Alfaro-Jimenez v. State , 577 S.W.3d 240 ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1346-17
PABLO ALFARO-JIMENEZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTH COURT OF APPEALS
BEXAR COUNTY
N EWELL, J., filed an opinion in which K EASLER, H ERVEY,
R ICHARDSON, Y EARY, K EEL, W ALKER and S LAUGHTER, JJ., joined.
K ELLER, P.J., dissented.
Appellant Pablo Alfaro-Jimenez carried around a fake social security
card in his wallet and admitted that he used it to get work. But to convict
Appellant of tampering with a governmental record under the theory of
liability authorized by the indictment in this case, the State had to prove
Alfaro-Jimenez — 2
that Appellant had possessed or presented a real social security card.
The State did not prove that in this case. Consequently, we reverse the
court of appeals’ holding that the evidence was sufficient to support
Appellant’s conviction.
Facts
On July 10, 2014, San Antonio Police Officer Edward Rodriguez was
dispatched to an apartment after a woman called 911 saying her
ex-boyfriend, who she identified as Juan Alberto Torres Landa, “was at
the location, banging on the door, kicking on the door, screaming, yelling,
making threats to her.” By the time the officer got there, Appellant had
left. After a report had been taken from the woman, Appellant
approached the officer, saying that “he wanted to set the record straight.”
Officer Rodriguez handcuffed Appellant for officer safety and asked
Appellant his name. Appellant said it was “Juan Alberto Torres Landa.”
Officer Rodriguez asked for some ID, and Appellant said it was in his
wallet in his back pocket. He then gestured for Officer Rodriguez to take
the wallet from his pocket. Officer Rodriguez opened the wallet and took
out an ID, an alien card, a Mexican driver’s license, and a social security
card. All documents bore the name “Juan Alberto Torres Landa,” but
Officer Rodriguez immediately recognized that the social security card
Alfaro-Jimenez — 3
was fake. The paper was too thin for an authentic social security card
issued by the government. Additionally, the ink on the card had smudged
in a manner inconsistent with a government-issued social security card.
Officer Rodriguez checked the social security number. It matched
a person from Vietnam, but Appellant did not appear to be Vietnamese.
Based upon the information he had gathered about the social security
card, Officer Rodriguez placed Appellant under arrest for tampering with
a governmental record. At that point Appellant admitted that his real
name was Pablo Alfaro-Jimenez, contrary to the information on his
various forms of identification, including the social security card.
The State charged Appellant with tampering with a governmental
record. The indictment contained alternative paragraphs, both of which
alleged that the record at issue was “a governmental record.” The first
paragraph alleged that Appellant had presented a social security card
“with knowledge of its falsity,”1 and the second paragraph alleged that
Appellant had possessed the social security card “with the intent that it
be used unlawfully.”2 Both paragraphs alleged that Appellant had
committed the offense with the “intent to defraud or harm” the Social
1
See T EX . P ENAL C O D E § 37.10(a)(5).
2
See T EX . P ENAL C O D E § 37.10(a)(4).
Alfaro-Jimenez — 4
Security Administration, which elevated the degree of offense.3
Trial
At trial, Officer Rodriguez testified about Appellant’s arrest.
Regarding the card he found in Appellant’s possession, Officer Rodriguez
explained that he immediately recognized that the social security card
was a fake:
Q When you got the Social Security card, what did you
notice about it?
A Immediately looked at the paper. I noticed it was a little
too flimsy, kind of—edges was kind of tearing off, it was
like a bad kind of paper. And I noticed the ink was not
dark, it was kind of faded. I looked down in the left-
hand corner and you could see where drops of water or
something was on the ink and it started to dry out and
blur with a wet mark on there, which Social Security
cards don’t do that.
The State also called a criminal investigator for the United States
Social Security Administration who testified that the card seized from
Appellant was not an authentic social security card. The investigator
acknowledged that social security cards are issued by a governmental
agency and that they are governmental records. But the investigator
explained that Appellant had possessed a counterfeit card with a real
3
T EX . P ENAL C O D E § 37.10(c)(1).
