Comment

Intent to Defraud or Harm Another. Many, though not all, white-collar crimes lack a traditional mental state and merely require that the actor have the intent to defraud or harm another. SeeTex. Penal Code § 32.21(a)(1)(b); Jones v. State, 571 S.W.2d 191, 193 (Tex. Crim. App. 1978) (“‘[I]ntent to defraud or harm another’ . . . is the essential mental element.”). With fraud offenses, the mental state is not attached to the act itself (e.g., “intentionally or knowingly passed a document”). Rather, it is attached to motive behind the act (e.g., “with the intent to defraud or harm another, the defendant passed a document”). When an offense has at least one mental state, the court of criminal appeals almost never tries to shoehorn in another; the voluntariness of the conduct is sufficient. SeeAlvarado v. State, 704 S.W.2d 36, 38 (Tex. Crim. App. 1985) (distinguishing conduct that requires a mental state from that which needs only be voluntary); Tex. Penal Code § 6.01(a) (requiring a voluntary act or omission). Here, the law only requires the jury be instructed on the element of “intent to defraud or harm another.” The trial court has no burden to manufacture a second mental element to attach to the actus reus.

Defining “Defraud.” The term “defraud” is not defined in chapter 32 or Tex. Penal Code § 1.07. For that reason, it is not defined in the Committee’s pattern instructions.

Offense Level. The default offense level for forgery is a class A misdemeanor. Tex. Penal Code § 32.21(c). Two frequently used subsections, (d) and (e), purport to increase the offense level to a state jail felony and third-degree felony, respectively, based on 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. In 2017, the legislature added a new subsection to the forgery statute, (e–1), which sets forth an alternative “value ladder” offense-classification scheme comparable to that for theft. SeeTex. Penal Code § 32.21(e–1). It applies only when “the actor engaged in the conduct to obtain or attempt to obtain a property or service.” Tex. Penal Code § 32.21(e–1). This is referred to by the court of criminal appeals as the “purpose” element. This value-ladder provision, however, did not replace (d) and (e). Instead, the 2017 amendments also added language to subsections (d) and (e) stating that those provisions are “[s]ubject to Subsection (e–1).” This creates problems when drafting jury charges, some of which were recently noted by the court of criminal appeals.

In State v. Green, 682 S.W.3d 253 (Tex. Crim. App. 2024), the court considered two cases from the Sixth Court of Appeals involving the interpretation of these 2017 amendments. In a consolidated opinion, the court of criminal appeals held that subsections (b), (d), (e), and (e–1) are four separate offenses. Green, 682 S.W.3d at 258, 276–77. That is, “subsections (d) and (e) do not function as enhancing elements to an offense under subsection (e–1)” as the court of appeals held. Green, 682 S.W.3d at 258. Nor is (e–1) a punishment provision; “purpose” is an element of an (e–1) forgery-to-obtain-property-or-services offense. Green, 682 S.W.3d at 270, 272. This means that, in a traditional (d) or (e) case, the state need not allege—and the jury charge need not include—a non-statutory “purpose” element to show that the value ladder is inapplicable. Green, 682 S.W.3d at 270, 277. In other words, it is not treated as an exception. Green, 682 S.W.3d at 279. However, subsection (e–1) is not discretionary if raised by the facts. Green, 682 S.W.3d at 270. If the state brings a felony forgery prosecution under section 32.21(d) or (e) by tracking the statutory language but facts at trial ultimately show that the actor’s purpose for forgery was that of (e–1), he 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. Green, 682 S.W.3d at 258–59, 278. Note that there is a presumption of intent to obtain property or service for forged money. Tex. Penal Code § 32.21(f–1).

The court left numerous questions unanswered. It said a defendant in such circumstances could raise the claim that (e–1) applies, but it explicitly did not decide whether this could be done pretrial (if the indictment includes the requisite facts suggesting (e–1) applies), how it would be addressed at the charge conference, or how preservation requirements apply to any of this. Green, 682 S.W.3d at 278. Perhaps more troublesome, the court did not explain what should happen when the state pleads an (e–1) purpose that would result in a misdemeanor property value but fails to prove it. In that case, the “lesser” included offense of that misdemeanor could be a felony. Although not precluded by Tex. Code Crim. Proc. art. 37.09, a county court has no jurisdiction to enter a judgment of guilty on a felony.

Forgery Victims. It is important to note that the person whom the defendant intended to defraud or harm is not necessarily the same person whom the writing appeared to be the act of.

“Writing” in the Application Unit. When the described writing is a writing as a matter of law under Tex. Penal Code § 32.21(a)(2) and (d), that issue should not be put before a jury. Section 32.21(a)(2) states that “writing” includes (1) printing or any other method of recording information; (2) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; and (3) symbols of value, right, privilege, or identification. Section 32.21(d) affixes a state jail felony punishment range if the writing purports to be a will, codicil, deed, deed of trust, mortgage, security instrument, security agreement, credit card, check, authorization to debit an account at a financial institution, or similar sight order for payment of money, contract, release, or other commercial instrument.

Lack of Forgery Definition. “Forge” is defined by statute. Typically, it is the practice of the Committee to include statutorily defined terms in the definitions unit of the jury charge. However, because the definition of “forge” amounts to a recitation of the elements of the offense as they are laid out in the application paragraph, “forge” is not specifically defined in these charges.