Ex parte Mathis, 57073
| Decision Date | 27 September 1978 |
| Docket Number | No. 57073,No. 3,57073,3 |
| Citation | 571 S.W.2d 186 |
| Parties | Ex parte Tom Henry MATHIS |
| Court | Texas Court of Criminal Appeals |
Before ROBERTS, PHILLIPS and VOLLERS, JJ.
This is a post conviction habeas corpus proceeding brought under Article 11.07, V.A.C.C.P.
The petitioner was convicted upon his plea of guilty of the offense of credit card abuse. Two prior felonies had been alleged by the State for enhancement purposes but before the trial the State moved to dismiss the third paragraph, and petitioner, upon his plea of guilty, was sentenced to confinement for twenty years. Petitioner thereafter waived his right to appeal.
Petitioner now alleges that the indictment which underlies his conviction is fundamentally defective for failure of the alleged primary offense to contain necessary elements to establish an offense under Sec. 32.31(b)(1)(A) V.A.P.C.
The indictment before us reads, in relevant part:
"(Defendant) . . . did unlawfully, then and there present to Charles Epley, an A&A Credit Card Number 28576, with intent to obtain property and service, without the effective consent of the cardholder, R. Saba, . . . ."
The application for habeas corpus now before us was filed in the 194th Judicial District Court of Dallas County. No hearing having been deemed necessary, the trial court entered findings of fact and conclusions of law, recommending that the writ be granted. We agree.
A complaint as to the sufficiency of an indictment may be urged for the first time after trial where the indictment utterly fails to allege that an offense was committed by the defendant. American Plant Food Corporation v. State, 508 S.W.2d 598 (Tex.Cr.App.1974). If an element of the offense is omitted then the indictment fails to allege an offense. We find on examination of the indictment before us that it does fail to charge the offense of credit card abuse under Section 32.31(b)(1)(A) V.A.P.C.
The constituent elements of the offense of credit card abuse under said section are:
(1) a person
(2) with intent to fraudulently obtain property or service
(3) presents or uses a credit card
(4) with knowledge that the card was not issued to him and
(5) with knowledge that it is not used with the effective consent of the cardholder.
A comparison of the allegations of the indictment with these elements reveals that the indictment is insufficient in two regards. First of all, it fails to allege that the appellant had the intent to obtain the...
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Bell v. State
...that are missing--in an indictment, for if an element is omitted 'then the indictment fails to allege an offense,' Ex parte Mathis, 571 S.W.2d 186, 187 (Tex.Cr.App.1978)." I believe that the indictment under scrutiny, read grammatically and as a whole, actually attempts to charge the appell......
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Thompson v. State
...that are missing--in an indictment, for if an element is omitted 'then the indictment fails to allege an offense,' Ex parte Mathis, 571 S.W.2d 186, 187 (Tex.Cr.App.1978)." V.T.C.A., Penal Code, Sections 29.02(a)(2) and 29.03(a)(2), which proscribe the offenses of robbery and aggravated robb......
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Farrell v. State
...card was not issued to her, and (5) with knowledge that it is not used with the effective consent of the cardholder. Ex parte Mathis, 571 S.W.2d 186, 187 (Tex.Crim.App.1978); TEX.PENAL CODE ANN. § 32.31(b)(1)(A) (Vernon 1989). Appellant challenges only the sufficiency of the evidence to pro......
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Ortega v. State, 13-81-166-CR
...Ex Parte Dawson, 578 S.W.2d 749, 750 (Tex.Cr.App.1979); Ex Parte Reed, 574 S.W.2d 161, 162 (Tex.Cr.App.1978); Ex Parte Mathis, 571 S.W.2d 186, 187 (Tex.Cr.App.1978). In the case at bar, the indictment alleged that the defendant unlawfully used and presented the credit card "with knowledge t......