Alfaro-Jimenez — 5
social security number printed on it.
Q Okay. As far as this Social Security card is concerned,
then, is there anything you can tell us about the use of
this card number?
A All I can say is that this number was miss—the number
on the card was misused because it’s actually—it’s
printed on a counterfeit card, that’s all I can say how it
was used.
Appellant testified in his own defense, describing the card at issue
and how he got it. Appellant admitted that the card was a fake.
Q Now, do you admit that that Social Security card—Did
you get that Social Security card from the Social
Security Office?
A No.
Q Where did you get it?
A A guy sold it to me so I could get a job.
Q How much did you pay for it?
A Sixty dollars.
Q Where did the number on the Social Security card come
from?
A They made it up.
The jury charge included multiple different definitions of
“governmental record.” At the charge conference, the trial court stated
that it would, on the defense’s request, give an instruction on the lesser-
Alfaro-Jimenez — 6
included offense of tampering with a governmental record without the
intent to defraud element. The jury charge mirrored the indictment,
except that it included the lesser-included offense. The jury convicted
Appellant of the lesser-included offense.
The trial court reset the case for sentencing. At the sentencing
hearing, the trial court entered a conviction for a Class A misdemeanor
based upon the trial court’s reading of the statute. Neither party
objected, and the trial court sentenced Appellant to one year in jail,
probated for two years along with a $1,500 fine.
Appeal
Appellant challenged the sufficiency of the evidence, arguing, among
other things, that the State never proved that the fake social security
card was a governmental record.4 The State argued that a social security
card is a governmental record issued by the United States Social Security
Administration and that social security numbers are used for identification
as well as for employment and applying for loans or benefits.5 The State
also asserted that Appellant’s conviction for a Class A misdemeanor
amounted to an “illegal sentence” because a social security card is a
4
Appellant’s Direct Appeal Br. 7.
5
State’s Direct Appeal Br. 25.
Alfaro-Jimenez — 7
certificate issued by the United States, and therefore the offense of
conviction is a third-degree felony.6
In this regard, the State argued that “a” social security card is a
governmental record.7 But Appellant had actually argued that the
evidence was insufficient to show that “the” social security card—the one
Appellant possessed and presented in this case—was a certificate issued
by government, by another state, or by the United States. Compounding
the problem, the court of appeals analyzed the sufficiency of the evidence
for the underlying conviction under a different statutory subsection than
the ones relied upon by the State to convict Appellant.8
Ultimately, the court of appeals adopted the State’s arguments and
reformed the judgment to reflect a conviction for a third-degree felony.
In doing so, the court of appeals held that the evidence was legally
sufficient to establish that the record Appellant possessed and presented
was a governmental record because it was a certificate issued by the
6
State’s Direct Appeal Br. 26-27; see T EX . P ENAL C O D E § 37.10 (c)(2)(A).
7
The only definition of “governm ental record” urged in this case is the one found in §
37.01(2)(C). The State argued to the court of appeals that the social security card in this
case was a governm ental record because it was a certificate issued by the United States.
State’s Direct Appeal Br.25-26.
8
Alfaro-Jim enez v. State, 536 S.W .3d 579, 590 (Tex. App.— San Antonio 2017) (op.
on reh’g) (setting out elem ents of tam pering with a governm ental docum ent under §
37.10(a)(2)).
Alfaro-Jimenez — 8
United States.9 The court of appeals then remanded the case for new
punishment hearing.10
Appellant filed a petition for discretionary review challenging the
court of appeals’ decision.11 Though Appellant couches his issues in terms
of a violation of his right to a jury,12 Appellant also argues, in part, that
the evidence was insufficient to establish that Appellant’s fake social
security card was a governmental record.13 Appellant’s sufficiency claim
is subsumed within the grounds we granted for review. To the extent
that Appellant’s sufficiency challenge is not contained within the granted
9
Id. at 590-91 (citing the § 37.01(2)(C) definition and the § 37.10(c)(2)(A)
elevating elem ent).
