Bobby Carl Lennox AKA Bobby Carl Leanox v. the State of Texas

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0284-25

BOBBY CARL LENNOX, APPELLANT
V.
THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
LAMAR COUNTY

KEEL, J., delivered the opinion of the Court in which RICHARDSON,
NEWELL, WALKER, and MCCLURE, JJ., joined. NEWELL, J. filed a concurring
opinion, in which RICHARDSON and WALKER, JJ., joined. PARKER, J., filed a
concurring opinion. FINLEY, J., concurred. SCHENCK, P.J., filed a dissenting
opinion. YEARY, J., filed a dissenting opinion, in which SCHENCK, P.J., joined.

OPINION
Lennox—2

This is a forgery case. We granted the State’s petition for discretionary

review to decide whether the court of appeals correctly decided (1) error

preservation and (2) the standard of review for jury charge error. It did. We affirm

its judgment.

I. Trial and First Appeal

In 2019 Appellant passed three checks stolen from an estate sale. The checks

were made out to him and drawn on the account of and purportedly signed by

James McKnight—the dead man whose estate had been up for sale. Their amounts

were between $100 and $750, and Appellant cashed them at a convenience store.

The indictment alleged three counts of check forgery. Except for the offense

dates and the amounts and images of the checks, the counts were identical. They

alleged: “[Appellant]…did then and there, with intent to defraud or harm another,

pass to Nima Sherpa, a forged writing, knowing such writing to be forged…, and

the writing was a check….”

The jury charge corresponded to the indictment’s allegations and instructed

the jury:

[I]f you find from the evidence beyond a reasonable doubt that…the
Defendant…did then and there, with intent to defraud or harm another,
pass to Nima Sherpa, a forged writing, knowing such writing to be
forged, and such writing had been so made or completed that it
purported to be the act of James McKnight, who did not authorize the
Lennox—3

act, and the writing was a check, then you will find [Appellant] Guilty of
the offense of Forgery of a Financial Instrument as charged….

Appellant did not object to the indictment or the jury charge but claimed on appeal

that he had been convicted and punished for felony forgeries under the wrong

subsection of the forgery statute. See Tex. Penal Code § 32.21(d), (e-1). 1

The court of appeals agreed with Appellant, modified the felony convictions

to Class B misdemeanors, and remanded for a new punishment hearing. Lennox v.

State, 613 S.W.3d 597, 607 (Tex. App.—Texarkana 2020, pet. granted) (“Lennox

I”). We granted the State’s petition for discretionary review and consolidated

Lennox I with another forgery case, yielding State v. Green, 682 S.W.3d 253, 276

(Tex. Crim. App. 2024).

II. State v. Green

Green addressed the 2017 amendments to the forgery statute that added new

offense-level classifications to it. Id. at 256; see Tex. Penal Code § 32.21.

The statute said that a person commits forgery “if he forges a writing with

intent to defraud or harm another.” Tex. Penal Code § 32.21(b). This generic

forgery was a Class A misdemeanor “[e]xcept as provided by Subsections (d), (e),

and (e-1)[.]” Id. § 32.21 (c). Subsection (d) read, “Subject to Subsection (e-1), an

1
This opinion refers exclusively to the version of the forgery statute in effect in 2019. See
Act of Sept. 1, 2017, 85th Leg., H.B., ch. 977, § 25 (amended 2023) (current version at Tex. Penal
Code Ann. § 32.21).
Lennox—4

offense under this section is a state jail felony if the writing is or purports to be a . . .

check[.]” Id. § 32.21 (d). Subsection (e-1) specified offense levels from Class C

misdemeanors to first-degree felonies that depended on the forger’s purpose and a

value ladder. Id. § 32.21(e-1). As pertinent here it read:

(e-1) If 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, an offense under this section is:

***

(2) a Class B misdemeanor if the value of the property or service is $100
or more but less than $750[.]

Id.

Green disentangled § 32.21’s “competing offense-classification provisions”

and held that subsections (d) and (e) were “subordinate to subsection (e-1)” if (e-

1)’s purpose element was shown and that (e-1) was an offense element and not a

punishment issue. Green, 682 S.W.3d at 258. Forgery may be prosecuted under

subsections (b), (d), (e), or (e-1); “[e]ach subsection constitutes a facially valid

offense that the State may rely upon in charging a forgery by tracking the statutory

language.” Id. A prosecution under any of these subsections would be a “complete

and valid offense that the State may” prosecute. Id. at 277.

