Ex Parte Sharpe

581 S.W.2d 183, 1979 Tex. Crim. App. LEXIS 1464

• Court: Court of Criminal Appeals of Texas
• Decided: May 23, 1979
• Docket: 60833
• Status: Published

Opinions

OPINION

DALLY, Judge.

This is an application for a post-conviction writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

The petitioner was convicted for the felony offense of credit card abuse on June 19, 1978. The court assessed punishment of imprisonment for two years. The petitioner did not appeal from the conviction, and subsequently, pursuant to the provisions of Art. 42.12, Sec. 3e(a), V.A.C.C.P., the court suspended further execution of the petitioner’s sentence and granted probation.

The petitioner now urges that the indictment under which she was convicted was fundamentally defective because it failed to allege a criminal offense.

It is alleged in the indictment that the petitioner on April 15, 1977, did

“. . . unlawfully with intent to fraudulently obtain property and services present to Pam Rutledge a BankAmeri-card credit card owned by Hiram C. Limerick, hereafter styled the Complainant, without the effective consent of the Complainant, knowing that the credit card had not been issued to the Defendant

[[Image here]]

It is asserted that the indictment fails to allege that petitioner presented the credit card knowing that she did not have the effective consent of the card holder.

V.T.C.A. Penal Code, Sec. 32.31, provides:

“(a) • • •

“(b) A person commits an offense if:

“(1) with intent to obtain property or service fraudulently, he presents or uses a credit card with knowledge that:

“(A) the card, whether or not expired, has not been issued to him and is not used with the effective consent of the cardholder;”

The indictment fails to allege the petitioner used the credit card knowing that she did not have the effective consent of the cardholder. The petitioner is entitled to the relief sought under the authority of Ex parte Walters, 566 S.W.2d 622 (Tex.Cr.App.1978); Ex parte Reed, 574 S.W.2d 161 (Tex.Cr.App.1978); Ex parte Mathis, 571 S.W.2d 186 (Tex.Cr.App.1978); Ex parte Dawson, 578 S.W.2d 749 (Tex.Cr.App.1979); Guster v. State, 580 S.W.2d 363 (No. 58,559, decided May 2, 1979).

The State argues that under the authority of Johnson v. State, 541 S.W.2d 619 (Tex.Cr.App.1976) relief should be denied. The indictment in that case was substantially the same as the indictment in this case, and the judgment in that case was affirmed. However, the objection to the indictment in that case was not the same objection that has been made in this case. The matter here decided was not raised in that case. We were in error in Johnson v. State, supra, in stating that all of “. the constituent elements of the offense were charged in the terms of the statute . ” See the form for indictment suggested in McClung, Jury Charges for Texas Criminal Practice with Indictment and Information Forms, rev. ed. 1979, p. 317.

The petitioner’s application for writ of habeas corpus is granted and the prosecution under this indictment is dismissed.

It is so ordered.