Chambers, John

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0771-17

JOHN CHAMBERS, Appellant

v.

THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRTEENTH COURT OF APPEALS
CAMERON COUNTY

N EWELL, J., delivered the opinion of the Court in which
K ELLER, P.J., and H ERVEY, R ICHARDSON, K EEL AND W ALKER, JJ., joined.
S LAUGHTER, J., filed a dissenting opinion in which Y EARY, J.,
joined. K EASLER, J., dissented.

Can a person commit a crime if he falsifies a governmental record

the government was not required by law to keep? Yes. A record kept by

the government for information is still a governmental record even if the

government was not required to keep it. However, if the government has

no legal authority to require the record, a person cannot defraud or harm
 Chambers - 2

the government by tampering with the record. Does this also mean that

the falsification of the record in this case had no effect on the

government’s purpose for requiring the record? That is unclear. We

must remand the case to the court of appeals to consider that question

because it was raised below but left unanswered.

In this case, the Texas Commission on Law Enforcement audited the

Indian Lake Police Department and found what it believed to be

deficiencies in firearms-proficiency records for several volunteer reserve

officers. To cure the deficiencies, Appellant, then-Police Chief John

Chambers, directed a subordinate to falsify the records. The jury found

Appellant guilty of 14 courts of tampering with a governmental record

with the intent to defraud or harm.

On discretionary review, Appellant challenges the denial of a

requested jury instruction on whether the records were required to be

kept and the sufficiency of the evidence to show his intent to defraud or

harm the government. He also asserts that the court of appeals did not

address his argument about the sufficiency of the evidence to overcome

a statutory defense that applies when the falsification of the record has

no effect on the governmental purpose for the record. We hold that (1)

Appellant was not harmed by the denial of the requested jury instruction;
 Chambers - 3

(2) the evidence was insufficient to show intent to defraud or harm; and

(3) the court of appeals should be given the opportunity to address his

argument about the sufficiency of the evidence to overcome his statutory

defense. We reverse and remand the case for the court of appeals to

evaluate Appellant’s statutory defense.

Background

Appellant was the chief of the Indian Lake Police Department (“the

Department”) with a single paid subordinate, Alfredo Avalos. The

Department had 20 to 30 reserve police officers, who were unpaid

volunteers with active peace-officer licenses. In January 2015, the Texas

Commission on Law Enforcement (“TCOLE”) audited the Department’s

records. Derry Minor, TCOLE’s field agent, discovered that the

Department did not have valid firearms-proficiency records for at least

eight reserve officers. He notified the Department of the alleged

deficiency and gave the Department seven business days to correct the

situation.

Appellant directed Avalos to handle the problem. According to

Avalos, Appellant handed him a list of reserve officers and copies of old
 Chambers - 4

firearms-proficiency forms that had some information “whited out.” 1

Avalos testified that Appellant told him to fill in the forms with the names

on the list, to fill in a specific day as the qualifying date, and to list

Appellant’s firearm as the qualifying weapon, along with that firearm’s

serial number. According to Avalos and TCOLE investigator Jason Wayne

Hufstetler, Avalos consulted with TCOLE about Appellant’s instructions.

TCOLE told Avalos to comply with the instructions and document the

events.2

The State charged Appellant with 14 counts of tampering with a

governmental record with intent to defraud or harm. Each count

corresponded to a firearms-proficiency form for a reserve officer.3 The

intent-to-defraud-or-harm element elevated the offenses from Class A

misdemeanors to state jail felonies. Multiple reserve officers testified to

various discrepancies within the firearms-proficiency forms.

Appellant argued at trial that the false records were not

1
The firearm -proficiency evaluator’s signature and Appellant’s signature were not
“whited out.” Additionally, the word “pass” was circled in one instance.

2
Avalos testified that he was guaranteed im m unity for his actions.

3
Each count alleged that Appellant did, “with intent to defraud or harm another,
nam ely, the State of Texas, knowingly m ake a false entry in a governm ental record, to wit:
firearm s qualification record, said false entry being the nam e [of the officer], . . . date of
qualifying, weapon used and the weapon serial num ber.”
 Chambers - 5

governmental records because the reserve officers were not employees

who were required to undergo a firearms-proficiency qualification.

