      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00164-CR



                                 The State of Texas, Appellant

                                                 v.

                                 Jeffery Porter Allen, Appellee


    FROM THE DISTRICT COURT OF COMAL COUNTY, 207TH JUDICIAL DISTRICT
         NO. CR2008-327, HONORABLE GARY L. STEEL, JUDGE PRESIDING



                                          OPINION


               Jeffery Porter Allen was indicted for the offense of forgery of a government document

(a driver’s license). See Tex. Penal Code Ann. § 32.21 (West Supp. 2009) (defining forgery). Allen

moved to quash the indictment, arguing that although the forgery statute found in the penal code

generally applies to the violations alleged in the indictment, the transportation code contains more

specific provisions covering the conduct at issue. See Tex. Transp. Code Ann. §§ 521.451 (West

2007), .455 (West Supp. 2010). For that reason, Allen argued that the more specific provisions

under the transportation code controlled. The trial court granted Allen’s motion and quashed the

indictment. The State appeals the trial court’s order. See Tex. Code Crim. Proc. Ann. art.

44.01(a)(1) (West Supp. 2009) (limiting grounds upon which State may appeal order of court in

criminal case). We will reverse and remand the case to the district court.
                      FACTUAL AND PROCEDURAL BACKGROUND

               In 2008, the State indicted Allen for forgery of a government document, a third-

degree felony under the penal code. See Tex. Penal Code Ann. § 32.21(e)(3). The indictment

alleged that Allen


       did . . . , with intent to defraud or harm another[,] pass, publish, or otherwise utter a
       writing that was forged, knowing such writing was forged, and such writing was a
       governmental record or other instrument issued by state government or a subdivision
       thereof, to-wit: a Texas Driver[’]s License of the tenor following:

       [The indictment then includes a photographic reproduction of the driver’s license that
       Allen allegedly used. The name on the license is “Greg Sampson,” not Jeffery Allen.
       The record does not indicate whether other information on the license (e.g., date of
       birth, address) is false or whether the individual pictured on the license is Allen.]


               Allen filed a motion to quash the indictment. Essentially, Allen argued that the

offense alleged must be tried under various transportation code provisions rather than the forgery

statute. Moreover, Allen contended that because his alleged crime was only a misdemeanor under

the transportation code, the district court lacked jurisdiction over the case. See Tex. Code Crim.

Proc. Ann. art. 4.05 (West 2005) (limiting types of offenses that district courts have jurisdiction over

to felonies and certain misdemeanors).

               In response to the motion, the court held a hearing. During the hearing, no evidence

was presented regarding the allegations against Allen. Ultimately, the district court issued an order

granting Allen’s motion. The court subsequently issued findings and conclusions stating that the

transportation code provisions applied, that Allen had the right to be charged under the transportation

code, and that accordingly, the court did not have jurisdiction over the case.



                                                   2
               The State appeals the district court’s order.


                                    STANDARD OF REVIEW

               “The sufficiency of a charging instrument presents a question of law.” Smith v. State,

309 S.W.3d 10, 13 (Tex. Crim. App. 2010). Accordingly, appellate courts review a trial court’s

ruling on a motion to quash under a de novo standard. Id. at 14; see also State v. Moff, 154 S.W.3d

599, 601 (Tex. Crim. App. 2004) (applying de novo review to trial court’s decision to quash

indictment because issue was question of law and because resolution of issue did not depend on

“credibility and demeanor of witnesses”).


                                           DISCUSSION

               In a single issue on appeal, the State alleges that the district court erred by concluding

that the provision of the forgery statute under which Allen was indicted was in pari materia with

various transportation code provisions and that Allen, therefore, had the right to be charged under

the transportation code.

               The doctrine of in pari materia is a principle of statutory interpretation. Mills v. State,

722 S.W.2d 411, 413 (Tex. Crim. App. 1986). The doctrine is codified in the Code Construction

Act as follows:


       (a) If a general provision conflicts with a special or local provision, the provisions
       shall be construed, if possible, so that effect is given to both.

       (b) If the conflict between the general provision and the special or local provision
       is irreconcilable, the special or local provision prevails as an exception to the general
       provision, unless the general provision is the later enactment and the manifest intent
       is that the general provision prevail.

