Clinton v. State

• Citation: 354 S.W.3d 795
• Decision Date: 14 December 2011
• Docket Number: No. PD–0119–11.,PD–0119–11.
• Parties: Katherine CLINTON, Appellant, v. The STATE of Texas.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

354 S.W.3d 795

Katherine CLINTON, Appellant,

v.The STATE of Texas.

No. PD–0119–11.

Court of Criminal Appeals of Texas.

Dec. 14, 2011.

Tim Cone, Gilmer, for Appellant.

Chrristie M. Martin, Asst. D.A., Gilmer, Lisa C. McMinn, State's Attorney, Austin, for State.

OPINION

ALCALA, J., delivered the opinion of the Court, in which KELLER, P.J., MEYERS, WOMACK, JOHNSON, KEASLER, HERVEY, and COCHRAN, JJ., joined.

A jury convicted appellant, Katherine Clinton, for the state-jail felony of debit card abuse. See Tex. Pen.Code § 32.31(b)(1). The court of appeals reversed appellant's conviction for insufficient evidence and reformed the judgment to reflect a conviction for the lesser-included offense of attempted debit card abuse. Clinton v. State, 327 S.W.3d 366 (Tex.App.-Texarkana 2010). The Court determined that the State failed to prove that appellant “used” the debit card. Id.

The State and appellant each filed petitions for discretionary review. The State's petition asks whether the terms “use” and “present” in the debit-card-abuse statute are mutually exclusive so that there is no overlap in the meaning of the words. The State contends that the court of appeals erred by finding that appellant's presentation of the debit card failed to prove that she “used” the debit card and by requiring that “use” of a debit card include proof of consummation of the transaction. Appellant responds that the court of appeals properly determined that the evidence is legally insufficient to prove “use” of a debit card because “use” of a card, unlike presentation of a card, requires proof that the transaction was successfully completed. Appellant's petition inquires whether a court of appeals has the authority to reform a judgment to reflect a conviction for a lesser-included offense when the lesser-included-offense instruction was not in the jury charge and the request for the lesser instruction was not preserved for appeal.

Based on the ordinary meaning of the words as used in the statute, we conclude that the statutory terms “use” and “present” may overlap in meaning, that a transaction need not be consummated to support a jury finding that a defendant used a debit card, and that the court of appeals erred by determining that the evidence is insufficient to establish debit card abuse. Because we reinstate the trial court's judgment, we conclude that appellant's petition regarding the reformation of the judgment was improvidently granted.

I. Background

Steven Hubbard's vehicle was burglarized, resulting in the loss of his debit card, among other items. Later that day, appellant received the card from another individual, whom she knew was not the owner. To purchase cigarettes, appellant swiped the stolen debit card through a card reader at a Wal–Mart. The store declined the card, did not debit Hubbard's account, and did not permit appellant to obtain the cigarettes.

The State charged appellant with debit card abuse by indictment, which alleged that she

did then and there with intent to fraudulently obtain a benefit, use a debit card, namely, a First National Bank debit card, with knowledge that the card had not been issued to the said defendant, and with knowledge that said card was not used with the effective consent of the cardholder, namely, S. Hubbard.

See Tex. Pen.Code § 32.31(b)(1). Consistent with this indictment, the jury charge required the State to prove that appellant “used” the debit card. The jury found appellant guilty.

In her direct appeal, appellant argued that the State presented insufficient evidence to prove debit card abuse, and the court of appeals agreed. Clinton, 327 S.W.3d at 370. According to appellant, failure to complete the transaction and obtain a benefit means she presented the credit card, but did not use it. Id. The court of appeals analyzed the definitions of “use” and “present” and concluded that appellant's actions were not covered by the definition of “use.” Id. (citing Tex. Gov't Code § 311.021(2)). According to the court of appeals, interpreting “use” to include appellant's actions renders the word meaningless in the statute, as “use” and “present” would then overlap in meaning. The court of appeals stated, “If ‘uses' is interpreted broadly enough to cover what Clinton has been proven to have committed, the Texas Legislature would have had no purpose for including, in the statute, the word ‘presents' in addition to the word ‘uses.’ ” Id. Based on the structure of the statute and the dictionary definition, the court of appeals held that “present” means “to tender [a] debit or credit card” and that “use” means “to employ [a] card in any other manner including, but not limited to, successfully completing a transaction.” Id. (quoting Random House Webster's Unabridged Dictionary 1529, 2097 (2d. ed.2001)). Because the evidence against appellant did not support a conviction under these definitions, the court of appeals determined the evidence was legally insufficient to support a jury finding that the defendant “used” the debit card, reformed appellant's judgment to reflect a conviction on the lesser-included offense of attempted debit card abuse, and remanded the case for a new punishment hearing. Id. at 372.

