Sanders, Priscilla ( 2015 )


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  •                                                                            PD-0604-15
    PD-0604-15                        COURT OF CRIMINAL APPEALS
    AUSTIN, TEXAS
    Transmitted 5/21/2015 4:36:48 PM
    Accepted 5/22/2015 11:37:05 AM
    ABEL ACOSTA
    No. 07-14-00038-CR                                        CLERK
    TO THE COURT OF CRIMINAL APPEALS
    OF THE STATE OF TEXAS
    PRISCILLA SANDERS,                                             Appellant
    v.
    THE STATE OF TEXAS,                                             Appellee
    Appeal from Swisher County
    * * * * *
    STATE’S PETITION FOR DISCRETIONARY REVIEW
    * * * * *
    May 22, 2015
    LISA C. McMINN
    State Prosecuting Attorney
    Bar I.D. No. 13803300
    JOHN R. MESSINGER
    Assistant State Prosecuting Attorney
    Bar I.D. No. 24053705
    P.O. Box 13046
    Austin, Texas 78711
    information@spa.texas.gov
    512/463-1660 (Telephone)
    512/463-5724 (Fax)
    NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT
    *The parties to the trial court’s judgment are the State of Texas and Appellant,
    Priscilla Sanders.
    *The case was tried before the Honorable Edward Lee Self , 242nd Judicial District
    Court of Swisher County, Texas.
    *Counsel for Appellant at trial was Daniel W. Hurley and David M. Guinn Jr., Hurley
    & Guinn, 1805 13th Street, Lubbock, Texas 79401.
    *Counsel for Appellant on appeal was Aaron R. Clements, Hurley & Guinn, 1805
    13th Street, Lubbock, Texas 79401.
    *Counsel for the State at trial and on appeal was Tina Davis Rincones, Swisher
    County Attorney Pro Tem, 109 E 6th Street, Plainview, Texas 79072.
    *Counsel for the State before this Court is John R. Messinger, Assistant State
    Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.
    i
    TABLE OF CONTENTS
    INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
    STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1
    STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
    STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    Does a judge make a governmental record with knowledge of its falsity
    under TEX. PENAL CODE § 37.10(a)(5) when she signs an order containing
    findings she knows are not true?
    ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
    PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
    APPENDIX
    Opinion of the Court of Appeals
    State’s Exhibit 1 (Order for Emergency Protection)
    ii
    INDEX OF AUTHORITIES
    Cases
    Johnson v. State, 
    967 S.W.2d 410
    (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . 4
    Phea v. State, 
    767 S.W.2d 263
    (Tex. App.–Amarillo 1989, pet. ref’d) .. . . . . . . . . 4
    Sanders v. State, __S.W.3d__, 2015 Tex. App. LEXIS 2513 (Tex. App.–
    Amarillo 2015) (r’hng denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4
    Statutes and Rules
    TEX. CODE CRIM. PROC. art. 17.292. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    TEX. PENAL CODE § 37.10(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    TEX. PENAL CODE § 37.10(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
    TEX. R. APP. P. 66.3(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
    TEX. R. EVID. 801(e)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    TEX. R. EVID. 803(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
    iii
    No. 07-14-00038-CR
    TO THE COURT OF CRIMINAL APPEALS
    OF THE STATE OF TEXAS
    PRISCILLA SANDERS,                                                       Appellant
    v.
    THE STATE OF TEXAS,                                                       Appellee
    * * * * *
    STATE’S PETITION FOR DISCRETIONARY REVIEW
    * * * * *
    TO THE HONORABLE COURT OF CRIMINAL APPEALS:
    Comes now the State of Texas, by and through its State Prosecuting Attorney,
    and respectfully urges this Court to grant discretionary review of the above named
    cause, pursuant to the rules of appellate procedure.
    STATEMENT REGARDING ORAL ARGUMENT
    The State does not request oral argument.
