LENNOX v. STATE (2026)

OPINION

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 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 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:

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(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 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

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 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, 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 ‘defensive matter.’ ” But Green did not say that § 32.21 suffered from an in 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 ‘crimes,’ 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.

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, 120 S.Ct. 2348, 147 L.Ed.2d 435 (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

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.

The forgery statute is messed up. The Legislature screwed it up when it decided to add a value ladder to the statute in the way that it did.¹ Conceptually, it leads to two provisions in the same statute that cannot co-exist.² I believe the Court properly construes a bad statute as it was written. I would also add that the way the statute was written leads to absurd results. And with no real extra-textual sources to suggest any intent by the Legislature, the only thing this Court can say with any confidence is the Legislature wanted to apply a value ladder to the forgery statute. Without any more clear guidance to resolve this irreconcilable textual ambiguity, I believe the rule of lenity requires this Court to call the “tie” in favor of the defendant.³ As the Court's analysis leads to the same result, I join the Court's opinion.

CONCURRING OPINION

The court of appeals engaged in an involved discussion of jury-charge error at the guilt and punishment stages and accorded a non-standard remedy for guilt-stage jury-charge error. Despite the complexity of its discussion, the court did not connect all the dots—it did not adequately address the State's preservation argument and did not explain how it could impose the remedy of reformation for a guilt-stage jury-charge error when the usual remedy for that sort of error is a new trial as to guilt. If we connect all the dots, the court of appeals's resolution is ultimately correct, but this case would be much simpler if the court of appeals had recognized that Appellant's jury-charge complaint was essentially also a sufficiency complaint. The evidence was insufficient to show the charged offenses of state-jail-felony “check” forgery because it showed only the lesser-included value-ladder offenses of Class-B-misdemeanor forgery. As a consequence of this insufficiency, Appellant was entitled to reformation of his convictions to the misdemeanor offenses and remand for a new punishment hearing—the exact remedy given by the court of appeals.

I. BACKGROUND

A. Trial

The indictment charged Appellant with three counts of forgery. The first count charged that Appellant:

on or about January 7, 2019 ․ 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:

and then included a photocopy of a check dated January 7, 2019, for $137. The second and third counts followed this pattern, with dates of January 9 and January 12 and amounts of $130 and $150. Enhancement paragraphs for each count alleged two prior sequential felony convictions for enhancement. The caption of the indictment characterized the type of offense as “forgery financial instrument, habitual offender” and as a “state jail felony (punished as second degree).”¹

When the indictment was read to the jury, the prosecutor referred to each photocopied check as “photocopy of the front of check number [number of the check at issue],” and those checks were ultimately introduced into evidence. The evidence also showed that Appellant cashed these checks at a convenience store managed by Sherpa.

The introductory paragraph of the guilt-stage jury charge referred to each of the counts as involving “forgery of a financial instrument” committed “on or about” the particular date listed in the indictment. The application paragraphs in that charge tracked the language of the indictment's counts except that they did not include photocopies of the checks or refer to the enhancement allegations. Nevertheless, on the signed verdict forms, the jury found Appellant guilty “as charged in Count [One, Two, or Three] of the Indictment.” The punishment-stage jury charge prescribed the range of punishment for a second-degree felony if the enhancement allegations were found true and for a state-jail felony if they were not. The jury convicted Appellant, found the enhancement allegations true, and assessed a sentence of seventeen years for each count.

B. Appeal

When this case was originally before us, we concluded that the value-ladder provisions in the forgery statute trumped the state-jail felony provision relating to checks if the evidence satisfied the value-ladder elements.² On remand to the court of appeals, the State argued that Appellant forfeited error because he did not object to the absence of the value-ladder version of the offenses in the jury charge. Relying on Posey v. State,³ the State claimed that this was so because the value-ladder provisions were a defensive issue to the offense of forgery of a check and that defensive issues are not law applicable to the case absent an objection, so that there was no jury-charge error and therefore no occasion to perform a harm analysis. Without addressing the State's reliance on Posey, the court of appeals held that error in the jury charge is analyzed for “egregious harm” harm under Almanza v. State and that all jury-charge error must be reviewed regardless of preservation in the trial court.⁴

The court of appeals then found that the guilt-stage jury charge was erroneous because it should have instructed on the Class-B-misdemeanor value-ladder offenses, in addition to the state-jail felony offenses.⁵ In addressing the jury-charge factor in its harm analysis, however, the appellate court held that the jury-charge error was “even more egregious” because the evidence supported guilt under the value-ladder offenses but not under the state-jail-felony offenses:

The uncontroverted evidence presented at trial showed that Lennox forged three checks, took them to a Quick Track convenience store, passed them, and in return, received property in the form of money. That evidence was not contested at trial, which, in this situation, makes the charge error even more egregious. Because the evidence supported violations of subsection (e-1)(2) and not subsection (d), this factor weighs in favor of a finding of egregious harm.6

