Clinton v. State , 06–10–00090–CR.

• Decision Date: 06 April 2011
• Docket Number: No. 06–10–00090–CR.,06–10–00090–CR.
• Citation: 327 S.W.3d 366
• Parties: Katherine CLINTON, Appellant,v.The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

327 S.W.3d 366

Katherine CLINTON, Appellant,

v.The STATE of Texas, Appellee.

No. 06–10–00090–CR.

Court of Appeals of Texas, Texarkana.

Submitted Nov. 3, 2010.Decided Nov. 17, 2010.Discretionary Review Granted April 6, 2011.

Tim Cone, Gilmer, for appellant.Billy W. Byrd, Dist. Atty., Christie M. Martin, Asst. Dist. Atty., Gilmer, for appellee.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Chief Justice MORRISS.

Katherine Clinton admits that she attempted to purchase cigarettes with the debit card of another person. Her resulting conviction for credit or debit card abuse was based on an indictment charging that Clinton “used” the debit card but omitting any allegation that she “presented” the card. Clinton's appeal of her conviction centers on that wording of the indictment. Clinton argues that, because the State proved only that she “presented” the debit card, the evidence is legally and factually insufficient to support a conclusion that she “used” it. We agree. In this situation, the State was obligated to prove the indictment's allegation that Clinton “used” the card, an integral part of an essential element of the crime as alleged in the indictment. Because (1) the evidence is legally insufficient that Clinton “used” the card, within the meaning of the statute, and (2) Clinton requested a lesser-included-offense instruction on attempted credit or debit card abuse, we reverse Clinton's conviction, reform the judgment to reflect a conviction of attempted credit or debit card abuse, and remand this case to the trial court for a new sentencing proceeding.

(1) The Evidence Is Legally Insufficient that Clinton “ Used ” the Card, Within the Meaning of the Statute

A person commits the offense of credit or debit card abuse when “with intent to obtain a benefit fraudulently,” he or she “presents or uses a credit card or debit card 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. Penal Code Ann. § 32.31(b) (Vernon Supp. 2010).¹ The indictment alleged Clinton

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.(Emphasis added.) While the State presented evidence that Clinton attempted to use the debit card, the State did not present any evidence that Clinton actually purchased anything with, or received any value from, the card.

The first question presented in our analysis is whether the State is bound by its allegations in the indictment. The State argues that the hypothetically correct jury charge would not be affected by its allegations in the indictment. The Texas Court of Criminal Appeals has held that evidentiary sufficiency should be measured against a “hypothetically correct” jury charge. See Gollihar v. State, 46 S.W.3d 243, 253 (Tex.Crim.App.2001); Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). Malik controls “even in the absence of alleged jury charge error.” Gollihar, 46 S.W.3d at 255.

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.” Malik, 953 S.W.2d at 240. The “hypothetically correct” jury charge cannot completely rewrite the indictment, but such a charge need not “track exactly all of the allegations in the indictment.” Gollihar, 46 S.W.3d at 253. If the essential elements of the offense are modified by the indictment, the modification must be included. Id. at 254. The hypothetically correct charge, however, “need not incorporate allegations that give rise to immaterial variances.” Id. at 256.

The “ ‘law’ as ‘authorized by the indictment’ must be the statutory elements” of the offense charged “as modified by the charging instrument.” Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000). ² The hypothetically correct jury charge must include both (1) allegations that form an integral part of an essential element of the offense, including allegations that are statutorily alternative manner and means and (2) material variances. Mantooth v. State, 269 S.W.3d 68, 74 (Tex.App.-Texarkana 2008, no pet.) (number of statute creating duty to register was not integral part of essential element); see Gollihar, 46 S.W.3d at 256.

Of the various ways to commit credit or debit card abuse, Section 32.31(b) of the Texas Penal Code provides as follows, in pertinent part:

(b) A person commits an offense if:

(1) with intent to obtain a benefit fraudulently, he presents or uses a credit card or debit card with knowledge that:

(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder....