    STATEMENT OF THE CASE
    Appellee was convicted of tampering with a governmental record. The court
    of appeals reversed, holding the evidence insufficient to prove that appellant knew
    any of the information contained in the governmental record was false.
    1
    STATEMENT OF PROCEDURAL HISTORY
    On March 18, 2015, the court of appeals reversed appellant’s conviction in a
    published opinion.1 The State’s motion for rehearing was denied April 17, 2015. The
    State’s petition was due on May 17, 2015, and a motion for extension of time is filed
    herewith.
    GROUND FOR REVIEW
    Does a judge make a governmental record with knowledge of its falsity
    under TEX. PENAL CODE § 37.10(a)(5) when she signs an order containing
    findings she knows are not true?
    ARGUMENT AND AUTHORITIES
    Section 37.10(a)(5) prohibits making a governmental record with knowledge
    of its falsity. Appellant, a justice of the peace, signed an emergency protective order
    without any of the statutory requirements being met. However, the order stated “that
    all necessary prerequisites of law have been legally satisfied.”2 Did appellant
    knowingly make a governmental record that she knew to contain false information?
    It is undisputed that appellant signed a Magistrate’s Order of Protection.3 The
    order protects her nephew’s child.4 The second line on the pre-printed form is a
    1
    Sanders v. State, __S.W.3d__, 2015 Tex. App. LEXIS 2513 (Tex. App.–Amarillo 2015)
    (r’hng denied).
    2
    Appendix, State’s Ex. 1. The order itself begins on page 2 of the exhibit.
    3
    3 RR 85, 89, 90, 93, 95, 97, 103-06, 117.
    4
    2 RR 39; 3 RR 43, 78.
    2
    finding that all necessary prerequisites had been met. Appellant knew that one of
    these prerequisites is an arrest for a specific type of offense, and that there had been
    no such arrest.5 Yet, the court of appeals acquitted her because “there is no evidence
    in this record reflecting that appellant knowingly made a governmental record that
    she knew to contain false information.”6 The Court’s analysis focused on the
    information that was hand-written into the order—the date, the child’s name, the
    child’s residence, etc.—calling it “the sum and total of the information contained
    within the order.”7 Because there was no evidence that any of these entries were
    false, “there is no evidence in this record reflecting that appellant knowingly made
    5
    See TEX. CODE CRIM. PROC. art. 17.292(a), (b) (listing prerequisites). As the following
    exchange explains:
    Q. Now, when you put your name on an Emergency Magistrate’s Order, you are not to do so
    unless there has been an arrest for an offense involving family violence or an offense under
    22.01, 22.021 or 42.072 of the Penal Code, correct?
    A. Correct.
    Q. You put your signature on an order, State’s Exhibit 1, that you now hold in your hand, prior
    to an arrest, correct?
    A. Correct.
    (3 RR 94-95). See also 3 RR 84 (“I did not complete [the order] because so far there had not been
    an act of violence done yet.”).
    6
    Slip op. at 6. The court of appeals focused exclusively on the falsity of information contained
    within the order because, in its view, an allegation that the entire document was false cannot be
    prosecuted under section (a)(5). Slip op. at 6 n.3 (“Such a contention might establish a violation of
    section 37.10(a)(2)”—which prohibits the making of any record, document, or thing with knowledge
    of its falsity and with intent that it be taken as a genuine governmental record—but not (a)(5)). The
    State does not accept this view but, because the court of appeals did not actually reach appellant’s
    claim that the order was not a genuine governmental record, will address the court’s holding on its
    own terms.
    7
    Slip op. at 6.
    3
    a governmental record that she knew to contain false information.”8
    This result is absurd. None of the handwritten entries were made on a blank
    piece of paper. The first finding made in the order—one included on the form in
    every emergency protective order from appellant’s court—was patently false, and she
    knew it. It makes no difference whether the information was hand-written or typed;
    she adopted everything that was in the order at the time she signed it.9 Ignoring the
    findings that appellant adopted by her signature is inconsistent with the treatment of
    police witness statements,10 admissions of party opponents,11 and the whole of this
    Court’s jurisprudence on findings of fact. It is almost inconceivable that a judge
    would be responsible only for the hand-written contents of an order she signs.