II. Analysis

To determine whether the court of appeals properly analyzed the legal sufficiency of the evidence, we must conduct two steps. First, we must determine “the essential elements of the crime” for which the prosecution must provide sufficient evidence to support a conviction. Geick v. State, 349 S.W.3d 542, 545 (Tex.Crim.App.2011) (not yet reported). Second, we conduct a sufficiency review by examining all of the evidence in the record in the light most favorable to verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See id.; see also Jackson v. Virginia, 443 U.S. 307, 318, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We conduct a de novo review of statutory interpretation. Williams v. State, 253 S.W.3d 673, 677 (Tex.Crim.App.2008).

A. Essential Elements of Crime

To identify “the essential elements of the crime,” we look to “the hypothetically correct jury charge for the case.” Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). A hypothetically correct jury charge is “one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.” Id. This list is “not necessarily exhaustive.” Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000). The law as authorized by the indictment consists of “the statutory elements of the offense ... as modified by the charging instrument.” Id. “[W]hen the statute defines alternative methods of manner and means of committing an element and the indictment alleges only one of those methods, ‘the law’ for purposes of the hypothetically correct charge[ ] is the single method alleged in the indictment.” Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App.2001).

The penal code provides that a person may be guilty of debit card abuse either by using it or presenting it. See Tex. Pen.Code § 32.31(b)(1). But because the indictment limits the manner and means of committing debit card abuse to only “use,” the State must prove that the appellant used the debit card for the evidence to be sufficient. See id; Curry, 30 S.W.3d at 404 (holding that sufficiency of evidence must be weighed against “manner and means of abduction” alleged in indictment); see also Gollihar, 46 S.W.3d at 254 (stating that law authorized by indictment is limited to “the single method alleged in the indictment”).

B. Sufficiency Review

Because the State must prove “use” of the debit card for the evidence to be legally sufficient, we must define “use” before reviewing the evidence.

1. Applicable Law for Interpreting a Statute

When interpreting statutory language, we focus on the “ ‘collective’ intent or purpose of the legislators who enacted the legislation.” Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). To determine the collective intent of the Legislature, we look first to the literal text. Id. This provides the best means to determine “the fair, objective meaning of that text at the time of its enactment.” Id.

We construe a statute according to its plain meaning without considering extratextual factors unless the statutory language is ambiguous or imposing the plain meaning would cause an absurd result. See id. at 785–86. ¹ To determine the plain meaning of a statute, we apply the canons of construction. Rushing v. State, 353 S.W.3d. 863, 865 (Tex.Crim.App.2011) (not yet reported). Among the canons of construction is a list of presumptions regarding legislative intent. See Tex. Gov't Code § 311.021. Under these canons, in the Legislature's enactment of a statute, it is presumed that (1) compliance with the constitutions of this state and the United States is intended; (2) the entire statute is intended to be effective; (3) a just and reasonable result is intended; (4) a result feasible of execution is intended; and (5) public interest is favored over any private interest. Id.

2. Analysis of Plain Meaning of Statute

The statutory text provides that a person commits debit card abuse if he presents or uses a debit card with intent to obtain a benefit fraudulently and with knowledge that the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder. Tex. Pen.Code § 32.31(b)(1). Because the penal code does not define the words “presents” or “uses” for the debit-card-abuse offense, we must determine what those words mean under this statute. See id. When analyzing the sufficiency of the evidence, undefined statutory terms “are to be understood as ordinary usage allows, and jurors may thus freely read statutory language to have any...