Omoruyi v. State

OPINION Opinion by Chief Justice Morriss 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 Omo-ruyi 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 (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 — 694 — ultimate facts.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19, 99 S.Ct. 2781); 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 here]] 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 — 695 — 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 cbuld 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. (¾) 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 Omo-ruyi’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 the two cards were incomplete. The statutory definition of “incomplete” bears on an essential element of the offense; it is not an avoidance defense to be asserted or lost by the defendant. Because the statutory definition was not given, there was error. — 696 — When jury-charge error' is not preserved for appeal, we are to review the error for egregious harm. Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g); Mathonican v. State, 194 S.W.3d 59, 62 (Tex. App.—Texarkana 2006, no pet.). An error causes egregious harm when it denies the defendant of a fair and impartial trial. See Almanza, 686 S.W.2d at 171. In other words, egregious harm is caused by an error that “affects ‘the very basis of the case,’ deprives the defendant of a ‘valuable right,’ or ‘vitally affect[s] a defensive theory.’ ” Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006) (quoting Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza, 686 S.W.2d at 172). We assess the degree of harm in light of the jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole. Arline, 721 S.W.2d at 351-52; see Green v. Texas, 476 S.W.3d 440, 446 (Tex. Crim. App. 2015), cert. denied, — U.S. —, 136 S.Ct. 2454, 195 L.Ed.2d 266 (2016). a. The Jury Charge The charge in this case addressed party responsibility, as the State sought to make Omoruyi responsible not only as a primary actor, but also as a party with Braghini. The charge also addressed tjie requirement that accomplice testimony, that is, the testimony of Braghini, must be corroborated. The charge defined “cardholder,” “debit card,” “unmanned teller machine,” “customer convenience terminal,” “possession,” and “effective consent.” It did not define “incomplete,” the only element argued by Omoruyi that appeared to be in real doubt. . h The Evidence Based on the evidénce adduced at trial, there was little or" no' controversy concerning any of the issues that were defined in the charge. The central fact issue was whether the cards were complete, the one definition that was missing. The two debit cards described in the indictment were admitted into evidence as part of State’s Exhibit 7, the" contents of an envelope, which also included a number of cards that were really blank. The State’s main witness, Trooper McKinney, testified on direct examination to details observable about each of the two cards described in the indictment. The State added questions about the sandpaper McKinney found in the car and the apparent intent of the car’s occupants to remove the embossing and re-stamp the cards so they could be used fraudulently. Omoruyi began by questioning McKinney mostly about the scope of the investigation and the lack of fingerprint evidence, not about the cards being complete or incomplete. The cross-examination did establish that McKinney did not know whether the cards were valid. On re-direct, the State asked McKinney about aspects of the two cards that might make them- invalid. It then established with McKinney that-the focus-of the case was, not oh the presence, of an' embossing machine, a card loader, or sandpaper, but on whether Omoruyi “had those cards that were incomplete.” On re-cross, Omoruyi identified the two cards described in the indictment and established that they have a telephone number of the issuer on them, but that McKinney did not call the issuer to determine whether the cards were valid. He also got McKinney to testify that the cards had a number of elements in place so that they appeared complete. So, the State’s first — 697 — and main witness admitted that the two cards were complete, not incomplete. The thrust of that testimony is that the cards were possibly fraudulent or suffered some other defect, not that they were incomplete. There was much evidence and time spent reviewing 103 jailhouse telephone calls that.showed the defense in a bad light, but did not bear on the' issues at hand. A long video recording of the stop on the roadside was admitted into evidence and played for the jury, also of little relevance to the elements of the offense. In light of the evidence, the only real fact issue in play was whether the two cards described in the indictment were complete or incomplete. c: The Arguments of Counsel The State’s primary closing argumént covered elements of the crime. Some significant focus was put on possession, party liability, and accomplice status and corroboration. While the State mentioned incompleteness as an element of the offense, there was no argument focused on the state of completion of these two cards. Actually, the State’s argument referenced the two “offense” cards only in referencing the indictment. Omoruyi’s argument included examination of the burden of proof and raised questions regarding the investigation. Although it spent time on the jailhouse calls, for example, a significant segment of Omo-ruyi’s closing argument was spent on the complete/incomplete