Damien Hernandez Cortez v. State ( 2014 )


Menu:
  •                                     In The
    Court of Appeals
    Seventh District of Texas at Amarillo
    No. 07-12-00165-CR
    DAMIEN HERNANDEZ CORTEZ, APPELLANT
    V.
    THE STATE OF TEXAS, APPELLEE
    On Appeal from the 320th District Court
    Potter County, Texas
    Trial Court No. 62,862-D, Honorable Don R. Emerson, Presiding
    February 27, 2014
    OPINION
    Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
    Damien Hernandez Cortez was convicted of fraudulently possessing five or more
    but less than ten items of identifying information. In seeking to overturn that conviction,
    he contends 1) the trial court erred in failing to include a jury instruction on a presumed
    fact, 2) the trial court erred in failing to include a jury instruction on voluntariness, 3) the
    trial court erred in using the phrase “identifying information” in place of the phrase “item
    of identifying information” in the application paragraph of the jury charge, 4) the trial
    court erred in failing to grant his motion for directed verdict, and 5) the evidence was
    legally insufficient to sustain the conviction. Upon considering the issues in their logical
    rather than numerical order, we affirm the judgment.
    Cortez was one of two passengers in a truck in which the driver was arrested for
    driving with a suspended license. During an inventory search of the vehicle, police
    discovered a blue backpack in the bed of the truck. The backpack contained a folder
    and inside the folder were numerous documents containing “identifying information” of
    persons other than the driver or passengers.         Although appellant was not initially
    arrested, his fingerprints were later discovered on several of the documents, and that
    resulted in his arrest and prosecution.
    Jury Instruction on Identifying Information
    We consider appellant’s fourth issue first. Therein, he contends:
    It was error to substitute the defined term ‘identifying information’ for the
    term ‘item of identifying information’ . . . in the application paragraphs of
    the court’s charge. This error altered the proof requirement of the statute
    to allow conviction of a higher level of offense than intended under the
    law.
    We overrule the issue.
    Under the Penal Code, a person commits the offense of fraudulent use or
    possession of identifying information if he, with the intent to harm or defraud another,
    obtains, possesses, transfers, or uses an “item of identifying information” of another
    person without consent. TEX. PENAL CODE ANN. § 32.51(b)(1) (West 2011).1 In turn,
    “identifying information” is defined or described within the statute as information that
    alone or in conjunction with other information identifies a person; it includes 1) a
    1
    The offense occurred in 2010.
    2
    person’s name, social security number, date of birth, or government-issued identification
    card, 2) unique biometric data, 3) unique electronic identification number, address,
    routing code, or financial institution account number, and 4) telecommunication
    identifying information or access device. 
    Id. § 32.51(a)(1).
             The level of offense is
    determined by the number of items possessed.               
    Id. § 32.51(c).
        And, while the
    legislature defined the phrase “identifying information,” it failed to define the phrase
    “item of identifying information.”
    Again, appellant questions the trial court’s substitution of “the defined term
    ‘identifying information’ for the term ‘item of identifying information’ . . . in the application
    paragraphs . . . .” What he means, though, is a bit confusing since the phrase “item of
    identifying information” appears in each application paragraph. For instance, in the first
    application paragraph, the jury was told that if it concluded that appellant possessed
    “identifying information” of various named individuals “and the number of items of
    identifying information possessed was more than ten but less than fifty, then you will
    find the defendant guilty as charged.” (Emphasis added). The two other application
    paragraphs read similarly but substituted the phrases “five or more but less than 10”
    and “less than five” for the passage “more than ten but less than fifty." Given this, we
    have difficulty understanding appellant’s complaint about the trial court omitting “item of
    identifying information” from the application paragraphs.
    Nonetheless, liberally reading the substance of his argument suggests that what
    he actually complains about is whether the jury should have been told that “item of
    identifying information” meant the document upon which the information appeared as
    opposed to each bit of identifying information appearing in the document. For instance,
    3
    if an accused possessed one check on which appeared 1) a unique electronic
    identification number, 2) the address of the account owner, 3) a routing code, and 4) the
    financial institution account number, appellant would have us conclude that the accused
    possessed only one item of identifying information. The State, however, would argue
    that the accused possessed four items of identifying information under that scenario.
    And, though the dispute appears to be one of first instance, we agree with the State.2
    Again, while the legislature defined “identifying information,” it did not define “item
    of identifying information.” As can be seen, the substantive difference between the two
    phrases is the word “item.” Furthermore, the latter is commonly understood as meaning
    “a distinct part in an enumeration, account, or series,” MERRIAM-WEBSTER’S COLLEGIATE
    DICTIONARY 666 (11th ed. 2003), and it is the common or plain meaning that we must
    apply here. LaGrone v. State, 
    384 S.W.3d 439
    , 440 (Tex. App.—Amarillo 2012, pet.
    ref’d) (stating that we assign words appearing in a statute their common or plain
    meaning).
