The new Fraudulent Use Statute allows for enhancement based on number of items of info possessed. It appears that the offense is possessing a single person's info with intent to defraud and without the victim's consent, and the offense is enhanced if the total number of items of information possessed is above a certain number. Rather than allege each victim and each piece of info(like a theft by check case), I thought we could use the following. I need thoughts and suggestions. Thanks in advance.


Personally appeared before me, the undersigned authority, NAME OF AFFIANT, the Affiant, and who after being by me duly sworn, deposes and says: Affiant has good reason to believe and does believe that NAME OF DEFENDANT, on or about DATE OF OFFENSE, and before the making and filing of this Complaint, in NAME OF COUNTY, Texas, did then and there, with intent to defraud or harm another, possess identifying information of another, to-wit: NAME INFO of NAME VICTIM without the consent of NAME VICTIM, and the total number of items of identifying information possessed was: less than five; five to ten; ten to fifty; fifty or more.

If there is more than one item and more than one victim, are you intending to name each victim and describe each item possessed?

The TDCAA Charging Manual has some solutions.

We have the charging manual. It suggests that we list all victims and items. I would like to avoid needing 50 witnesses at trial. The above is my suggestion to cover 30 victims with 3 items each.

My reading of the ststute is that the offense in 32.51 b(1) is to possess one piece of the listed info belonging to one person without that person's consent and with intent to defraud that person.

Section (c) provides the punishment level based on the number of items possessed(with no mention of intent or consent)

Section (b-1) contemplates that intent is presumed if you merely possess the info of three or more persons.

In my scenario, you would have 3 witnesses at trial to prove lack of consent and get the presumption of intent, then use the officers to prove the number of items the defendant possessed (regardless of how many different people's id the defendant had)

I know the safe way is to list all victims, and all pieces of info, then call all 50 witnesses at trial. My question is whether my idea is too out of line to send to a court of appeals for review.

Any suggestions?

CCP Art. 38.39 may provide some authority for not calling each one to be a witness.

However, I would list each victim in the indictment. You need to prove lack of consent by each victim. I am concerned that a court might hold that the only way to prove it would be by the testimony of each victim. The presumption would establish intent to defraud or harm but would not necessaiy prove lack of consent.

I figured that was the answer i would get. Thanks for your input. A guy can hope though right?
Also, thanks for reminding me about 38.39(which is mistyped as 38.40 in my book)
I guess we'll get to alleging victims....