                                                   3
Tex. Gov’t Code Ann. § 311.026 (West 2005); see Azeez v. State, 248 S.W.3d 182, 192 (Tex. Crim.

App. 2008) (stating that government code section 311.026 codifies doctrine of in pari materia). The

doctrine of in pari materia is employed to implement the “‘full legislative intent, by giving effect to

all laws and provisions bearing on the same subject.’” Cheney v. State, 755 S.W.2d 123, 126 (Tex.

Crim. App. 1988), quoting 53 Tex.Jur.2d, Statutes § 186 (1964), at 280.

               We deem two criminal statutes to be in pari materia when one broadly defines an

offense and the other more narrowly defines an offense, complete within itself, that proscribes

conduct that meets every element of and would otherwise be punishable under the broader statute.

Azeez, 248 S.W.3d at 192. Statutes that are in pari materia are construed together and, if possible,

conflicts between them are harmonized. Cheney, 755 S.W.2d at 127. If conflicts between them

cannot be harmonized—as when the narrower statute provides for a lesser punishment than the

broader statute—a defendant has a due-process right to be prosecuted under the narrower statute in

accordance with the presumed legislative intent that the more narrow statute apply. Mills,

722 S.W.2d at 414; see Juarez v. State, 308 S.W.3d 398, 405 (Tex. Crim. App. 2010) (stating that

“[w]hen interpreting statutes that are in pari materia and construed together, both are given effect

with the special governing over the general in the event of a conflict”).

               Courts consider several factors in determining whether two statutes are in pari

materia. See Burke v. State, 28 S.W.3d 545, 547-48 (Tex. Crim. App. 2000). The most important

factor is similarity of object or purpose, which we analyze by considering whether the statutes (1) are

contained in the same legislative act; (2) require the same elements of proof; (3) involve different

penalties; and (4) were clearly written to achieve the same objective. In re J. M. R., 149 S.W.3d 289,



                                                  4
292 (Tex. App.—Austin 2004, no pet.) (citing Burke, 28 S.W.3d at 547-49). When an in-pari-

materia assertion is made prior to trial and, accordingly, before an evidentiary record has been

developed, a court may only conclude that two statutes are in parti materia if the charging instrument

“on its face” raises the in-pari-materia issue. See State v. Wiesman, 269 S.W.3d 769, 773-74 (Tex.

App.—Austin 2008, no pet.).

               With these principles in mind, we turn to the statutes at issue. Allen was charged with

forging a governmental document, namely a driver’s license. See Tex. Penal Code Ann. § 32.21(b),

(e); see also id. § 37.01(2)(C) (West Supp. 2009) (listing license as type of governmental record).

As mentioned above, Allen urges that various provisions of the transportation code are in pari

materia with and narrower than the forgery provision at issue. In particular, Allen points to

sections 521.451 and 521.455. See Tex. Transp. Code Ann. §§ 521.451, .455. Section 521.451 lists

five categories of prohibited activities, but Allen limits his arguments to the behavior described in

subsection 521.451(a)(1). See id. § 521.451(a)(1). The other subsections proscribe displaying or

representing another’s driver’s license as one’s own, lending or permitting another to use one’s

driver’s license, possessing more than one current driver’s license, and providing false information

or making false statements when applying for “an original, renewal, or duplicate driver’s license.”

See id. § 521.451(a)(2)-(5). There are no allegations in the indictment that would fall under any of

these prohibited activities.

               The subsection Allen relies on when making his in-pari-materia argument prohibits

a person from displaying, causing or permitting to be displayed, or possessing driver’s licenses that

the person knows are “fictitious” or have “been altered.” Id. § 521.451(a)(1). Allen also refers to



                                                  5
section 521.455, which states that “[a] person commits an offense if the person intentionally or

knowingly uses a driver’s license or certificate obtained in violation of Section 521.4511 . . . to harm

or defraud another.” Id. § 521.455. A violation under either of the transportation code provisions

is a class A misdemeanor, see id. §§ 521.451(b), .455(b), but the violation alleged under the forgery

statute is a third-degree felony, see Tex. Penal Code Ann. § 32.21(e)(3) (stating that forgery is third

degree felony if writing “is or purports to be . . . instruments issued by a state or

national government”).