    Given that the legislature provided us with a list or series of things it deemed to
    be “identifying information,” an “item” within that series would necessarily be a distinct
    part of that series. In other words, an “item of identifying information” would be one of
    the many categories of material within the definition of “identifying information.” The
    phrase does not refer to the physical object or document upon which the identifying
    information appears. And, the jury charge here comported with that interpretation. It
    allowed the jury to tally each bit of identifying information appearing on the particular
    2
    In Ngetich v. State, No. 05-12-00734-CR, 2013 Tex. App. LEXIS 15385, at *8 (Tex. App.—
    Dallas December 20, 2013, no pet.) (not designated for publication), the court assumed without deciding
    that each identification card contained multiple items of identifying information (name and date of birth,
    social security number, driver’s license number, and address).
    4
    documents when deciding the number of “items of identifying information” appellant
    possessed.
    Sufficiency of the Evidence
    Via the next issues we address, appellant contends:
    The evidence was legally insufficient to establish that Appellant possessed
    the items of identifying information that did not bear Appellant’s
    fingerprints. Appellant is linked to those items by his proximity to them
    and his having touched other papers located in the backpack. There was
    nothing to indicate Appellant was voluntarily in possession of those items,
    knew the items were contraband or had any intent with regard to them.
    The trial court should have granted Appellant’s motion for instructed
    verdict.
    [and]
    The evidence was legally insufficient to establish that Appellant possessed
    the items of identifying information. Appellant touched three of the items at
    some point, but there was no evidence illuminating the circumstances of
    that touching and no evidence linking Appellant to [the] backpack wherein
    the items were found.
    Again, of what he actually complains is a bit confusing for he was not convicted
    of possessing the identifying information upon which his fingerprints did not appear; so,
    we have difficulty understanding why he is complaining about the jury’s consideration of
    allegations for which he was not convicted. But, to the extent he may be suggesting
    that the trial court should not have submitted those allegations, we do not see how he
    was harmed.
    As for the sufficiency of the evidence underlying his conviction for possessing the
    items on which appeared his fingerprints, we note that the applicable standard of review
    is in Brooks v. State, 
    323 S.W.3d 893
    (Tex. Crim. App. 2010).             And, to prove
    5
    possession, the State was required to show that appellant exercised care, custody,
    control or management over the contraband while knowing it to be contraband. Evans
    v. State, 
    202 S.W.3d 158
    , 161 (Tex. Crim. App. 2006).
    Here, evidence appears of record illustrating that appellant’s fingerprints
    appeared on the documents containing the five or more but less than ten items of
    identifying information.   From this, a juror could rationally infer, beyond reasonable
    doubt, that appellant exercised care, custody, or control over the contraband (i.e.
    identifying information). As for his doing so while knowing it to be contraband, it is clear
    that the documents on which his prints appeared belonged to and contained information
    about third parties. Additionally, one of those third parties (i.e., Archer) testified to
    having seen appellant in her home shortly before the documents went missing and that
    appellant did not have her permission to possess them. The owner of the other set of
    documents containing appellant’s prints also testified about appellant lacking her
    permission to possess the information contained in them. This is some evidence from
    which jurors could rationally infer beyond a reasonable doubt that appellant knew the
    documents containing his prints were contraband.       See Guevara v. State, 
    152 S.W.3d 45
    , 50 (Tex. Crim. App. 2004) (stating that the jury may infer intent from circumstantial
    evidence). Thus, the evidence was legally sufficient to support his conviction.
    Jury Instruction on a Presumed Fact
    Next we consider the complaint that:
    It was error to omit the instructions on a presumed fact mandated by
    Section 2.05(a)(2) of the Texas Penal Code. Without such an instruction, a
    presumption becomes a mandatory presumption instead of the permissive
    presumption intended by the legislature. That error alone, or compounded
    with other omissions caused Appellant egregious harm.
    6
    And, upon considering it, we overrule it.
    We begin our discussion by again referring to the penal statute involved.        It
    states that a person commits the offense of fraudulent use or possession of identifying
    information if he, with the intent to harm or defraud another, obtains, possesses,
    transfers, or uses an item of identifying information of another person without consent.
    TEX. PENAL CODE ANN. § 32.51(b)(1) (West 2011). The statute further allows the jury to
    be informed that a person is presumed to have the intent to harm or defraud another if
    the actor possesses the identifying information of three or more persons. 
    Id. § 32.51(b-
    1)(1). But, the jury must also be told that 1) the facts giving rise to the presumption
    must be proven beyond a reasonable doubt, 2) if the facts are proven beyond a
    reasonable doubt, the jury may find that the element of the offense sought to be
    presumed does exist but it is not required to so find, 3) the State must prove each of the
    other elements of the offense beyond a reasonable doubt, and 4) if the jury has a
    reasonable doubt as to the existence of a fact or facts giving rise to the presumption,
    the presumption fails and the jury shall not consider the presumption for any purpose.
    