    By reaching this holding in a published case, the court of appeals has done real
    damage to basic legal tenets. Worse, it insulates from accountability those who
    would abuse the judicial power entrusted to them. This departure from the accepted
    and usual course of judicial proceedings calls for the exercise of this Court’s power
    8
    Slip op. at 6.
    9
    Dismissing the pre-printed words in favor of the hand-written ones makes even less sense
    in this case because most of the hand-writing was someone else’s. 3 RR 100-03.
    10
    See TEX. R. EVID. 803(5) (providing a hearsay exception for statements “made or adopted”
    by the witness); Johnson v. State, 
    967 S.W.2d 410
    , 416 (Tex. Crim. App. 1998) (part of predicate
    is that the witness must vouch for the accuracy of the written memorandum); Phea v. State, 
    767 S.W.2d 263
    , 267 (Tex. App.–Amarillo 1989, pet. ref’d) (rule permits use of statements written by
    law enforcement officers and signed and sworn to by witness).
    11
    TEX. R. EVID. 801(e)(2)(B) (“The statement is offered against an opposing party and: . . . (B)
    is one the party manifested that it adopted or believed to be true.”).
    4
    of supervision.12
    PRAYER FOR RELIEF
    WHEREFORE, the State of Texas prays that the Court of Criminal Appeals
    grant this Petition for Discretionary Review, and that the decision of the Court of
    Appeals be reversed.
    Respectfully submitted,
    LISA C. McMINN
    State Prosecuting Attorney
    Bar I.D. No. 13803300
    /s/ John R. Messinger
    JOHN R. MESSINGER
    Assistant State Prosecuting Attorney
    P.O. Box 13046
    Austin, Texas 78711
    John.Messinger@SPA.Texas.gov
    512/463-1660 (Telephone)
    512/463-5724 (Fax)
    12
    TEX. R. APP. P. 66.3(f).
    5
    CERTIFICATE OF COMPLIANCE
    The undersigned certifies that according to the WordPerfect word count tool
    the applicable portion of this document contains 1,590 words.
    /s/ John R. Messinger
    JOHN R. MESSINGER
    Assistant State Prosecuting Attorney
    CERTIFICATE OF SERVICE
    The undersigned certifies that on this 21st day of May, 2015, the State’s Petition
    for Discretionary Review was served electronically through the electronic filing
    manager or e-mail on the parties below.
    Tina Davis Rincones
    Swisher County Attorney Pro Tem
    109 E 6th Street
    Plainview, Texas 79072
    trincones@redraiderlaw.com
    Aaron R. Clements
    Hurley & Guinn
    1805 13th Street
    Lubbock, Texas 79401
    aaronrc@swbell.net
    /s/ John R. Messinger
    JOHN R. MESSINGER
    Assistant State Prosecuting Attorney
    6
    APPENDIX
    In The
    Court of Appeals
    Seventh District of Texas at Amarillo
    No. 07-14-00038-CR
    PRISCILLA SANDERS, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    On Appeal from the 242nd District Court
    Swisher County, Texas
    Trial Court No. B-4475-12-12, Honorable Edward Lee Self, Presiding
    March 18, 2015
    OPINION
    Before CAMPBELL and HANCOCK and PIRTLE, JJ.
    Appellant, Priscilla Sanders, appeals her conviction for tampering with a
    governmental record,1 with intent to defraud or harm another,2 and resulting sentence of
    nine months’ incarceration in a State Jail Facility, suspended for a period of nine
    months, and $500 fine. We will reverse.
    1
    See TEX. PENAL CODE ANN. § 37.10(a)(5) (West Supp. 2014).
    2
    See 
    id. § 37.10(c)(1).
