Bobby Carl Lennox aka Bobby Carl Leanox v. The State of Texas

Texarkana, Texas - Criminal defense attorney represented Bobby Carl Lennox aka Bobby Carl Leanox with a Forgery charge.

After a Lamar County jury found Bobby Carl Lennox2

guilty of three counts of forgery of

a financial instrument, the trial court enhanced his sentences and sentenced him to seventeen

years' imprisonment on each count, with the sentences to run concurrently. Lennox appeals,

maintaining that his sentences were outside the applicable punishment range, that the evidence

was insufficient to show that he had the ability to pay court-appointed attorney fees, and that the

trial court erred when it failed to hold an evidentiary hearing on his motion for a new trial.3

We conclude that there was egregiously harmful jury-charge error at guilt/innocence,

entitling Lennox to a reformation of the judgment to reflect that he was convicted of three class

B misdemeanor offenses and to a remand for a new punishment trial. Because of that

conclusion, we need not address his other points.

After James Maurice McKnight died in 2018, his daughter, Fran King, closed

McKnight's bank account at Guaranty Bank. Later, in December 2018, King asked Frank

Norwood to have his auction company organize a sale of McKnight's estate. Among other

individuals, Brandon Crawford, Destiny Brush, and Janae Lewis helped Norwood with the estate

sale. Before the sale, King's family placed some items, including a checkbook, in a "safe room”

in McKnight's home so that the items would not be sold. The evidence demonstrated Lewis's

1This opinion is an opinion on rehearing. We issued an opinion in this matter on February 20, 2020, but, by order

dated April 24, 2020, withdrew it. This opinion replaces that February opinion.

2Appellant was also known as Bobby Carl Leanox.

3Lennox does not challenge the sufficiency of the evidence as to any of the three charges against him.

3

awareness that those items had been placed in the "safe room.” The estate sale was conducted

December 29, 2018.

Crawford testified that he and Lennox were "pretty good friends” and that he had worked

with Lennox "a couple of times.” Crawford also testified that Lennox admitted to him that he

received the checks from the estate sale from Lewis, "from the dead guy,” and to having passed

the checks.

In January 2019, Nima Sherpa (Nima) was the manager of the Quick Track convenience

store in Paris, Texas. Nima testified that she knew Lennox because he regularly came into the

store and that Lennox often brought checks to the store to cash them. According to Nima, in

January 2019, Lennox "passed” checks in the store that had been dated January 7, January 9, and

January 12, 2019. The three checks were from McKnight's bank account and had been made

payable to Bobby Lennox. Nima said that, because Lennox was a regular customer, she did not

ask him to endorse the checks or to pay the normal check-cashing fee. Nima later learned that

the bank "rejected” the three checks for insufficient funds.

Gyalbu Sherpa (Gyalbu), also a manager at Quick Track, stated that he knew Lennox

because Lennox sometimes did "small jobs” for Quick Track stores. Gyalbu explained that, after

Lennox cashed the checks and Gyalbu realized there were insufficient funds in the account,

Gyalbu asked Lennox, "I said your checks are bad, why do you pass those checks?” Lennox

responded that "[he] worked for somebody and those [were the employer's] checks.” According

to Gyalbu, Lennox claimed not to have known that the checks were "bad.”

4

McKnight's daughter, King, stated that, after she closed her father's account at Guaranty

Bank, she received a telephone call from an employee of the bank informing her that one of her

father's bank account checks had gone "through” the bank. King said she reported the incident

to law enforcement. She stated that she did not write the check and had never written any check

to Lennox. King also said that, as far as she was aware, her father had not known Lennox or

hired him to do any work.

The State contends that it appropriately indicted Lennox on three counts of forgery

pursuant to Section 32.21(d) of the Texas Penal Code. See TEX. PENAL CODE ANN. § 32.21(d)

(Supp.). Section 32.21(d) states, "Subject to Subsection (e-1), an offense under this section is a

state jail felony if the writing purports to be a . . . check[.]” Id.

Yet, Lennox asserts that the three offenses, as charged and as proven, were class B

misdemeanors. In support of his position, he directs us to Section 32.21(e-1) of the Texas Penal

Code, which states,

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.

TEX. PENAL CODE ANN. § 32.21(e-1). Further, subsection (2) of Section 32.01 makes clear that,

within the statutory scheme, the definition of property includes money. TEX. PENAL CODE ANN.

§ 32.01(2)(C).

There is no question that the jury convicted Lennox of three counts of forgery of a

financial instrument by passing three forged checks, each valued at $100.00 but less than

$750.00. The jury was instructed that the charges were state jail felonies. Consistent with his

5

claim that the charges should have been class B misdemeanors, Lennox maintains that the three

sentences of seventeen years' imprisonment exceeded the applicable punishment range. We will

address this issue as one of charge error.