    Id. § 2.05(a)(2)(A),
    (B), (C), (D).
    While the charge at issue here incorporated the presumption itself, the four
    caveats that must accompany it were omitted. Yet, appellant did not object to their
    absence, so we look to see whether appellant was egregiously harmed by the error.
    Almanza v. State, 
    686 S.W.2d 157
    , 171 (Tex. Crim. App. 1985). And, in doing so, we
    examine the entire jury charge, the evidence, the argument of counsel and any other
    relevant information revealed by the record of the trial as a whole. 
    Id. 7 First,
    the charge did include the general admonition about every element of the
    offense having to be established beyond reasonable doubt, though it was not in
    reference to the presumption itself. It also included the three application paragraphs we
    discussed under the first issue discussed. And though the jury had the opportunity of
    finding appellant guilty of possessing more than ten but less than 50 items of identifying
    information, it did not. Rather, it found him guilty of possessing from five to ten such
    items. From this, one must logically deduce that the jury did not believe he possessed
    documents containing the identification of all five individuals named in the application
    paragraphs.
    At this point, we again harken back to the evidence of his fingerprints appearing
    on three documents. Of those three, two contained identifying information of Archer
    while the third held information pertaining to Snook.     Next, the number of items of
    identifying information contained in those three documents was nine, which number just
    happened to be within the range of items for which he was found guilty of possession.
    So, the record supports the inference that identifying information of only two people
    formed the basis of his conviction, and that, in turn, tends to render irrelevant the
    presumption arising from the possession of material belonging to three or more
    individuals. To that, we add those excerpts from the record indicating that 1) the State
    informed the jury during voir dire that the presumption could be overcome or
    disbelieved, 2) the State said nothing of the presumption in its closing argument, and 3)
    only appellant mentioned the presumption at closing and did so by arguing that it had
    been overcome because his fingerprints were found on the information of only two
    persons.
    8
    Given these circumstances, we necessarily conclude that appellant did not suffer
    egregious harm arising from the defect in the jury charge at issue. Warner v. State, 
    245 S.W.3d 458
    , 461 (Tex. Crim. App. 2008) (stating that the denial of a fair trial is the
    standard for egregious harm). Simply put, the record fails to support the notion that the
    presumption was utilized in convicting appellant; so, the deficient manner in which it
    was described in the charge was inconsequential. The issue is overruled.
    Jury Instruction on Voluntariness
    Next, appellant contends that it "was error to omit an instruction on voluntariness
    as directed by Section 6.01 of the Texas Penal Code. Such instruction is normally
    required in any possession case." We overrule the issue.
    First, the instruction omitted apparently was one informing the jury that 1) a
    person commits an offense only if he voluntarily engages in conduct, including an act,
    an omission, or possession, TEX. PENAL CODE ANN. § 6.01(a) (West 2011), and 2)
    possession “is a voluntary act if the possessor knowingly obtains or receives the thing
    possessed or is aware of his control of the thing for a sufficient time to permit him to
    terminate his control.” 
    Id. § 6.01(b).
    Yet, appellant did not request it below. Nor did he
    cite us to authority indicating that the trial court was obligated to provide the instruction
    sua sponte.
    Second, the case authority he did cite, Ramirez-Memije v. State, 
    397 S.W.3d 293
    (Tex. App.—Houston [14th Dist.] 2013, pet granted), states that "if the evidence at trial
    raises the issue of whether the defendant voluntarily engaged in conduct, the jury must
    be instructed on the issue." 
    Id. at 299.
    In other words, there must appear evidence of
    record establishing a question of fact regarding whether the accused voluntarily
    9
    engaged in the conduct. This is so since "[v]oluntariness, per se, is not a jury question."
    Rhodes v. State, 
    997 S.W.2d 692
    , 695 (Tex. App.—Texarkana 1999, pet. ref’d); Wade
    v. State, 
    630 S.W.2d 418
    , 419 (Tex. App.—Houston [14th Dist.] 1982, no pet.). And, in
    absence of evidence indicating that the accused's conduct was not voluntary, we deem
    it voluntary as a matter of law. Id.; accord Airheart v. State, No. 08-11-00037-CR, 2012
    Tex. App. LEXIS 3235, at *29-30 (Tex. App.—EL Paso April 25, 2012, pet. ref’d) (not
    designated for publication) (stating the same and adding that no instruction is necessary
    unless the evidence creates a question of fact on the matter). And, the jury need not be
    asked to determine something that exists as a matter of law.
    Here, appellant failed to cite us to evidence affirmatively illustrating that he did
    not 1) voluntarily possess the identifying information in question or 2) know the nature of
    the information appearing in the documents carrying his fingerprints. Consequently, he
    did not satisfy his burden on appeal to show that the trial court erred in omitting the
    instruction.
    Accordingly, the judgment is affirmed.
    Brian Quinn
    Chief Justice
    Publish.
    10
    

Document Info

Docket Number: 07-12-00165-CR

Judges: Quinn, Campbell, Hancock

Filed Date: 2/27/2014

Precedential Status: Precedential

Modified Date: 11/14/2024