Comment

Unanimity. The offense created and defined by Tex. Penal Code § 32.31 can be committed in a wide variety of ways, including stealing a credit card, receiving a stolen card, or fraudulently possessing a card. Special care is required if the indictment sets out a variety of these alternatives in a single count of the indictment. The court of criminal appeals has held that these alternatives are different offenses and not just manners and means of committing the same offense. Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Consequently, the jury must be instructed that they have to be unanimous about which of these criminal acts the defendant committed. Ngo, 175 S.W.3d at 744. Further discussion of the issue of juror unanimity regarding alternatives submitted to the jury is set out at CPJC 1.8.

Use or Present the Credit Card of Another. The instruction at CPJC 32.11 covers the most commonly prosecuted form of the offense, addressed in Tex. Penal Code § 32.31(b)(1)(A).

The offense prescribes several culpable mental states: intent to obtain a benefit fraudulently, knowledge that the card was not issued to him, and knowledge that he lacks the consent of the owner. Therefore, no additional culpable mental state is required by section 6.02(b).