                              Factual and Procedural Background
    Appellant’s nephew, Billy Cruz, has a child, N.G.C., with the child’s mother, Alma
    Gutierrez. In September 2012, Cruz and Gutierrez were not married and were not
    cohabitating. In accordance with a 2008 order, Gutierrez was managing conservator of
    N.G.C. with the exclusive right to establish the child’s residence without geographical
    restriction.
    In September 2012, appellant’s sister and the child’s paternal grandmother,
    Christina Garza, became concerned about the manner in which Gutierrez was caring for
    N.G.C. As a result of this concern, Garza contacted appellant who had, mere months
    before, been elected Justice of the Peace of Swisher County, Texas. On September
    24, appellant signed an incomplete Emergency Magistrate Order for Protection of
    N.G.C., and gave the document to Garza. Garza evidently provided a copy of the
    document to Cruz.
    On September 25, Corporal George Brenes of the Amarillo Police Department
    was dispatched to investigate an alleged harassment. When Brenes arrived at the
    scene, he encountered Gutierrez, Cruz, and Garza. Either Cruz or Garza provided
    Brenes the Emergency Magistrate Order for Protection that had been acquired from
    appellant. In reliance upon this document, Brenes allowed Cruz to take custody of
    N.G.C.
    On September 26, Gutierrez presented a copy of the 2008 custody order to the
    Tulia Police Department. On the basis of this order, N.G.C. was returned to Gutierrez.
    2
    After seeing this order and speaking with Gutierrez, an officer contacted the Swisher
    County Attorney about the event of the preceding days.
    The Swisher County Attorney contacted the Texas Rangers about the events that
    had been reported to him. In the course of its investigation, Ranger Jaime Downs
    contacted appellant for an interview. During this interview, appellant stated that, while
    she knew what she had done was ill-advised, the order was never completed, executed,
    filed, or formally issued by her office.
    Appellant was charged by indictment with the offense of making a governmental
    record with knowledge of its falsity and with the intent to defraud or harm another. After
    trial, appellant was found guilty of the indicted offense. Subsequently, appellant timely
    filed a motion for new trial, which was expressly overruled. Appellant then timely filed
    notice of appeal.
    By her appeal, appellant presents four issues.        By her first issue, appellant
    contends that the evidence is insufficient to support the jury’s conviction of appellant for
    the offense of tampering with a governmental record. By her second issue, appellant
    contends that the evidence is insufficient to establish that appellant acted with the intent
    to defraud or harm another. By her third issue, appellant contends that the trial court
    abused its discretion by excluding evidence relevant to appellant’s state of mind when
    she signed the order. By her fourth issue, appellant contends that the trial court erred in
    failing to conduct a Batson hearing despite appellant’s prima facie showing of a Batson
    violation.
    3
    Sufficiency of the Evidence
    Appellant’s first issue contends that the State’s evidence is insufficient to
    establish that she committed the offense of tampering with a governmental record as
    alleged in the indictment.
    In assessing the sufficiency of the evidence, we review all the evidence in the
    light most favorable to the verdict to determine whether any rational trier of fact could
    have found the essential elements of the offense beyond a reasonable doubt. Jackson
    v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979); Brooks v. State,
    
    323 S.W.3d 893
    , 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in
    character, weight, and amount to justify a factfinder in concluding that every element of
    the offense has been proven beyond a reasonable doubt is adequate to support a
    conviction.” 
    Brooks, 323 S.W.3d at 917
    (Cochran, J., concurring). We remain mindful
    that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no
    higher standard of appellate review than the standard mandated by Jackson.”             
    Id. When reviewing
    all of the evidence under the Jackson standard of review, the ultimate
    question is whether the jury’s finding of guilt was a rational finding. See 
    id. at 906–07
    n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 
    204 S.W.3d 404
    , 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single
    evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s
    credibility and weight determinations because the jury is the sole judge of the witnesses’
    credibility and the weight to be given their testimony.” 
    Id. at 899.
