Judge Michael McC _ nick - Voice For The Defense Online

The Denson-Boozer Debate: How ShouldWe Measure Sufficiency of Evidence?by Chris HiibnerIn January of 1980, Mike Onega wasindicted for credit card abuse.' The indictmentalleged that he "intentionally andknowingly with intent to fraudulentlyobtain property and services" presented aSears credit card with knowledge that thecard had not been issued to him. Ortegawas convicted and on appeal he alleged,inter alia, that the evidence was insnfficientto support the jury's fmdmg that heused the credit card with intent to fraudulentlyobtain both property and services.The Corpus Christi Court of Appeals heldthat although theie was no evidence thatOrtega used the credit'card to obtain services,the evidence was nevertheless sufficientto sustain his conviction for creditcard abuse. Ortem v. State. 653 S.W.2d1982). The court of appeals concluded:"We fail to see how the use of 'and services'in the indictment injured the defendant."Onega, supra, 653 S.W.2d at 830.The Court of Criminal Appeals, onoriginal submission, affirmed after findingthat the evidence showed Ortega intendedfraudulently to obtain not only "property,"but also the "services" necessaryto complete the transaction at the timehe presented the credit card. Ortega v.State, 668 S.W.2d 701, 705 (Tex.Cr.App. 1983). On rehearing the Courtreversed Ortega's conviction and ordereda judgment of acquittal, fmding that theevidence was insufficient to show that thesales clerk's "service" was the intendedobject of Ortega's desire. "The steps takento extend him credit were merelv , incidentalto the transaction." Ortega, supra, at706 (Opinion on Rehearing). It was heldthat the extension of credit, in and of itself,without further proof, does not constitutea "service."In reaching this conclusion, JudgeCampbell added, "because the charge instructedthe jury that it must fmd bothpropertyand services before returning a guiltyverdict, then it was necessary that there besufficient proof of both means alleged."12 VOICE for tke Defense I January 1989Chris Hiib,ter is a native of Oak Ridge,Tennessee. He graduated from IndianaUniversity in 1982 (Phi Beta Kappa) witha double major in history and politicalscience and received his J. D. degreefromthe University of Housfon Law Center in1985.Chris has worked as Briefng Attorneyfor Presiding Judge John F. Onion of theTexas Court of Criminal Appeals (1985-861, and was also employed as JudgeOnion's Research Attorney. He is licensedtopractice before the Texas Supreme Couriand the United States District Courtfor theWestern District of Texas. Chris is nowpracticing criminal law in Austin.Ortega, supra, at 707 (emphasis inoriginal). Judge Campbell maintained thatotherwise a guilty verdict would be contraryto the law and the evidence. and citedwith approval Judge Clinton's explanato~yfootnote in the opinion on original submissiondiscussing "surplusage" in the court'scharge. That fwhote read in relevant partBut once the [surplus] phrase is incor-porated into the court's instructions tothe jury in such a way that the jury mustfind it before a verdict of guilty isauthorized, Article 36.13, V.A.C.C.P.,it must be proved, or the verdict willbe deemed "contrary to the law andevidence." See Article 40.03(9),V.A.C.C.P. In sum, there is no suchthing as "surplusage" in the part of thecourt's instructions to the jury whichauthorizes a conviction, and if the prosecutorbelieves that portion of thecharge unnecessarily increases his burdenofproof, it behooves him speciallyto request a charge which correctlyallocates the burden pIaced on him bylaw. This is nothing more than thecourse of law which is due before a personmaybe deprived of liberty. Article1 .O4, V.A.C.C.P. And if the recordreflects the prosecutor has pursued thiscourse to protect his lawful obligations,but the trial court has neverthelessrefused the amendment to the indictmentor submission of the requestedcharge, and the evidence is found insufficientto support the verdict bemuseof the trial court's error in this regard,those reviewable rulings of the trialcourt found erroneous by the appellatecourt constitute "trial error," and theState is free to pursue another prosecution.Cf. Burks v. United States, 437US. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1(1978); and Greene v. Massey, 437US. 19,98S.Ct.2151,57L.Ed.2d15(1978).Ortega, supra, at 705, n. 10 (emphasis inoriginal).Judge Clinton's footnote No. 10 effwtivelyset the stage for a debate which hasdivided the Court of Criminal Appeals fornearly a decade. The debate focuses onwhether sufficiency of the evidence is tobe measured by the charge that is givento the jury. This article will analyze indetail two cases in which the Court hasaddressed this issue at length, namely Ben-