Issues Granted - Allen Ray Shipp v. State

On January 27, 2009, the CCA granted discretionary review in the following case:

PD-1346-09, Allen Ray Shipp v. State: The CCA granted the State's petition for discretionary review without oral argument in this forgery of a commercial instrument case out of Fannin County on the following issues:

1. Is a store receipt a “commercial instrument” under the forgery statute when the receipt is used as proof of purchase for items that were not actually purchased?

2. Should Collier v. State be overruled?

To hear Allen Shipp tell it, his wife gave him the shopping cart at the local Wal-Mart. It contained a computer and a computer desk. She also gave him what she said was the receipt and told him everything was already paid for. He just needed to take it all to the car. When loss prevention officers stopped him in the parking lot, he held up the commercial talisman bestowed upon him by his caring wife only to find that the receipt was forged. The State charged him with forgery of a commercial instrument.

The court of appeals reversed, holding that the receipt was not a commercial instrument.

Here's a link to the court of appeals case information. Here's a link to the published court of appeals opinion. The trial court had defined "commerical instrument" as basically a writing connected to trade. The court of appeals explained, at the risk of being pedantic (yes, they were actually concerned about that), that all the other types of forged instruments relate to legal rights or relationships. In contrast, a store receipt simply memorializes a transaction that previously occurred. A "fait accompli" if you swing that way. Consequently, because the receipt does not convey any future benefit, it was not a commercial instrument according to the court of appeals.

What's all this about Collier then? Frankly, I'm at a loss. It's not cited in the opinion. I'm going to assume it has to do with the court of appeals reliance upon the doctrine of ejusdem generis, which is apparently a Harry Potter way of saying that you restrict the meaning of an undefined thing that follows an enumeration of particular thing to something that makes your thing similar to the enumerated things. I think it's actually Latin for "one of these kids doesn't belong here." Or perhaps it has something to do with how the court of appeals morphed the sufficiency challenge into a jury charge harm analysis. I don't know. I'm sure all will be made clear.

Update: Spoke with a person much smarter than myself who indicated that Collier holds that a judgment cannot be reformed to reflect a conviction on a lesser-included offense unless that lesser was submitted to the jury. D'oh! I was just being too specific. In any case, here's a link to the archived hand down list that features Collier.

[Note: I don't know that I found the relationship distinction drawn by the court of appeals too persuasive. Sure a receipt memorializes a transaction, but you do use it to get your money back. Not quite commercial paper, but still more than a docket notation. Conversely, I couldn't help but feel that maybe the court thought this should've been a shoplifting case or that one of the judges got punked out by his wife at the local Wal-Mart.]