At trial, Lennox did not object to the jury charge on guilt/innocence. On appeal, he does

not urge a separate point of error expressly asserting charge error as such, but, in challenging

what he frames as improper excessive sentences, he claims that the jury should have been

charged during the guilt/innocence stage that the offenses were misdemeanors. He notes that he

was indicted using felony language and that the trial court charged the jury using felony

language, expressly noting that the charge omitted "the amounts of the three checks” that were

expressly set out in the indictment. He asserts, therefore, that "the three offenses alleged against

[him] in the indictment and found by the jury in the guilt-innocence charge[] were all class B

misdemeanors.” His argument, at its base, is that, because the State and the trial court treated his

charges as felonies, when they were in fact class B misdemeanors, his sentences were outside the

range of punishment. The logical result of Lennox's argument, if correct, is that the jury should

have been charged that the offenses were class B misdemeanors, not felonies. The issue of jurycharge error was fairly raised.4

Also, where there is jury-charge error, we may address the

question, even if the error is unassigned, and can reverse if the error caused egregious harm.

Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006); Olivas v. State, 202 S.W.3d 137

(Tex. Crim. App. 2006).

4

In summarizing his first issue in three locations in his appellate brief, Lennox states, in various forms, "The

judgments and punishment charges treated these three offenses as state jail felonies. However, as indicted and found

by the jury, all three should have been class B misdemeanors, with the punishment enhanced.”

6

We agree with Lennox and conclude that there was egregiously harmful jury-charge error

during guilt/innocence, entitling Lennox to a modification of his convictions to be Class B

misdemeanors and a new punishment trial.

In this case, Lennox was charged with passing three forged financial instruments. Count

one of the indictment alleged, in relevant part, that Lennox

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 act, and the writing was a check of the tenor following:

Count two, using similar language, alleged that Lennox passed a forged check to Nima of

the tenor following:

7

Count three, also using similar language, alleged that Lennox passed a forged check to

Nima of the tenor following:

Moreover, the guilt/innocence jury charge essentially tracked the indictment, notably

without any reference to the amounts of the three checks. For example, the jury charge on count

one stated as follows:

Now, bearing in mind the foregoing instructions, if you find from the

evidence beyond a reasonable doubt that on or about January 7, 2019, in Lamar

County, Texas, the Defendant, Bobby Carl Lennox aka Bobby Carl Leanox, 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

8

made or completed that it purported to be the act of James McKnight, who did not

authorize the act, and the writing was a check, then you will find the Defendant

Guilty of the offense of Forgery of a Financial Instrument as charged in Count

One of the Indictment.

Unless you so find from the evidence beyond a reasonable doubt or if you

have a reasonable doubt thereof, you will acquit the Defendant and say by your

verdict Not Guilty.

The portions of the jury charge addressing the other two counts were essentially the same as the

above, but with different dates.

"We employ a two-step process in our review of alleged jury charge error.” Murrieta v.

State, 578 S.W.3d 552, 554 (Tex. App.—Texarkana 2019, no pet.) (citing Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994)). "Initially, we determine whether error occurred and

then evaluate whether sufficient harm resulted from the error to require reversal.” Id. (quoting

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871

S.W.2d at 731–32)).

"[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” Id. (quoting TEX. CODE CRIM. PROC. ANN. art. 36.13). "A trial

court must submit a charge setting forth the 'law applicable to the case.'” Id. (quoting Lee v.

State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref'd) (quoting TEX. CODE CRIM.

PROC. ANN. art. 36.14)). "The purpose of the jury charge . . . is to inform the jury of the

applicable law and guide them in its application. It is not the function of the charge merely to

avoid misleading or confusing the jury: it is the function of the charge to lead and prevent

confusion.” Id. (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007); Lee,

415 S.W.3d at 917)).

9

"The level of harm necessary to require reversal due to jury charge error is dependent

upon whether the appellant properly objected to the error.” Id. at 555 (citing Abdnor, 871

S.W.2d at 732). Here, because the defendant did not object to the charge, we will not reverse the

judgment "unless the record shows the error resulted in egregious harm, Ngo v. State, 175

S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171

(Tex. Crim. App. 1984) (op. on reh'g), such that he did not receive a fair and impartial trial.” Id.

(citing Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—Texarkana

2008, no pet.)). "Jury-charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory.” Id. (quoting

Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007)). "In making this determination,

we review 'the entire jury charge, the state of the evidence, the argument of counsel, and any

other relevant information in the record as a whole.'” Id. (quoting Villarreal v. State, 205

S.W.3d 103, 106 (Tex. App.—Texarkana 2006, pet. dism'd, untimely filed) (citing Almanza, 686

S.W.2d at 171)). "Direct evidence of harm is not required to establish egregious harm.” Id.

(citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).

First, the jury charge should have charged the offenses as class B misdemeanors. As we

have set out in detail in our opinion in State v. Green, our cause number 06-20-00010-CR, issued

this date, subsection (e-1) controls over subsection (d) when subsection (e-1) applies. See TEX.

PENAL CODE ANN. § 32.21(d), (e-1). And, as we further noted in Green, the defendant's

purpose in forging the writing in question is the element that determines the applicable offense

classification under Section 32.21. Yet, the charge failed to ask the jury to determine Lennox's

10

purpose in forging the checks in this case. Because his purpose is what would elevate the

offense from a class B misdemeanor under subsection (e-1)(2) to a state jail felony under

subsection (d), the failure to ask the jury to resolve that issue was error under Apprendi v. New

Jersey, 530 U.S. 466, 469 (2000). Accordingly, there was charge error.

However, Lennox did not object to the charge on this basis. We must, therefore, evaluate

whether that error constituted egregious harm. Ngo, 175 S.W.3d at 743–44. In evaluating

charge error for egregious harm, "we consider (1) the charge itself; (2) the state of the evidence,

including contested issues and the weight of the probative evidence; (3) arguments of counsel;

and (4) any other relevant information revealed by the trial court as a whole.” Niles v. State, 595

S.W.3d 709, 712 (Tex. App.—Houston [14th Dist.] 2019, no pet.) (op. on remand) (citing Hutch

v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)).

As noted above, the charge in this case includes no instruction on the purpose element of

the offense sufficient to make out a state jail felony. See id. Yet, after the jury found Lennox

guilty, the trial court submitted a punishment charge to the jury based on a conviction as an

enhanced state jail felony. Accordingly, the judgment of conviction finds Lennox guilty of three

state jail felonies without any jury finding on Lennox's purpose as a jurisdictional element to the

offense. Therefore, "the charge weighs in favor of concluding appellant has suffered egregious

harm.” Id.

In addition, as the court of appeals noted in Niles, the state of the evidence "factor

requires a determination of whether the jury-charge error related to a contested issue. It did not.”

Id. (citing Hutch, 922 S.W.2d at 173). When Lennox forged the three checks, took them to the

11

convenience store, and cashed them, the uncontroverted evidence shows that he obtained

property in the form of money.5 Section 32.21(2)(C) defines property as including money.6

TEX. PENAL CODE ANN. § 32.01(2)(C). Section 32.21(d) expressly states that it is subject to

subsection 32.21(e-1). Because the allegations of the indictment and the clear proof at trial spell

out offenses under subsection (e-1), the evidence supports conviction under only subsection (e1)(2), not under subsection (d).7

Accordingly, this factor weighs in favor of egregious harm.

Neither counsel argued to the jury Lennox's purpose in forging the documents. At no

time did counsel suggest to the jury that Lennox forged the checks in question for any purpose

other than "to obtain or attempt to obtain a property or service.” TEX. PENAL CODE ANN.

§32.21(e-1). This factor weighs in favor of egregious harm.

Finally, this case presents the mirror image of the facts in Niles. In Niles, the charge

failed to allege the enhancing factor that the victims were public servants, but the uncontroverted

5The undisputed evidence was that Lennox's acts committing forgery were in cashing the three forged checks in the

amounts of $137.00, $130.00, and $150.00, respectively. In other words, it was "shown on the trial” that he passed

the forged checks "to obtain . . . property,” in the form of cash, establishing subsection (e-1) as the provision

defining his offenses. See TEX. PENAL CODE ANN. § 32.21(e-1).

6One might conclude that the indictment does not allege any cash or other property received by Lennox and that

little or no evidence suggests that he received cash or property from the checks. But the indictment clearly sets out

the three checks that it alleges were passed by Lennox, including the images of the actual checks, showing that they

were made payable to him. At the very least, the indictment certainly fails to exclude the applicability of subsection

(e-1), the section to which subsection (d) is expressly subject. Also, no evidence suggests that Lennox did not

receive property or service in exchange for those checks; in fact, the uncontroverted evidence is that he "cashed”

them and that he, later, paid one of them back. Also, on appeal, the State recites that he got cash for the checks.

7The indictment's caption recited that the offenses were state-jail felonies under subsection (d). While this was

sufficient to give the trial court jurisdiction over the offense in the absence of a motion to quash the indictment, see

Kirkpatrick v. State, 279 S.W.3d 324 (Tex. Crim. App. 2009), and Diruzzo v. State, 581 S.W.3d 788, 804 n.24 (Tex.

Crim. App. 2019), indictment captions are not considered part of the charging instrument, Stansbury v. State, 82

S.W.2d 962, 964 (Tex. Crim. App. 1935); Adams v. State, 222 S.W.3d 37, 53 (Tex. App.—Austin 2005, pet. ref'd).

