Charles Nicky Tiller, III v. State

OPINION
No. 04-10-00806-CR
Charles Nicky TILLER, III,
Appellant
v.
The STATE of Texas,
Appellee
From the 216th Judicial District Court, Kerr County, Texas
Trial Court No. A10116
Honorable N. Keith Williams, Judge Presiding
Opinion by: Steven C. Hilbig, Justice
Sitting: Karen A. Angelini, Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: November 9, 2011
AFFIRMED
Charles Nicky Tiller was found guilty of impersonating a public servant. Tiller appeals
the judgment, asserting the evidence is legally and factually insufficient to support the jury’s
verdict. We affirm the trial court’s judgment.
BACKGROUND
David Brugh testified he worked for a company that sells public safety equipment over
the internet. The company also makes badges for law enforcement personnel. Brugh explained
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that the company does not complete an order for a law enforcement badge without verifying the
person has “official credentials” and is “truly, indeed, a law enforcement officer.” Brugh
testified the company received an order from Tiller for two Bexar County Constable badges. He
identified several documents from the company relating to the order. One document was an
order form reflecting that Tiller sought to purchase one badge with “Chief Constable” engraved
on it and another engraved “Deputy Constable.” Another document was a letter from Tiller,
identifying himself as “Chief Constable Charles Nick Tiller, Bexar County, Texas” and stating
that Charles Chris Tiller 1 was “duly sworn in as Deputy Constable of Bexar County, District
#009 on September 19, 2009.” A third document is a complaint letter written on the letterhead
of “Constable Charles Nick Tiller, Bexar County Dist 009.” In the letter, Tiller states that he
ordered two badges “as Constable of Bexar County, Texas,” and that the company “refuses to
recognize my credentials which are legally binding in the Republic of Texas.” The document
also referred to a letter from “my sheriff” that Tiller sent to the company along with his
“personal I.D.” The referenced letter, dated September 19, 2009, purported to be from “Sheriff
Paul Zimmerman, Bexar County, Texas. “Sheriff Zimmerman’s” letter stated that Tiller was
“duly elected to the office of Constable of Bexar County, District #009 on September 19, 2009.”
Also among the papers sent to the company was a photocopy of Tiller’s Texas driver’s license.
The State also introduced affidavits from a Bexar County Deputy Clerk stating that office did not
have any record of a “deputation/oath of office/elected official” for “Charles Nick Tiller” or
“Paul Zimmerman.” 2 Brugh testified he contacted Bexar County, but was unable to verify Tiller
was a constable, and the company did not send any badges to Tiller. Brugh also testified he had
1
Other testimony established Charles Chris Tiller is Tiller’s son.
2
We take judicial notice that the Honorable Amadeo Ortiz was the Bexar County Sheriff in January 2009 and
remains in that office as of the date of this opinion. See TEX. R. EVID. 201(f) (“Judicial notice may be taken at any
stage of the proceeding.”); Volosen v. State, 227 S.W.3d 77, 81 (Tex. Crim. App. 2007) (“Where a matter is
appropriately subject to judicial notice, an appellate court can take judicial notice for the first time on appeal.”)
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a telephone conversation with Tiller during which Brugh explained the “proper credentials” the
company needed to fulfill the order.
Kerr County Sheriff’s Investigator Jeff McCoy testified that he interviewed Tiller about
the badge order. Tiller admitted to him he placed the order and stated that he was elected a
constable for Bexar County by the members of the Republic of Texas. Tiller rested without
calling any witnesses.
The jury was charged in accordance with the allegations of the indictment and it returned
a guilty verdict. The trial court sentenced Tiller to three years in prison, suspended the sentence
and placed Tiller on probation for three years, and fined him $2000. Tiller timely appealed.
STANDARD OF REVIEW
Tiller argues the evidence is legally and factually insufficient to support the jury’s
verdict. However, in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), a majority of the
judges of the Court of Criminal Appeals agreed it is no longer appropriate to conduct a separate
review for factual sufficiency in criminal appeals. Brooks, 323 S.W.3d at 912; id. at 926
(Cochran, J., concurring). Accordingly, we review the evidence to determine whether it is
legally sufficient under the Jackson v. Virginia standard. Brooks, 323 S.W.3d at 912. Under that
standard, we review the evidence for legal sufficiency by looking at all of 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.” Prible v. State, 175
S.W.3d 724, 729–30 (Tex. Crim. App), cert. denied, 546 U.S. 962 (2005). “We resolve [any]
inconsistencies in the testimony in favor of the verdict.” Curry v. State, 30 S.W.3d 394, 406
(Tex. Crim. App. 2000).