Defense counsel questioned Agent Minor about this subject, but Agent

Minor would not agree with counsel’s interpretation of the law. Agent

Minor did acknowledge that volunteer reserve officers were unpaid and

were “appointed” rather than “employed.” Based on this testimony,

Appellant sought a jury instruction on § 341.012 of the Local Government

Code. Specifically, Appellant argued:

Section 341.012 establishes that a police department can
have non-licensed peace officers serve a[t] the discretion of
the police chief, and that they can carry firearms despite being
non-licensed by [TCOLE]. The Statute further establishes that
the municipality governs the standards and qualifications of
reserves, not [TCOLE]. Thus, if the jury finds that the
individuals listed in each count of the indictment were
appointed reserves, [it] would need to be instructed that the
firearms qualification information at issue was not information
required to be kept by the government. Because the evidence
adduced at trial supports such a finding, the jury should be so
instructed in the charge.

The trial court did not agree with Appellant’s interpretation of the law and

denied the instruction because records kept by the Department were still

governmental records even if TCOLE could not legally require the

Department to keep them.4 The jury found Appellant guilty on all 14

4
Section 341.012 of the Local Governm ent Code states, in relevant part:
 Chambers - 6

counts in the indictment.5

Appellant argued on appeal that the evidence was insufficient to

support his conviction. He asserted that the firearms-proficiency records

at issue were not governmental records because TCOLE could not legally

require the Department to keep them. This claim was intertwined with

Appellant’s argument that the evidence was insufficient to disprove his

statutory defense in § 37.10(f) of the Texas Penal Code. That defense

(a) The governing body of a m unicipality m ay provide for the establishm ent of
a police reserve force.

(b) The governing body shall establish qualifications and standards of training
for m em bers of the reserve force.

(c) The governing body m ay lim it the size of the reserve force.

(d) The chief of police shall appoint the m em bers of the reserve force. Mem bers
serve at the chief’s discretion.

(e) The chief of police m ay call the reserve force into service at any tim e the
chief considers it necessary to have additional officers to preserve the peace and
enforce the law.

(f) A m em ber of a reserve force who is not a peace officer as described by Article
2.12, Code of Crim inal Procedure, m ay act as a peace officer only during the
actual discharge of official duties.

(g) An appointm ent to the reserve force m ust be approved by the governing
body before the person appointed m ay carry a weapon or otherwise act as a
peace officer. On approval of the appointm ent of a m em ber who is not a peace
officer as described by Article 2.12, Code of Crim inal Procedure, the person
appointed m ay carry a weapon only when authorized to do so by the chief of
police and only when discharging official duties as a peace officer. . . .

5
The trial court sentenced him to two years’ confinem ent in state jail, probated for
five years, and assessed a $200 fine for each count. The suspended sentences of
confinem ent were set to run concurrently, but the fines were cum ulated, for a total of
$2,800.
 Chambers - 7

states: “It is a defense to prosecution under Subsection (a)(1), (a)(2), or

(a)(5) that the false entry or false information could have no effect on the

government’s purpose for requiring the governmental record.” 6 Appellant

raised another sufficiency challenge, arguing that the evidence was

insufficient to support the elevating element of intent to defraud or harm.

He also challenged the trial court’s denial of his requested jury

instruction. The court of appeals rejected all of Appellant’s claims and

affirmed the trial court’s judgment.7

Appellant Was Not Harmed by the Lack of a
“Required By Law” Jury Instruction

Appellant argues that the trial court erred by rejecting his requested

jury instruction on the law regarding reserve officers (specifically, the

instruction on Texas Local Government Code § 341.012). Error in the

jury charge is subject to a harmless-error analysis.8 If the appellant

timely objected at trial to the jury-charge error, the reviewing court will

reverse upon a showing of “some harm” to the appellant.9 This means

6
T EX . P ENAL C O DE § 37.10(f).

7
Cham bers v. State, 523 S.W .3d 681 (Tex. App.— Corpus Christi-Edinburg 2017).

8
See Barron v. State, 353 S.W .3d 879, 883 (Tex. Crim . App. 2011).

9
Mendez v. State, 545 S.W .3d 548, 552 (Tex. Crim . App. 2018) (citing Alm anza v.
State, 686 S.W .2d 157, 171 (Tex. Crim . App. 1985) (op. on reh’g)).
 Chambers - 8