After conducting a holistic review of the jury charge, the evidence, and the parties’ arguments, the court of appeals found these perceived errors in the guilt-stage jury charge to be egregiously harmful.⁷

Afterwards, the court of appeals found the punishment-stage jury charge to be erroneous because it instructed on the wrong range of punishment.⁸ After conducting a holistic review of the punishment jury charge and the State's punishment argument, and taking into account the guilt-stage evidence, the court found the perceived punishment-charge errors to be egregiously harmful.⁹

Then, without explaining the basis for its remedy, the court of appeals held that Appellant was entitled to a modification of the judgments to reflect conviction for the misdemeanor value-ladder offenses and to a new punishment trial.¹⁰

The court of appeals did not explain why it did not treat the issues before it as evidentiary sufficiency, but on original submission, the court of appeals had noted that Appellant “[did] not challenge the sufficiency of the evidence as to any of the three charges against him.”¹¹

II. ANALYSIS

A. The Charged Offense

Under the version of the statute in effect in January 2019, forgery was a state-jail felony when “the writing is or purports to be” one of certain enumerated financial documents, including a “check.”¹² Forgery was a Class B misdemeanor if “the actor engaged in the conduct to obtain or attempt to obtain a property or service ․ [and] the value of the property or service is $100 or more but less than $750.”¹³ Each count in the indictment alleged that the writing forged was a “check.” None of the counts alleged that the check was made “to obtain or attempt to obtain a property or service,” and nothing in the textual allegations of each count alleged a particular value, though one could deduce value from the photocopied checks. It is also true that the statutory value-ladder offense does not require the forged writing to be a check. And the photocopies of the checks appear to be descriptive averments pled to provide notice as to what checks the State was referring to.¹⁴ Thus, the body of the indictment facially alleged the state-jail felony offenses of forgery of a check.¹⁵

Even if the body of the indictment were unclear about which offenses were being alleged, only the state-jail-felony offenses conferred jurisdiction on the district court, and an “indictment's return in a felony court put[s] [a defendant] on notice that the charging of the felony offense was intended.”¹⁶ Further, the caption indicated that the offenses were state-jail felonies enhanced to second-degree felony punishment. When the body of an indictment is ambiguous as to which offense was intended, the caption can be looked at to help resolve the ambiguity.¹⁷

Moreover, the enhancement paragraphs also suggested that felony offenses were intended. The allegation of sequential felonies fits the enhancement statute that raises the punishment for a state-jail felony to that of second degree.¹⁸ There is an enhancement provision for Class B misdemeanors, but it requires only one conviction (a felony, or a Class A or B misdemeanor), so the enhancement allegations in the indictment do not fit such an offense.¹⁹

If the indictment alleged only Class B misdemeanor offenses, the jury charge would be in error if it charged state-jail felony offenses. But because the indictment alleged state-jail felony offenses, we must engage in further analysis to see if the jury charge was in error.

B. Lesser-Included Offense

The next logical question is whether the value-ladder (Class B misdemeanor) offenses were included in the indictment as lesser-included offenses. If we were confronted with just the statutory provisions, we might wonder whether a value-ladder offense could qualify as a lesser-included offense of the state-jail-felony offense. The most common test for lesser-included offenses requires that the lesser-included offense be “established by proof of the same or less than all the facts required to establish the commission of the offense charged.”²⁰ The state-jail-felony offense requires proof of one of a list of specified financial instruments (here, a “check”) not required by the value-ladder version of the offense. And the value-ladder offense purports to require two extra facts not required by the state-jail-felony offense: the defendant acting “to obtain or attempt to obtain a property or service” plus an amount.

For each count, the indictment specified a “check” being forged, but one could imagine a check being forged to withstand an audit without any intent that it be used to obtain a property or service. But the indictment here also specified that Appellant did “pass” the “check,” and when a charging instrument alleges a particular statutory method of committing an offense, that controls the elements to be proven.²¹ “Pass” is not defined by statute, but, in the context of forgery, Black's Law Dictionary defines the word to mean “[t]o publish, transfer, or circulate,”²² and Webster's defines it to mean “to put in circulation.”²³ Can someone “pass” a check without trying to obtain a property or service? We do not have to answer that question because the checks themselves were in this indictment.

Even though they were descriptive averments, under this Court's cognate-pleadings test, descriptive averments count for the purpose of tallying elements for a lesser-included offense.²⁴ It is enough that an element needed for a particular lesser-included offense can be “deduced from” a descriptive averment.²⁵ The photocopied checks in the indictment purported to be made out to Appellant, so if Appellant “passed” them, then he used them to obtain money.