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DISCUSSION
A person commits an offense if he “impersonates a public servant with intent to induce
another to submit to his pretended official authority or rely on his pretended official acts.” TEX.
PENAL CODE ANN. § 37.11(a)(1) (West 2011). The indictment charged that Tiller
“impersonate[d] a public servant, namely represented himself to be a constable, with intent to
induce another, namely [the company], to submit to the defendant’s pretended official authority
or rely on his pretended official acts.” The application paragraph of the jury charge stated:
Now, if you find from the evidence beyond a reasonable doubt that on or
about the 22nd day of September, 2009, in Kerr County, Texas, the defendant
CHARLES NICKY TILLER III, did then and there intentionally and falsely
assume and pretend to be a peace officer of this State, to wit, a constable *of [sic]
Bexar County, Texas, and did then and there, so falsely assuming and pretending
to be such officer with intent to induce [the company] to submit to his pretended
official authority and to rely on his pretended official acts, *communicated [sic]
with [the company] and ordered a peace officer badge and represented that he, the
said defendant, was in fact a peace officer, namely a *constable [sic] of Bexar
County, Texas, when, in fact and truth, the said CHARLES NICKY TILER III
was not such peace officer, and was not authorized by law to perform said acts,
then you will find the defendant guilty as charged.
Tiller does not dispute that he ordered the badges and sent the documentation to the
company. Rather, Tiller argues those acts do not constitute a crime because his representation to
the company was not an official act. We disagree. Brugh testified the company would not sell a
badge without ensuring the recipient was a valid law enforcement official. Tiller sent a letter to
the company identifying himself as the “Chief Constable of Bexar County, Texas.” In the letter,
he represented that Charles Chris Tiller was “duly sworn in as a deputy constable of “Bexar
County, District #009,” on September 19, 2009. There is sufficient evidence in the record for a
reasonable jury to have concluded beyond a reasonable doubt that Tiller acted with the intent that
the company rely on his pretended official act of confirming that his son was a lawful law
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enforcement officer. The evidence also is sufficient for a reasonable jury to conclude that Tiller
knew the company required such confirmation before it would send the badges to him.
Tiller relies on Ex parte Niswanger, 335 S.W.3d 611 (Tex. Crim. App. 2011), for his
argument that he did not commit an official act. Niswanger filed an application for a writ of
habeas corpus, arguing his trial counsel was ineffective because he recommend a plea bargain
without first investigating whether the facts would support a conviction for impersonating a
public servant. 335 S.W.3d at 614. Niswanger had claimed to be a volunteer fireman and
displayed a badge when soliciting a person to purchase a raffle ticket for a charity. Id. at 613.
The court stated that to allege a crime under section 37.11(a)(1), “an indictment must provide
that the defendant had been engaged in some overt action in an official capacity that is more than
merely showing official identification.” Id. at 617 n. 11 (citing Tovar v. State, 777 S.W.2d 481,
489 (Tex. App.—Corpus Christi 1989, pet. ref’d). The court questioned whether the sale of a
raffle ticket was an official act that would support conviction, but did not decide the issue and
denied Niswanger relief. Id. at 617 n.11, 618 n.15, & 619. Here Tiller did more than show
official identification and offer to sell a raffle ticket. When he learned that the company would
not send a badge without proof it was for use by a valid law enforcement official, Tiller sent a
letter to the company claiming to be the Bexar County Constable, and asserted his son Charles
Chris Tiller was “duly sworn in as a deputy constable of Bexar County.” This was an overt act
in a pretended official capacity done with the intent to induce reliance. The evidence supports
the jury’s finding that Tiller intended the company rely upon his pretended official act — the act
of certifying someone is his duly sworn deputy, a “valid” law enforcement officer, and entitled to
a badge. The judgment of the trial court is affirmed.
Steven C. Hilbig, Justice
PUBLISH
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