that “the presence of any harm, regardless of degree, . . . is sufficient to

require a reversal.”10 If the appellant did not timely object, the court will

reverse upon a showing of “egregious harm,” which occurs when the error

created such harm that the appellant was deprived of a fair and impartial

trial.11 Under both harm standards, the appellant must have suffered

some actual—rather than merely theoretical—harm.12 Here, assuming

without deciding that Appellant properly preserved his claim and that the

trial court erred in denying Appellant’s requested instruction, we conclude

that any error was harmless because Appellant did not even suffer “some

harm.”

Appellant argues that he was harmed by this jury-charge error

because it “went to the core of [his] defense”: “that the volunteer reserve

officers . . . were not subject to TCOLE regulation and therefore, the

firearm qualification documents . . . failed to fall within the definition of

‘government[al] record.’”13 Appellant asserts that a document is a

governmental record only if it is required by law to be kept or, at the very

10
Airline v. State, 721 S.W .2d 348, 351 (Tex. Crim . App. 1986).

11
Villarreal v. State, 453 S.W .3d 429, 433 (Tex. Crim . App. 2015).

12
Reeves v. State, 420 S.W .3d 812, 816 (Tex. Crim . App. 2013).

13
App. Br. 28.
 Chambers - 9

least, is kept for a government purpose.14 Because, in Appellant’s view,

the forms were not required by law to be kept or in fact kept for a

government purpose, they were not governmental records. He asserts,

therefore, that he was harmed by the absence of this instruction. To

determine whether Appellant was harmed, we must determine whether

the documents at issue were governmental records regardless of whether

TCOLE could legally require the Department to keep them.

When interpreting a statute, we give effect to the plain meaning of

the statute’s language, unless the statute is ambiguous or the plain

meaning leads to absurd results.15 To determine plain meaning, we use

rules of grammar and usage.16 We presume that every word in a statute

has been used for a purpose and that each word, clause, and sentence

should be given effect if reasonably possible.17

Appellant’s first argument that a document qualifies as a

governmental record only if it is “required by law” to be kept is

14
Id. at 17.

15
Liverm an v. State, 470 S.W .3d 831, 835–36 (Tex. Crim . App. 2015); see also
Boykin v. State, 818 S.W .2d 782, 785 (Tex. Crim . App. 1991) (“[I]f the m eaning of the
statutory text, when read using the established canons of construction relating to such text,
should have been plain to the legislators who voted on it, we ordinarily give effect to that
plain m eaning.”).

16
Liverm an, 470 S.W .3d at 836.

17
Id.
 Chambers - 10

inconsistent with the statutory text. The Penal Code contains a list of

definitions of “governmental record,” only two of which are at issue here:

(A) anything belonging to, received by, or kept by government
for information, including a court record;

(B) anything required by law to be kept by others for
information of government.18

Subsection (B) of the governmental-record definition requires the

document to be “required by law.” Subsection (A), however, does not.

Reading that limitation into Subsection (A) would render the phrase

“required by law” in Subsection (B) meaningless.19 Thus, we reject

Appellant’s argument that there must be a showing that a particular

governmental record was “required by law” before it can constitute a

governmental record. The firearms-proficiency records in this case were

both “received by” and “kept by” the government. Thus, they were still

governmental records regardless of whether TCOLE could require the

Department to keep them.

