Love v. State

• Decision Date: 25 November 1981
• Docket Number: No. 01-81-0006-CR,01-81-0006-CR
• Citation: Love v. State, 627 S.W.2d 457 (Tex. App. 1981)
• Parties: Eugene Henry LOVE, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 457

627 S.W.2d 457

Eugene Henry LOVE, Appellant, v. The STATE of Texas, Appellee.

No. 01-81-0006-CR.

Court of Appeals of Texas, Houston (1st Dist.).

Nov. 25, 1981.

Kahn & Maierson, Jeffrey G. Malm, Houston, for appellant.

John B. Holmes, Dist. Atty., Timothy Taft, Asst. Dist. Atty., Houston, for appellee.

Before EVANS, C.J., and DOYLE and STILLEY, JJ.

EVANS, Chief Justice.

The appellant attempted to purchase a topcoat at a Sakowitz store, using a Sakowitz credit card that did not belong to him. After a jury trial, he was convicted of credit card abuse, and sentenced by the court to seven years imprisonment.

The appellant first contends that the trial court erred in overruling his motion for directed verdict, arguing that there is a fatal variance between the evidence and the indictment. The appellant does not contend that the indictment failed to charge him with the crime, but rather that the elements of the crime alleged in the indictment were not proven at trial.

The indictment charged the appellant with having used a Sakowitz credit card, knowing that the card had not been issued to him and with the intent to obtain "property and service" fraudulently. The State offered proof that the appellant attempted to purchase "property" with the card, but did not offer proof that the appellant intended to obtain "service" by use of the card. Thus, the appellant argues that the second element of intent was not established, resulting in a fatal variance between the indictment and the proof. The appellant relies upon Weaver v. State, 551 S.W.2d 419 (Tex.Cr.App.1977) in which an indictment for aggravated assault described the weapon used as a "Ruger", while the evidence showed the weapon to be a "Luger." It was held that this variance was fatal to the State's case, and the conviction was reversed.

As a general rule, non-essential allegations in an indictment will be treated as surplusage and need not be proven. Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973). However, this rule applies only to those items which are not descriptive of that which is legally essential to the validity of the indictment, and where an item necessary to be mentioned in the indictment is described with unnecessary particularity, it has been held that the descriptive allegations must be proven. Weaver v. State supra; Burrell v. State, 526 S.W.2d 799, 802 (Tex.Cr.App.1975).

In the case at bar it was necessary only that the State allege a fraudulent intent on the part of the appellant to obtain either "property" or "services" by use of the credit card. Proof of either intent was a sufficient basis to support the conviction, and the words "and service" may be disregarded without affecting the charge against the appellant. Thus, the additional words constituted harmless surplusage.

The appellant next contends that the trial court erred in overruling his objection to the court's charge because there was no instruction on circumstantial evidence. In support of this contention, he argues that there was no direct evidence of his "knowing" use of the credit card.

There was testimony that the appellant presented the credit card to the State's witness, a Sakowitz salesman, and that the appellant signed a sales slip for the topcoat. Where the culpable mental state of the accused is the only element of the offense not proved by direct evidence, it is unnecessary to charge the jury on circumstantial evidence. Glover v. State, 566 S.W.2d 636, 638 (Tex.Cr.App.1978).

In his third ground of error the appellant contends the trial court erred in failing to grant his motion for mistrial due to the jury's inability to reach a verdict. He asserts that the trial court should have declared a mistrial after the jury had deliberated for eight hours and fifty minutes and had three times sent back notes to the judge asking to be dismissed because they were unable to reach a verdict.

Whether a jury should be dismissed and a mistrial ordered is a matter within the sound discretion of the trial court. In determining such matter it is appropriate for the court to consider the amount of time the jury has deliberated. Patterson v. State, 598 S.W.2d 265 (Tex.Cr.App.1980).

The record reflects that the trial in this case lasted approximately two hours and that the jury...