In Ortega, supra, the Court of Appeals had relied upon the theory that the failure of proof was harmless because the offending allegations were mere "surplusage." Ortega v. State, 653 S.W.2d 825 (Tex.App. — Corpus Christi 1982), citing as authority Love v. State, 627 S.W.2d 457 (Tex.App. — Houston [1st Dist.] 1981, no petition). Although predicated in slightly different terms, the appeals court below used a similar argument to find that the instruction at issue, because it did not concern an "element" of the offense, was mere "surplusage."
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."