Regarding Appellant’s alternative argument—that the document

18
T EX . P ENAL C O DE § 37.01(2).

19
See Liverm an, 470 S.W .3d at 836 (“[W ]e presum e that every word in a statute has
been used for a purpose and that each word, clause, and sentence should be given effect if
reasonably possible.”); see also State ex rel. W ice v. Fifth Jud. Dist. Ct. App., ___ S.W .3d
___, 2018 W L 6072183, at *6 (Tex. Crim . App. 2018) (rejecting one possible interpretation
because it would render certain statutory requirem ents m eaningless).
 Chambers - 11

must, at the very least, be kept for a government purpose to constitute

a governmental record—he relies on a defense in the tampering statute.

That defense states: “It is a defense to prosecution under Subsection

(a)(1), (a)(2), or (a)(5) that the false entry or false information could

have no effect on the government’s purpose for requiring the

governmental record.”20 Appellant essentially interprets the defense as

imposing a “purpose” requirement in the governmental-record definition.

A general rule of statutory interpretation is that the expression of

one thing implies the exclusion of other, unexpressed things.21 The

tampering statute provides six ways to commit the offense.22 In the

statutory defense, however, the Legislature expressly mentioned only

three of the six, specifically, Subsections (a)(1), (a)(2), and (a)(5). The

express statement of those three subsections implies that the statutory

defense does not apply to Subsections (a)(3), (a)(4), and (a)(6). In

other words, Subsections (a)(3), (a)(4), and (a)(6) are implicitly

excluded. Accepting Appellant’s interpretation would inappropriately

20
T EX . P ENAL C O DE § 37.10(f). A defense to prosecution is labeled by the phrase: “It
is a defense to prosecution....” T EX . P ENAL C O D E § 2.03(a).

21
State v. Hill, 499 S.W .3d 853, 866 n.29 (Tex. Crim . App. 2016); A NTO NIN S CALIA &
B RYAN A. G ARNER , R EAD ING L AW 107 (2012) (“The expression of one thing im plies the exclusion
of others (expressio unis est exclusio alterius).”).

22
T EX . P ENAL C O DE § 37.10(a).
 Chambers - 12

extend the statutory defense to those excluded subsections despite the

Legislature’s express limitation. We reject Appellant’s argument that a

document must, at the very least, be kept for a government purpose to

constitute a governmental record. Under the plain text of the statute, the

purpose is relevant to the defense to prosecution, not an element of the

offense.

In sum, Appellant’s interpretation of the definition of “governmental

record” conflicts with the statute’s plain language. The firearms-

proficiency records for the reserve officers were governmental records

even without a showing that the Department was “required by law” to

keep them. Consequently, the absence of an instruction on the issue of

whether the Department was required by law to keep the records did not

harm Appellant because it would have had no effect on the jury’s

determination that the firearms-proficiency records were governmental

records.

Sufficiency of the Evidence

Appellant also argues that the evidence is insufficient to establish

that he acted with an “intent to defraud or harm.” When reviewing the

sufficiency of the evidence, we ask “whether, after viewing the evidence

in the light most favorable to the prosecution, any rational finder of fact
 Chambers - 13

could have found the essential elements of the offense beyond a

reasonable doubt.”23 Sometimes that is simply a matter of reviewing the

record to determine whether there is sufficient evidence to establish a

particular element of an offense. Sometimes that requires us to

determine the meaning of the statute under which the defendant was

prosecuted.24 In other words, we ask if the defendant’s conduct actually

constitutes an offense under the statute.25 Like all statutory

interpretation questions, this is a question of law that we review de

novo.26 Here, Appellant’s sufficiency challenge requires us to determine

the meaning of the phrase “intent to defraud” as it is used within the

applicable statute.

Defining “Intent to Defraud”

Tampering with a governmental record is a state jail felony if “the

actor’s intent [was] to defraud or harm another.”27 Without that intent,

the offense is a Class A misdemeanor.28 Appellant asserts that, even if

23
Liverm an, 470 S.W .3d at 835–36.

24
Id. at 836.

25
Id.

26
Id.

27
T EX . P ENAL C O DE § 37.10(c)(1).

28
Id. This, of course, assum es the absence of other elevating elem ents.
 Chambers - 14

the records at issue are governmental records, it was legally impossible

for him to defraud or harm TCOLE because TCOLE had no authority to

require the keeping of the records in the first place.29 Therefore,

Appellant argues, the evidence is insufficient to show an intent to defraud

or harm TCOLE. We agree.

