*1 only murder. The any way purport difference between the not in does to restrict offenses, two ease, under the judge facts of the trial discretion conduct- is the robbery additional or attempted ing Appellant rob- dire. no authority voir cites bery contention, element of the latter.13 for his no incorrect statement possible punish- the trial court about portion The of the complained of ment, rights.14 harm done to his properly applied the law the facts of this prospective His counsel later informed own rate, any case. At when we consider the jurors ranges punishments about for a complaint light of the as a whole No variety offenses. reversible error is jury’s and the finding appellant shown. guilty greater offense, we conclude error in paragraph judgment of The conviction affirmed. offense, error, the lesser included reversible. See O’Pry v. TEAGUE, J., dissents. 748 (Tex.Cr.App.1982)(Opinion on Rehear- ing). ground eight
In of error number
appellant contends that the trial com court
mitted by charging reversible error punishment at stage “not con
sider or possible discuss action of the Board of Pardons and Paroles or of the ORTEGA, Appellant, Mike long Governor or how this defendant would satisfy serve sentence imprisonmеnt.” Texas, Appellee. of life giving The The STATE of of an almost identical approved instruction was No. 821-82. Freeman v. Texas, Criminal Cr.App.1977) as judge’s within the discre En Banc. ground tion. This is without merit. ground
In of error nine Sept. number 1983. appellant contends that the trial court com Rehearing On March mitted “by going beyond reversible error provisions [(2), of Article 35.17 V.A.C. discussing range potential C.P.]
punishments prospective jurors.”
capital cases the statute mandates that the “propound panel
trial court entire jurors
prospective questions concerning the
principles, applicable trial, to the case on doubt, proof,
of reasonable re burden of by grand presump
turn of indictment innocence, opinion.”
tion The stat range punishment
ute does not mention 19.02(a)(1), the "sim- § 13. V.A.T.S. statute, it, ple murder” call person intentionally commits reads as follows: committing murder in the course of or at- intentionally tempting "... causes the robbery,_" to commit ... individual; death of an ...” statute, capital Appеllant any juror murder V.A.T.S.Penal does not contend 19.03, pertinent part reads as follows: improperly seated excused. "(a) offense if he com- commits an defined under Section 19.- mits murder as 02(a)(1) of this code and: *2 PETITION
OPINION ON APPELLANT’S REVIEW DISCRETIONARY FOR CLINTON, Judge. appellant’s petition for dis- us
Before cretionary his for cred- review is conviction abuse, by Corpus affirmed 825 in Court of 653 S.W.2d Christi opinion published. to be appeal, asserted On direct by overruling his erred writ- trial court had indictment; quash the ten motion to alleged charging motion distinguish what he is instrument failed “to fraudulently obtained.” to have contention, court of rejecting “obtaining” observed element property is not an essential proscribed by V.T.C.A.Penal offense § 32.31(b)(1)(A),1 under which prosecuted. But ques- adverting to what the then—without alleged—simply actually tioned indictment stated: description of the see how a
“We fail to by the property obtained defendant giving him notice of the essential crime Whether this statement depends wholly upon appeals is correct if alleged in the indictment: what was actually alleged appellant “ob- III, McAllen, Connors, Virginia Joseph A. 21.09,V.A.C. property, then Article tained” MeEnrue, Houston, A. Rodriguez, Michael оf that requires identification C.P. appellant. counsel ownership,” “name, kind, number merely known;2 al- Jr., but if the indictment Cantu, Atty. and Dist. Reynaldo S. Brownsville, accompanying mental re- leged the state3 Brush, Atty., Asst. Dist. Kirk proscription—the Huttash, quired by the relevant Atty. Alfred State’s Robert Austin, the infor- property—then “intent” to obtain Atty., for the Walker, State’s Asst. sought by appellant is essential mation not State. See, e.g., Bonner v. 1.