Ortega v. State

• Citation: 668 S.W.2d 701
• Decision Date: 14 September 1983
• Docket Number: No. 821-82,821-82
• Parties: Mike ORTEGA, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 701

668 S.W.2d 701

Mike ORTEGA, Appellant, v. The STATE of Texas, Appellee.

No. 821-82.

Court of Criminal Appeals of Texas,

En Banc.

Sept. 14, 1983.

On Rehearing March 14, 1984.

Joseph A. Connors, III, McAllen, Virginia Rodriguez, Michael A. McEnrue, Houston, of counsel for appellant.

Reynaldo S. Cantu, Jr., Dist. Atty. and Kirk Brush, Asst. Dist. Atty., Brownsville, Robert Huttash, State's Atty. and Alfred Walker, Asst. State's Atty., Austin, for the State.

Before the court en banc.

OPINION ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW

CLINTON, Judge.

Before us on appellant's petition for discretionary review is his conviction for credit card abuse, affirmed by the Corpus Christi Court of Appeals 653 S.W.2d 825 in an opinion to be published.

On direct appeal, appellant asserted the trial court had erred by overruling his written motion to quash the indictment; that motion alleged in part that the charging instrument failed "to distinguish what he is alleged to have fraudulently obtained."

In rejecting this contention, the court of appeals correctly observed that "obtaining" property is not an essential element of the offense proscribed by V.T.C.A. Penal Code, § 32.31(b)(1)(A), ¹ under which appellant was prosecuted. But the court of appeals then--without adverting to what the questioned indictment actually alleged--simply stated:

"We fail to see how a description of the property obtained by the defendant is essential to giving him notice of the crime charged."

Whether this statement by the court of appeals is correct depends wholly upon what was alleged in the indictment: if the indictment alleged appellant actually "obtained" property, then Article 21.09, V.A.C.C.P. requires identification of that property by "name, kind, number and ownership," if known; ² but if the indictment merely alleged the accompanying mental state ³ required by the relevant proscription--the "intent" to obtain property--then the information sought by appellant is not essential to notifying him of what the State claims were his culpable "acts" or "omissions." ⁴

We accordingly turn to the indictment under which appellant was prosecuted; omitting the formal portions, it alleged that he did,

"... 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 [him], the said Mike Ortega ... and that said card was not used with the effective consent of the cardholder, Ms. Marcella Landez."

Since it was alleged that appellant did an act accompanied by an "intent to obtain property" and not that he in fact did "obtain property," the trial court correctly overruled his exception to the indictment on the ground discussed.

Appellant's second ground for review contends there is no evidence to support the jury's finding that he used the credit card with intent to fraudulently obtain both property and services. ⁵

In addressing this ground, the court of appeals observed that under § 32.31(b)(1)(A), supra, an offense is committed by using a credit card with the intent to fraudulently obtain property alone; "[t]hus, although there is no evidence that the defendant used the credit card to obtain services, the evidence is nevertheless sufficient to sustain his conviction for credit card abuse. We fail to see how the use of 'and services' in the indictment injured the defendant. See Cain v. State, 136 Tex.Cr.R. 275, 124 S.W.2d 991, 994 (1938); Ross v. State, 70 S.W. 543, 544 (Tex.Cr.App.1902). A similar contention was decided adversely to the defendant's position in Love v. State, 627 S.W.2d 457, 458 (Tex.App.--Houston [1st Dist.] 1981, no petition filed). [Emphasis original]"

Before addressing the merits of the court of appeals determination that "there is no evidence that the defendant used the credit card to obtain services," we turn initially to that court's apparent reasoning that evidentiary insufficiency may be "harmless." ⁶

In reaching the conclusion that the failure of proof it found here is harmless, the court of appeals relied on Love, supra. ⁷ The material facts of that case are identical to those presented here. The court of appeals in Love, supra, cited and paraphrased the rationale of Burrell v. State, 526 S.W.2d 799 (Tex.Cr.App.1975) which held:

"... [I]f not descriptive of that which is essential to the validity of the [charging instrument], unnecessary words or allegations may be rejected as surplusage. [Accord Collins v. State, 500 S.W.2d 168 (Tex.Cr.App.1973); see also Cohen v. State, 479 S.W.2d 950 (Tex.Cr.App.1972); Malazzo v. State, , 308 S.W.2d 29 (1957).]