The Penal Code defines “harm” as “anything reasonably regarded as

loss, disadvantage, or injury, including harm to another person in whose

welfare the person affected is interested.” 30 “Defraud,” however, is not

statutorily defined. The court of appeals applied the following definition

of “defraud”: “to cause another to rely upon the falsity of a

representation, such that the other person is induced to act or is induced

to refrain from acting.”31 The court also noted that an intent to defraud

does not require an intent to deprive the government of money or

property.32 Thus, according to the court, intent to defraud could be

proven by evidence that Appellant intend to cause TCOLE to rely upon a

false representation to act (or refrain from acting). But that definition is

29
App. Br. 21, 31.

30
T EX . P ENAL C O DE § 1.07(a)(25).

31
Cham bers, 523 S.W .3d at 690.

32
Id. (citing Ham m erschm idt v. United States, 265 U.S. 182, 188 (1924)).
 Chambers - 15

too broad.

We agree that an intent to defraud does not require an intent to

deprive the government of money or property; but something more is

required than simply an intent to cause the government entity to rely

upon a false representation to act (or refrain from acting). When

determining a statute’s plain meaning, we may consult dictionary

definitions.33

Here, dictionary definitions of “defraud” indicate that the dishonest

means must cause an injury or loss by withholding a possession, right, or

interest. For example, Webster’s New World College Dictionary defines

“defraud” as: “to take away or hold back property, rights, etc. from by

fraud.”34 Likewise, American Heritage Dictionary defines “defraud” as “to

take something from by fraud” and defines “fraud” as “[a] deception

practiced in order to induce another to give up possession of property or

surrender a right.” 35 Other dictionaries provide similar definitions.36

33
Ex parte Perry, 483 S.W .3d 884, 902 (Tex. Crim . App. 2016).

34
Defraud, W EBSTER ’S N EW W O RLD C O LLEG E D ICTIO NARY (5th ed. 2014).

35
Defraud and Fraud, A M ERICAN H ERITAG E D ICTIO NARY (5th ed. 2016).

36
Defraud, W EBSTER ’S T H IRD N EW I NTERNATIO NAL D ICTIO NARY (3rd ed. 2002) (“[T]o take
or withhold from (one) som e possession, right, or interest by calculated m isstatem ent or
perversion of truth, trickery, or other deception.”); Defraud, D ICTIO NARY O F L EG AL T ERM S (4th
ed. 2008) (“[T]o deprive a person of property or interest, estate or right by fraud or
deceit.”); Intent to defraud, B LACK ’S L AW D ICTIO NARY (6th ed. 1994) (“[A]n intention to
 Chambers - 16

These definitions line up with the common general meaning of “defraud.”

So, in the context of this statute: To be defrauded, the government must

have a right or duty to act (or refrain from acting) on the matter intended

to be affected by the deceit.37

Holding otherwise would create, as Appellant argues, a legal

impossibility. A legal impossibility exists where the defendant intends to

do something that would not constitute a crime (or at least the crime

charged).38 In other words, the defendant may intend to commit a crime,

not because he intends to do something the criminal law prohibits, but

because he is ignorant of the law.39

For example, a defendant may intend to prevent the government

from taking a certain action against him—say, fining him. If the

government has no authority to fine the defendant, then it is legally

impossible for the defendant to “defraud” the government out of an

opportunity to fine him—even if the defendant believes the government

deceive another person, and to induce such other person, in reliance upon such deception,
to assum e, create, transfer, alter or term inate a right, obligation or power.”).

37
Of course, this definition is in addition to defrauding by causing pecuniary or
property loss or som e other cognizable loss.

38
Lawhorn v. State, 898 S.W .2d 886, 891 (Tex. Crim . App. 1995). In that case, we
also noted that legal im possibility exists “where the act if com pleted would not be a crim e,
although what the actor intends to accom plish would be a crim e.” Id.

