Case: 22-60537 Document: 00516849195 Page: 1 Date Filed: 08/07/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
August 7, 2023
No. 22-60537
____________ Lyle W. Cayce
Clerk
Leonel Padilla Tello,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
______________________________
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A046 265 889
______________________________
Before Wiener, Graves, and Douglas, Circuit Judges.
James E. Graves, Jr., Circuit Judge: *
Leonel Padilla Tello petitions for review of a decision by the Board of
Immigration Appeals (“BIA”). The BIA found that his prior conviction for
interfering with an emergency call under Texas Penal Code § 42.062 was a
crime involving moral turpitude, rendering him ineligible for cancellation of
removal under 8 U.S.C. § 1229b(b)(1). The BIA correctly determined that
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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§ 42.062 is a divisible statute, so we DENY Padilla Tello’s petition for
review.
I. Background
Padilla Tello is a native and citizen of Mexico who became a lawful
permanent resident of the United States on May 16, 1997. On either April 5
or 6, 2004, he committed the offense of interfering with an emergency call
under Texas Penal Code § 42.062 and pleaded guilty on May 12, 2004. On
May 10, 2005, he was convicted of violating Texas Health and Safety Code §
481.115(b) for possessing less than one gram of a controlled substance. On
September 3, 2013, the Department of Homeland Security placed Padilla
Tello in removal proceedings for the controlled substance offense. Padilla
Tello requested cancellation of removal pursuant to 8 U.S.C. § 1229b(a), but
the Immigration Judge (“IJ”) found he was ineligible for cancellation because
he committed a crime involving moral turpitude (“CIMT”)—his conviction
under Texas Penal Code § 42.062(a)—before he had accrued seven years of
continuous residence. Padilla Tello appealed the decision, but the BIA
agreed that § 42.062(a) is categorically a CIMT and dismissed his appeal.
After Padilla Tello filed a petition for review with this court, the Government
requested a remand, and this court granted its motion.
On remand, the IJ found that § 42.062 is divisible and that the record
established that Padilla Tello was convicted under § 42.062(a). Concluding
that § 42.062(a) categorically constitutes a CIMT, the IJ again denied Padilla
Tello’s application for cancellation of removal. Padilla Tello appealed to the
BIA. The BIA agreed that the statute is divisible and that the IJ “properly
concluded that [the] criminal information read in conjunction with the
judgment indicate that [Padilla Tello] was convicted of violating TPC §
42.062(a).” It also concluded that § 42.062(a) categorically constitutes a
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CIMT, so it dismissed the appeal. Padilla Tello timely filed this petition for
review.
II. Standard of Review
When reviewing a BIA decision, we consider legal questions de novo
and findings of fact for substantial evidence. Zhu v. Gonzales, 493 F.3d 588,
594 (5th Cir. 2007). While our review is limited to the BIA’s decision, we
will consider the IJ’s decision to the extent it influenced the BIA. Singh v.
Sessions, 880 F.3d 220, 224 (5th Cir. 2018).
III. Discussion
The only issue Padilla Tello raises on appeal is whether the BIA erred
in determining that § 42.062 is divisible. At the time of his conviction, the
statute read in relevant part:
(a) An individual commits an offense if the individual
knowingly prevents or interferes with another individual’s
ability to place an emergency telephone call or to request
assistance in an emergency from a law enforcement agency,
medical facility, or other agency or entity the primary purpose
of which is to provide for the safety of individuals.
(b) An individual commits an offense if the individual
recklessly renders unusable a telephone that would otherwise
be used by another individual to place an emergency telephone
call or to request assistance in an emergency from a law
enforcement agency, medical facility, or other agency or entity
the primary purpose of which is to provide for the safety of
individuals.
Tex. Penal Code § 42.062 (2003).
Padilla Tello argues that “knowingly prevent[ing] or interfer[ing]
with another individual’s ability” and “recklessly render[ing] unusable a
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telephone that would otherwise be used by another” are merely alternative
means for committing the same offense and are not distinct elements.
A statute is divisible if it lists out alternative elements, rather than
alternative means. Mathis v. United States, 579 U.S. 500, 514–15 (2016)
(citation omitted). We have explained this distinction in the following way:
[I]f a statute only sets out alternative means of committing a
crime, such that the jury need not agree which of the various
possible means was actually employed in committing the
crime, then the statute states only one crime and consequently
is indivisible. . . But if the statute lays out alternative elements
of the crime, such that the jury must agree which of the two or
more potential alternatives is satisfied, the statute is divisible.
United States v. Garrett, 24 F.4th 485, 489 (5th Cir. 2022) (citing United
States v. Howell, 838 F.3d 489, 497 (5th Cir. 2016)). To determine whether a
statute is divisible, we consider the statutory text, state court decisions, and
if necessary, the record documents for the sole purpose of determining
whether the listed items are elements. Mathis, 579 U.S. at 518–19.
