead bring a forgery prosecution under the felony provisions in Subsections (d) or (e), it must negate applicability of the value ladder by alleging and proving that the defendant had a non-property-related "purpose" for committing the forgery. Id. at 595.

The court of appeals reached this final conclusion in spite of the fact that the statutory language in Subsections (d) and (e) contains no "purpose" requirement— only subsection (e-1)’s value ladder contains such a requirement. Nevertheless, the court of appeals reasoned that applying a non-statutory "purpose" element was required in forgery prosecutions under subsections (d) or (e) because the defendant’s "purpose" effectively operates as an "enhancing element" that raises the possible range of punishment, such that due process principles under Apprendi ν. New Jersey would require the State to allege and prove this aggravating fact at trial. Id. at 596 (citing 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)). Under this understanding of the statutory requirements, the court of appeals ruled in favor of the defendants in both cases. Green, 613 S.W.3d at 597; Lennox, 613 S.W.3d at 607.

We commend the court of appeals’ efforts to untangle the highly complex issues created by the amendments to Section 32.21, but we agree only in part with its analysis. We agree that the "[s]ubject to Subsection (e-1)" language in subsections (d) and (e) means that those provisions are subordinate to subsection (e-1) whenever the facts necessary to trigger (e-1) are present. We further agree that (e-1) constitutes an element of the offense rather than a punishment-phase issue. But we disagree on two points: (1) the court’s application of Apprendi principles to this situation, and (2) its adoption of a non-statutory "purpose" element for all forgery cases brought under subsections (d) or (e).

The court of appeals’ approach in these cases was based on a misunderstanding of Section 32.21’s structure. The statute contains four separate forgery offenses in subsections (b), (d), (e), and (e-1). Each subsection constitutes a facially valid offense that the State may rely upon in charging a forgery by tracking the statutory language. Contrary to the court of appeals’ reasoning, subsections (d) and (e) do not function as enhancing elements to an offense under subsection (e-1). Because Apprendi applies only to enhancing elements and has no application where entirely separate offenses are at issue, the court of appeals’ analysis under Apprendi was flawed. Accordingly, if the State seeks to bring a felony forgery prosecution under Section 32.21(d) or (e), it may simply track the statutory language. It is not required to allege and prove a non-statutory "purpose" element to show that the value ladder is inapplicable.

However, if a defendant is charged for felony forgery under subsections (d) or (e) but the facts at trial ultimately show that he "engaged in the conduct to obtain or attempt to obtain a property or service," see Tex. Penal Code § 32.21(e-1), then we agree that, given the "[s]ubject to Subsection (e-1)" language in subsections (d) and (e), a defendant is entitled to be convicted and punished under the provisions in the value ladder, if doing so would result in a reduced offense classification and range of punishment. Under those circumstances, the State has effectively charged the defendant under the wrong statutory subsection within Section 32.21. The defendant may raise such an issue at trial, and such error may be remedied by the trial court or on appeal, subject to any applicable preservation requirements.

Because the court of appeals operated under a mistaken understanding of the structure of Section 32.21 and the requirements of Apprendi, we vacate its decision in both cases and remand for further proceedings under the appropriate framework as set forth more fully below.

I. Background

Although the consolidated cases before us both pertain to the proper interpretation of the Texas forgery statute, each case presents this question in a different procedural posture. We address the relevant background for each case below.

A. State v. Green

Appellee Trenton Kyle Green was indicted on one count of third-degree felony forgery under Penal Code Section 32.21(e) for forging currency. See Tex. Penal Code § 32.21(e) (stating that "[s]ubject to Subsection (e-1), an offense under this section is a felony of the third degree if the writing is or purports to be … part of an issue of money"). The indictment alleged that Green made a counterfeit $20 bill and did so "with the intent to defraud or harm another." See id. § 32.21(b). Nothing in the indictment addressed Green’s purpose for the forgery or, specifically, whether he engaged in the forgery to obtain property or services.

Green filed a pretrial motion to quash the indictment. In his motion, Green noted that the facts would show’ he attempted to pass a counterfeit $20 bill in exchange for a $2 cigarette lighter. He asserted that the allegations that he "made" counterfeit currency and that he forged the writing with the "intent to defraud or harm another" would require showing that he...