No. 13-04-120-CR
Memorandum Opinion Delivered and Filed July 7, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On appeal from the 36th District Court of San Patricio County, Texas.
Before Justices YAÑEZ, CASTILLO, and GARZA.
Memorandum Opinion by Justice GARZA.
Appellant was convicted of credit card abuse and now appeals, arguing that there was a fatal variance between the indictment and the proof at trial because she was charged with abusing a debit check card and the evidence proved that she abused a credit card. See Tex. Penal Code Ann. § 32.31 (Vernon Supp. 2004-05) (credit card or debit card abuse); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003) (stating the well-settled standard of review for legal sufficiency challenges). Viewed in the light most favorable to the verdict, the evidence proves that appellant used a debit check card without the cardholder's authorization. Appellant used the debit check card at a local grocery store, which allowed her the option of either entering a pin number or signing the sales receipt, as is customary in credit-card transactions. Appellant apparently signed the sales receipt instead of entering a pin number, as is common in debit-card transactions. Appellant now claims, without citing any legal authority, that there was no evidence she used a debit card. We disagree. The evidence adduced at trial proved that the card used by appellant was issued to the cardholder as a debit check card, not as a credit card. Appellant's sole issue is therefore overruled and the judgment of the trial court is affirmed.
CONCURRING MERMORANDUM OPINION
Concurring Memorandum Opinion by Justice CASTILLO.
Appellant Michelle Statler raises two issues on appeal: (1) variance between the indictment and proof; and (2) legal insufficiency of the evidence to prove the essential elements of the offense. Respectfully, I concur in the result.
I. LEGAL SUFFICIENCY
By her second issue, Statler asserts that the evidence is legally insufficient to support the conviction. A. Standard of Revew
A challenge to the legal sufficiency of the evidence and hence Statler's second issue is properly reviewed under the standard of Jackson v. Virginia, 443 U.S. 307, 319 (1979). A legal-sufficiency challenge calls on us to review the relevant evidence in the light most favorable to the verdict, and then determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Escamilla v. State, 143 S.W.3d 814, 817 (Tex.Crim.App. 2004) (citing Jackson, 443 U.S. at 319); see also Swearingen v. State, 101 S.W.3d 89, 95 (Tex.Crim.App. 2003) (en banc). This standard is meant to give "full play to the [jury's] responsibility fairly" to "draw reasonable inferences from basic facts to ultimate facts." Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). We consider all the evidence that sustains the conviction, whether properly or improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex.Crim.App. 2001) (citing Garcia v. State, 919 S.W.2d 370, 378 (Tex.Crim.App. 1994) (en banc)). Similarly, we consider all the evidence that sustains the conviction, whether submitted by the prosecution or the defense, in determining the legal sufficiency of the evidence. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000) (en banc); Cook v. State, 858 S.W.2d 467, 470 (Tex.Crim.App. 1993) (en banc). In this review, we are not to reevaluate the weight and credibility of the evidence, but rather, we act only to ensure that the jury reached a rational decision. Muniz v. State, 851 S.W.2d 238, 246 (Tex.Crim.App. 1993) (en banc). B. Hypothetically Correct Jury Charge
The legal sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). This standard of legal sufficiency ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime, rather than a mere error in the jury charge submitted. Id. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. If we reverse a criminal case for legal insufficiency, we reform the judgment of conviction to reflect conviction for a lesser offense only if a jury charge on the lesser offense was either submitted or requested, but denied. Collier v. State, 999 S.W.2d 779, 782 (Tex.Crim.App. 1999). Otherwise, we vacate the judgment of conviction for legal insufficiency and order a judgment of acquittal. Swearingen, 101 S.W.3d at 95. A hypothetically correct charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict its theories of liability, and adequately describes the particular offense proof. Malik, 953 S.W.2d at 240; Cano v. State, 3 S.W.3d 99, 105 (Tex.App.-Corpus Christi 1999, pet. ref'd). A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App. 2001). Its scope is limited by the statutory elements of the offense as modified by the charging instrument. See Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000). Malik flatly rejects use of the jury charge actually given as a means of measuring sufficiency of the evidence. See Gollihar, 46 S.W.3d at 252. Malik controls sufficiency of the evidence analysis even in the absence of alleged jury charge error. Gollihar, at 254-55. C. Elements of the Offense
A hypothetically correct jury charge would instruct the jury that a person commits an offense of credit or debit card abuse if she receives a benefit that she knows has been obtained in violation of Texas Penal Code section 32.31. See TEX. Pen. CODE ANN. § 32.31(b)(3) (Vernon Supp. 2004-05). D. Disposition
Here, the authorized bank-card holder testified that the bank card could be used both as a debit and a credit card. He unequivocally testified that one transaction "was handled as a debit." The evidence showed that, whether a "debit check card" or a "credit card," the bank card was tied to a single account number, and Statler's unauthorized expenditures were billed to that account number. Evidence further showed that Statler obtained goods without the effective consent of the cardholder. Viewedin the light most favorable to the verdict against a hypothetically correct jury charge, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Thus, I agree that the evidence is legally sufficient and, accordingly, the second issue should be overruled. II. FATAL VARIANCE
By her first issue, Statler asserts that the variance between the indictment and the proof at trial is fatal to the conviction. A. Standard of Review
An argument that there is a material variance between the proof adduced at trial and the indictment, on the other hand, first requires an examination of whether there is a variance, Gollihar, 46 S.W.3d at 246, and then, if there is a variance, an examination of the materiality of the variance. Id. at 257-58. Some courts have viewed a variance claim as a notice issue and others as a sufficiency issue, although the court of criminal appeals has more consistently reviewed the issue as one of sufficiency. Id. at 247. However, even when viewed as a sufficiency question, a variance claim is subject to an additional materiality analysis which is not required under a traditional sufficiency of the evidence review. Id. at 247 n. 7. Only a material variance will render the evidence insufficient. Id. at 257. B. Discussion
In this case, the prosecution's failure to prove "a debit check card" exactly as alleged in the indictment does not render the evidence insufficient under the hypothetically correct jury charge of the offense under section 32.31(b)(3). The variance between the indictment and the proof is also immaterial. There is no indication in the record that Statler did not know the bank card could be used as both a credit and debit card or that she was surprised by the proof at trial. See Gollihar, 46 S.W.3d at 257. Further, the variance does not subject Statler to another prosecution for the same offense. See id. As there was no material variance because the bank card was both a debit and credit card, I agree that the first issue should be overruled. III. CONCLUSION
With these comments, I concur in the result.