39
Id. at 892.
 Chambers - 17

has that authority.40 The defendant could accomplish everything he

intends to do, but “the resulting end would still not be a crime, or at least

the crime charged.” 41 And “what is not criminal may not be turned into

a crime after the fact by characterizing [the] acts as an attempt,” 42 or, in

this case, an intent.43

We conclude that intent to defraud a government entity requires not

only an intent to cause the entity to rely upon a false representation to

act (or refrain from acting) on a certain matter, but also that the

government has the right or duty to act on that matter. The question

then becomes whether TCOLE had the right or duty to require the

firearm-proficiency records for the licensed reserve officers. It did not.

TCOLE Did Not Have the Right or Duty to Require the Records

The relevant firearms-proficiency provisions in the Occupations Code

state:

40
To be clear, the situation here is not one of factual im possibility. “Factual
im possibility is generally regarded as existing where, due to a physical or factual condition
unknown to the actor, the attem pted crim e could not be com pleted.” Id. at 891. The
im possibility here does not arise from a “factual condition.” Instead, the im possibility arises
purely from the reach of the law.

41
Id. at 892.

42
2 W ayne R. LaFave, Substantive Crim inal Law § 11.5(a)(3) (3d ed. 2018).

43
Lawhorn, 898 S.W .2d at 892 (“Although im possibility is generally applied in the
context of attem pt crim es, it has also been raised and considered in the context of ‘intent’
crim es. . . . Moreover, this Court has historically recognized, for purposes of pleading, that
‘attem pt’ m ay be used in place of ‘intent.’”).
 Chambers - 18

(a) An agency that employs one or more peace officers shall
designate a firearms proficiency officer and require each peace
officer the agency employs to demonstrate weapons
proficiency to the firearms proficiency officer at least annually.
The agency shall maintain records of the weapons proficiency
of the agency’s peace officers.

. . .

(c) [TCOLE]44 by rule shall define weapons proficiency for
purposes of this section.45

According to its plain language, this statute applies only to “peace

officers” who are “employed.” “Peace officer” is statutorily defined as “a

person elected, employed, or appointed as a peace officer under Article

2.12, Code of Criminal Procedure, or other law.”46 Article 2.12 includes

“peace officers” who are “reserve municipal police officers who hold a

permanent peace officer license issued under Chapter 1701, Occupations

Code.”47 Thus, licensed reserve officers—like the reserve officers

here—are “peace officers.”48 The question then becomes whether the

44
T EX . O CC . C O D E § 1701.001(1) (“‘Com m ission’ m eans the Texas Com m ission on Law
Enforcem ent.”).

45
T EX . O CC . C O D E § 1701.355 (em phasis added).

46
T EX . O CC . C O D E § 1701.001(4).

47
T EX . C O D E C RIM . P RO C . art. 2.12(3).

48
According to the definition of “officer,” it m ay appear that an officer cannot be both
a “peace officer” and “reserve law enforcem ent officer.” “Officer” is defined as: “a peace
officer or reserve law enforcem ent officer.” T EX . O CC . C O DE § 1701.001(3) (em phasis added).
Statutory context, however, overcom es the ordinary, disjunctive m eaning of “or” in that
definition. Looking at Article 2.12, the Legislature clearly intended for there to be overlap
 Chambers - 19

reserve officers here were “employed.” They were not.

The definition of “reserve law enforcement officer” in the

Occupations Code directs us to § 341.012 of the Local Government

Code.49 That Local Government Code provision states, in relevant part:

“The governing body of a municipality may provide for the establishment

of a police reserve force. . . . The chief of police shall appoint the

members of the reserve force.”50 Thus, according to the plain language,

reserve officers are appointed rather than employed.

To be sure, the Legislature used “or” when defining “peace officer”:

“a person elected, employed, or appointed . . . .” 51 TCOLE did the same.52

Almost always, the use of “or” is disjunctive—that is, it creates

alternatives, and “the words it connects are to ‘be given separate

between “peace officer” and “reserve law enforcem ent officer.” The Legislature did not
intend for the two to be m utually exclusive.

