Ortega v. State, 13-81-166-CR
| Decision Date | 27 May 1982 |
| Docket Number | No. 13-81-166-CR,13-81-166-CR |
| Citation | 653 S.W.2d 825 |
| Parties | Mike ORTEGA, Appellant, v. STATE of Texas, Appellee. Corpus Christi |
| Court | Texas Court of Appeals |
Joseph A. Connors, III, McAllen, for appellant.
Reynaldo Cantu, Jr., Dist. Atty., Brownsville, for appellee.
Before NYE, C.J., and BISSETT and YOUNG, JJ.
This is an appeal from a conviction for credit card abuse. Tex.Penal Code Ann. § 32.31(b)(1)(A) (Vernon 1974). Trial was before a jury. Punishment was assessed by the jury at two years confinement in the Texas Department of Corrections.
The defendant, through his attorney's excellent brief, raises eighteen grounds of error. Since the sufficiency of the evidence to support the conviction is challenged, we summarize the evidence.
On November 27, 1979, the defendant's sister, Janie Saenz, and Marie Marcella Landez went to a friend's house to have their hair cut. As the two women were leaving their friend's house, Janie found a credit card on the ground. She picked it up and put it in her purse. Marie gave Janie a ride back to her house, and then went home. Later that night, Janie looked in her purse and discovered that it was Marie's Sears' credit card she had found. Marie was unaware that she had lost the credit card.
Janie testified that on the morning after she found the credit card she took her three children to school and then went to the defendant's house. She borrowed the defendant's truck and left him her car. She then went from McAllen, where she lived, to the Sears store in Brownsville. No one accompanied her to Brownsville. She made numerous purchases at the Sears store in Brownsville with Marie's credit card. On her trip back to McAllen, she stopped at the Sears store in Harlingen and made additional purchases with Marie's credit card.
When Janie returned to her home in McAllen, she unloaded the merchandise she had purchased, picked up her children and then returned to the Sears store in Brownsville. During her second visit to the Sears store, Janie let her children choose the items they wanted, which she purchased with Marie's credit card. Janie and her children returned to McAllen, where they made additional purchases at the McAllen Sears store. She gave some of the merchandise to the defendant and other family members as Christmas gifts. Janie was arrested on January 23, 1980.
Ninfa Escobedo, a saleslady at the Sears store in Brownsville, testified that the defendant and two women used Marie's credit card to make various purchases on November 28, 1979. Elizabeth Sheldon, also a saleslady at the Sears store in Brownsville, testified that the defendant presented Marie's credit card to her and attempted to purchase an electric shaver with the card. Ms. Sheldon noticed that the credit card was issued to a woman and refused to accept it. The defendant then told her that the card belonged to his sister and that he would get her to sign for it. Shortly thereafter, the defendant returned with a woman who signed the charge receipt for the electric shaver and three bottles of men's cologne.
Luis Beltran, Jr., security manager for the Sears stores in South Texas, testified that he was informed of a large amount of unauthorized purchases made with Marie's credit card. He was able to ascertain which employees had handled the sales because their employee numbers were written on each sales slip. He interviewed Ms. Escobedo and Ms. Sheldon and obtained a description of the persons who made the purchases. He then talked with Marie and asked her if she knew anyone matching those descriptions. She informed him that she was certain Janie Saenz was one of the women described and suspected the defendant as being the man described. Marie gave Mr. Beltran three photographs, which included a photograph of the defendant. Mr. Beltran exhibited the photograph of the defendant to Ms. Escobedo and Ms. Sheldon. Both women identified the person in the photograph as the man who made the unauthorized purchases with Marie's credit card.
Sometime later, Mr. Beltran brought a police detective to talk with Ms. Escobedo. The detective, outside the presence of Mr. Beltran, exhibited a portfolio of photographs to Ms. Escobedo. She picked the defendant's photograph as depicting the man who presented Marie's credit card to her.
Marie Marcella Landez testified that she had known the defendant and his sister for over fifteen years. She had not authorized any of the credit purchases in question.
