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