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Omoruyi v. State

Court of Appeals of Texas, Sixth District, Texarkana

June 21, 2017


          Date Submitted: April 21, 2017

         On Appeal from the 276th District Court Marion County, Texas Trial Court No. F14782

          Before Morriss, C.J., Moseley and Burgess, JJ.


          Josh R. Morriss, III Chief Justice

         While 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).

         A 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 trial.

         (1) Legally Sufficient Evidence Supported Omoruyi 's Conviction

         Omoruyi 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.

         In 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).

         Legal 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 tried." Id.

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.

         The two cards described by the indictment were admitted into evidence as part of State's Exhibit 7:

         (Image Omitted)

         The 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.

         On the 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.

         We overrule this point of error.

         (2) Omitting the Statutory Definition of "Incomplete " Was Egregiously Harmful

         Jury 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).

         Omoruyi 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.

         As its 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 ...

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