The remaining question, then, is whether “money” qualifies as “property.” Chapter 32 defines “Property” to mean, among other things:

(B) tangible or intangible personal property including anything severed from land; or

(C) a document, including money, that represents or embodies anything of value. 26

Subdivision (C) explicitly includes “money.” Nor can one persuasively argue that money in this definition extends only to tangible money. If someone gains intangible money in the form of a bank deposit, he has the ability from his bank account to access tangible money. And subdivision (B) extends to “intangible personal property” anyway, and if money can be tangible property under (C), any intangible version of it would surely at least be intangible property under (B).²⁷

So, under this indictment, in light of the descriptive averments (the photocopied checks), the value-ladder offenses were lesser-included offenses.²⁸

C. Preservation / “Law Applicable to the Case”

Under Posey v. State, a defensive issue is not law applicable to the case if it is neither requested nor submitted.²⁹ And if a defensive issue is not law applicable to the case, then its absence from the jury charge is not “error,” and so the need to find harm under Almanza is not triggered.³⁰ In Tolbert v. State, this Court held that lesser-included offenses were treated as defensive issues for this purpose.³¹ Whether any lesser-included offenses get submitted is a decision that “frequently depend[s] upon trial strategy and tactics.”³² These cases give substance to the State's argument: The State's claim is that, because Appellant did not request the value-ladder offenses, he forfeited them entirely, with him not even being entitled to an analysis for egregious harm.

The problem with the State's argument, though, is that Tolbert assumes that the submission of the charged offense does not itself happen to be error. In almost every case, the State is entitled to the submission of the charged offense. But that is not true when the evidence is insufficient to support the charged offense.

In Malik v. State, the case that imposed the “hypothetically correct jury charge” standard for sufficiency of the evidence, the Court recognized that an offense supported by insufficient evidence should never be submitted to a jury.³³ And this Court has held that it is error to submit a theory of liability that is not supported by the evidence.³⁴ And based partly on Malik, Judge Keller's dissent in Collier v. State observed that, “If removing the element with insufficient evidentiary support results in downgrading the charged offense to a lesser-included offense, then the lesser-included offense is the greatest offense that may be included in the jury charge and for which the State may seek a conviction.”³⁵ Although it was only a dissent, her statement appears to be an accurate statement of the law in light of Malik, and Collier was later overruled.³⁶

The present case does not involve an aggravating element that was not proven but involves “mitigating” elements that appear to have been established as a matter of law, at least if Appellant were found to have engaged in the conduct. The evidence at trial showed that the photocopies of checks were accurate representations of what Appellant forged.³⁷ Consequently, the evidence was insufficient to support the charged offenses and sufficient only to support the lesser-included value-ladder offenses. As such, the guilt-stage jury charge should have charged only on the value-ladder offenses and erred to do otherwise.

Or stated another way, Appellant was entitled to an instructed verdict on the charged state-jail-felony offenses and the submission of only the lesser-included value-ladder offenses. This Court has consistently maintained that a claim of error in failing to grant a motion for instructed verdict is analyzed as a claim of insufficient evidence.³⁸ And this Court has also consistently maintained that sufficiency-of-the-evidence challenges need not be preserved.³⁹ Had the court of appeals analyzed the issue before us as a sufficiency challenge, the lack of any preservation requirement would have been obvious.

D. Harm / Insufficiency

Here, the evidence was insufficient to support the jury's guilt-stage verdict, so a finding of egregious harm from the errors in submitting the charged offenses is virtually automatic. A full-blown harm analysis would make sense if an appellate court were addressing the submission of an alternative theory of an offense that was supported by insufficient evidence. When multiple theories of an offense are submitted to the jury, evidence is sufficient to support a guilty verdict on that offense so long as it is sufficient to support one of the theories,⁴⁰ but the submission of a theory unsupported by the evidence is jury-charge error that requires a harm analysis if the question of jury-charge error is in play on appeal.⁴¹ But when there is no evidence to support the submitted offense at all, and the jury finds the defendant guilty of that offense, the jury necessarily finds the defendant guilty of an offense it shouldn't have. There is simply no point in going through the usual Almanza harm factors—considering the jury charge, the evidence, arguments of counsel, and other factors—because a finding of harm is a foregone conclusion in the insufficiency-to-support-the-offense-at-all scenario.⁴²

