dissenting.
I respectfully dissent from the majority opinion’s disposition of appellant’s third and fourth points of error. I concur in the majority opinion’s treatment of appellant’s first and second points of error; therefore, these points will not be discussed here.
Appellant’s third and fourth points of error challenge the sufficiency of the evidence to support his conviction. I agree with the majority that the indictment in this case required the State to prove: (1) appellant (2) with the intent to obtain property or service (3) used (4) a fictitious credit card (5) knowing that the credit card was fictitious. See Whetstone v. State, 786 S.W.2d 361, 364-65 (Tex.Crim.App.1990); Moallen v. State, 690 S.W.2d 244, 245-46 (Tex.Crim.App.1985), on remand, 699 S.W.2d 926 (Tex.App.— Houston [1st Dist.] 1985, pet. ref’d).
However, I disagree with the majority that appellant’s conviction should be affirmed, and I would hold the evidence is insufficient to support appellant’s conviction. The majority opinion holds that in proving the “fictitious credit card” element of the offense, it was sufficient for the State to have proved that Chevron did not, in fact, issue the card to Lawson.
In Moallen, the defendant was alleged to have violated Tex. Penal Code Ann. § 32.-31(b)(2) (Vernon 1989) by using a credit card that Southwestern Bell purportedly issued to her. Moallen, 690 S.W.2d at 244. Southwestern Bell apparently had not issued the card to anyone; the card was, in essence, a fake. Id. Otherwise, I do not see how the defendant could have violated section 32.31(b)(2) by using a Southwestern Bell credit card that Southwestern Bell had actually issued to her. See Moallen, 699 S.W.2d at 928-30 (Levy, J., dissenting).
The Court of Criminal Appeals in Moallen stated the gravamen of the offense is that the accused use a fictitious credit card, and the very fact the card is fictitious implies there is no actual owner of the card who is victimized. Moallen, 690 S.W.2d at 246. Prior case law has held the “owner” of a credit card is the “issuer” of the credit card. See Jones v. State, 611 S.W.2d 87, 90 (Tex.Crim.App.1981). Therefore, I would hold the State was required to prove there was no actual “owner” of the card to establish a violation of section 32.31(b)(2).
Here, however, since the State proved that Chevron was the actual owner of the card when it proved that Chevron issued the card, I would hold the State failed to prove that appellant used a “fictitious credit card.” Compare Moallen, 690 S.W.2d at 246 (very fact the card is fictitious implies there is no actual owner of the card).
I would sustain appellant’s third and fourth points of error.
Therefore, pursuant to Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), and Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978), appellant is entitled to an acquittal.