10
Id. at 591.
11
Appellant’s Pet. 15-16.
12
Appellant asked, and we granted review on, the following questions:
1. W hether the right to a jury trial m andated by U.S. Const. Sixth and Fourteenth
Am endm ents, and U.S. Const. art. III § 2, and the concepts set out by [the Suprem e
Court] in Apprendi and Blakely, is violated by the procedure utilized by the Court of
Appeals, that is, a judicial finding of an elem ent not alleged in the indictm ent or
subm itted to the jury, which is an unacceptable departure from the jury tradition, an
indispensable part of our crim inal justice system , by m aking appellate courts fact
finders as to an elem ent not considered by the jury?
2. W hether the right to a jury trial and Due Process required by the Fifth, Sixth, and
Fourteenth Am endm ents, and Jackson v. Virginia, 443 U.S. 307, 560 (1979), was
violated when the Court of Appeals reform ed the Petitioner’s conviction to the
conviction of a higher offense, when such higher offense was not determ ined by the
jury, the factfinder resulting in a reform ed verdict which was not rendered by the
jury or the trial court?
13
Appellant’s Br. 9.
Alfaro-Jimenez — 9
points of error, we exercise our authority to review the court of appeals’
decision in this regard on our own motion.14 We agree with Appellant that
the State did not prove at trial that the social security card found in
Appellant’s wallet was a governmental record.
Analysis
In assessing the sufficiency of the evidence to support a criminal
conviction, “we consider all the evidence in the light most favorable to the
verdict and determine whether, based on that evidence and reasonable
inferences therefrom, a rational juror could have found the essential
elements of the crime beyond a reasonable doubt.” 15 The elements of the
offense are defined by the hypothetically correct jury charge. 16 This
hypothetically correct jury charge accurately sets out the law, is
authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability,
and adequately describes the particular offense for which the defendant
14
T EX . C O D E C RIM . P RO C ., art. 44.45(a). (“The Court of Crim inal Appeals m ay review
decisions of the court of appeals on its own m otion.”); T EX . R. A PP . P. 66.1, 67.1.
15
Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007) (citing Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979)).
16
Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim . App. 1997).
Alfaro-Jimenez — 10
was tried.17 “As authorized by the indictment” means the statutory
elements of the offense as modified by the charging instrument.18
Of course, in some cases, sufficiency of the evidence also turns on
the meaning of the statute under which the defendant has been
prosecuted.19 In other words, does certain conduct actually constitute an
offense under the statute with which the defendant has been charged?
That question, like all statutory construction questions, is a question of
law, which we review de novo.20
Texas Penal Code § 37.10, the “Tampering with Governmental
Record” statute, is complicated, covering a multitude of potential harms.21
The offense can be committed six different ways22 —and may involve a
17
Ram jattansingh v. State, 548 S.W .3d 540, 546 (Tex. Crim . App. 2018).
18
Id.
19
Liverm an v. State, 470 S.W .3d 831, 836 (Tex. Crim . App. 2015).
20
Id.
21
State v. Vasilas, 187 S.W .3d 486, 492 (Tex. Crim . App. 2006) (“The legislature
obviously m eant to protect the people of the State by m aking it a crim e to tam per with
governm ental records. By enacting § 37.10, the legislature intended to prevent a m ultitude
of harm s, including the destruction of governm ental records, the perpetration of a fraud
upon the court, and the m iscarriage of justice that could result from the use of falsified
records. There is nothing absurd about the legislature crim inalizing such conduct.”).
