Anderson v. State

• Decision Date: 22 October 1969
• Docket Number: No. 42398,42398
• Citation: 445 S.W.2d 752
• Parties: Antoinette ANDERSON, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 752

445 S.W.2d 752

Antoinette ANDERSON, Appellant, v. The STATE of Texas, Appellee.

No. 42398.

Court of Criminal Appeals of Texas.

Oct. 22, 1969.

Murray L. Lieberman, Houston, for appellant.

Carol S. Vance, Dist. Atty., James C. Brough and Wells Stewart, Asst. Dist. Attys., Houston, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

ONION, Judge.

The offense is forgery of a charge slip; the punishment, 2 years' confinement in the Texas Department of Corrections.

On October 18, 1968, appellant waived trial by jury and entered a plea of guilty before the court. In a sworn instrument entitled 'Stipulation of Evidence' filed among the papers of the cause appellant 'judicially confessed' her guilt of the crime charged in the indictment.

No transcription of the court reporter's notes appears in the record, and no request for inclusion of the same appears to have been made by appellant who is and was represented by retained counsel. No question of indigency appears.

Appellant's three grounds of error assert: (1) that the indictment is defective because it does not contain the required extrinsic averments, (2) that the indictment is defective because the date alleged in the forged instrument is indefinite and at variance with the date set forth in the indictment and (3) that there is a fatal defect in the certification of the indictment.

Omitting the formal parts the indictment alleges the appellant

'* * * on or about the 29th day of February, A.D. 1968, in said County and State, did without lawful authority and with intent to injure and defraud, make a false instrument in writing, purporting to be the act of Mrs. Denver Lee Needham, which false instrument in writing so made was then and there of the tenor following:

(Photo copy of the forged sales slip)

'Sakowitz, Incorporated is a corporation and carries on a business in Harris County, Texas, selling at retail, among other things, wearing apparel for men and women and children and other articles to be worn on the person, and in conducting such business uses sheets of paper known as charge slips to evidence sales of merchandise and return of merchandise which are sold on credit and charged to the account of the person who purchases the article of merchandise on credit and orders the same charged. Denver Lee Needham was a person who had a charge account with the said Sakowitz, Incorporated, and if said false instrument in writing were true, it would have been in the hands of said Sakowitz, Incorporated evidence that said Denver Lee Needham was indebted to said Sakowitz, Incorporated for the sum of One Hundred Sixty-five and 14/100 dollars and would, if the same were true, have been evidence that said merchandise had been delivered to the said Denver Lee Needham and said false instrument in writing would, if the same were true, have created a pecuniary obligation upon the part of said Denver Lee Needham to pay to said Sakowitz, Incorporated the sum of One Hundred Sixty-five and 14/100 dollars in payment for said merchandise. And said instrument would, if the same were true, have affected property. Against the peace and dignity of the State.' (Emphasis supplied.)

The appellant urges that the indictment fails to set forth essential explanatory averments which would allege a pecuniary loss to Denver Lee Needham. According to the appellant the indictment is silent as to any liability of Denver Lee Needham resulting from the alleged forgery.

Appellant appears to have based much of her argument on a photostatic copy of the indictment attached to her brief. Such copy does not contain the italicized portions of the indictment set out above which is contained in the record certified and approved under the provisions of Article 40.09, Vernon's Ann. C.C.P., and to which record appellant made no objection. Therefore, the indictment in the record is controlling. Exhibits, written statements, and photographs which are attached to briefs but not shown in the record will not be considered. Robertson v. State, 168 Tex.Cr.R. 35, 322 S.W.2d 620; Lucas v. State, Tex.Cr.App., 216 S.W.2d 820; Teniente v. State, 151 Tex.Cr.R. 438, 207 S.W.2d 379; Reeves v. State, 158 Tex.Cr.R. 27, 252 S.W.2d 468.

An examination of the above italicized portions of the indictment contained in the record, together with other averments, reveals that Sakowitz, Incorporated, is a corporation, that it sells wearing apparel, that it uses charge slips, that the charge slips represent sales on credit and that any credit sale is placed on the charge account of the person purchasing merchandise on credit and ordering the same charged. Thus, it is clear that the indictment does contain averments that Denver Lee Needham would be liable for any purchase made and charged to said account.

In 3 Branch's Ann.P.C., 2nd ed., Sec. 1577, p. 717, it states:

'If the instrument in writing alleged to be forged is not one of the ordinary instruments used in commercial transactions, but is contractual in form and depends on extrinsic facts to create or defeat a liability, such extrinsic facts should be alleged in the indictment.'

Although the sales slips or charge slips are not ordinary commercial instruments, the averments of the indictment, when considered together, sufficiently set forth the pecuniary relationships between Sakowitz, Inc., and Denver Lee Needham, particularly that Denver Lee Needham would be liable for any purchases made and charged to said account. Further, the allegations in this indictment are substantially the same as those found in 3 Branch's Ann.P.C., 2nd ed., Sec. 1575, p. 714.

Appellant's reliance on Cagle v. State, 39 Tex.Cr.R. 109, 44 S.W. 1097, is misplaced. In Cagle the indictment failed to set forth allegations which would have established the existence of a landlord's lien. In the case before us, although the pecuniary obligation of Denver Lee Needham does not appear from the allegedly forged instrument itself, it does clearly appear in the extrinsic allegations of the indictment. Mitchell v. State, 168 Tex.Cr.R. 606, 330 S.W.2d 459; Chimene v. State, 133 Tex.Cr.R. 43, 106 S.W.2d 692.

Ground of error #1 is overruled.

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