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Murray v. State

Forgery of a writing is not a lesser-included offense of the offense charged in the indictment. Therefore, the trial court's judgment based on forgery of a writing is void. Houston?s 14th Court of Appeals, No. 14-06-01035-CR.

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Reversed and Remanded and Opinion filed June 26, 2008.

OPINION

Appellant was charged by indictment with the felony offense of making a false statement to obtain credit. Under a plea-bargain agreement, appellant pleaded “guilty” to misdemeanor forgery of a writing. Before the trial court rendered judgment, appellant filed a motion to withdraw his “guilty” plea, asserting that, if the trial court were to find him guilty of misdemeanor forgery of a writing, then the trial court’s judgment would be void because the forgery offense is not a lesser-included offense of the offense charged in the indictment. The trial court disagreed and denied appellant’s motion. On appeal, the State concedes that under Hall v. State, 225 S.W.3d 524 (Tex. Crim. App. 2007), the forgery offense is not a lesser-included offense of the offense charged in the indictment in this case. Nonetheless, the State asserts that Hall does not apply, or, in the alternative, appellant is estopped from asserting this complaint. We conclude that Hall applies and that, under the Hall analysis, the forgery offense is not a lesser-included offense of the offense charged in the indictment. In addition, we conclude that, under the facts in this record, appellant is not estopped from asserting this complaint. Accordingly, we reverse and remand.

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