PD-1501-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
March 25, 2015 Transmitted 3/25/2015 9:08:05 AM
Accepted 3/25/2015 9:49:13 AM
ABEL ACOSTA
PD-1501-14 CLERK
IN THE TEXAS COURT OF CRIMINAL APPEALS
_________________________________________________
ROBERT WILLIAM CORNWELL
PETITIONER-APPELLANT
vs.
THE STATE OF TEXAS
RESPONDENT-APPELLEE
_________________________________________________
ON DISCRETIONARY REVIEW FROM
THE NINTH COURT OF APPEALS,
CAUSE NO. 09-13-00203-CR
APPEAL FROM THE 435TH DISTRICT COURT OF
MONTGOMERY COUNTY, CAUSE NO. 12-08-08579CR
_________________________________________________
PETITIONER’S BRIEF ON THE MERITS
_________________________________________________
BRUCE ANTON SORRELS, UDASHEN & ANTON
State Bar No. 01274700 2311 Cedar Springs, Suite 250
ba@sualaw.com Dallas, Texas 75201
214-468-8100 (office)
BRETT ORDIWAY 214-468-8104 (fax)
State Bar No. 24079086
bordiway@sualaw.com Counsel for Petitioner-Appellant
Identity of Parties and Counsel
For Appellant Robert William Cornwell:
DAN MADELEY
Trial counsel
208 W. Davis
Conroe, Texas 77301
RICHARD MARTIN P. CANLAS
Trial counsel
300 W. Davis, Suite 560
Conroe, Texas 77301
BRUCE ANTON
BRETT ORDIWAY
Appellate counsel
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Suite 250
Dallas, Texas 75201
For Appellee the State of Texas:
SHANNA REDWINE
Trial counsel of record
MONTGOMERY COUNTY DISTRICT ATTORNEY’S OFFICE
207 W. Phillips 2nd Floor
Conroe, Texas 77301
JASON LARMAN
Appellate counsel
MONTGOMERY COUNTY DISTRICT ATTORNEY’S OFFICE
Trial judge:
THE HONORABLE MICHAEL SEILER
MONTGOMERY COUNTY’S 435TH DISTRICT COURT
2
Table of Contents
Identity of Parties and Counsel ................................................................. 2
Index of Authorities .................................................................................... 4
Statement of the Case ................................................................................ 5
Issue Presented........................................................................................... 6
Whether, to secure a conviction for impersonating a public servant on
the theory that the defendant intended to induce another to rely on
his acts, the State must prove that the defendant intended to induce
another to rely on pretended official acts, not simply any acts. ........... 6
Statement of Facts...................................................................................... 7
Summary of the Argument ........................................................................ 8
Argument .................................................................................................... 9
I. Appellant’s unwavering argument ................................................ 9
II. The court of appeals ignored the statute’s requirement that the
State prove the defendant pretended to act in an official capacity 11
III. Conclusion ................................................................................... 16
Certificate of Service ................................................................................ 18
Certificate of Compliance ......................................................................... 18
3
Index of Authorities
Cases
Boyett v. State, 368 S.W.2d 769, 771 (Tex. Crim. App. 1963)................. 15
Cornwell v. State, 445 S.W.3d 488 (Tex. App.—Beaumont 2014) .. passim
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2002) ................... 12
Dietz v. State, 62 S.W.3d 335, 337 (Tex. App.—Austin 2001, pet. ref’d) 11
Ex parte Niswanger, 335 S.W.3d 611, 617 & n. 11, 618 n. 15 (Tex. Crim.
App. 2011).................................................................................. 10, 15, 16
Greene v. Massey, 437 U.S. 19 (1978) ...................................................... 17
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) ................. 17
Rice v. State, 195 S.W.3d 876, 878 (Tex. App.—Dallas 2006, pet. ref’d) 11
Studevant v. State, 833 S.W.2d 712, 712-14 (Tex. App.—Houston [14th
Dist.] 1992, no pet.) ............................................................................... 11
Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet.