                For the reasons that follow, we cannot conclude that the transportation code

provisions referred to by Allen are in pari materia with the forgery provision forming the basis for

the indictment.2

                First, the forgery statute and the transportation code provisions are not contained in

the same legislative act. The forgery provision was codified in 1973, see Act of May 23, 1973, 63rd

Leg., R.S., ch. 399, § 32.21, 1973 Tex. Gen. Laws 883, 935, whereas the transportation code




       1
         Section 521.455 also states that a person commits an offense if he uses a driver’s license
obtained in violation of section 521.454. Tex. Transp. Code Ann. § 521.455 (West Supp. 2010).
On appeal, neither the State nor Allen argues that section 521.454 has any applicability to this case.
That provision concerns false applications for driver’s licenses, see id. § 521.454 (West Supp. 2010),
and Allen’s indictment makes no allegation regarding a driver’s license application. Accordingly,
we need not consider section 521.454 in this opinion.
        2
           We note that transportation code section 521.455 now contains a subsection that speaks
to in-pari-materia disputes. See id. § 521.455(c) (stating that “[i]f conduct constituting an offense
under this section also constitutes an offense under another law, the actor may be prosecuted under
this section, the other law, or both”). That subsection was added after this dispute arose, however,
and does not apply retroactively. See Act of June 19, 2009, 81st Leg., R.S., ch. 1130, § 35, 2009
Tex. Gen. Laws 3119, 3129.

                                                   6
provisions were codified in 1995. See Act of April 21, 1995, 74th Leg., R.S., ch. 165, § 1, secs.

521.451, .455, 1995 Tex. Gen. Laws 1025, 1574-75.

                Second, the conduct prohibited by the transportation code provisions differs from that

proscribed by the forgery provisions at issue. As mentioned above, subsection 521.451(a)(1) of the

transportation code forbids people from possessing or displaying driver’s licenses that they know

are either fake or have been altered. See Tex. Transp. Code Ann. § 521.451(a)(1). As a preliminary

matter, we note that there is no allegation in the indictment stating that Allen impermissibly

possessed or displayed a fictitious driver’s license.

                Although possession is punishable under the transportation code, id., possession is

not punishable under the forgery provision that forms the basis for Allen’s indictment.3 The forgery

provision at issue provides that a person commits an offense “if he forges a writing with intent to

defraud or harm another.” Tex. Penal Code Ann. § 32.21(b); see also id. § 32.21(e) (elevating

degree of offense if forged writing “is or purports to be” governmental document). The statute

defines “forge” as meaning “to alter, make, complete, execute, or authenticate any writing so that

it purports” to be the act of another, to have been executed at a different time or place than it actually




        3
            The forgery statute does prohibit the possession of a document but only if the document
is “forged” and if the person has the “intent to utter” the document. Tex. Penal Code Ann.
§ 32.21(a)(1)(C) (West Supp. 2009). However, Allen was not charged under this provision of the
penal code, and the indictment contains no allegations supporting a charge under that provision.
Moreover, there is no requirement in subsection 521.451(a)(1) of the transportation code that the
offender possess an object with an intent to “utter” it as is required by the forgery statute. Compare
Tex. Transp. Code Ann. § 521.451(a)(1) (West 2007), with Tex. Penal Code Ann. § 32.21(a)(1)(C);
see also Burks v. State, 693 S.W.2d 932, 935 (Tex. Crim. App. 1985) (noting that section 32.21(a)(1)
of forgery statute consolidated various forgery statutes and now prohibits “three kinds of criminal
acts . . . (1) making or altering, (2) passing or uttering[,] or (3) possessing with intent to utter”).

                                                    7
was, or to be a copy of an original that does not exist. Id. § 32.21(a)(1)(A). The forgery statute also

defines “forge” as meaning “to issue, transfer, register the transfer of, pass, publish, or otherwise

utter a writing that is forged” under the definition given above. Id. § 32.21(a)(1)(B). Allen was

charged under the second definition listed in the forgery statute (subsection 32.21(a)(1)(B)). In

particular, the indictment alleged that Allen passed, published, or otherwise uttered a forged writing.

                Because possession is not punishable under the forgery provision at issue, that

provision can only be deemed in pari materia with the transportation code forgery provisions relied

on by Allen if the forgery statute prohibits displaying or causing or permitting the display of a

fictitious driver’s license. See Tex. Transp. Code Ann. § 521.451(a)(1); Tex. Penal Code Ann.

§ 32.21(a), (b). The forgery statute does not expressly contain a display element. Accordingly, in

order for the indictment to show on its face that the two statutes are in pari materia, displaying a

driver’s license must fall under the language contained in the provision under which Allen was

indicted, which prohibits passing, publishing, or “otherwise” uttering a forged writing. See Tex.