If a defendant were charged with forgery under subsections (d) or (e), but the

facts at trial raised subsection (e-1), then he would be “entitled to be convicted and
Lennox—5

punished under the provisions in the value ladder” if a lower offense level and range

of punishment would result. Id. at 258–59. In that circumstance, the State would

have charged the wrong subsection of § 32.21; the defendant could object at trial,

and the error could “be remedied by the trial court or on appeal, subject to any

applicable preservation requirements.” Id. at 259.

Green held that the State could charge and prosecute a check forgery under

either subsection (d) or (e-1). See id. at 277–78. On the one hand, if it initiates

prosecution under subsection (d), but “the facts show that the defendant’s offense

also falls under the value ladder in subsection (e-1) and (e-1) would result in a

reduced offense classification, then the defendant is entitled to be convicted and

punished under subsection (e-1).” Id. at 278. On the other hand, if the State has

information showing that the defendant committed forgery for the purpose of

obtaining property or services, then “it would be the better practice for the State to

charge the offense under subsection (e-1).” Id. at 279.

Green upheld the result reached by the court of appeals in Lennox I but

remanded for consideration of possible error preservation requirements. Green,

682 S.W.3d at 278.

III. Lennox II
Lennox—6

On remand, the court of appeals reached the same result it had reached in its

first opinion. Lennox v. State, No. 06-19-00164-CR, 2025 WL 793896, at *7 (Tex.

App.—Texarkana March 13, 2025) (mem. op., not designated for publication)

(Lennox II). It noted the lack of objection to the jury charge at trial but held that the

unobjected-to jury charge error was egregiously harmful. Id. at *5, 7 (citing

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)). It

again modified the convictions to Class B misdemeanors and remanded the case to

the trial court for a new trial on punishment. Id. at *7.

IV. The State’s Second Petition for Discretionary Review

The State’s second petition for discretionary review raises two issues about

preservation and the standard of review.

IV.A. First Issue

The first issue asks:

On Remand, Did The Court Of Appeals Correctly Decide Whether,
And Under What Circumstances, Any Defendant-Including The
Appellant (Lennox)-Might Raise A Claim That He Was Being
Prosecuted Under The Wrong Statutory Subsection [32.21(e-l)]-As
This Court Directed In Green v. State, 682 S.W.3d 253,278 (Tex. Crim.
App. 2024)-Or, Upon "De Novo" Review, Was Error Not Preserved
On This Important Question Of State Law?

The State points out that Green did not decide the preservation issue but left “it to

the court of appeals” to decide. Green, 682 S.W.3d at 278. The State suggests that
Lennox—7

the court of appeals neglected the preservation issue in violation of Green’s directive.

Green’s remand about preservation, however, was conditional. Green told the lower

court to address preservation “to the extent doing so is necessary to resolve the

remaining issues before it.” Id.

A preservation analysis was not necessary because Green held that subsection

(e-1) was an element of the offense if raised at trial. Id. at 275. A trial court must

instruct on offense elements even absent objection because they are law applicable to

the case. See Posey v. State, 966 S.W.2d 57, 60, 62 (Tex. Crim. App. 1998) (holding

that Tex. Code Crim. Proc. art. 36.14 imposes on the trial court a sua sponte duty to

instruct on the law applicable to the case, and any resulting error from a failure to so

instruct is subject to the Almanza egregious harm standard). Because the error

stemmed from the trial court’s failure to instruct the jury on law applicable to the

case, there was no need to address preservation. Instead, the court of appeals

correctly reviewed the error for egregious harm. Lennox II, 2025 WL 793896, at *5-

7.

The State also argues that the court of appeals had to address preservation

because Appellant forfeited subsection (e-1)’s application to his case by not

objecting to the indictment. But there was no basis for objection to the indictment.

It alleged “complete and valid” check forgeries under subsection (d). See Green,
Lennox—8

682 S.W.3d at 277–78. Finally, the State argues that Appellant forfeited his right to

a jury instruction on subsection (e-1) because it was a defensive issue. Green

foreclosed this argument, however, when it held that subsection (e-1) was not a

punishment issue, but “a distinct forgery-to-obtain-property-or-services offense

that may result in either an aggravated or reduced offense level as compared to the

Class A misdemeanor default.” Id. at 275. Because check forgery under subsection

(d) is “[s]ubject to” subsection (e-1)’s elements, those elements are law applicable

to the case if they are shown at trial and would result in a reduced conviction. See

id. at 278; Tex. Penal Code § 32.21 (d), (e-1).

