The state accuses the defendant of having committed the offense of fraudulent use or possession of credit card or debit card information.

Relevant Statutes

A person commits the offense of fraudulent use or possession of credit card or debit card information if the person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses the data stored on the digital imprint of a credit card or debit card without the consent of the account holder.

Definitions

Harm

“Harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.

Counterfeit Credit or Debit Card

[Include one or more of the items in the following definition as dictated by the charging instrument.]

“Counterfeit credit or debit card” means (1) a credit or debit card that purports on its face to have been issued by an issuer that did not issue the card; (2) a credit or debit card that has been altered to contain a digital imprint other than that which was placed on the card by the issuer; (3) a credit or debit card that contains a digital imprint with account information or account holder information differing from that which is printed or embossed on the card; (4) a credit or debit card that has been altered to change the account information or account holder information on the face of the card from that which was printed or embossed on the card by the issuer; or (5) a card, other than one issued as a credit or debit card, that has been altered to contain the digital imprint of a credit card or debit card.

Credit Card

“Credit card” means an identification card, plate, coupon, book, number, or any other device authorizing a designated person or bearer to obtain property or services on credit. The term includes the number or description of the device if the device itself is not produced at the time of ordering or obtaining the property or service.

Debit Card

“Debit card” means an identification card, plate, coupon, book, number, or any other device authorizing a designated person or bearer to communicate a request to an unmanned teller machine or a customer convenience terminal or obtain property or services by debit to an account at a financial institution. The term includes the number or description of the device if the device itself is not produced at the time of ordering or obtaining the benefit.

Unmanned Teller Machine

“Unmanned teller machine” means a machine, other than a telephone, capable of being operated by a customer, by which a customer may communicate to a financial institution a request to withdraw a benefit for himself or for another directly from the customer’s account or from the customer’s account under a line of credit previously authorized by the institution for the customer.

Customer Convenience Terminal

“Customer convenience terminal” means an unmanned teller machine the use of which does not involve personnel of the financial institution.

Digital Imprint

“Digital imprint” means the digital data placed on a credit or debit card or on a counterfeit credit card or debit card.

Intending to Defraud or Harm Another

A person intends to defraud or harm another if it is the person’s conscious objective or desire to defraud or harm another.

Presumption of Intent to Harm or Defraud Another

The law provides for a presumption that you may wish to apply in this case. This presumption can apply only if you find the state has proved, beyond a reasonable doubt, that the defendant possessed five or more items of the following: (1) number and expiration date of a credit card, (2) number and expiration date of a debit card, (3) data stored on the digital imprint of a credit card, or (4) data stored on the digital imprint of a debit card.

If you find the state has proved, beyond a reasonable doubt, that the defendant possessed five or more of the items mentioned above, then you may infer from this fact that the defendant possessed each item without the consent of the account holder. You are not, however, required to infer or find this even if you find that the defendant possessed five or more of these items.

If you have a reasonable doubt whether the defendant possessed five or more of the items listed above, the presumption does not arise or apply. In that case, you will not consider this presumption for any purpose.

If you apply this presumption, you may conclude that the state has proved that the defendant possessed each item without the consent of the account holder. If you do decide to apply the presumption to show the state has proved the defendant possessed each item without the consent of the account holder, you must still decide, beyond a reasonable doubt, whether the state has proved the defendant obtained, possessed, transferred, or used the data stored on the digital imprint of a credit card or debit card without the consent of the account holder.

If you conclude you cannot apply the presumption or you choose not to apply it, you must still consider whether—without reference to the presumption—the evidence proves beyond a reasonable doubt that the defendant possessed each item without the consent of the account holder.

Application of Law to Facts

You must determine whether the state has proved, beyond a reasonable doubt, five elements. The elements are that—

1. the defendant, in [county] County, Texas, on or about [date], [insert specific means of offense, e.g., obtained, possessed, or passed] the digital imprint of—

   [List cards alleged in the indictment and specify whether the cards are credit cards, debit cards, or digital imprints, such as the following.]

   Identify Cards Alleged in Indictment	Credit Card, Debit Card, or Digital Imprint
   [identify card 1]
   [identify card 2]
   [identify card 3]
   [identify card 4]
   [identify card 5]

[Select one of the following.]

2. the defendant did this without the consent of the account holder(s), [name(s)];

[or]

2. [name] was the account holder of the [credit/debit] card;

[Continue with the following.]

3. the defendant did this without the consent of [name];

4. the defendant did this with the intent to defraud or harm [name(s)]; and

5. the number of items [obtained/possessed/passed/[other]] was [less than five/five or more but less than ten/ten or more but less than fifty/fifty or more].

You must all agree on elements 1, 2, 3, 4, and 5 listed above, but you do not have to agree on the specific items listed in element 1 above as long as you all agree that the state has proved enough of the listed items that the number of items totaled [five/ten/fifty] or more.

If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, 3, 4, and 5 above, you must find the defendant “not guilty.”

If you all agree the state has proved, beyond a reasonable doubt, elements 1, 2, 3, 4, and 5 you must find the defendant “guilty.”

[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC CPJC2.1, the general charge.]