“(b) if: аn offense commits Cr.App.1982). or service to obtain with intent uses a credit card fraudulently, presents or Lugo-Lugo that: 3. See expired, whether App.1983) Concurring) (Opinion which observes is cardholder; to him been issued "accompanying defini mental state” that an ...” the effective tion contains an intended result which (All emphasis is 32.31. V.T.C.A. charged. essential to commission opin- throughout of this the writer suрplied indicated.) ion unless otherwise notifying 31(b)(1)(A), him of what the State claims offense is committed were his culpable by using “acts” “omissions.”4 a credit card the intent to alone; accordingly We turn to the indictment although “[t]hus, there no evidence that prosecuted; om- used *3 the defendant the credit card obtain itting portions, the alleged formal that he services, the evidence is nevеrtheless suffi did, to cient sustain his conviction credit intentionally “... abuse. fail to see how the use of We to intent obtain injured in the ‘and services’ the Escobedo, from Ninfa did State, v. defendant. See Cain 136 Tex. present Sears, use and card, 275, 991, (1938); 124 994 Cr.R. S.W.2d Ross Co., Roebuck and 57 card Number 85272 State, 543, (Tex.Cr.App. v. 70 S.W. 544 08504 with that the card 1902). A similar contention was decided had not [him], been issued to the said adversely position dеfendant’s in Ortega Mike ... and that said card was State, 627 Love S.W.2d 458 effective consent of the cardholder, App.—Houston petition no [1st Dist.] Ms. Marcella Landez.” filed). [Emphasis original]” Since it that did an accompanied by act “intent addressing Before the merits of the court property” and not that he did fact “ob- of appeals determination that “there is no property,” tain the trial court correctly evidence that defendant used the credit exception overruled his to the indictment services,” card to obtain we initially turn ground on the discussed. apparent reasoning that court’s that evi- dentiary may insufficiency be “harmless.”6 Appellant’s ground second for review contends there support evidence to In reaching the conclusion that the fаil- jury’s finding that he used the credit proof harmless, ure of it found here is card with to fraudulently intent obtain both Love, appeals court of supra.7 relied on property and services.5 The material facts of that case are identical In addressing ground, this presented the court of ap- those here. The court of § appeals observed peals Love, supra, that 32.- pаraphrased cited and State, 4. See Thomas v. 621 S.W.2d jury's 158 been convicted gard a crime disre- App.1981) (Opinion Rehearing). failure; words, on Motion for proof of a in other had the jury assiduously followed the court’s instruc- 5. The was authorized the trial court's convict, appel- tions which authorized them to appellant only upon instructions to convict find- acquitted. lant have been ing beyond from the evidence a reasonable did, that doubt he signal introductory 7.Also cited after the “See” proper- "... with intent Ross, were Cain and both decided services, Escobedo, ty from Ninfa cases, appellants Court. sought these Sears, or Company her use Roebuck and charge arguing reversals on the basis of error Card Number 57 85272 08504 5 card. portions of the court’s instructions should not him, that had not been issued to that he evidentiary sup- have been submitted without did not have the effective of Ms. consent Ma port. But Landez, complained neither Cain cardholder, nor Ross Marcella to use the Defendant, sufficiency support of the evidence said card and that at the did, as does time used said if he here. that knew the said card had not issued been And, though finding did evidence him and knew that he did have effec- conjunctive submission use tive cardholder to it for issue, Cain, supra, the Court in acknowledged credit, obtaining property you then will course, conjunctive charge was "of guilty find Defendant [appellant] ... more favorable to than he would judge "property” trial defined the ab- ” Why be entitled.... such a has not stract, but See did not define "services.” V.T. ap- bеen considered to be "more favorable” to Code, 32.01(3). C.A. Penal pellant very here is the readily apparent appel- 6. The most harm question before us. lant—assuming the evidence sufficient to show an intent to obtain services—is that he has 704 State, suggests rationale of tively Burrell v. 526 but that the word has (Tex. Cr.App.1975)
S.W.2d 799
which held:
synonymous
‘explanatory.’
been
descriptive
“...