The court of appeals also did not explain its decision to impose the remedy of reformation and remand for a new punishment hearing. “The normative remedy for harmful [guilt-stage] jury charge error is to reverse the convictions and remand for a new trial.”⁴³ But “if the harm suffered by the defendant due to charge error can be remedied by a different, less drastic remedy ․ then a defendant should not get the windfall of a new trial at the expense of usurping the role of the factfinder.”⁴⁴ Double-jeopardy principles require acquittal of an offense for which the evidence has been found legally insufficient.⁴⁵ So the court of appeals could not simply remand for a new trial as to guilt. And even for jury charge error, reformation to a lesser-included offense and remand for a new punishment hearing is an available remedy if (1) it would cure the harm from the error, (2) the evidence is sufficient to support the lesser-included offense, and (3) the jury “must have necessarily found” the lesser-included offense in finding the defendant guilty of the charged offense.⁴⁶ This was the remedy the Arteaga court applied to jury charge error in a sexual-assault case resulting from the submission of a “prohibited from marrying” aggravating element that was not supported by the evidence.⁴⁷

Here, as in Arteaga, the guilt-stage harm was that Appellant was convicted of a greater offense than supported by the evidence. Reformation to the offenses supported by the evidence cures that harm—at least if the jury must have necessarily found Appellant guilty of those offenses, which I discuss below. And as discussed in part II.C., the evidence was sufficient to support the lesser-included value-ladder offenses.

The remaining guilt-stage harm question, then, is whether the jury necessarily found the value-ladder offenses when it found Appellant guilty of the state-jail felony offenses. Although the application paragraphs in the guilt-stage jury charge did not include photocopies of the checks, each such paragraph referred to the date the check was passed—a date which also matched the date written on the check. The photocopies of the checks were in the indictment and also in evidence, and, for each count, the jury found the defendant guilty “as charged in the indictment.” Under these circumstances, it is clear that the jury necessarily found that Appellant committed the value-ladder offenses.

As for punishment, harm was necessarily egregious because the punishment assessed by the jury—seventeen years—was outside the range of punishment for an enhanced Class B misdemeanor, which carried a maximum possible sentence of 180 days. There was, again, no point in conducting a full-blown Almanza analysis. And a remand for a new punishment trial was a proper remedy for this harm.

But of course, the analysis would have been much simpler if treated as a sufficiency-of-the-evidence claim. If the evidence is insufficient to support the charged offense, reformation to a lesser-included offense and remand for a new punishment trial is the appropriate remedy so long as the lesser offense is (1) in fact lesser-included, (2) supported by sufficient evidence, and (3) one that the jury must necessarily have found in finding guilt of the charged offense.⁴⁸ As has been explained in connection with the issue of jury-charge error, all three of these elements were met. In fact, Arteaga borrowed from the sufficiency context in asserting a nonstandard remedy for the jury-charge error it addressed.⁴⁹ The jury-charge error in that case, as in the present case, could have easily been reframed as a sufficiency-of-the-evidence challenge.

III. CONCLUSION

The evidence was insufficient to support the charged state-jail felony offenses of forgery of a financial instrument and was sufficient only to support the lesser-included value-ladder offenses. Whether viewed as jury charge error for submitting charged offenses that were not supported by the evidence or as an insufficiency of the evidence to convict on the charged offenses, the issue was not forfeited by Appellant's failure to object. The court of appeals correctly found that Appellant did not forfeit his claims, and that court accorded the correct remedy. With these comments, I concur in the Court's judgment.

DISSENTING STATEMENT

This case raised the threshold issue of whether Subsection (e-1) constituted a defensive issue or jurisdictional element. The majority answers with the latter and points to State v. Green, 682 S.W.3d 253 (Tex. Crim. App. 2024), though that result comes with lingering questions for the trial courts.¹ Though I find the majority's treatment of Green unassailable, I respectfully dissent from the judgment and agree with Judge Yeary in dissenting from its disposition, though I find a result based on error preservation undesirable as well. I write separately to explain the judgment I would prefer at this point.

When determining whether the trial court had the duty to submit certain instructions to the jury affecting charge error and preservation, we have often operated in a binary universe; our jurisprudence has classified statutory provisions containing factual issues as either as jurisdictional elements or defensive issues. See Green, 682 S.W.3d at 275; Taylor v. State, 332 S.W.3d 483, 486–89 (Tex. Crim. App. 2011). Without questioning the integrity of that universe, I do note two consequences of that analytical framework.

First and foremost, the trial court is not obliged to interpret our cases extempore at the risk of egregious error. The effect of the majority's disposition is just that.² To be sure, trial courts are expected to interpret elusive areas of the law; here, for example, by relying only on the guidance of an unclear statute and opinions interpreting that statute, which the trial judge may well have not foreseen in the heat of trial. Second, the legislature is free to disagree with those classifications and enact laws that go beyond that binary and leave us with some issue or issues that do not fall cleanly into either category, which effectively confounds our embrace of general relativity with what seems to us like quantum mechanics.

