Wheeler J. Hogue v. State

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-92-213-CR WHEELER J. HOGUE, APPELLANT vs. THE STATE OF TEXAS, APPELLEE FROM THE DISTRICT COURT OF BELL COUNTY, 264TH JUDICIAL DISTRICT NO. 40,542, HONORABLE STANTON B. PEMBERTON, JUDGE PRESIDING PER CURIAM The district court found appellant guilty of forgery. Tex. Penal Code Ann. § 32.21 (West 1989 & Supp. 1992). The court assessed punishment, enhanced by a previous felony conviction, at imprisonment for five years, probated. Appellant passed a forged check at a Killeen bank. His only point of error is that there is a fatal variance between the check set forth in the indictment and the check introduced in evidence at trial. There is no variance as to check number, account number, printed address, payee, drawer, and amount. Appellant notes, however, that the check introduced in evidence bears a teller's stamp and a handwritten military identification card number that do not appear on the check described in the indictment. The teller who cashed the check testified that she stamped the check and wrote the identification number when the check was presented to her. Appellant relies on Armstrong v. State, 573 S.W.2d 813 (Tex. Crim. App. 1978). In that case, the court held that when the instrument alleged to be forged is set out in the indictment according to its tenor, the writing offered in evidence must conform thereto with almost minute precision. 573 S.W.2d at 814. But as was later pointed out by the Court of Criminal Appeals, Armstrong and other opinions containing similar language involve differences between some specific item included in the allegation of the instrument and the corresponding item in the instrument introduced at trial. McKellar v. State, 641 S.W.2d 240, 242 (Tex. Crim. App. 1982). A different rule applies when some matter that appears on the forged instrument introduced at trial is omitted from the instrument set out in the indictment. In such cases, whether the omission constitutes a fatal variance turns on the materiality of the omitted matter to the sufficiency of the instrument. Id. Markings added to a forged check for purposes of processing after it is passed are mere surplusage and are unnecessary to the proof of the forgery. Carberry v. State, 701 S.W.2d 255, 257 (Tex. Crim. App. 1985). In this cause, the evidence shows that the teller's stamp and the identification number were added to the check by the teller after it was passed by appellant. The variance of which appellant complains is not material, and therefore is not fatal to the conviction. The point of error is overruled. The judgment of conviction is affirmed. [Before Chief Justice Carroll, Justices Jones and Kidd] Affirmed Filed: December 9, 1992 [Do Not Publish]