(note).
Law Review
Texas
[I]f
validity
[charging
essential to the
governing
law
the exception
[It
the]
instrument], unnecessary words or alle-
descriptive
explana-
matter
gations may
rejected
surplusage.
tory
legally
that which is
essential to
State,
Collins
Wе now turn to determine whether “property,” but also her “services” which concluding erred in necessary, unique were and incidental evidence insufficient extending completing credit and the trans- jury’s guilt, necessarily action, presented at the time he the credit included a appellant presented card. the credit card with “intent Accordingly, of the court obtain services.” is affirmеd. important It to remember indictment did not and the MILLER, JJ., McCORMICK and concur actually to find that in result. anything; obtained appellant’s intent at the Before the court en banc. time he the credit card is the issue. OPINION ON APPELLANT’S MOTION The evidence adduced origi- included the FOR REHEARING ON PETITION receipts
nal
which had been painstakingly
FOR DISCRETIONARY REVIEW
out, completed
filled
and initialed
salesperson
before the credit
transaction
CAMPBELL, Judge.
completed.
The testi-
Appellant was convicted of credit card
mony
established
selected the
*5
32.-31(b)(1)(A)
Code,
abuse under V.T.C.A. Penal
Sec.
wanted,
items he
deposited
them
jury
punish
.
The
assessed
sales
possession
counter and obtained
1
of
years
ment at two
in
incarceration
the Tex
clerk,
them from the Sears
Ninfa Escobe-
Department
do,
as
appeal
Corrections. On
means
persuading
her
accept
to
and,
Thirteenth Court of
in
the credit
Cor
pursuant
card
to that ac-
Christi,
pus
ceptance,
appellant’s
having
out,
her fill
conviction was af
sign and com-
necessary to a
plete
papers
original
credit
firmed. On
submission this
Court
transaction and
having
upheld
property
of the court
deliv-
below on
ered to him.
appеllant’s petition
We are
discretionary
satisfied the evidence
for
re
intended appellant
shows
Upon
view.
rehearing,
we reverse the con
Escobedo,
obtain from Ninfa
only
viction.
phrase may
expressed
be
in the dis-
nevertheless refused the amendment
in-
junctive in the
court’s instructions
requested charge,
dictment or
submission
thereby authorizing
a conviction on
and the evidеnce is found insufficient to
evidence of either it or another that would
the verdict because
the trial court’s errors in
(and
establish the offense
the Court has held
regard,
rulings
this
those reviewable
of the trial
may
that
be
done even
matters of
appellate
court found erroneous
court
substance
surplusage,
which are not
such as
error,"
constitute "trial
and the State
freе
case).
instant
pursue
States,
prosecution.