49
T EX . O CC . C O D E § 1701.001(6) (“‘Reserve law enforcem ent officer’ m eans a person
designated as a reserve law enforcem ent officer under Section 85.004, 86.012, or 341.012,
Local Governm ent Code, or Section 60.0775, Water Code.”).

50
T EX . L O CAL G O V ’T C O D E § 341.012(a), (d).

51
T EX . O CC . C O D E § 1701.001(4) (em phasis added).

52
37 T EX . A D M IN . C O D E § 211.1(a)(44) (2014) (“Peace officer— A person elected,
em ployed, or appointed as a peace officer under the provisions of the Texas Occupations
Code, § 1701.001.”).
 Chambers - 20

meanings.’”53 Here, nothing indicates that the Legislature intended

something other than that ordinary meaning. Thus, elected, employed,

and appointed have separate meanings. Here, the reserve officers were

appointed rather than employed, and the firearms-proficiency statute

does not apply to them. TCOLE did not have the right or duty to require

the records, and the records were not required by law to be kept.

Just to clarify, in addressing Appellant’s jury charge claim, we held

that the firearms-proficiency records constitute governmental records

regardless of whether they were required by law. That is because the

applicable definition of governmental record only requires proof that the

records were received or kept by the government for information—not

that the government was required by law to receive or keep them. With

regard to Appellant’s claim that there was insufficient evidence to

establish an intent to defraud or harm, we hold that the State must prove

that the government has the legal authority to require the keeping of

records in order to show that it is legally possible to defraud the

government by filing a false record.

53
United States v. W oods, 571 U.S. 31, 45 (2013); cf. Huffm an v. State, 267 S.W .3d
902, 904, 909 (Tex. Crim . App. 2008) (stating that a jury charge using “or” charged the
violations of the statute in the disjunctive, creating an allegation in the alternative); see
also A NTO NIN S CALIA & B RYAN A. G ARNER , R EAD ING L AW 116 (2012) (“Under the
conjunctive/disjunctive canon, and com bines item s while or creates alternatives.”).
 Chambers - 21

In this case, it was legally impossible for TCOLE to be defrauded by

Appellant’s deceit and for Appellant to intend to defraud TCOLE through

his deceit. There is also no evidence to show intent to defraud by causing

pecuniary or property loss or some other cognizable loss or to show intent

to harm by causing a loss, disadvantage, or injury to another.

Consequently, the evidence is insufficient to support the intent-to-

defraud-or-harm element. We sustain this ground for review.

The Court of Appeals’ Sufficiency Analysis is Incomplete

Appellant argued to the court of appeals that the records were not

governmental records because they were not required by law to be kept

or, at the very least, were not actually kept for a government purpose.

In Appellant’s reply brief, he clarified that argument, asserting that the

State was also required to disprove his statutory defense. As mentioned

previously, the statutory defense states: “It is a defense to prosecution

under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false

information could have no effect on the government’s purpose for

requiring the governmental record.”54 The court of appeals stated in a

footnote that Appellant did not raise a sufficiency claim regarding the

54
T EX . P ENAL C O DE § 37.10(f).
 Chambers - 22

rejection of the statutory defense.55

Rather than address Appellant’s complaint as part of his initial

sufficiency challenge, the court of appeals discussed the existence of the

statutory defense to undercut Appellant’s argument that a broad

interpretation of “governmental record” would lead to an absurd result.56

In effect, as part of its interpretation of the statute, the court of appeals

acknowledged that the governmental purpose of the records is treated as

a defensive issue, but then it did not address Appellant’s argument that

the State’s evidence was insufficient to overcome that defensive issue.

On discretionary review, Appellant again combines the issue of the

statutory defense with his argument regarding the governmental-record

definition. He specifically complains that, even if we hold that this is an

issue about a statutory defense rather than the governmental-record

definition, the evidence is still legally insufficient.57 Further, Appellant

argues that the court of appeals’ opinion did not comply with Rule 47.1

of the Texas Rules of Appellate Procedure, which requires the court of

55
See Cham bers, 525 S.W.3d at 688 n.4.

56
Id. at 687 (“It is also noteworthy that section 37.10 provides for a defense to
tam pering with [a] governm ental record in cases where ‘the false entry or false inform ation
could have no effect on the governm ent’s purpose for requiring the governm ental record.’”).

