Court of Appeals of Texas, Sixth District, Texarkana
Submitted: April 21, 2017
Appeal from the 276th District Court Marion County, Texas
Trial Court No. F14782
Morriss, C.J., Moseley and Burgess, JJ.
R. Morriss, III Chief Justice
Isaac Uyi Omoruyi and Rebecca Braghini were stopped along a
highway in Marion County by Texas Department of Public Safety
Trooper Kurt McKinney, McKinney discovered in their small
vehicle, directly behind the passenger seat in which Omoruyi
had been sitting, a number of blank credit or debit cards, a
card embossing machine, a card reloader, sandpaper, a sock,
three laptop computers, a card printer users' manual,
and, more importantly, two specific debit cards that were
later specifically described in the indictment against
Omoruyi for credit/debit card abuse. See Tex. Penal
Code Ann. § 32.31 (West 2016). To be precise, the
indictment alleged that Omoruyi committed credit/debit card
abuse by possessing
two incomplete debit cards, namely, a Visa number 4076 1111
2222 3333 debit card and a MasterCard number 5249 0500 0176
8097 debit card, which cards had been issued to [sic] Visa
and MasterCard, respectively, and the defendant possessed
each of the cards without the card having been issued to him
and with intent to complete them . . . .
See Tex. Penal Code Ann. § 32.31(b)(9).
Marion County jury convicted Omoruyi and assessed two
years' confinement and a fine of $1, 000.00, assessments
incorporated into the trial court's judgment. On appeal,
Omoruyi asserts that the evidence is legally insufficient to
support the judgment and that the failure to instruct the
jury with the statutory definition of "incomplete"
caused him egregious harm. Because (1) legally sufficient
evidence supported Omoruyi's conviction, but (2) omitting
the statutory definition of "incomplete" was
egregiously harmful, we reverse the judgment of the trial
court and remand this matter to the trial court for a new
Legally Sufficient Evidence Supported Omoruyi 's
asserts that the evidence was legally insufficient to sustain
his conviction and focuses his argument on the single element
that the two cards were incomplete. Though there was scant
evidence that the cards were incomplete, the two cards
themselves were in evidence. Because of what the cards
themselves revealed, we find legally sufficient evidence to
support the conviction.
evaluating the evidence for legal sufficiency, we review all
the evidence in the light most favorable to the trial
court's judgment to determine whether any rational jury
could have found the essential elements of the offense beyond
a reasonable doubt. Brooks v. State, 323 S.W.3d 893,
912 (Tex. Crim. App. 2010) (plurality op.) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979));
Hartsfield v. State, 305 S.W.3d 859, 863 (Tex.
App.-Texarkana 2010, pet. ref d). We examine legal
sufficiency under the direction of the Brooks
opinion, while giving deference to the responsibility of the
jury "to fairly resolve conflicts in testimony, to weigh
the evidence, and to draw reasonable inferences from basic
facts to ultimate facts." Hooper v. State, 214
S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson,
443 U.S. at 318-19); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
sufficiency of the evidence is measured by the elements of
the offense as defined by a hypothetically correct jury
charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.
Crim. App. 1997). The "hypothetically correct" jury
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 unnecessarily restrict the
State's theories of liability, and adequately describes
the particular offense for which the defendant was
Omoruyi committed the offense of debit card abuse, as
indicted in this case,
if he possesse[d] two or more incomplete . . . debit cards
[described in the indictment] . . . not . . . issued to him[,
] with intent to complete them without the effective consent
of the issuer. For the purposes of this subdivision, a card
is incomplete if part of the matter that an issuer requires
to appear on the card before it can be used, other than the
signature of the cardholder, has not yet been stamped,
embossed, imprinted, or written on it.
Tex. Penal Code Ann. § 32.31(b)(9). Here, the only
element of proof in issue on appeal is that the Visa debit
card number 4076 1111 2222 3333 and the MasterCard debit card
number 5249 0500 0176 8097 were each incomplete.
cards described by the indictment were admitted into evidence
as part of State's Exhibit 7:
evidence demonstrated that the Visa card bore the name Troy
Nelson and the MasterCard card was not issued to any named
individual, but instead bore the words "My Card."
Each of the two cards had a sixteen-digit number, issuer
contact information, and what appeared to be a magnetic strip
on the rear. The Visa card had what appears to be a garbled
or damaged expiration date, a bend or crease in the card
itself, and an extra or errant character immediately above
the beginning of its sixteen-digit number. The
MasterCard's expiration date was cleanly printed. There
was no testimony that the magnetic strip on the back of
either card lacked the necessary encoding for the card to be
usable. There was no testimony about what elements a card
must have for it to be complete or usable as a debit card
and, in fact, none regarding the lack of any essential
element needed to allow either card to be used. Finally, the
State's primary witness, Trooper McKinney, testified, on
cross-examination, that the cards appeared to be complete.
other hand, the two cards were in evidence for examination by
the jury itself and were accompanied by a remarkable cache of
other items strongly suggesting some sort of criminal intent.
Because of that, because the jury could physically view and
handle each of the two cards, because the Visa apparently
lacked a clear expiration date, and because the MasterCard
lacked any individual's name to whom it was issued, we
conclude that the jury could have rationally found beyond a
reasonable doubt that the two cards were lacking something
needed to allow their use and that, thus, the evidence was
legally sufficient that the two cards were incomplete within
the meaning of the statute and the indictment.
overrule this point of error.
Omitting the Statutory Definition of "Incomplete "
Was Egregiously Harmful
instructions must include "statutory definitions that
affect the meaning of the elements of the offense."
Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim.
App. 2011). A statutory definition is to be given insofar as
the definition is relevant to the elements of the offense at
issue. Id; Burnett v. State, 488 S.W.3d 913, 923
(Tex. App-Eastland 2016, pet. granted).
argues that the lack of the definition of
"incomplete" in the jury charge was an error that
caused him egregious harm. The State asserts that the lack of
the statutory definition in the jury charge was not error,
since the incompleteness of the cards was a defensive issue
forfeited by Omoruyi's failure to request the definition
in the jury charge. The State argues in the alternative that,
if incompleteness was not a defensive issue, the error in not
submitting the definition did not cause egregious harm.
authority that the completeness issue was a defensive issue,
the State cites a single case. See Posey v. State,966 S.W.2d 57 (Tex. Crim. App. 1998). In Posey, the
defendant claimed mistake of fact in defending against a
charge of unauthorized use of a motor vehicle, asserting that
he thought he had the permission of the car's owner to
use the car. See Tex. Penal Code Ann. § 8.02
(West 2011) (mistake of fact); see also Tex. Penal
Code Ann. §§ 2.03-.04 (West 2011) (defense,
affirmative defense). Although Posey pursued the issue when
examining witnesses, he never requested that the issue be
presented to the jury. The Texas Court of Criminal Appeals
held that there was no error, because Posey had not requested
that the defensive issue be presented to the jury.
Posey, 966 S.W.2d at 62. Here, the State does not
explain how it contends that Omoruyi's claim that the
cards were complete is a defensive issue subject to
forfeiture. Instead, the State was obliged to prove, beyond a
reasonable doubt, that ...