Judge Yeary’s dissenting opinion echoes the State’s position but justifies

doing so by reading too much into Green’s mention of the in pari materia doctrine.

The doctrine is “nothing more than a rule of statutory construction[.]” Mills v.

State, 722 S.W.2d 411, 413–14 (Tex. Crim. App. 1986). It asks if multiple statutes

deal with the same subject, purpose, person, thing, or class. Azeez v. State, 248

S.W.3d 182, 191 (Tex. Crim. App. 2008). But Judge Yeary would apply it to a single

statute and ask an absurdity: “Does this statute deal with the same subject matter as

itself?” He makes other mistakes, too, misreading both Green and § 32.21.

First, he claims that Green “described the in pari materia issue as no more

than a ʻdefensive matter.’” But Green did not say that § 32.21 suffered from an in
Lennox—9

pari materia issue or that subsection (e-1) was a “defensive matter.” Instead, it

likened the relationship between subsections (e-1) and (d) to the relationship

between two statutes that are in pari materia. Green, 682 S.W.3d at 278. It

concluded, however, that the statute defined “four distinct forgery ʻcrimes,’ each

with a different statutory maximum[.]” Id. at 277. It held that “whenever the

triggering terms in subsection (e-1) are satisfied…, the offense classifications in

subsection (e-1) must control.” Id. at 278. Moreover, Green found it “highly

unlikely” that the Legislature meant for low-value forgers “to be initially charged

with felonies, only to have their offenses reduced to misdemeanors at the

punishment phase (and even then, only if they raise an issue under Subsection (e-1)

as a defensive matter).” Id. at 275. In short, Judge Yeary mischaracterizes Green’s

reasoning and holding about subsection (e-1).

Second, Judge Yeary claims that Green required the “in pari materia” issue to

be raised in the trial court, but Green didn’t do that, either; it left preservation for

the court of appeals to decide. Id. at 278. Given that Green rejected the idea that

subsection (e-1) was a “defensive matter” and instead characterized it as a separate

offense that controlled over subsection (d) if raised by the evidence, the court of

appeals correctly decided that preservation was not required.
Lennox—10

As for the statute, Judge Yeary mostly ignores its pivotal “subject to”

language and its central role in Green’s reasoning and conclusion. When he finally

notices the phrase, he distorts it with a “flip-side scenario” that he mistakes for a

hard question—would a trial court have to increase the punishment for a check

fraud case indicted under subsection (d) if the evidence showed the forgery was

committed for a $30,000 gain? The answer is an easy and obvious “no.” An

uncharged greater offense cannot legitimately manifest itself at trial—it must be

pled. Apprendi v. New Jersey, 530 U.S. 466, 476 (2000). And Green already

suggested that answer, so he missed that, too. See Green, 682 S.W.3d at 258–59,

278.

Finally, Judge Yeary bewails requiring trial courts to sua sponte instruct on the

law applicable to the case, characterizing the requirement as “anomalous” and

suggesting that it runs counter to our adversarial system. But the requirement is

pervasive, and it enjoys a longstanding statutory and jurisprudential pedigree

without having damaged our adversarial system. See Tex. Code Crim. P. art. 36.14;

Posey, 966 S.W.2d at 60, 62.

In sum, the State’s first issue must be answered in the affirmative: the court

of appeals correctly decided the preservation issue.

IV.B. Second Issue
Lennox—11

The State’s second issue asks: “On Remand, Did The Court Of Appeals In

Lennox Correctly Apply The Standard Of Review For Alleged Jury-Charge Error?”

In support of this issue, the State argues that there was no jury-charge error. It is

mistaken because the jury charge omitted an (e-1) instruction even though (1) the

evidence showed that Appellant committed his forgeries for the purpose of

obtaining money, and (2) the application of the value ladder would have resulted in

lesser convictions. See id. at 278. The jury charge erroneously omitted (e-1)’s

purpose element and value ladder. See id. The court of appeals correctly

determined that the evidence raised subsection (e-1) and that its omission from the

jury charge was egregiously harmful because it foreclosed the possibility of a

misdemeanor conviction and punishment range. 2 Lennox II, 2025 WL 793896, at

*5-7.

V. Conclusion

The court of appeals correctly decided that the jury charge error did not

require preservation and was egregiously harmful because it omitted offense

elements that might have subjected Appellant to a lower conviction level. We

affirm its judgment.

Since we agree with those holdings, we doubt that its disposition reforming the judgment
2

was correct. But because neither party contested the disposition, we do not address it.
Lennox—12

Delivered: January 29, 2026

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