The defendant testified that he had never used or presented Marie's Sears credit card for any purpose. He said that on November 28, 1979, he was attending classes at the Pan American University in Edinburg. He admitted that his sister gave him a pair of boots from Sears, but he denied knowing how they were purchased. The boots, however, did not fit, so he returned them to the Sears store and received cash in exchange for them. He gave the Sears employee his correct name, address and phone number at the time of the exchange.
In January of 1980, the Cameron County Grand Jury issued three indictments charging the defendant and his sister Janie with credit card abuse. The trial of the defendant's sister was severed from that of the defendant. Each indictment alleged that the defendant and his sister:
"on or about the 28th day of November A.D. One Thousand Nine Hundred and Seventy-nine and anterior to the presentment of this indictment, in the County of Cameron and State of Texas, did then and there unlawfully, intentionally and knowingly with intent to fraudulently obtain property and services from NINFA ESCOBEDO, did use and present a credit card, a SEARS, ROEBUCK AND Co., Card Number 57 85272 08504 5, with knowledge that the card had not been issued to them, the said MIKE ORTEGA and JANIE SAENZ and that said card was not used with the effective consent of the Cardholder, MS. MA MARCELLA LANDEZ,"
The defendant contends that the indictment is fundamentally defective because it does not allege that the defendant used the credit card knowing that he did not have the effective consent of the cardholder to use the card.
The elements of credit card abuse under Section 32.31(b)(1)(A) of the Penal Code are:
Ex Parte Williams, 622 S.W.2d 876, 877 (Tex.Cr.App.1981); Baker v. State, 593 S.W.2d 719, 720 (Tex.Cr.App.1980); Ex Parte Walters, 566 S.W.2d 622, 624 (Tex.Cr.App.1978).
In Ex Parte Walters, supra, the Court of Criminal Appeals held it to be fundamental error for an indictment charging an offense under Section 32.31(b)(1)(A) to fail to allege that the defendant used the card with knowledge that he did not have the effective consent of the cardholder to use the card. Ex Parte Walters, supra at 624. See also: Baker v. State, 593 S.W.2d 719, 720 (Tex.Cr.App.1980); Ex Parte Sharpe, 581 S.W.2d 183, 184 (Tex.Cr.App.1979); Guster v. State, 580 S.W.2d 363, 364 (Tex.Cr.App.1979); 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 that the card had not been issued [to him] and that said card was not used with the effective consent of the Cardholder." [emphasis added] Thus, the indictment alleged that the defendant had knowledge: 1) that the card was not issued to him, and 2) that his use was without the effective consent of the Cardholder. We hold that the indictment satisfies the requirements of Ex Parte Walters and its progeny. Allison v. State, 618 S.W.2d 765, 766 (Tex.Cr.App.1981); Ex Parte Kimberlin, 594 S.W.2d 438, 439 (Tex.Cr.App.1980).
Prior to trial, the defendant's attorney filed a motion to quash the indictments on the ground that they failed to allege what property was obtained by use of the credit card. The defendant's attorney argued that without such an allegation, it was impossible to precisely know the particular offense charged. He also argued that the defendant could not impose a plea of double jeopardy to bar any possible further prosecution unless the indictment described the property obtained. Following a hearing, the trial court overruled the motion to quash. The defendant now contends that the trial court erred in overruling his motion to quash the indictments.
In Stribling v. State, 542 S.W.2d 418 (Tex.Cr.App.1976), the court was confronted with a contention similar to the one we face. In that case, however, the defendant did not move to quash the information. The court held:
Since the defendant in the instant case filed a motion to quash the indictment for failure to allege what property was obtained, we must now decide if he was entitled, upon motion, to such allegations.
An indictment which charges an offense in the terms of the statute is generally sufficient. Ex Parte Holbrook, 609 S.W.2d 541, 543 (Tex.Cr.App.1980); Johnson v. State, 541 S.W.2d 619, 621 (Tex.Cr.App.1976). The elements of an offense under Section 32.31(b)(1)(A) are set out above. With respect to property, all that need be alleged is that the defendant intended to obtain property; whether he actually obtained property is not an element of the offense.
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