In Green, we hammered Section 32.21 into a format that operated in our known, binary universe, and did a fine job of it. See Green, 682 S.W.3d at 275. But, it did take us fully forty-five pages ³ of wrestling with the text and our past precedents to explain to the court of appeals how it (and the trial court) misperceived the “structure of Section 32.21 and due process requirements”—as they operated against our background law governing elements, defenses, and who has the respective burden to invoke their respective place during trial. Id. at 279. We accordingly “commend[ed] the [lower court's] effort to untangle the highly complex issue ․” Id. at 257.

With all of that said, I see it as profoundly unfair to the State, the defendant, and the trial court to suppose that our disposition was so obvious or predictable to the point where this case should be resolved by the operation of default. I agree with Judge Yeary because I believe that problems warranting appeal and reversal are generally worthy of objection. The majority, embracing the consequence of our decision in Green to treat the value ladder as an element, understandably trips this case into automatic error. I find either disposition undesirable and unnecessary.

Under Texas Rules of Appellate Procedure 78.1(f), this Court may “vacate the lower court's judgment and remand the case for further proceedings in light of changes in the law.” Tex. R. App. P. 78.1. That authority exists for a reason. I would use it here and direct a new trial so that all parties (and the trial court) have an opportunity to have this case resolved on the merits and with the benefit of the law as clarified in Green. Therefore, I dissent.

This Court explained in Mendez v. State, 545 S.W.3d 548, 552 (Tex. Crim. App. 2018), that “not every defense-benefitting instruction is ‘law applicable to the case,’ such that its exclusion from the [jury] charge is necessarily erroneous” under Almanza. See Tex. Code Crim. Proc. art. 36.14 (trial court is obliged to “deliver to the jury ․ a written charge distinctly setting forth the law applicable to the case”); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g)(construing Tex. Code Crim. Proc. art. 36.19 to mandate reversal of convictions for unobjected-to jury charge error that causes “egregious harm”). In fact, this Court has observed many times over that certain jury instructions, like self-defense/defense-of-a-third-party and mistake of fact, as well as lesser-included offense instructions, and even instructions on the burden of proof pertaining to extraneous-offenses, are defensive in nature. As such, they do not constitute law of the case unless they are requested by the defense.¹ When there has been no defensive objection or request, they are not subject to Almanza’s “egregious harm” analysis. Mendez, 545 S.W.3d at 552. “[A] trial court does not err by failing to instruct the jury on an issue that was, by virtue of the defendant's silence, simply inapplicable to the case.” Id.

In this case, Appellant himself did not even complain of jury charge error on direct appeal. The court of appeals addressed that issue of its own volition, as unassigned error. State v. Green, 682 S.W.3d 253, at 262 n. 5 (Tex. Crim. App. 2024).² “But errors that are subject to procedural default may not be remedied by the appellate court as unassigned error unless the error was in fact preserved in the trial court.” Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

In Green this Court concluded that Section 32.21(e-1) of the Penal Code carved out a separate offense, with additional elements, and that it is not merely a separate punishment-enhancement scheme. Tex. Penal Code § 32.21(e-1); Green, 682 S.W.3d at 278. The Court today alludes to that conclusion as essentially the be-all and end-all of its analysis, and it thereby rejects the State's argument that Appellant forfeited his right to a jury instruction by failing to request it. See Majority Opinion at –––– – ––––.

But Green did not just hold that Subsection (e-1) was elemental rather than punishment enhancing. In its last two pages, it also went on to treat the Subsection (e-1) issue as essentially defensive in nature—at least in the context of a prosecution in which the State has originally pled a Subsection (d) or (e) offense. See Green, 682 S.W.3d at 278 (“As a practical matter, ․ if the State charges a forgery offense under subsections (d) or (e) of Section 32.21, but the facts show that the defendant's offense also falls under the value ladder in [S]ubsection (e-1)[,] and (e-1) would result in a reduced offense classification, then the defendant is entitled to be convicted and punished under [S]ubsection (e-1). Under those circumstances, he may raise a claim that he is being prosecuted under the wrong statutory subsection as a basis for having his offense reduced under the value ladder.”); id. at 279 (“[I]f the defendant believes he is being prosecuted under the wrong subsection and is instead entitled to be prosecuted under the value ladder, he may raise such a claim[.]”). On page 278 specifically, the Court also observed that “[w]e understand [the] statutory structure [of Section 32.21] to effectively operate as a codification of the in pari materia doctrine.” Id. at 278. The Court then cited two cases by way of analogy: Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim. App. 2008), and Diruzzo v. State, 581 S.W.3d 788 (Tex. Crim. App. 2019).

In each of those in pari materia analog cases, as here, the defendant claimed that he was being prosecuted under one statutory provision when, under due process principles, he should have been prosecuted under another equally applicable, but less onerous, statute. In both cases, the Court observed that the defendant had taken pains to preserve his complaint in a timely manner for appellate review. Azeez, 248 S.W.3d at 193–94; Diruzzo, 581 S.W.3d at 797–98. In this case, however, there was no similar attempt to preserve the question.

