PD-0501-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/2/2015 3:55:56 PM
Accepted 7/2/2015 4:21:02 PM
ABEL ACOSTA
July 2, 2015 IN THE COURT OF CRIMINAL APPEALS CLERK
IN AND FOR THE STATE OF TEXAS
DAMIEN HERNANDEZ CORTEZ X
X
VS. X PDR 0501-14
X
THE STATE OF TEXAS X
MOTION FOR REHEARING
Petitioner requests that the Court of Criminal Appeals rehear this matter and
grant Petitioner a new trial based on the issue raised in the first ground of his
petition for discretionary review, the mandatory presumption of intent to defraud
applied in his case. Petitioner, the State, the Seventh Court of Appeals and now
the Court of Criminal Appeals all agree that the jury found that Petitioner
possessed items of identifying information belonging to only two people.1 This
means that all concerned parties are in agreement that the presumption substituted
for the State’s duty to prove that the items were possessed “with intent to
defraud”, contained in Texas Penal Code Section 32.51(b-1), should not apply.
However, the jury was erroneously given instructions requiring that the
1
The Opinion of the Court so indicates at footnote 1, and the concurring Opinion so
indicates at page 6.
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presumption be applied without allocating any burden to the State or giving the
jury the option to disregard the presumption. The Seventh Court of Appeals found
that the mandatory presumption given was erroneous. That court opined, “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.” Opinion
page 7. The instruction put no burden on the State to prove the facts giving rise to
the presumption, and bound the jury to apply the presumption. However, instead
of determining whether independent proof of intent to defraud existed in the
absence of the statutory presumption, the Seventh Court of Appeals simply found
that there was sufficient proof of possession of the items belonging to Archer and
Shook. That court concluded, “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.” (Opinion from Seventh Court
of Appeals at page 8).2
This conclusion fails logically for two reasons. First, the jury was not
2
The Seventh Court of Appeals made no reference to the element “with intent to harm or
defraud another” in reaching this holding.
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required to find the facts supporting the presumption beyond a reasonable doubt.
Within the container holding the items belonging to the two people the jury found
beyond a reasonable doubt that Petitioner possessed, were items belonging to three
other people. The jury charge regarding the presumption did not require that the
jury find beyond a reasonable doubt that Petitioner possessed these other items in
order to apply the presumption. The instructions put no burden on the State.
Therefore, though the jury required fingerprint evidence to establish possession of
the items belonging to Archer and Shook, any level of proof was sufficient to
establish Petitioner’s possession of items belonging to the other three named
complainants in order to establish the presumption. Once the jury found
possession under the reduced burden, it was required to apply the presumption
substituted for proof of intent to defraud. Second, no proof of intent to defraud
was presented at trial. The State did not offer any evidence demonstrating that
Petitioner had any plans for the use of the items, or that he would have had any
contact with the items once he exited the vehicle where the items were present.
Petitioner had no ties, other than proximity, to the vehicle where the items were
discovered. Nor was any evidence introduced connecting him with the container
in which the items were found. There is no evidence demonstrating that Petitioner
possessed the items of Archer and Shook with intent to defraud. Had the jury been
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properly instructed, there was no evidence to support a guilty verdict.
The holding of the Seventh Court of Appeals is that an erroneous mandatory
instruction to apply a presumption is given a jury is harmless error, if the
requirements necessary for application of the presumption are not proved by the
State. The holding is the direct opposite of logic. If there was clear evidence that
the Petitioner had possessed items belonging to three or more persons, the
mandatory presumption might not have harmed the Petitioner. However, under
these circumstances, where all agree that the presumption should not have applied,
Petitioner was egregiously harmed by the application of the mandatory
presumption. This is true because of the lack of any proof of intent to defraud in
the record.
PRAYER
For the foregoing reasons, Petitioner respectfully prays that the Court
reconsider its Opinion, reverse the Seventh Court of Appeals and order a new trial
for Petitioner, or remand the case to the Seventh Court of Appeals to determine if
sufficient evidence of intent to defraud exists in the record to render the
application of the mandatory presumption of such intent harmless.
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Respectfully submitted by,
/S/ Eric Coats
Eric Coats
Appellant’s Lawyer
SBN: 00783845
1716 S. Polk St.
Amarillo, TX 79102
ecoatslaw@gmail.com
CERTIFICATE OF COMPLIANCE
I hereby certify that this document contains 921 words.
/S/ Eric Coats
Eric Coats
CERTIFICATE OF SERVICE
I hereby certify that a true copy of the above was delivered to State’s
Counsel at jackowen@co.potter.tx.us and to the State Prosecuting Attorney at
information@spa.texas.gov on June 25, 2015.
/S/ Eric Coats
Eric Coats
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