    If a reviewing court
    determines that the evidence is insufficient to establish any element of the offense, it
    must reverse and render a judgment of acquittal. Dean v. State, 
    449 S.W.3d 267
    , 268
    4
    (Tex. App.—Tyler 2014, no pet.) (citing Cuddy v. State, 
    107 S.W.3d 92
    , 95 (Tex. App.—
    Texarkana 2003, no pet.)); see Saldana v. State, 
    418 S.W.3d 722
    , 726 (Tex. App.—
    Amarillo 2013, no pet.).
    Appellant was charged with the offense of tampering with a governmental record
    under Texas Penal Code section 37.10(a)(5), which provides that, “[a] person commits
    an offense if he makes, presents, or uses a governmental record with knowledge of its
    falsity.” TEX. PENAL CODE ANN. § 37.10(a)(5). The indictment also alleged that appellant
    committed the offense with the “intent . . . to defraud or harm another,” which statutorily
    elevates the offense from a Class A misdemeanor to a state jail felony.              
    Id. § 37.10(c)(1).
      Thus, in the present case, the State was required to prove that (1)
    appellant, (2) made, presented, or used, (3) a governmental record, (4) with knowledge
    of its falsity, and (5) with the intent to defraud or harm another. Appellant presents
    challenges to the evidence to support that the challenged document was a
    governmental record, she knew the document to be false, and she acted with specific
    intent to defraud or harm another. We will limit our analysis to the challenge that is
    dispositive of this appeal. See TEX. R. APP. P. 47.1.
    Appellant challenges the sufficiency of the evidence to establish that she made a
    governmental record “with knowledge of its falsity.”           TEX. PENAL CODE ANN. §
    37.10(a)(5). A person “acts knowingly, or with knowledge, with respect to the nature of
    his conduct or to circumstances surrounding his conduct when he is aware of the nature
    of his conduct or that the circumstances exist.”        
    Id. § 6.03(b)
    (West 2011). Under
    section 37.10(a)(5), the knowledge that is required is that the governmental record is
    5
    false.       Thus, to meet this element, the evidence had to establish that appellant
    knowingly made a governmental record that she knew to contain false information. 3
    In this case, there is no evidence that appellant signed the Magistrate’s Order of
    Protection on another date than the date indicated.                   The only other information
    contained within the document is consistent with information apparently provided by
    Cruz in what appears to be an application for the order. Included within this information
    is an identification that N.G.C.’s residence was in Tulia, which would bring the matter
    within the jurisdiction of appellant’s court. No evidence was presented that appellant
    had any knowledge of the falsity of any of this information. Finally, the order does not
    identify any “defendant” who had been arrested for family violence and was appearing
    before the magistrate for the first time following such an arrest. As this is the sum and
    total of the information contained within the order, there is no evidence in this record
    reflecting that appellant knowingly made a governmental record that she knew to
    contain false information. As such, we conclude that the evidence is insufficient to
    support appellant’s conviction. We sustain appellant’s first issue.
    Conclusion
    Having determined that there is no evidence to support an essential element of
    appellant’s conviction for tampering with a governmental record, we reverse the trial
    3
    The State argued, at trial, that the challenged document was false because appellant knew that
    it was not a valid order yet appellant intended it to be taken as a genuine governmental record. Such a
    contention might establish a violation of section 37.10(a)(2), but it will not support a conviction under
    section 37.10(a)(5). See Thompson v. State, 
    215 S.W.3d 557
    , 559 & n.2 (Tex. App.—Texarkana 2007,
    no pet.); Mendoza v. State, No. 05-05-00476-CR, 2006 Tex. App. LEXIS 5060, at *3 & n.1 (Tex. App.—
    Dallas June 14, 2006, no pet.) (mem. op.).
    6
    court’s judgment and render judgment of acquittal. See TEX. R. APP. P. 43.2(c); 
    Dean, 449 S.W.3d at 268
    .
    Mackey K. Hancock
    Justice
    Publish.
    7
    

Document Info

Docket Number: PD-0604-15

Filed Date: 5/22/2015

Precedential Status: Precedential

Modified Date: 9/29/2016