Alfaro-Jimenez v. State

• Decision Date: 03 July 2019
• Docket Number: NO. PD-1346-17,PD-1346-17
• Citation: 577 S.W.3d 240
• Parties: Pablo ALFARO-JIMENEZ, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

577 S.W.3d 240

Pablo ALFARO-JIMENEZ, Appellant

v.The STATE of Texas

NO. PD-1346-17

Court of Criminal Appeals of Texas.

Delivered: July 3, 2019

Newell, J., filed an opinion in which Keasler, Hervey, Richardson, Yeary, Keel, Walker and Slaughter, JJ., joined.

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 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 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 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 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-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 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 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 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 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 real "governmental record" (itself defined six different ways²³ ) or a fake one.²⁴ It sets out offenses ranging from a Class A misdemeanor²⁵ to a second-degree felony. ²⁶

The degree of offense is determined by the type of record...