Penal Code Ann. § 32.21(a)(1)(B). “Display” is not defined by the transportation code, but the term

is generally defined as meaning “to spread before the view: exhibit to the sight or mind: give

evidence of: show, manifest, disclose.” Webster’s Third New Int’l Dictionary 654 (2002).

                The terms “pass,” “publish,” and “utter” are not defined by the penal code, but

various dictionary definitions for the terms demonstrate that there is some overlap in the meaning

of those terms. For example, Black’s Law Dictionary states that “‘[p]ass,’ ‘utter’ [and] ‘publish’ . . .

are in some respects convertible terms, and, in a given case, ‘pass’ may include utter [and] publish.”

Black’s Law Dictionary 776 (6th ed. abridged 1991); see also Parker v. State, 985 S.W.2d 460, 464



                                                   8
(Tex. Crim. App. 1999) (noting that there is great deal of overlap between terms pass, utter, and

publish as used in forgery statute); Smith v. State, 762 S.W.2d 303, 304 (Tex. App.—Houston [1st

Dist.] 1988, no pet.) (stating that term “utter” is similar to term “pass”).

                 Although the precise boundaries created by the legislature’s use of the terms “utter,”

“pass,” and “publish” are not easily ascertained, those terms seem to contemplate more than

displaying an object. For example, Black’s Law Dictionary explains that the words pass, utter, and

publish “include any delivery of a note to another for value” and equates the words with “sell” in

certain circumstances. Black’s Law Dictionary 776 (6th ed. abridged 1991). Similarly, Black’s Law

Dictionary explains that the term “utter” means “[t]o put or send (as a forged check) into circulation;

to publish or put forth; to offer. . . . To utter, as used in a statute against forgery . . . , means to offer,

whether accepted or not, a forged instrument, with the representation, by words or actions, that the

same is genuine.” Id. at 1074; see Peterson v. State, 645 S.W.2d 852, 854 (Tex. App.—Tyler 1982,

no pet.) (quoting definition of “utter” found in Black’s Law Dictionary).

                 Support for the idea that the terms require more than merely displaying can also be

found in non-legal dictionaries. For example, “utter” has been defined as meaning “to place on the

market: offer for sale or barter: dispose of in trade: sell, vend.” Webster’s Third New Int’l

Dictionary 2526 (2002). In addition, “publish” has been characterized as connoting “to place before

the public . . . disseminate . . . to produce for publication or allow to be issued for distribution or

sale.” Id. at 1837. “Pass” has been assigned a similar definition as signifying “to go from one

person to another . . . : circulate . . . : to place in circulation: give currency to . . . : to transfer from

one person to another; cause to go from hand to hand.” Id. at 1649-50.



                                                      9
                Case law applying the terms in the forgery statute also indicates that the legislature

intended something other than simply displaying a writing. For example, the court of criminal

appeals determined that “an instrument is passed . . . if it is delivered or circulated” and that the term

“pass” includes handing a forged instrument to another but also includes situations in which there

is no manual transfer, including giving an instrument to one person and allowing that person to

transfer it to another individual in exchange for compensation. Parker, 985 S.W.2d at 464.

However, the court also explained that satisfying the “pass” element does not necessarily “require

a showing that the defendant actually received consideration in exchange for the instrument”

but does require a showing that the defendant “offer[ed] the instrument.” McGee v. State,

681 S.W.2d 31, 31 (Tex. Crim. App. 1984); see McDonald v. State, 829 S.W.2d 378, 382 (Tex.

App.—Texarkana 1992, no pet.) (stating that passing includes handing forged instrument from one

person to another).

                Moreover, when construing the meaning of a statute, courts must consider the whole

statute and give effect to all of the words and phrases used, if possible. See Seals v. State,

187 S.W.3d 417, 422 (Tex. Crim. App. 2005). When the words “utter,” “publish,” and “pass” are

viewed in light of the other activities prohibited by that forgery provision (“to issue, transfer, register

the transfer of” a forged writing), it seems apparent that the legislature was intending to prohibit

something more than simply displaying a fictitious writing.                    See Tex. Penal Code

Ann. § 32.21(a)(1)(B). This seems particularly true in this case, where the legislature listed various

prohibited activities but then included the phrase “or otherwise utter” at the end of the provision.