We must go by the offense set out by the allegations contained in the body of the indictment, rather than by the

conflicting caption. See Adams, 222 S.W.3d at 52–53; Rager v. State, No. 09-10-00259-CR, 2011 WL 2732242, at

*1 (Tex. App.—Beaumont July 31, 2011, no pet.) (mem. op., not designated for publication).

12

proof was that they were. Niles, 595 S.W.3d at 713. Here, the charge failed to allege a purpose

other than "to obtain or attempt to obtain a property or service,” whereas the undisputed evidence

proved that Lennox's purpose was to "obtain property.” Accordingly, the other-relevantinformation factor weighs in favor of a finding of egregious harm. Because all four factors

weigh in favor of a finding of egregious harm, we find that the charge error in this case was

egregiously harmful.

The question before us now is how to dispose of this case. In its earlier opinion in Niles,

the Texas Court of Criminal Appeals explained what should happen when there has been charge

error resulting from a failure to charge an enhancing element under Apprendi. See Niles v. State,

555 S.W.3d 562, 567–68 (Tex. Crim. App. 2018).

In Niles, the defendant, a firefighter, threatened to shoot some of his fellow firefighters

over a work dispute. Id. at 564. The defendant was charged in two indictments with making a

terroristic threat against a public servant. Id. The Texas Court of Criminal Appeals observed

that a "Terroristic Threat is usually a Class B misdemeanor, but the offense is a Class A

misdemeanor 'if the offense is committed against a public servant.'” Id. At trial, the evidence

established that the victims were public servants, but the jury was not asked to determine

whether the victims were public servants. Id. at 567. The Texas Court of Criminal Appeals then

noted that "[b]oth parties on direct appeal recognized Apprendi error—that is jury charge error,”

Id. at 569, and the defendant argued that "'both sentences are illegal' because they are outside

the maximum punishment for a Class B offense.” Id. at 568. The Texas Court of Criminal

Appeals also observed that "[t]he State conceded Apprendi error and made the same

13

recommendation that Appellant did, that the appellate court reform the judgments to Class B,

reverse the sentences in both cause numbers, and remand for a new punishment hearing,” and

"[n]ot surprisingly, the court of appeals did just that.” Id.

The state prosecuting attorney moved for a rehearing in the court of appeals. Id. While it

agreed that charge error existed, it argued that, because Apprendi error is not structural, the court

of appeals was required to evaluate the error for harm and, had it done so, would have found the

error to be harmless. Id. The Texas Court of Criminal Appeals agreed with the state

prosecutor's position, reversed the judgment, and remanded the cases back to the court of

appeals for a harm analysis. Id. On remand, the court of appeals found that the error in each

case was harmless, largely because the evidence exclusively established that the victims were

public servants. Niles, 595 S.W.3d at 713.

Based on the fact that, in Niles, the Texas Court of Criminal Appeals reversed the court

of appeals's original ruling that reformed the judgments to reflect convictions of class B

misdemeanors and remanded the cases to the trial court for a new trial on punishment, it could be

argued that, in light of the charge error below, we should reverse the trial court's judgment and

sentence and remand the case to the trial court for a new trial on guilt/innocence. However, on

closer inspection of that opinion, the Texas Court of Criminal Appeals held merely that "the

court of appeals erred to reform the judgments to Class B offenses without first analyzing

whether the jury charge error resulted in harm.” Niles, 555 S.W.3d at 573 (emphasis added).

Consequently, although the court of appeals ultimately determined that the error in that case was

14

harmless and affirmed the trial court's judgments, the Texas Court of Criminal Appeals implied

that reformation of the judgments would have been appropriate if the error had been harmful.

Here, we have found the charge error to be egregiously harmful. The undisputed

evidence established that Lennox forged the checks in question "to obtain or attempt to obtain a

property or service,” and there is no evidence in the record that he did so for any other purpose.

Under Section 32.21(e-1)(2), a forgery committed "to obtain or attempt to obtain a property or

service” in an aggregate amount of more than $100.00 but less than $750.00 is a class B

misdemeanor. TEX. PENAL CODE ANN. § 32.21(e-1)(2). The indictment, on its face, would

support conviction under subsection (e-1), and the undisputed evidence at trial established that

subsection (e-1) applied. As noted, Niles suggests that reformation of the judgment to reflect

convictions for class B misdemeanors is the appropriate disposition of this case.

Therefore, we reform the judgment in this case to reflect that Lennox was convicted of three class B misdemeanor offenses under Section 32.21(e-1)(2). He received sentences outside the punishment range for class B misdemeanors. Consequently, we reverse the sentences and remand the case to the trial court to conduct a new trial on punishment for the class B misdemeanors.