Thornton v. State

OPINION

W. C. DAVIS, Judge.

This is an appeal from an order revoking probation. On December 7, 1977, appellant entered a plea of guilty to the offense of forgery. Punishment was assessed at ten years confinement, but imposition of sentence was suspended and appellant was placed on probation. On June 1,1978, after a hearing, an order was entered revoking appellant’s probation after his entry of a plea of “true” to allegations that he had violated the terms and conditions of his probation.

In his first ground of error, appellant contends that, “there was no evidence produced at appellant’s plea of guilty to support the allegations in the indictment.” In Ex parte Dantzler, 571 S.W.2d 536 (Tex.Cr.App.1978), we reiterated that it is well settled that the sufficiency of the evidence may not be collaterally attacked. Owens v. State, 540 S.W.2d 324 (Tex.Cr.App.1976); Gaines v. State, 501 S.W.2d 315 (Tex.Cr. App.1973). However, in Ex parte Moffett, 542 S.W.2d 184 (Tex.Cr.App.1976), we created an exception to the foregoing rule which prohibits collateral attacks on the sufficiency of the evidence. Therein, we allowed the defendant to collaterally attack an order revoking his probation where the revocation order was based upon no evidence. We held that since there was no evidence, not merely insufficient evidence, to support the order revoking probation, the defendant’s right to due process had been violated and that this violation of a defendant’s right to due process justified a collateral attack by habeas corpus. See also, Ex parte Dantzler, supra.

In the instant case, the indictment, in pertinent part, alleged that appellant,

“did then and there unlawfully, knowingly and intentionally with intent to defraud and harm another, forge, by passing to B. J. Epley, a writing which then and there purported to be but was not the authorized act of J. R. Oates and L. C. Bates, said writing being of the tenor following: [at which place a copy of the check was set out] said defendant knowing the same to have been forged . .” (Emphasis added)

At the hearing on appellant’s plea of guilty, the State introduced into evidence appellant’s signed judicial confession, in which he stated:

“I judicially confess that on the 1st day of July, 1977, in Dallas County, Texas, I did then and there with intent to defraud and harm, knowingly and intentionally, forge, by making a writing, a true copy of which is attached to the indictment and the original of which is attached to this stipulation, as charged in the indictment.” (Emphasis added)

Thus, it appears that appellant was indicted for forgery by passing a writing, and he confessed to forgery by making a writing. These are two separate offenses. V.T. C.A. Penal Code, Sec. 32.21, provides in part:

“(a) For purposes of this section:

(1) ‘Forge’ means:

(A) to alter, make, complete, execute or authenticate any writing

* * * * * *

(B) to issue, transfer, register the transfer of, pass, publish, or otherwise utter a writing that is forged

* * * * * *

(b) A person commits an offense if he forges a writing with intent to defraud or harm another.”

In Reid v. State, 560 S.W.2d 99 (Tex.Cr. App.1978), we were confronted with a robbery indictment which alleged that the defendant committed the robbery and caused serious bodily injury to the complainant. See V.T.C.A. Penal Code, Sec. 29.02(a)(1). The only evidence admitted in support of the defendant’s guilty plea was his judicial confession in which he admitted that he committed robbery and threatened and placed the complainant in fear of serious bodily injury. See V.T.C.A. Penal Code, Sec. 29.02(a)(2). We held:

“While this confession was sufficient to show that appellant was guilty of robbery under V.T.C.A. Penal Code, Sec. 29.-02(a)(2), that offense was not alleged in the indictment. Since there was no proof that, during the robbery, appellant intentionally and knowingly caused bodily injury to the complainant, the evidence was insufficient to sustain a conviction for robbery under V.T.C.A. Penal Code, Sec. 29.02(a)(1), as alleged in the instant indictment.” (Emphasis added)

Since there was no evidence to support the defendant’s guilt of the offense charged in the indictment, the judgment was reversed.

Clearly, here, as in Reid v. State, supra, the admissions of the appellant in his judicial confession will not support a conviction based upon the offense charged in the indictment. We have carefully reviewed a complete transcript of the court reporter’s notes from the trial on appellant’s plea of guilty contained in the record. Cf. Wolfe v. State, 560 S.W.2d 686 (Tex.Cr.App.1978). There is no other evidence contained therein to support appellant’s guilt of forgery by passing.¹ Since there is no evidence in the record to support appellant’s conviction for forgery by passing, as alleged in the indictment, the judgment is reversed and the trial court is ordered to enter a judgment of acquittal.

Before the Court en banc.

1 . The only evidence in support of appellant’s guilt of the offense is his statement that the contents of the confession were substantially true and correct. However, this confession was to a different offense than that charged in the indictment.