Tex. Penal Code Ann. § 32.31(b).

The first step in our analysis is to determine whether the phrase “presents or uses” sets out integral parts of an essential element of the crime, a statutory alternative manner and means of committing it, or mere extraneous statutory language. The Texas Court of Criminal Appeals has set out how to identify the essential elements of an offense and the alternate modes of commission, if any, by parsing the statutory text into the various parts of speech according to the rules of grammar. Pizzo v. State, 235 S.W.3d 711, 714 (Tex.Crim.App.2007) (determining whether jury unanimity was required).

The essential elements of an offense are, at a minimum: (1) “the subject (the defendant);” (2) “the main verb;” (3) “the direct object if the main verb requires a direct object (i.e., the offense is a result-oriented crime);” “the specific occasion[;]” and the requisite mental state. The means of commission or nonessential unanimity elements are generally set out in “adverbial phrases” that describe how the offense was committed. Such phrases are commonly preceded “by the preposition ‘by[.]’ ”

Id. at 714–15.

Our Pizzo-directed analysis reveals that the subject of subsection (b)(1) of the statute is the pronoun “he” referring to “a person,” male or female. The words “presents or uses” are the main verbs, and “card” is the direct object. The phrase “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,” dictates the requisite mental state. Thus, the words “presents or uses,” as the main verbs, are integral parts of an essential element of the offense.³ The Texas Court of Criminal Appeals has instructed that any modification in an integral part of an essential element of the offense must be included in the hypothetically correct jury charge. Gollihar, 46 S.W.3d at 254. Thus, here, the State is bound by, and must have proven, its focused allegation that Clinton “used” the credit or debit card.⁴

The next question in our analysis is the meaning of the word “use.” The State argues the word “use” includes the conduct at issue. The State urges this Court to adopt a definition that “any employment of the card” qualifies as “use.” The State analogizes to the deadly weapon statute, which has been interpreted to include “exhibit” within the definition of “use.” Although the deadly-weapon statute provides “used or exhibited,” ⁵ the Texas Court of Criminal Appeals has construed the term “use” to mean “any employment of a deadly weapon, even its simple possession, if such possession facilitates the associated felony.” Patterson v. State, 769 S.W.2d 938, 940 (Tex.Crim.App.1989). The court noted this interpretation included exhibiting and stated “one can ‘use’ a deadly weapon without exhibiting it, but it is doubtful one can exhibit a deadly weapon during the commission of a felony without using it.” Id. Patterson, however, did not concern a case where only one of the two terms was employed in the State's deadly-weapon allegation. Id. As such, those words from Patterson are only dicta, not binding precedent applicable here. Further, deadly weapon allegations are not subject to the same pleading requirements as integral parts of an essential element of an offense. A deadly-weapon allegation need not be presented in an indictment; “[a] defendant is simply entitled to written notice in some form that the use of a deadly weapon will be a fact issue at trial.” Ex parte Minott, 972 S.W.2d 760, 761 (Tex.Crim.App.1998) (concluding notice of deadly weapon allegation can be waived by pleading guilty).

The presence of both “presents” and “uses” in the statute applicable here, however, suggests that the definitions of the two words are intended to be mutually exclusive. 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.” Neither “use” nor “present” are common synonyms for each other. Merriam–Webster's Collegiate Thesaurus 573–74, 825 (1988). “Present,” used as a verb, has numerous definitions, including “to hand over or submit, as a bill or check, for payment.” Random House Webster's Unabridged Dictionary 1529 (2d ed. 2001). “Use” also has numerous definitions. Id. at 2097. While “use” can certainly be understood so broadly that it could include the conduct defined as “present,” adopting a definition of “use” that includes all the conduct which qualifies as “present” would render the statutory word “present” meaningless. As a general rule of statutory construction, we should avoid statutory constructions that would render any parts of the statute meaningless. Tex. Gov't Code Ann. § 311.021(2) (Vernon 2005) (each word in statute intended to be effective)...