See id.; see also Webster’s Third New Int’l Dictionary, 1598 (2002) (defining “otherwise” as



                                                    10
meaning “in a different way or manner: differently”). In other words, the legislature’s inclusion of

the word “otherwise” is some indication that the prohibited acts are similar in nature.

               In light of the preceding, we cannot conclude that the conduct prohibited by

subsection 521.451(a)(1) of the transportation code falls squarely within the conduct identified by

the forgery provision at issue. Although the analogy is not precisely on point, the distinction the

legislature has made here is similar to the distinction it made between individuals who possess

controlled substances and those who sell them to others. Compare Tex. Health & Safety Code Ann.

§ 481.115 (West 2010) (prohibiting possession of controlled substances), with id. § 481.112 (West

2010) (outlawing manufacturing or delivering controlled substances as well as possession of

controlled substances with intent to deliver). In accordance with that distinction, the legislature

imposed different penalties for the two offenses. See id. §§ 481.112, .115 (setting out different

penalties for possession of defined amounts of controlled substances and for manufacturing or

distributing same amounts). Similarly, the legislature created different sanctions for violations of

the transportation code and for violations of the forgery statute. Compare Tex. Transp. Code Ann.

§§ 521.451(b), .455(b) with Tex. Penal Code Ann. § 32.21(e)(3).

               In addition, subsection 521.451(a)(1) of the transportation code does not have an

“intent to harm or defraud another” element like the one listed in the forgery statute. Compare Tex.

Transp. Code Ann. § 521.451(a)(1), with Tex. Penal Code Ann. § 32.21(b); see also Burke,

28 S.W.3d at 549 (concluding that statutes at issue were not in pari materia, in part, because one had

mental-state element that other lacked); In re J. M. R., 149 S.W.3d at 294-95 (same); Segura v. State,

100 S.W.3d 652, 656 (Tex. App.—Dallas 2003, no pet.) (same).




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               When arguing that the district court’s decision was proper, Allen avers that

section 521.455 contains the intent requirement and that the statutes must be read together.

Section 521.455 does have a “harm or defraud another” element that is similar to that found in the

forgery provision. See Tex. Transp. Code Ann. § 521.455(a). Specifically, the provision states that

“[a] person commits an offense if the person intentionally or knowingly uses a driver’s license

or certificate obtained in violation of Section 521.451 . . . to harm or defraud another.” Id.

(emphases added).

               Although section 521.455 refers to section 521.451, it does not provide a mental state

for a crime alleged under section 521.451; on the contrary, section 521.455 sets out the elements and

mental state for a separate offense. Id. § 521.455(a). In addition, it is not entirely clear that

section 521.455 could have any bearing on the subsection of 521.451 that Allen relies on.

Section 521.455 requires that the State prove that the “license or certificate” was “obtained in

violation of Section 521.451.” Id. (emphasis added). In addition to prohibiting the display or

possession of a “fictitious” driver’s license, id. § 521.451(a)(1), the remaining provisions of

section 521.451 proscribe displaying or representing another’s driver’s license as one’s own, lending

or permitting another to use one’s driver’s license, possessing more than one current driver’s license,

and providing false information or making false statements on applications for “an original, renewal,

or duplicate driver’s license,” id. § 521.451(a)(2)-(5). In light of the additional prohibitions listed

in section 521.451, the “obtained in violation of Section 521.451” phrase found in section 521.455




                                                  12
most logically refers to the ban on providing false information or making false statements on driver’s

license applications. See id. §§ 521.451(a)(5), .455(a).4

               Even assuming that section 521.455 can, as urged by Allen, be read in conjunction

with subsection 521.451(a)(1) (displaying or possessing fictitious or altered licenses), we would still

be unable to conclude that section 521.451(a)(1) and 521.455 are in pari materia with the forgery

provision used in the indictment. There is no comparable “obtained in violation of” provision in the

forgery statute. Compare id. § 521.455, with Tex. Penal Code Ann. § 32.21. Moreover, as discussed

previously, the conduct prohibited by subsection 521.451(a)(1) differs from the behavior outlawed

by the forgery provision at issue. Compare Tex. Transp. Code Ann. § 521.451(a)(1), with Tex. Penal

Code Ann. § 32.21(a)(1)(B), (b). Consequently, even incorporating the “harm or defraud” element

from section 521.455 of the transportation code into the behavior described in subsection