First, the text of the statute. Mathis lists three ways in which a “statute
on its face may resolve” the means or elements question. Id. at 518. These
are: (1) whether the alternatives carry different punishments (making them
elements); (2) whether the alternatives are illustrative examples (making
them means); and (3) whether the statute identifies “which things must be
charged (and so are elements) and which need not be (and so are means).”
Id. None of these considerations answer the question here.
Second, state court decisions. The Government points us to several
cases in which Texas courts have identified § 42.062(a) as a separate offense
from § 42.062(b). For instance, both the Fort Worth Court of Appeals and
the Houston Court of Appeals (1st Dist.) have stated that an offense under §
42.062(a) comprises the following elements: “(1) an individual (2) knowingly
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(3) prevents or interferes with (4) another individual’s (5) ability to place an
emergency call or to request assistance, including a request for assistance
using an electronic communications device, (6) in an emergency (7) from a
law enforcement agency.” Schumm v. State, 481 S.W.3d 398, 399–400 (Tex.
App.—Fort Worth 2015, no pet.); Williams v. State, 582 S.W.3d 692, 701
(Tex. App.—Houston [1st Dist.] 2019, pet. ref’d) (quoting Schumm, 481
S.W.3d at 399–400). By requiring a jury to find that the conduct was knowing,
these holdings exclude the possibility of a conviction when some jurors think
the defendant merely acted recklessly. The Amarillo Court of Appeals also
construed § 42.062(a) as a separate offense by stating that “[t]he only
culpable mental state applicable to interference with a request for emergency
assistance is ‘knowingly.’” Alcoser v. State, 596 S.W.3d 320, 337 (Tex.
App.—Amarillo 2019), rev’d and remanded on other grounds, 663 S.W.3d 160
(Tex. Crim. App. 2022). As to § 42.062(b), the Austin Court of Appeals
likewise implicitly construed it as a separate offense by referring only to that
subsection’s language when reviewing the sufficiency of the evidence to
support a conviction under it: “Penal code section 42.062 provides in
pertinent part that an individual commits an offense if he ‘recklessly renders
unusable a telephone that would otherwise be used by another individual to
place an emergency telephone call or to request assistance in an emergency
from a law enforcement agency.’” Armstrong v. State, No. 03-10-00046-CR,
2011 WL 1466856, at *5 (Tex. App.—Austin Apr. 14, 2011, no pet.) (quoting
Tex. Penal Code § 42.062(b)) (emphasis added).
However, Padilla Tello directs us to an Austin Court of Appeals
decision that appears to construe both subsections as one crime. In Urtado v.
State, the defendant argued that the trial court erred by excluding
impeachment evidence that a witness had been convicted of the
misdemeanor offense of interference with an emergency telephone call. 333
S.W.3d 418, 428 (Tex. App.—Austin 2011, pet. ref’d) (citing Tex. Penal
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Code § 42.062). Notably, the court did not state whether the witness’s
conviction was under subsection (a) or (b). Id. Addressing whether this
conviction was a crime of moral turpitude under state law, the court found
that a conviction under the statute “does not require an act of violence or
deception. Further, the statute requires no more than a reckless mental state,
as an individual commits an offense under the statute by ‘recklessly
render[ing] unusable a telephone that would otherwise be used’ to place
emergency telephone calls.” Id. (quoting Tex. Penal Code § 42.062(b)).
It therefore concluded that the witness’s conviction was not a crime of moral
turpitude. Id. at 428–29. While state case law weighs in favor of divisibility,
it does not “definitively answer[] the question” because Urtado appears to
support Padilla Tello’s argument. Mathis, 579 U.S. at 517.
Since our inquiry into the statutory text and existing case law is
inconclusive, we now take a “peek” at the record documents for “the sole
and limited purpose of determining whether [the listed items are] element[s]
of the offense.” Id. at 518 (citation and internal quotation marks omitted).
The criminal information states that “on or about 05 April, 2004, [Padilla
Tello] did then and there knowingly prevent or interfere with the ability of
Juana Ortiz, to place an emergency telephone call to a law enforcement
agency, against the peace and dignity of the State.” As the Supreme Court
has instructed, “an indictment and jury instructions could indicate, by
referencing one alternative term to the exclusion of all others, that the statute
contains a list of elements, each one of which goes toward a separate crime.”
Id. at 519; see also Descamps v. United States, 570 U.S. 254, 272 (2013) (“A
prosecutor charging a violation of a divisible statute must generally select the
relevant element from its list of alternatives.”). Padilla Tello’s criminal
information references the language in subsection (a) and excludes any
reference to “recklessly render[ing] unusable a telephone” under subsection
(b). Accordingly, we conclude that the record documents “speak plainly”
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that § 42.062(a) is a separate crime with separate elements from § 42.062(b).
Mathis, 579 U.S. at 519. Therefore, we agree that § 42.062 is divisible with
respect to subsections (a) and (b).
IV. Conclusion
Finding no error in the BIA’s conclusion that § 42.062 is divisible
with respect to subsections (a) and (b), we DENY the petition for review.
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