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,
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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).
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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
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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.
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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.
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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.
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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
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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.
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