This Court understood in Green that an indictment that alleges an offense under Section 32.21(d) or (e), is not objectionable. Green, 682 S.W.3d at 278. In the absence of a request for a separate defensive in pari materia instruction predicated on Subsection (e-1), the trial court's charge to the jury addressing only the elements of the offense as it was charged was not only not erroneous, it was correct. The in pari materia issue arises under such an otherwise-unobjectionable indictment only when it becomes apparent, either from the face of the indictment or during the course of trial, that, rather than having pled the offense under Subsection (d) or (e), the State might have more appropriately charged the defendant under some part of Subsection (e-1) that would render the offense of a lesser degree. Id.

Elemental though the provisions of Subsection (e-1) may be, the Court in Green treated what it considered an in pari materia issue as one which should be called to the trial court's attention before it would become actionable on appeal. Id. Indeed, rather than treating the Subsection (e-1) elements as an “exception,” which the State would have been obliged to plead and prove in order to obtain a Subsection (d) or (e) conviction,³ the Court described the in pari materia issue as no more than a “defensive matter[.]” Id. at 279.

I would conclude that a Subsection (e-1) in pari materia issue is essentially defensive in nature. As such, it does not become “law applicable to the case” impacting the jury charge unless and until there is an objection to the jury charge for failing to submit the Subsection (e-1) elements to the jury as an alternative to a Subsection (d) or (e) offense alleged in the indictment.⁴ Absent such an objection, there would be no identifiable error in the jury charge that would trigger Almanza’s egregious harm analysis and authorize the court of appeals to reverse the conviction on the basis of unassigned error.⁵

The Court suggests today that Subsection (e-1) cannot possibly operate as a defensive issue, but instead must always be regarded as “law applicable to the case”—even when a forgery case is originally pled under Subsections (d) or (e)—because the statute plainly provides that both Subsections (d) and (e) are “[s]ubject to Subsection (e-1)[.]” Majority Opinion at ––––. But such a scheme, as the Court in Green understood, is impractical to the point of unworkability. It places an undue burden on the courts, at both the trial and appellate levels, to actively police whether the prosecution has overstepped in its otherwise legitimate pleading—an anomalous, even anti-systemic requirement to impose on the judiciary in what is supposed to be an adversarial system. And it raises hard questions that the Court today does not acknowledge.

For example, consider the flip-side scenario. Suppose the State alleged forgery involving a check in an indictment under Subsection (d). This would, on its face, present a state jail felony. Suppose, also, that “it was shown on the trial” of the offense that the actor engaged in the offense to obtain a property or service, the value of which exceeded $30,000. Would it be incumbent on the trial court to instruct the jury sua sponte that it is also authorized to convict the actor, not for the state jail felony alleged, but for the greater offense set out in Subsection (e-1) (5), (6), or (7)? Because, after all, Subsection (d) is “[s]ubject to Subsection (e-1)”! Suppose the State were to object, insisting that it preferred to convict the actor of the state jail felony offense instead, and did not desire a conviction for the greater offense? Must the trial court overrule that objection? If the fact that Subsections (d) and (e) are “[s]ubject to Subsection (e-1)” means that Subsection (e-1) automatically becomes “law applicable to the case” whenever the elements of Subsection (e-1) are “shown” at trial, then the trial court would have to overrule the State's objection and instruct the jury on the greater (albeit unpled) offense. I doubt the Court would condone that result.

I respectfully dissent.

FOOTNOTES

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).

2.   Since we agree with those holdings, we doubt that its disposition reforming the judgment was correct. But because neither party contested the disposition, we do not address it.

1.   See Floor Amend. 4 to Tex. H.B. No. 351, 85th Leg., R.S. (May 24, 2017) (offered by Sen. Burton). The original bill was focused on fines and court costs and not the forgery statute or attaching a value ladder to it. See H.B. No. 351, 85th Leg., R.S. (Tex. 2017) (introduced by Canales); see also A Bill to be Entitled an Act, Canales, Tex. H. Comm. Rep., 85-762, 85 R.S. (2017).

2.   Compare Tex. Penal Code § 32.21(e-1), with § 32.21(d).

3.   See Wooden v. United States, 595 U.S. 360, 388-392, 142 S.Ct. 1063, 212 L.Ed.2d 187 (2022) (Gorsuch, J., concurring) (discussing in depth the history and development of the rule of lenity); Rule of Lenity, Black's Law Dictionary (11th ed. 2019) (“The judicial doctrine holding that a court, in construing an ambiguous criminal statute that sets out multiple or inconsistent punishments, should resolve the ambiguity in favor of the more lenient punishment.”); see also Diruzzo v. State, 581 S.W.3d 788, 802 n. 22 (Tex. Crim. App. 2019)(noting that the rule of lenity applies when the proper construction of a statute is in insoluble doubt).