another
Cf. Burks v. United
phrase
But once the
incorporated
into the
437 U.S.
98 S.Ct.
tion increases his “A commits an offense if: proof, specially it burden of behooves him "(1) with intent or service request a allocates the fraudulently, prеsents he or uses a credit card placed nothing burden himon law. This is with that: more than the course of law which is due before card, "(A) expired, whether or not has person may deprived liberty. Article not been issued to him and is not 1.04, V.A.C.C.P. And if the record reflects the cardholder; the effective consent prosecutor pursued protect this course to obligations, his lawful but the trial court hаs Appellant stantially appellant contends this erroneous- shows the interest- ly held that the evidence sufficient to obtaining only ed the selected items of prove that he intended to ob- card, clothing vis-a-vis and infer- tain services2 when appellant slightest entially, the had not the card to a Sears & Roebuck clerk in ex- fulfilling the terms of the intention change clothing. for seleсted items of On steps taken transaction.3 to extend original that, we submission held because him merely credit were incidental to the salesperson filled out the cred- transaction. forms, appellant’s accepted proffered “all” We do hold that credit, ultimately and him extended are 31.- transactions excluded Sec. appellant had intended to 01(7), situation, supra. In the instant if the property. Upon as well services purchased clothing in had reconsideration, dowe that the believe tailoring question and had ordered altera proved beyond a State reasonable doubt tions, charges being resultant intended obtain servic- account, ap made 'to the victim’s then the 31.01(7) es. V.T.C.A. Penal de- pellant have both fines “service” as: obtainеd contemplated and Secs. 31.- “(1) includes: ‘Service’ 01(6) (7), respectively. None of the “(A) services; professional labor and per instant case is se factors “(B) telecommunication, public utility, determinative of whether intend service; transportation hold ed services. We therefore “(C) service, lodging, restaurant itself, credit, in and that the extension of entertainment; and proof, does not constitute without further “(D) supply of a motor vehicle 31.01(7). service under Sec. other use.” appellant: Commentary The Practice to V.T.C.A. Pe- “intentionally (1974) analyzes *6 nal Sec. 31.04 fraudulently property and ser- follows: definition of “service” as “ ESCOBEDO, did use NINFA from vices broadly in ‘Service’ is defined Section SEARS, card, a present a credit anything 31.01 include almost that is ROEBUCK & CO. CARD Number provided compensation ordinarily for knowledge that the 85272 08504 with traditionally but that excluded from was card not been issued the said had ‘prop- it is not theft because classified ” MIKE JANIE SAENZ ORTEGA AND Patterson, erty.’ Searcy and Practice card not used with the and that said was Commentary to V.T.C.A. cardholder, Ms. effective (1974). 31.04 MA MARCELLA LANDEZ.” that, agree the facts of While we charge in- portion of the application case, сlerk to work done alia, they inter structed the “labor,” Sec. 31.- extend credit was see beyond found the evidence a reason- from 01(7)(A), supra, we do not believe evi- did, “with labor, able doubt that dence was sufficient show and servic- service, object appel- intended ******** es, a Rather, circum- desire. the evidence lant’s incorporated Security Agreement, throughout by which is emphasis supplied 2. All price opinion unless otherwise indi- reference for the sales writer of this herein plus consisting price cated. FINANCE cash subject approv- This CHARGE. order were, pertinent The terms of the sale Sears, Department Credit al of the Sales parts, as follows: and Co." Roebuck my purchase is made under Sears Re- “This Security Agree- volving Charge Account and against 4.Charges Janie Saenz co-defendant Security Agreement Charge my ment of Sears ultimately appellant’s cause. from were severed Modernizing my Charge Credit Plan Sears him, that had they not been issued to then appellant guilty
will find
GUERRA, Appellant,
Placido
proper
It was
charge
for the State to
appellant by alleging conjunctively that he
Texas, Appellee.
STATE
intended to
sеrvices,
proof
either would
No. 504-83.
convict,
have been sufficient to
Sidney v.
Texas,
Court of Criminal
State,
(Tex.Cr.App.1978);
convict.
However, because the in
structed the that it must find both
property and before returning
guilty verdict, necessary then was proof
there be sufficient of both means
alleged. Otherwise, a guilty verdict would contrary
be deemed to the law and the
evidence.5
Because the evidence is insufficient to of intent services,
obtain both
cause is reversed and acquit-
tal is States, ordered. Burks United
437 U.S.
98 S.Ct.
TEAGUE, J., concurs in result. *7 Walsh, Brownsville, ap-
Lawrence A. pellant. Cantu, Jr.,
Reynaldo Atty. S. Dist. Brownsville, Brush, Kirk Atty., Dist. Asst. Huttash, Atty., Robert State's and Alfred Walker, Austin, Atty., First State’s Asst. for the State. conviction, pause Judge analysis
5. Wе to note that Clinton’s which authorizes and if Appeals opinion regard of the Court prosecutor portion believes that of the its reliance Love unnecessarily proof, it increases his burden of [Tex.App.—Houston petition [1st Dist.] specially request behooves him Judge entirely correct. As Clinton filed] placed allocates burden noted: law_” him sum, thing ‘surplusage’ "In there is no court’s instructions to the