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Facts: Suspect (A) uses the financial institution account number of another (B) without the other person's consent and with intent to harm or defraud another. Namely, A provides this information to her creditors and encourages/requests them to issue a draft against B's account at a bank (supposedly to pay off her debt). (see 7.02(a)(1), P.C.) The creditor then issues such a draft "as authorized signatory for A" which is presented for payment at the bank. The bank honors the draft and forwards funds (less than $1500) to creditor and debits B's account. Did A violate 32.51(b)(c); 32.21(b)(d); 31.03(a); all of these statutes; other statutes? How would you charge the offense(s)?

Scenrio 2: same facts but rather than written drafts, "payment orders" under 4A.103(a)(1) Bus. & Comm. Code are utilized (no writing). But, of course, the ACH payment orders are recorded by the banks involved in writing. See 32.21(a)(2)(A)- "writing" includes any method of recording information.
 
Posts: 2366 | Registered: February 07, 2001Reply With QuoteReport This Post
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Why not 32.46(a)? You're on the same value ladder as theft, so it's still a misdemeanor, but tack on the 32.51 possession charge as a SJF...

If the elements of 32.46 and 32.51 are sufficiently different, couldn't you charge both as part of the same criminal episode?
 
Posts: 764 | Location: Dallas, Texas | Registered: November 04, 2003Reply With QuoteReport This Post
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I want to charge the conduct as a felony. Query: prior to enactment of 32.51 what would this offense have been? I would certainly have liked to charge forgery, but is that really appropriate, particularly in scenario 2?
 
Posts: 2366 | Registered: February 07, 2001Reply With QuoteReport This Post
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"A" certainly has committed a theft, and it looks as though 32.51 fits the conduct as well.I would file the felony. I don't like Forgery, because we have issues about a "writing". If theft were legalized, and 32.51 were repealed I might proceed with it as a Forgery, but not otherwise.
 
Posts: 71 | Location: Houston, Texas, USA | Registered: January 24, 2003Reply With QuoteReport This Post
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If you are comfortable with "writing", then think on the following combination.

� 7.02. Criminal Responsibility for Conduct of Another, Texas Penal Code -

(a) A person is criminally responsible for an offense committed by the conduct of another if:

(1) acting with the kind of culpability required for the offense, he causes or aids an innocent or nonresponsible person to engage in conduct prohibited by the definition of the offense;

The creditor's representative could be said to be "an innocent ... person" who was caused "... to engage in conduct prohibited ..."

See Sales v. State, 628 S.W.2d 796 (Tex.Crim.App. 1982) for a case finding a forgery even if the crook signed his own name. Using the account number of another is enough to "purport to be the act of another". See also Green v. State, 761 S.W.2d 824 (Tex.App.-Dallas 1988) for another case along the same lines.

If your suspect "intended to harm" by creating a confusion leading the bank to believe the account holder (whom your suspect identified by account number) had authorized the draw, then ... forgery.

If the defense gets uppidity, then you have already discussed misdemeanors that might be put on your suspect - hit them with Transferred Intent - Section 6.04(b)(1), Tx.P.C. Clearly the suspect intended a criminal act and a forgery came down. However, that shouldn't be necessary.

Good hunting.
 
Posts: 78 | Location: Belton, Texas | Registered: May 01, 2002Reply With QuoteReport This Post
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