22
T EX . P ENAL C O DE § 37.10(a) (“A person com m its an offense if he: (1) knowingly
m akes a false entry in, or false alteration of, a governm ental record; (2) m akes, presents,
or uses any record, docum ent, or thing with knowledge of its falsity and with intent that it
be taken as a genuine governm ental record; (3) intentionally destroys, conceals, rem oves,
or otherwise im pairs the verity, legibility, or availability of a governm ental record; (4)
possesses, sells, or offers to sell a governm ental record or a blank governm ental record form
with intent that it be used unlawfully; (5) m akes, presents, or uses a governm ental record
Alfaro-Jimenez — 11
real “governmental record” (itself defined six different ways23 ) or a fake
one.24 It sets out offenses ranging from a Class A misdemeanor 25 to a
second-degree felony.26 The degree of offense is determined by the type
of record tampered with (e.g., a license or certificate issued by
government, a ballistics report, a document to establish a student’s
residency, an appraisal filed by an interested person) and whether or not
the “actor’s intent is to defraud or harm another.” 27
Here, the State charged Appellant with committing an offense under
§ 37.10(a)(4) and § 37.10(a)(5). Those subsections make it an offense
if a person:
(4) possesses, sells, or offers to sell a governmental record or
with knowledge of its falsity; or (6) possesses, sells, or offers to sell a governm ental record
or a blank governm ental record form with knowledge that it was obtained unlawfully.”).
23
T EX . P ENAL C O DE § 37.01(2). W e have previously held that the Legislature’s
definition of a governm ental record is “clear and unam biguous.” Vasilas, 187 S.W .3d at
491 (“Although the petition for expunction was not a governm ental record when Appellee
prepared it, it becam e a governm ental record once the court received it and he used it in
seeking to obtain the expunction of records.”).
24
T EX . P ENAL C O DE § 37.10(a)(2).
25
T EX . P ENAL C O DE § 37.10(c)(1) (“Except as provided by Subdivisions (2), (3), and
(4) and by Subsection (d), an offense under this section is a Class A m isdem eanor unless
the actor’s intent is to defraud or harm another, in which event the offense is a state jail
felony.”).
26
T EX . P ENAL C O DE § 37.10(c)(2)(A) (“An offense under this section is a felony of the
third degree . . . unless the actor’s intent is to defraud or harm another, in which event the
offense is a felony of the second degree[.]”). See also T EX . P ENAL C O D E § 37.10(d)(3).
27
T EX . P ENAL C O DE § 37.10 (c), (d).
Alfaro-Jimenez — 12
blank governmental record form with intent that it be used
unlawfully;
(5) makes, presents, or uses a governmental record with
knowledge of its falsity[.] 28
According to their plain language, both subsections require proof that the
document the defendant possessed or presented was a “governmental
record.” In other words, those subsections do not provide for a
conviction by merely proving that the defendant intended for a fake
document to be taken as a genuine governmental record.
By way of contrast, § 37.10(a)(2) does not require proof that the
record presented was an authentic governmental record. Under that
subsection, it is an offense if a person:
(2) makes, presents, or uses any record, document, or thing
with knowledge of its falsity and with intent that it be taken as
a genuine governmental record[.] 29
Section 37.10(a)(2) is designed for the prosecution of someone who
presents a counterfeit governmental record as if it were authentic. But
that was not a theory authorized by the indictment in this case.
By indicting Appellant for tampering with a governmental record
under § 37.10 (a)(4) and § 37.10(a)(5), the State was required to prove
28
T EX . P ENAL C O DE § 37.10(a)(4), (5) (em phasis added).
29
T EX . P ENAL C O DE § 37.10(a)(2) (em phasis added).
Alfaro-Jimenez — 13
that the social security card at issue was an actual governmental record,
not merely that Appellant intended the social security card be taken as a
genuine governmental record.30 Under the tampering statute,
“governmental record” means:
(A) anything belonging to, received by, or kept by government
for information, including a court record;
(B) anything required by law to be kept by others for
information of government;
(C) a license, certificate, permit, seal, title, letter of patent, or
similar document issued by government, by another state, or
by the United States;
(D) a standard proof of motor vehicle liability insurance form
described by Section 601.081, Transportation Code, a
certificate of an insurance company described by Section
601.083 of that code, a document purporting to be such a
form or certificate that is not issued by an insurer authorized
to write motor vehicle liability insurance in this state, an
electronic submission in a form described by Section
502.046(i), Transportation Code, or an evidence of financial
responsibility described by Section 601.053 of that code;
(E) an official ballot or other election record; or
(F) the written documentation a mobile food unit is required
to obtain under Section 437.0074, Health and Safety Code.31
30
See, e.g., Thom pson v. State, 215 S.W .3d 557, 559 (Tex. App.— Texarkana 2007,
no pet.) (an actual driver’s license is a “license, certificate, perm it, seal, title, letter of
patent, or sim ilar docum ent issued by governm ent, by another state, or by the United
States”; a counterfeit driver’s license is not).
