Fraud and theft are closely related but are outlined in different sections of the Penal Code. Theft is when someone takes something of value by unlawfully appropriating it from the owner without his or her consent, and with the intent to permanently deprive the owner of the item. Fraud also deals with someone taking something of value from someone else, but the way it is taken is more due to a deceptive practice than outright stealing the item like you see with a theft.
Under some circumstances, you can be charged with both theft and an offense under the fraud section of the Penal Code, such as credit card abuse. An example would be when a person attempts to obtain, or does obtain, merchandise with a stolen credit card, and therefore, having no intention of paying for the merchandise, could be charged with theft and credit card abuse.
The crime of fraud involves crimes like forgery, credit card abuse, false statements to obtain credit, hindering a secured creditor, fraudulent transfer of a motor vehicle, and misapplication of fiduciary property, to name a few. In Texas, multiple crimes can be categorized as fraudulent activity. Below are just a few that Attorney Matt Bingham can successfully argue on his clients’ behalf:
Although there are many ways a forgery can be committed, it is most often seen in cases where a person intentionally alters, makes, completes, executes or authenticates any writing so it purports: to be the act of another who did not authorize the act, or to be a copy of an original writing that does not exist. One of the most common examples is the act of forging your signature on a check to pass as another person.
There are many different sections under the forgery statute (Penal Code section 32.21) that detail different ways this offense can be committed. The punishment for forgery, depending on the facts of the case and the manner in which it was committed, can range from a Class C misdemeanor, punishable by a fine only all the way to a first degree felony where the punishment can range from not less than 5 years in prison to Life, with a fine not to exceed $10,000.00.
A person commits this offense if, with intent to obtain a benefit fraudulently, he or she presents or uses a credit card or debit card knowing that the card, whether expired or not, was not issued to him or her and is not used with the consent of the cardholder whose name appears on the card.
Another way this offense is committed is if, with intent to obtain a benefit fraudulently, he or she presents or uses a credit card or debit card knowing that the card has expired or has been revoked or cancelled, the person: uses a fictitious card or card number, or steals a credit or debit card, or knowing a card has been stolen, the person receives the card with intent to use it, sell it or transfer it to another person other than the card holder. An offense is also committed where a person buys a credit or debit card from a person they know did not lawfully issue it, or even possess the card without the effective consent of the cardholder with intent to use it. These are the most common circumstances you see with credit card or debit card abuse cases, but it is by no means an exhaustive list.
Sentencing for credit card abuse is a state jail felony, punishable by not less than 180 days nor more than 2 years in a State Jail Facility with a fine, if any, not to exceed $10,000.00. If it is shown at the trial of the case that the victim was an elderly individual, the punishment is a third degree felony, punishable by not less than 2, nor more than 10, years in prison and a fine not to exceed $10,000.00.
There are possible defenses that can be utilized in case where a person has been charged with credit card and debit card abuse. One of the first areas that must be looked at closely is the issue of “consent” and whether the person charged had the consent of the cardholder to use the card, or reasonably believed he had the consent of the cardholder. Another area that should be looked at very closely is whether the person charged knew the credit card was stolen, if the facts are such that someone else represented to him that he could use the card. This issue goes to the heart not having the requisite “intent to fraudulently obtain a benefit”, and whether the person charged used the card with knowledge that the transaction would be fraudulent.
A skilled attorney will be able to look closely at the facts and scrutinize the evidence and the State’s case to fully develop any defenses that the evidence supports.
If you have been accused of credit card fraud, forgery, or any other crime that falls under the fraud section of the Texas Penal Code, you need an experienced lawyer on your side. Matt Bingham is an expert attorney who can handle your case. Contact his office today to schedule a free legal consultation.