Moallen v. State

• Decision Date: 03 April 1985
• Docket Number: No. 1076-83,1076-83
• Citation: 690 S.W.2d 244
• Parties: Maryam MOALLEN, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 244

690 S.W.2d 244

Maryam MOALLEN, Appellant, v. The STATE of Texas, Appellee.

No. 1076-83.

Court of Criminal Appeals of Texas,

En Banc.

April 3, 1985.

Glen Van Slyke, Houston, for appellant.

John B. Holmes, Jr., Dist. Atty., Timothy G. Taft and Kay Burkhalter, Asst. Dist. Attys., Houston, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of credit card abuse pursuant to V.T.C.A. Penal Code, Sec. 32.31(b)(2). Upon her plea of nolo contendere, she received a five year probated sentence and a fine of five hundred dollars. By agreement it was understood, however, that she would have the right to appeal the trial court's denial of her motion to quash the indictment.

On appeal, the Houston Court of Appeals for the First Supreme Judicial District reversed appellant's conviction, finding the indictment fundamentally defective, and ordered it dismissed. Moallen v. State, 661 S.W.2d 204, delivered September 29, 1983. We granted the State's Petition for Discretionary Review to determine the correctness of this decision. We reverse and remand.

The indictment charged, inter alia, that appellant "did then and there unlawfully and with intent to obtain property and service, use a fictitious Southwestern Bell Telephone Company credit card, purporting to be issued by Southwestern Bell Telephone Company to Maryam Moallen." Citing Ex parte Lewis, 544 S.W.2d 430 (Tex.Cr.App.1976), the court of appeals concluded that the indictment was fundamentally ¹ defective for its failure to allege "from whom the appellant intended to obtain the property or service, against whom she used the card, and how and in what manner the credit card involved herein was fictitious." We disagree with the court of appeals.

Sec. 32.31(b)(2), supra, provides, in pertinent part:

"(b) A person commits an offense if:

"(2) with intent to obtain property or service, he uses a fictitious credit card...."

The constituent elements of Section 32.31(b)(2), supra, are: (1) a person (2) with intent to obtain property or service (3) uses (4) a fictitious credit card or (5) pretended number or description of fictitious credit card. See Branch's Texas Ann. Penal Statutes, 3d ed., Vol. II, Sec. 32.31, p. 563.

In Lewis, supra, relied upon by the court of appeals, defendant was convicted of aggravated assault with a deadly weapon. The indictment, however, failed to specify a complainant in alleging that defendant did, "then and there intentionally and knowingly use a deadly weapon, to wit: a firearm, that in the manner of its use and intended use was capable of causing death and serious bodily injury." Lewis, supra. This Court held this indictment to be fundamentally defective because there was no allegation that the accused caused or threatened to cause harm or injury to another as required under V.T.C.A. Penal Code, Secs. 22.01 and 22.02, and thus the indictment failed to state an offense against the laws of the state. Indeed, it can easily be seen that the indictment in Lewis, supra, would not invoke the jurisdiction of any district court in this State.

In the instant offense, however, there need not necessarily be a "victim" for there to be a violation of the law. The gravaman of the offense is that the accused use a fictitious credit card. The very fact that the credit card is fictitious implies there is no actual owner of the card who is victimized. Likewise, the State must show only that the accused intended to obtain property or services, and it is not a requisite to plead and prove that he actually obtained something from someone other than himself, i.e., obtain something from a "victim". The fact that his original...