State v. Green
| Decision Date | 23 November 2020 |
| Docket Number | No. 06-20-00010-CR,06-20-00010-CR |
| Parties | The STATE of Texas, Appellant v. Trenton Kyle GREEN, Appellee |
| Court | Texas Court of Appeals |
Brendan W. Guy, Gregg County District Attorney's Office, 101 E. Methvin St. Ste. 333, Longview, TX 75601, for Appellant.
V. Chris Botto, The Botto Law Firm, 300 N. Green St., Ste. 315, Longview, TX 75601-7336, for Appellee.
Before Morriss, C.J., Burgess and Stevens, JJ.
Under Section 32.21, subsection (e-1), of the Texas Penal Code, "[i]f 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," forgery of any writing can be any offense level from a class C misdemeanor to a first-degree felony, depending on the "value of the property or service" under a value ladder commonly used in property offense statutes. TEX. PENAL CODE. ANN. § 32.21(e-1). Section 32.21(e) provides that, "[s]ubject to Subsection (e-1)," forgery of a writing that "is or purports to be: (1) part of an issue of money" is a third-degree felony. TEX. PENAL CODE. ANN. § 32.21(e). The State of Texas alleged in an indictment filed in the 188th Judicial District Court of Gregg County, Texas (the 188th District Court), that Trenton Kyle Green, in Gregg County, Texas, forged a twenty-dollar bill.1
The State did not specify why Green forged the twenty-dollar bill but simply alleged that he did so "with intent to defraud or harm another." Green argues that the undisputed evidence shows that he used the forged twenty-dollar bill to purchase a $2.00 cigarette lighter. Under subsection (e), forgery of a twenty-dollar bill as "an issue of money" would be a third-degree felony with a punishment range of not less than two years or more than ten years imprisonment and a fine not to exceed $10,000.00. Id. ; TEX. PENAL CODE. ANN. § 12.34(a), (b). Under subsection (e-1)(1), forgery of a twenty-dollar bill that was passed to obtain goods or services of a value less than $100.00, TEX. PENAL CODE ANN. § 32.21(e-1)(1), would be a class C misdemeanor with a maximum punishment of a fine not to exceed $500.00. TEX. PENAL CODE ANN. § 12.23.
After Green had spent five months in the Gregg County Jail awaiting trial on this indictment, the trial court heard his motion to quash. In his motion, Green argued that the offense in question is actually a class C misdemeanor rather than a third-degree felony because it was used to obtain property or services worth less than $100.00 and that, because the 188th District Court does not have misdemeanor jurisdiction, the trial court should dismiss the indictment. The trial court agreed with Green, granted his motion to quash the indictment, and released Green from jail.
The State appeals the trial court's ruling. Disregarding the language in subsection (e) that that subsection is "subject to subsection (e-1)," the State argues that it has the discretion to charge forgery of a twenty-dollar bill as either a class C misdemeanor under subsection (e-1)(1) or as a third-degree felony under subsection (e). It does not dispute that Green used the twenty-dollar bill to obtain goods with a value less than $100.00, but simply argues that its discretion is absolute so that, even if the evidence at trial shows that Green forged the twenty-dollar bill to obtain such goods, the offense remains a third-degree felony because the State elected to indict the case under subsection (e) instead of under subsection (e-1).
As explained below, we conclude that the 2017 amendments to Section 32.21 added an element to the offense of forgery that determines the offense classification, namely, the defendant's purpose in forging the writing in question. And, where a forgery would be a misdemeanor under the value ladder in subsection (e-1)'s offense-classification scheme where the defendant's purpose was "to obtain or attempt to obtain a property or service"—whereas a forgery for some other purpose would be a felony under the statute's original offense-classification scheme—the defendant's purpose in forging the writing is the element that increases the range of punishment and must be pled in the indictment and proven beyond a reasonable doubt. Apprendi v. New Jersey , 530 U.S. 466, 469, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
Because the State failed to allege Green's purpose for forging the twenty-dollar bill in the indictment, and because Green moved to quash the indictment,2 the State failed to apprise Green of the offense with which he was charged. And, because district courts in general—and the 188th District Court specifically—do not have jurisdiction over misdemeanor offenses, and because forgery to obtain goods or services of a value less than $100.00 would be a misdemeanor under subsection (e-1), by failing to allege Green's purpose in forging the twenty-dollar bill, the State also failed to allege facts necessary to demonstrate that the offense was one that vested jurisdiction in the trial court. Consequently, the trial court correctly quashed the indictment. We affirm the trial court's order.
We begin our analysis of Section 32.21 by reviewing the statute, as amended. The language added by the 2017 amendments is underlined, and the language deleted is interlineated:
Act of May 26, 2017, 85th Leg., R.S., ch. 977, § 25, 2017 Tex. Gen. Laws 3966, 3977 .
Resolution of this case turns on how we interpret two phrases introduced to Section 32.21 by the 2017 legislative amendments. The first phrase, which is found in Section 32.21, subsections (d) and (e), states that those subsections are "subject to Subsection (e-1)." This phrase is not defined in the Penal Code and has not been interpreted by Texas courts in a criminal case. Nevertheless, the Texas Supreme Court and the Tyler Court of Appeals have interpreted this phrase in civil cases involving civil statutes. Those courts have held that a statutory provision that is "subject to" a different statutory provision is subordinate to that other provision. See R.R. St. & Co. v. Pilgrim Enters., Inc. , 166 S.W.3d 232, 247 (Tex. 2005) ; In re Houston Cty. ex rel. Session , 515 S.W.3d 334, 336 (Tex. App.—Tyler 2015, orig. proceeding).
The second phrase—"if it is shown on the trial of [an offense]"—is found in numerous sections of the Penal Code and ordinarily creates a punishment issue, although sometimes it is an element of the offense. See Oliva v. State , 548 S.W.3d 518, 527–28 (Tex. Crim. App. 2018). However, the manner in which the phrase is used in Section 32.21 is unique. Specifically, in the other Penal Code provisions where the phrase is used, the phrase only increases the classification of the offense or the punishment range above the original level if additional facts are "shown on the trial of" the offense.3 Under Section 32.21(e-1), however, the classification of the offense can increase or decrease based on the value ladder.
The State argues that this anomaly gives it discretion to choose whether to charge the offense as a third-degree felony under subsection (e) or as a class C misdemeanor under subsection (e-1). As we will show below, the State's interpretation not only contradicts the specific language added to subsection (e-1) by the 2017 amendments, it also raises serious constitutional questions and could lead to unjust and unreasonable results. Accordingly, we must find an...
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