31
T EX . P ENAL C O DE § 37.01(2).
Alfaro-Jimenez — 14
The court of appeals held that the evidence was sufficient to
establish that the record at issue in this case was a governmental record
because “the testimony clearly supported the social security card was a
certificate.”32 We agree with the court of appeals that a social security
card is a certificate issued by the United States.33 But we disagree with
the court of appeals that the testimony clearly supported that Appellant
possessed or presented a social security card issued by the United States.
The State did not prove that. The State proved that Appellant possessed
a fake social security card, not a real one.
During opening statements, the prosecution noted that the social
security card was not “authentic.” Later, the prosecutor stated that the
social security card merely purported to be a legitimate, authentic social
security card. Officer Rodriguez testified that he immediately recognized
that the social security card was a fake because of the blurred ink and low
quality paper. And when asked to identify the card he had seized from
Appellant, the officer stated that the card was “a forgery, a counterfeit,
a false Social Security card.” The criminal investigator for the United
32
Alfaro-Jim enez, 536 S.W.3d at 591.
33
See, e.g., Lopez v. State, 25 S.W .3d 926, 929 (Tex. App.— Houston [1st Dist.]
2000, no pet.).
Alfaro-Jimenez — 15
States Social Security Administration also testified that the card seized
from Appellant was not an authentic social security card. At no point did
the investigator testify that the card possessed and presented by
Appellant had been issued by the United States or any governmental
agency. Finally, Appellant himself admitted that the card was a fake.
Appellant had paid sixty dollars to “a guy” to make the card so Appellant
could use it to get a job; Appellant admitted that he did not get it from
the Social Security Office.
Simply put, the State elicited testimony establishing that “a” social
security card is a governmental record.34 The State did not present any
evidence that “the” social security card possessed or presented by
Appellant “was” a governmental record.
Though we have not dealt with this type of scenario before, at least
one intermediate court of appeals has. In Thompson v. State, the
defendant was charged with altering a governmental record after police
discovered numerous counterfeit driver’s licenses on the defendant’s
34
See, e.g., Lopez, 25 S.W .3d at 929 (a social security card is a “certificate issued by
the United States” and so a “governm ental record” under Section 37.01(2)(C) and an
elevating elem ent under Section 37.10(c)(2)(A)); see also Ram os v. State, 303 S.W.3d 302,
309-10 (Tex. Crim . App. 2009) (Keller, P.J., dissenting) (forgery of a social security card is
forgery under T EX . P EN . C O D E § 32.21(e)(2), which covers a writing that is or purports to be
“a governm ent record listed in Section 37.01(2)(C)”).
Alfaro-Jimenez — 16
computer.35 The State argued that those “counterfeit licenses” were
governmental records because the statutory definition of “governmental
records” includes “licenses issued by the government,” and a Texas
driver’s license constitutes a governmental record.36 The Texarkana Court
of Appeals agreed that “a driver’s license is a governmental record,” but
nevertheless held the evidence insufficient because there was no evidence
that the licenses in the case had been issued by the government.37
We find the reasoning of the Texarkana Court of Appeals persuasive,
and we reach the same conclusion in this case. Social security cards are
governmental records. However, the State did not prove that the fake
social security card at issue in this case was a governmental record.
Consequently, the evidence was legally insufficient to support the
conviction. We reverse the judgment of the court of appeals and render
an acquittal.
Delivered: July 3, 2019
Publish
35
Thom pson, 215 S.W .3d at 558.
36
Id. at 558-59.
37
Id. at 559.