57
App. Br. 20.
 Chambers - 23

appeals to address every issue raised and necessary to a final disposition

on appeal.58 He specifically asks this Court to reverse the court of

appeals’ judgment and remand this case to the court of appeals to fully

address Appellant’s statutory-defense arguments.59

Though we have never specifically addressed when courts of appeals

should address arguments raised by an appellant in a reply brief, several

courts of appeals have. Generally, an appellant may not raise a new

issue in a reply brief because Rule 38.3 allows courts of appeals to decide

the matter prior to receiving the reply brief.60 But courts of appeals can

consider arguments and authorities in a reply brief that are related to the

arguments in the original brief.61 We agree with the courts of appeals

that new issues raised in a reply brief should not be considered.

However, Appellant’s argument in his reply brief was not a new issue; it

58
Id. at 21; see also T EX . R. A PP . 47.1.

59
App. Br. 24.

60
See, e.g., Barrios v. State, 27 S.W .3d 313, 322 (Tex. App.— Houston [1st Dist.]
2000, pet ref’d.); State v. Vavro, 259 S.W .3d 377, 379-80 (Tex. App.— Dallas 2008, no
pet.).

61
See, e.g., McAlester Fuel Co. v. Sm ith Intern., Inc., 257 S.W .3d 732, 737 (Tex.
App.— Houston [1st Dist.] 2007, pet. denied) (addressing assertions in reply brief “that can
be construed to expound on [Appellant’s] second issue presented in its opening brief or that
reply to issues fully briefed by Appellee”); Benge v. Harris, No. 07-13-00064-CV, 2013 W L
4528885, at *1 (Tex. App.— Am arillo Aug. 20, 2013, no pet.) (not designated for
publication) (“Accordingly, our analysis is lim ited to those issues and argum ents raised in
the original brief and those in the reply brief which are related to the original argum ents.”).
 Chambers - 24

was related to the arguments in his original brief.

This is not a case in which the defendant raises a completely

independent issue on appeal in a reply brief. Neither is it a case where

the defendant raises a completely different sufficiency challenge for the

first time in a reply brief. Instead, Appellant’s sufficiency claim in his

reply brief was part and parcel of the statutory interpretation issue he

raised in his initial brief. Appellant has consistently argued that the

evidence is insufficient to show that the records were kept for a

governmental purpose, and part of that sufficiency claim is based on how

the statute should be interpreted. Having determined that the

governmental purpose of the record can be a requirement when

considered as part of a statutory defense rather than as an element of the

offense, the court of appeals should have considered Appellant’s

responsive argument in his pre-submission reply brief that the evidence

is legally insufficient to overcome his statutory defense.62

We are unaware of any of our cases interpreting this statutory

defense. The meaning of the phrase “government’s purpose for requiring

the governmental record” is unclear in the context of the statute. Our

62
T EX . R. A PP . 47.1
 Chambers - 25

resolution of the issue (if any should even be necessary after a remand)

would benefit from a carefully wrought decision from the court of

appeals.63 Thus, we remand the case for the court of appeals to evaluate

the meaning of “government’s purpose for requiring the governmental

record” in § 37.10(f) and, based on its determined meaning, consider

whether the evidence was sufficient to overcome the statutory defense.

Conclusion

We affirm the court of appeals regarding Appellant’s complaint

about the § 341.012 jury instruction. We hold that Appellant was not

harmed by the absence of that jury instruction. We further hold that the

evidence was insufficient to support the intent-to-defraud-or-harm

element and reverse the court of appeals’ determination that the

evidence was sufficient. However, we reverse and remand the case to

the court of appeals to evaluate the sufficiency of the evidence to

overcome Appellant’s statutory defense under § 37.10(f).

Filed: June 26, 2019

Publish

63
McClintock v. State, 444 S.W .3d 15, 21 (Tex. Crim . App. 2014).