1.   Capitalization converted to lowercase for ease of reading.

2.   State v. Green, 682 S.W.3d 253, 278-79 (Tex. Crim. App. 2024).

3.   966 S.W.2d 57 (Tex. Crim. App. 1998).

4.   Lennox v. State, No. 06-19-00164-CR, 2025 WL 793896, *3, *4 (Tex. App.—Texarkana March 13, 2025) (not designated for publication) (citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984)).

5.   Id. at *5.

6.   Id. (emphasis added).

7.   Id. at *5-6.

8.   Id. at *6-7.

9.   Id. at *7.

10.   Id.

11.   Lennox v. State, 613 S.W.3d 597, 600 n.3 (Tex. Crim. App. 2020).

12.   Tex. Penal Code § 32.21(d) (West 2020).

13.   Id. § 32.21(e-1)(2).

14.   See Crawford v. State, 710 S.W.3d 774, 782-83 (Tex. Crim. App. 2025) (referring to “descriptive averments” that “are not statutory and are pled just to provide notice” and suggesting that “deputy sheriff” allegation could be viewed as descriptive averment of “public servant” element in the indictment); Safian v. State, 543 S.W.3d 216, 220 (Tex. Crim. App. 2018) (referring to “descriptive averments, such as non-statutory manner and means, that are alleged for purposes of providing notice” as facts in addition to “elements” that can be alleged in a charging instrument).

15.   See Crawford, supra at 781-82, (Body of indictment facially alleged assault on a public servant with “public servant” language in the indictment, though “public servant” was more specifically described as a “deputy sheriff” and that description also meant that indictment also alleged every fact needed to convict of assault on a peace officer.).

16.   Kirkpatrick v. State, 279 S.W.3d 324, 329 (Tex. Crim. App. 2009).

17.   See id. (referring to caption indicating offense was a felony); see also Crawford, 710 S.W.3d at 786 (saying that the caption could at least arguably be used “to clarify what the State intended by the content that is already present in the body of the charging instrument”); Delarosa v. State, 677 S.W.3d 668, 677 (Tex. Crim. App. 2023) (distinguishing Kirkpatrick’s reliance on the caption because of jurisdictional problem in that case of interpreting indictment to allege a misdemeanor offense and declining to look at the caption when the body of the indictment alleges a facially complete felony offense).

18.   See Tex. Penal Code § 12.425(b).

19.   See id. at § 12.43(b).

20.   Tex. Code Crim. Proc. art. 37.09(1).

21.   See Geick v. State, 349 S.W.3d 542, 545 (Tex. Crim. App. 2011) (“When a statute lays out several alternative methods of committing the offense, and the indictment alleges only one of those methods, ‘the law as authorized by the indictment’ is limited to the method specified in the indictment.”).

22.   Pass, Black's Law Dictionary (12th ed. 2024) (entry 5) (“To publish, transfer, or circulate (a thing, often a forgery) .”).

23.   https://www.merriam-webster.com/dictionary/pass (viewed on Dec. 8, 2025) (entry 7a) (pass bad checks) (italics in original).

24.   Crawford, 710 S.W.3d at 782-83; Safian, 543 S.W.3d at 220. They even count for purposes of a greater offense that the State has the option to pursue under a charging instrument. See Crawford, supra at 783,.

25.   Crawford, supra; Safian, supra.

26.   See Tex. Penal Code § 32.01(2) (defining what “property” means “[i]n this chapter”). There appears to be no generic, code-wide definition of “property” in Tex. Penal Code § 1.07.

27.   The person alleged in the indictment as the one Appellant passed the checks to—Sherpa—was a convenience-store manager, though the indictment did not contain that description. Had that description been in the indictment, it would have been deducible that the checks were cashed for tangible money.

28.   Because the value-ladder offenses qualified, via descriptive averments, as a lesser-included offenses under Art. 37.09(1), I need not consider whether they could qualify under a different lesser-included test. Cf. Tex. Code Crim. Proc. art. 37.09(2) (“[I]t differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission.”).

29.   966 S.W.2d 57, 62-64 (Tex. Crim. App. 1998). In Barrera v. State, the Court held that a submitted defensive issue was law applicable to the case even if not requested by the defense. 982 S.W.2d 415, 416 (Tex. Crim. App. 1998).

30.   Posey, supra.

31.   306 S.W.3d 776, 780-82 (Tex. Crim. App. 2010).

