Defense attorney has filed a motion to quash indictment alleging that the state must allege and prove an actual physical "item" under 32.51 of Texas Penal Code. He is claiming that unless there is actual item it violates 6.01 of Texas Penal Code. My judge thinks this attorney is brilliant on these types of issues. I cannot find a case directly on point. I have found several cases which deal with sufficiency of evidence where an "item" is not actually involved to use against his argument. However, I would appreciate any suggestions or cases on this matter.

See Long v. State, 245 S.W.3d 563, where a man was convicted for using the credit card information and identifying information of a woman without actually possessing the credit card, just the information he retrieved from a fax.

While it does not specifically construe the term item, the argument can be made that it would be irrational to assume the Legislature intended only to make possession of an item of identifying information a crime, as otherwise a person could escape prosecution for a crime such as in the Long case.

-L.

Thanks, that is my argument.