521.451(a)(1) does not lead to a conclusion that the forgery provision at issue is in pari materia with

the transportation code provisions relied on by Allen because the elements of the offenses listed in

the transportation code provisions would still not match the elements of the prohibited behavior

identified in the forgery provision forming the basis for the indictment.5


       4
          This conclusion is supported by the full text of section 521.455. As mentioned in footnote
1, section 521.455 states that a person commits an offense if he uses a driver’s license “obtained in
violation of” section 521.454. Tex. Transp. Code Ann. § 521.455(a). Like subsection 521.451(a)(5),
section 521.454 concerns providing false information when applying for or renewing driver’s
licenses, id. § 521.454(a).
       5
          In his motion to quash, Allen also invoked section 521.456 of the transportation code. See
Tex. Transp. Code Ann. § 521.456 (West Supp. 2010). That provision addresses manufacturing
and delivering counterfeit documents. Id. At the hearing on his motion, Allen asserted that he
referred to section 521.456 because he believed that case law discussing the predecessor to section
521.456 also applied to sections 521.451 and 521.455. See Ex parte Holbrook, 606 S.W.2d 925, 926

                                                  13
                For these reasons, we cannot conclude that subsection 521.451(a)(1) and

section 521.455 of the transportation code are in pari materia with the forgery provision that forms

the basis for Allen’s indictment. Accordingly, we hold that the district court erred by granting


(Tex. Crim. App. 1980) (discussing predecessor statute to section 521.456). In other words, Allen
was not asserting that the State could have charged him under section 521.456. Moreover, when it
issued its order, the trial court granted Allen relief under sections 521.451 and 521.455 but not
521.456.

         On appeal, Allen does not assert that the allegations in the indictment would support a charge
under section 521.456, but he does refer to cases discussing the predecessor to section 521.456.
Primarily, Allen relies on Ex parte Holbrook. In that case, Holbrook was charged with the crime of
unlawful possession of a forged driver’s license. Id. at 925-26. Under the statute in effect at that
time, a person committed an offense if he made a driver’s license or possessed the forged license
with an intent to sell or circulate it. See Act of May 18, 1967, 60th Leg., R.S., ch. 328, § 44A, 1967
Tex. Gen. Laws 778, 787 (Former Tex. Rev. Civ. Stat. Ann. art. 6687b, § 44A(a)). In his application
for a writ of habeas corpus, Holbrook asserted that his indictment was fundamentally flawed because
it failed to allege that he possessed a license with the intent to use it. Id. Ultimately, the court of
criminal appeals granted the relief requested and dismissed the indictment. Id.

        When discussing the unlawful-possession statute, the court of criminal appeals commented
that the alleged offense is also proscribed by the “general forgery statute.” Id. Further, the court
noted that the unlawful-possession statute “is a special statute which deals directly with the unlawful
possession of a counterfeit driver’s license. Under such circumstances, the special statute controls
over the general statute.” Id. In light of this language, Allen insists that the court of criminal appeals
has already determined that “[t]he driver’s license statutes and the forgery statute are in pari materia
. . . and [that the] specific driver’s license statutes control over the general penal code forgery
provision.”

        Allen’s reliance on this case is misplaced. In Holbrook, the court of criminal appeals was
not confronted with determining whether the two statutes were actually in pari materia and any
comment regarding the relationship between those statutes was dicta. Moreover, the statute at issue
in Holbrook did not prohibit the conduct proscribed in sections 521.451(a)(1) and 521.455 of the
transportation code. See Tex. Transp. Code Ann. §§ 521.451(a)(1), .455. In fact, as described
above, when the statute at issue was subsequently recodified, it was placed into section 521.456 of
the transportation code. See id. § 521.456 (West Supp. 2010) (prohibiting delivery or manufacture
of counterfeit instruments). Accordingly, we cannot embrace Allen’s assertion that the court of
criminal appeals in Holbrook held that the statutes at issue in this case are in pari materia with the
forgery statute.

                                                   14
Allen’s motion to quash and that the State has the discretion to charge Allen under penal code

section 32.21. See Mills, 722 S.W.2d at 414-15. We therefore sustain the State’s issue on appeal.


                                        CONCLUSION

              Having determined that the district court erred by granting Allen’s motion to quash,

we remand the cause for further proceedings consistent with this opinion.




                                            __________________________________________

                                            David Puryear, Justice

Before Justices Puryear, Pemberton and Goodwin

Reversed and Remanded

Filed: February 16, 2011

Publish




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