32.   Id. at 780.

33.   953 S.W.2d 234, 237 (Tex. Crim. App. 1997) (“Moreover, Benson’s reliance upon Forman and Burks for the proposition that insufficient evidence means the case should never have been submitted to the jury underscores the inappropriateness of using the jury charge as a measurement of sufficiency. If the case should never have been submitted to the jury, that means there should not have been a jury charge in the case. If the question is whether a jury charge should even exist, how can the jury charge be the measurement of evidentiary sufficiency.”).

34.   Watson v. State, 693 S.W.2d 938, 940 (Tex. Crim. App. 1985) (“Over appellant's objection, the trial court charged the jury that they could convict appellant if they found he, ‘acting either alone or as a party to the offense’ committed the offense of burglary․ There is no evidence, either direct or circumstantial, that the appellant entered the Perkins’ residence. The fact that he was discovered ‘jimmying’ with the door of another house some six days later is not probative of this aspect of the instant offense. We find that the Court of Appeals was correct in finding error.”).

35.   999 S.W.2d 779, 787 (Tex. Crim. App. 1999) (Keller, J., dissenting).

36.   See Bowen v. State, 374 S.W.3d 427, 428 (Tex. Crim. App. 2012).

37.   The evidence at trial can vary non-materially from a non-statutory descriptive averment without rendering the evidence insufficient to support the charged offense. See Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012). I need not address how a variance regarding a descriptive averment might affect a lesser-included offense since there was no variance with respect to the checks in the present case.

38.   Smith v. State, 499 S.W.3d 1, 6 & n.16 (Tex. Crim. App. 2016).

39.   Baltimore v. State, 689 S.W.3d 331, 346 & n.63 (Tex. Crim. App. 2024).

40.   Cada v. State, 334 S.W.3d 766, 771 & n.14 (Tex. Crim. App. 2011).

41.   Barron v. State, 353 S.W.3d 879, 883-84 (Tex. Crim. App. 2011) (if synergistic theory of the offense was unsupported by the evidence, full-blown Almanza harm analysis required).

42.   But see Arteaga v. State, 521 S.W.3d 329, 338-40 (Tex. Crim. App. 2017)(conducting a relatively short analysis under the Almanza factors but essentially saying there was harm because “the evidence conclusively establishe[d]” that the aggravating element of the defendant being prohibited from marrying the victim (as understood by the penal provision) was untrue).

43.   Id. (bracketed material added for clarity).

44.   Id. (ellipsis inserted).

45.   Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

46.   Arteaga, 521 S.W.3d at 340-41.

47.   See id. at 338-41.

48.   Thornton v. State, 425 S.W.3d 289, 298-99 (Tex. Crim. App. 2014).

49.   Arteaga, 521 S.W.3d at 340 (discussing Bowen v. State, 374 S.W.3d 427, 429 (Tex. Crim. App. 2012) and its “progeny” and quoting from that progeny—Thornton).

1.   I agree with Judge Yeary's dissenting opinion, specifically in that the Court raises but does not acknowledge hard questions. Dissenting Op. at –––– (Yeary, J.).

2.   I again agree with Judge Yeary that such an obligation places an “undue burden on the courts.” Dissenting Op. at –––– (Yeary, J.).

3.   Green, 682 S.W.3d at 253–79 (Tex. Crim. App. 2024), available at https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=7f777d06-c4cf-4792-9c2b-c440a3d5cfe2&coa=coscca&DT=OPINION&MediaID=c397df7c-019b-4d77-9b05-cf98d23be7e5.

1.   See Bennett v. State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007); Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998), Tolbert v. State, 306 S.W.3d 776, 781 (Tex. Crim. App. 2010), and Delgado v. State, 235 S.W.3d 244, 254 (Tex. Crim. App. 2007).

2.   The court of appeals determined only that it was “fairly raised” in the course of the arguments Appellant made relating to his illegal sentence claim.

3.   See Tex. Penal Code § 2.02 (providing that an “exception” must be negated in the charging instrument and established by proof beyond a reasonable doubt).

4.   In a case like this one, the applicability of the value ladder established in Subsection (e-1) is dependent on a fact question: whether “the actor engaged in the conduct to obtain or attempt to obtain a property or service[.]” Tex. Penal Code § 32.21 (e-1). Issues of fact like that are not for appellate courts to resolve; they are to be resolved by a trier of the facts—when and only when they are appropriately raised and requested. The question of what burden should apply to such fact issues, as well as the question of upon whom any such burden rests, is not presented in this case, so I will not plunge head-long into those questions at this point. Suffice it to say that the answer to those questions might ultimately depend, it seems to me, on who raises the issue.

5.   None of this answers the question of whether counsel who fails to raise the in pari materia Subsection (e-1) question in a given case might have performed in a constitutionally ineffective manner. But that question is not raised in this proceeding, so it would be inappropriate to attempt to answer it here.

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.