Lennox, Bobby (7/2/2025)

The forgery statute criminalizes several separate offenses of forgery based on the type of document forged (like checks or money) or whether the forgery was essentially done to facilitate a theft (i.e., to obtain property or a service). Lennox’s case involved both. He forged 3 checks (which constituted state-jail-felony check forgery) and used each of them to get about $150 (which constituted Class B theft-purpose forgery). He was charged, tried, convicted, and punished for only check forgery; theft-purpose forgery was never mentioned.

On Lennox’s first trip to the Court of Criminal Appeals, the Court determined that the theft purpose controls over the type of document. It held that, if a theft purpose were proven at trial and that fact would reduce punishment, a defendant is entitled to be convicted and punished for theft-purpose forgery. But the Court declined to decide preservation issues. It left unresolved whether a defendant could complain for the first time on appeal, as Lennox did, that he was convicted and punished for the wrong offense. It left it to the court of appeals to address such issues on remand to the extent necessary to resolve the appeal.

On remand, the State argued Lennox failed to preserve error. The court of appeals held that failing to submit the theft-purpose issue for the jury’s consideration was jury charge error, which it could address regardless of a failure to object (albeit under a different harm standard). It held that the trial court had a sua sponte duty to instruct the jury on the applicable law, including the forgery statute’s subsection setting out theft-purpose forgery. It reformed the judgment to Class B theft-purpose forgery and remanded for a new trial on punishment since the punishment charge was also erroneous for the same reason and egregiously harmful.

The State argues the court of appeals ignored the Court of Criminal Appeals’ directive to consider preservation. It contends Lennox forfeited error by: (1) failing to object to the absence of a theft-purpose allegation in the indictment and (2) failing to request a defensive issue on theft purpose in the jury charge. For the same reasons, the State argues (in its second issue) that theft-purpose forgery didn’t become law applicable to the case warranting submission in the charge.