status of the two cards, asserting that neither of the two cards was. incomplete. Excerpts from Omo-ruyi’s closing argument are as follows: The Trooper, when I asked him which cards were in violation of the law, picked up two. One of them was right and the other one wasn’t. These (indicating) are the cards by the way in State’s Exhibit Number 7. Neither -of these cards is incomplete, neither. You can ask for them. It’s the VISA card ending in 5950, and VISA-debit card ending in 3333. Let me just make sure of that—yeah. Well, the two cards ■ alleged are not incomplete. The indictment says that he was charged because he had incomplete cards. They are not incomplete. • One-of them is a' gift card. One of them is -a credit card. Both of them have all of the numbers on them. And the gift card tells you how to call in if you want to. reload it. Both cards have phone numbers on them. Both of them have identification numbers on them. Both of them have expiration dates. And both of them have who issued the card. Yeah—one of them is a MasterCard, I’m sorry, it was this (indicating) one. But they are still the same, complete. Now, the State’s indictment says that the reason .that he violated the law was because these (indicating) cards were incomplete. -And that therefore, he had to have the intent to complete the cards to commit a crime. [[Image here]] So, both of these (indicating) cards are complete, not incomplete which you have to find beyond a reasonable doubt. And both of these cards it’s alleged Were issued to the issuer. And' how can a defendant have the intent to complete a card that is already complete; you can’t. [[Image here]] They picked their own poison. And their poison was to allege that there were two incomplete cards which is not true. [[Image here]] Well, ... he’s not indicted for anything but those two cards-, both of which are complete and neither of which was issued to either MasterCard or VISA. The State’s rebuttal argument indicated that the State was then, at least partially, drawn into the completeness battle, — 698 — prompting it to explain to the jury its apparent theory that the incompleteness of the two cards in question lay in the lack of encoding in the magnetic stripes on the reverse of the cards: “But if this (indicating) was activated, if this (indicating) had been loaded, and they had the ability to do that, then it would have been complete.” The problem with that argument was that there was no proof that the cards in question had not been activated or loaded. The State’s rebuttal argument also offered the jury other things to consider on the completeness issue: Now, whether it’s the incomplete cards we’ve talked about, you’ve seen them. You can tell they’re not completed because they are not actual cards. I don’t know if they—I mean they are actual cards, but they haven’t—they aren’t valid cards as you can tell by the way that they are printed. It looks like maybe they did some test runs, trying to figure out how to do this. You can see the cards themselves appeared to have been scratched in some way. Once you get it in the light, you can tell. There are several of them that have the scratch marks on them like that (indicating). And they have the ability to do that too because they have the sandpaper. Now, the last thing is whether or not they had the consent of VISA and MasterCard to have these (indicating) cards which are not complete, which are not valid. And on the face, you can tell they are not valid cards, and whether they had the consent. The arguments, taken together, suggest strongly to us that giving the jury the statutory definition of completeness was central to the case. d. Other Relevant Information After closing arguments, during which Omoruyi invited the jury to ask for the cards and the State invited the jury to look at them for scratch marks, the jury sent the trial court a note asking to look at the cards. The court’s comments on the record put it in context: We have received a note that says, “We would like to look at the cards.” Our response will be, “The cards are being delivered to you by the bailiff.” .... The jury did not specify which card or cards, and the entire State’s Exhibit' 7 was delivered, including the envelope and its contents, which included both “offense” cards and the others in that envelope. It appears that the jury was likely focused on the completeness issue. Another possibility is that it was focused on evidence that the cards had been, or were being, tampered with. This demonstrates to us that, either way, the statutory definition was crucial to guide the jury on the completeness issue or to properly refocus it on the completion issue, not a red herring issue about tampering with complete cards. It is also worth noting that Omoruyi filed and argued a motion for new trial. Its focus was on Omoruyi’s contention that the two cards were not incomplete and that the definition of “incomplete” was not in the jury charge as required, causing egregious harm. Assessing the above factors leads us to the conclusion that the lack of the statutory definition of “incomplete” left it without the guidance essential to allow it to decide the only real issue in the case. Because the lack of that definition deprived Omoruyi of the right to have an informed jury decide his fate on the only real defensive theory, it denied him a fair and impartial trial. See Olivas, 202 S.W.3d at 144; Almanza, 686 S.W.2d at 171. Harm was egregious. We reverse the judgment of the trial court and remand this matter to the trial court for a new trial.