There is, however, a well recognized exception to the general rule discussed above, and that is where the unnecessary matter is descriptive of that which is legally essential to charge a crime it must be proven as alleged, even though needlessly stated. See 13 Texas Law Review 489 (note); 1 Branch's Ann.P.C.2d ed., Sec. 518, pp. 491-498, and cases there cited.

It is well established that where a person, place or thing necessary to be mentioned in the indictment is described with unnecessary particularity, all circumstances of description must be proven, Smith v. State, 107 Tex.Cr.R. 511, 298 S.W. 286 (1927), and, cannot be rejected as surplusage, for they are thus made essential to the identity. Maples v. State, 124 Tex.Cr.R. 478, 63 S.W.2d 855 (1933). Thus, if the pleader makes unnecessary allegations descriptive of the identity of the offense charged, it is incumbent upon the State to establish such allegations by evidence. McClure v. State, 163 Tex.Cr.R. 650, 296 S.W.2d 263 (1956).

A review of the cases decided over the years reflects that the word 'descriptive' has not always been limited to situations where the matter modifies a noun adjectively but suggests that the word has been synonymous with 'explanatory.' 13 Texas Law Review 489, 497 (note).

[It is the] law governing the exception that any matter descriptive or explanatory of that which is legally essential to constitute the offense cannot be treated as surplusage...."

However, in applying the foregoing principles, the court of appeals held the allegation of an intent to fraudulently obtain "services" by use of a credit card was surplusage and could be disregarded because it was "necessary only that the State allege a fraudulent intent on the part of appellant to obtain either 'property' or 'services' by use of the credit card." 627 S.W.2d at 458.

With deference, the critical inquiry is not whether the questioned allegation is necessary to allege the offense charged ⁸--(indeed, that the allegation is unnecessary in that sense is a foregone conclusion, given we are in the midst of the present analysis)--but whether it describes or explains an essential element of the offense ⁹ charged. And the questioned allegation in the instant case--"... and services..." is indisputably, at a minimum, descriptive of the "required culpability" element of the offense charged. Unnecessary allegations which are "descriptive and explanatory of ... the intent" essential to charging the offense must be proven as alleged, even though needlessly stated, 526 S.W.2d at 804; the decision of the First Court of Appeals in Love, supra, was in error to hold otherwise and the court of appeals in the instant case erred in relying on Love, supra. ¹⁰

We now turn to determine whether the court of appeals erred in concluding the evidence is insufficient to support the jury's verdict of guilt, which necessarily included a finding that appellant presented the credit card with "intent to fraudulently obtain services."

It is important to remember that the indictment did not charge and the jury was not required to find that appellant actually obtained anything; appellant's intent at the time he presented the credit card is the issue.

The evidence adduced included the original receipts which had been painstakingly filled out, completed and initialed by the salesperson before the credit transaction with appellant was completed. The testimony established appellant selected the items he wanted, deposited them on the sales counter and obtained possession of them from the Sears clerk, Ninfa Escobedo, by means of persuading her to accept the credit card and, pursuant to that acceptance, having her fill out, sign and complete the papers necessary to a credit transaction and having the property delivered to him. We are satisfied the evidence shows appellant intended fraudulently to obtain from Ninfa Escobedo, not only "property," but also her "services" ¹¹ which were necessary, unique and incidental to extending credit and completing the transaction, at the time he presented the credit card.

Accordingly, the judgment of the court of appeals is affirmed.

McCORMICK and MILLER, JJ., concur in result.

Before the court en banc.

OPINION ON APPELLANT'S MOTION FOR REHEARING ON PETITION FOR

DISCRETIONARY REVIEW

CAMPBELL, Judge.

Appellant was convicted of credit card abuse under V.T.C.A. Penal Code, Sec. 32.31(b)(1)(A) ¹. The jury assessed punishment at two years incarceration in the Texas Department of Corrections. On appeal to the Thirteenth Court of Appeals in Corpus Christi, appellant's conviction was affirmed. On original submission this Court upheld the judgment of the court below on appellant's petition for discretionary review. Upon rehearing, we reverse the conviction.

Appellant contends this Court erroneously held that the evidence was sufficient to prove that he intended to fraudulently obtain services ² when he presented a credit card to a Sears & Roebuck clerk in exchange for selected items of clothing. On original submission we held that, because the salesperson filled out the required credit forms, accepted appellant's proffered card, and ultimately extended him credit, that appellant had intended to fraudulently obtain services as...