Ex parte Walters, 56963
| Decision Date | 31 May 1978 |
| Docket Number | No. 3,No. 56963,56963,3 |
| Citation | 566 S.W.2d 622 |
| Parties | Ex parte Casper WALTERS |
| Court | Texas Court of Criminal Appeals |
Before ROBERTS, PHILLIPS and VOLLERS, JJ.
This is a post conviction application for a writ of habeas corpus under Article 11.07, Vernon's Ann.C.C.P.
The petitioner was indicted on July 23, 1976, for credit card abuse, 1 in Cause No. F-76-6122-QH. On January 14, 1977, the petitioner pleaded guilty to the indictment and the trial judge assessed his punishment at seven years' confinement in the Texas Department of Corrections. No appeal was taken.
On November 2, 1977, the petitioner filed his application for a writ of habeas corpus. His sole contention is that his conviction is void because the indictment was fundamentally defective. 2 We grant the requested relief. 3
The indictment, omitting the formal portions, states that the petitioner:
". . . did unlawfully, then and there present to Linda Moore, a Sears Credit Card Number 0 95742 5 6500 5, with intent to obtain property and service, without the effective consent of the cardholder William R. Opry."
V.T.C.A., Penal Code, Section 32.31(b) states that:
It is clear that the indictment was drafted to satisfy Section 32.31(b)(1) (A). The elements of credit card abuse under Section 32.31(b)(1)(A) are:
(1) a person
(2) with intent to obtain property or service fraudulently
(3) presents or uses
(4) a credit card
(5) with knowledge that it has not been issued to him and
(6) with knowledge that it is not used with the effective consent of the cardholder.
According to the petitioner, the indictment failed to allege that the petitioner used the card with knowledge that it had not been issued to him and with knowledge that his use was not with the effective consent of the cardholder.
The petitioner's contention is well founded. The indictment fails to allege that petitioner presented a credit card with knowledge that it had not been issued to him and with knowledge that he used the card without the effective consent of the cardholder. Thus, the culpable mental state was not alleged. 4 Cf. Carpenter v. State, 551 S.W.2d 724 (Tex.Cr.App.1977). Also, the indictment fails to properly allege the requirement that the act be performed with the "intent to obtain property or service fraudulently" since it omits the word fraudulently. 5 Cf. Bocanegra v. State, 552 S.W.2d 130 (Tex.Cr.App.1977). 6 Thus, the indictment is fundamentally defective.
The petitioner's application for writ of...
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