ref’d) ................................................................................................. 13, 14
Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.—Corpus Christi 1989,
pet. ref’d) .......................................................................................... 12, 15
Statutes
TEX. PEN. CODE § 37.11 .................................................................... 5, 9, 16
TEX. PEN. CODE §37.11 .............................................................................. 13
Other Authorities
BLACK’S LAW DICTIONARY (9th ed. 2009).................................................. 15
4
Statement of the Case
Cornwell pretended to be a Dallas County Assistant District At-
torney. But though there was no evidence that, in so doing, Cornwell in-
tended to induce the complainant to submit to his pretended official au-
thority, or to rely on any pretended official acts, Cornwell was nonethe-
less charged by information on August 13, 2012, with impersonating a
public servant. (CR: 9); see TEX. PEN. CODE § 37.11(a)(1). And the jury
nonetheless found Cornwell guilty, and the court then sentenced him to
two years’ confinement. (RR3: 83, 188; CR: 79).
Accordingly, on appeal Cornwell argued that the evidence was le-
gally insufficient to support his conviction because it was plain that he
did not intend to induce the complainant to submit to his pretended of-
ficial authority or to rely on a pretended official act. Cornwell v. State,
445 S.W.3d 488 (Tex. App.—Beaumont 2014). The court of appeals af-
firmed Cornwell’s conviction, though, simply because there was evi-
dence that Cornwell intended to induce the complainant to rely on his
false identification—not on any pretended official acts—when consider-
ing his request for the favor. Id. No motion for rehearing was filed.
5
Issue Presented
Whether, to secure a conviction for impersonating
a public servant on the theory that the defendant
intended to induce another to rely on his acts, the
State must prove that the defendant intended to
induce another to rely on pretended official acts,
not simply any acts.
6
Statement of Facts
Robert Cornwell telephoned Montgomery County Assistant Dis-
trict Attorney Kourtney Teaff and asked her to be lenient with a friend
whose probation her office sought to revoke. (SX9). In so doing, Corn-
well averred that he, too, was an assistant district attorney, in Dallas
County, and that they “were on the same team and everything and that
he was just doing a friend a favor.” (RR3: 13). Furthermore, Cornwell
lied about running the friend’s criminal history, speaking with the pro-
bation department, investigating the friend’s medical issues, and giving
his own nephew jail time for possessing marijuana. (SX9). Teaff con-
firmed at trial, however, that Cornwell “never ordered [her] to do any-
thing” or “pretend[ed] he [had] any authority over [her],” and that he
acted “in his personal capacity.” (RR3: 30, 33, 41).
7
Summary of the Argument
A person commits the offense of impersonating a public servant if
he impersonates a public servant with the intent to induce another to
rely on his pretended official acts. And this Court in Niswanger af-
firmed as much—a defendant must have pretended to act in that official
capacity (regardless of whether that act in fact would be in his official
capacity). The court of appeals in this case discarded this requirement,
though, because it misunderstood a sister court of appeals’s opinion to
read that the defendant’s intent to induce was all that mattered. This
was plainly incorrect.
8
Argument
To secure a conviction for impersonating a public
servant on the theory that the defendant intend-
ed to induce another to rely on his acts, the State
must prove that the defendant intended to induce
another to rely on pretended official acts, not
simply any acts.
w w w
I. Appellant’s unwavering argument
A person commits the offense of impersonating a public servant if
he impersonates a public servant with the intent to induce another (1)
“to submit to his pretended official authority” or (2) “to rely on his pre-
tended official acts.” TEX. PEN. CODE § 37.11(a). In Cornwell’s case, the
State has never contended that Cornwell intended to induce Teaff to
submit to any pretended official authority. Not at trial, or before the
court of appeals—it couldn’t. (RR3: 65-70, 76-81); see Cornwell v. State,
445 S.W.3d 488 (Tex. App.—Beaumont 2014). For, as Teaff herself testi-
fied, “it would [have been] ridiculous” for Cornwell to behave as if he
had any authority over her. (RR3: 33). Instead, the State urged, and the
jury apparently agreed, that Cornwell intended to induce Teaff to rely
on his pretended official act of “trying to resolve a pending criminal
case.” (CR: 9); (RR3: 67); Cornwell, 445 S.W.3d at 490.
9
As to that contention, Cornwell has never contested that he im-
personated an assistant district attorney with the intent to induce Teaff
to rely on that identification. (RR3: 70-76). He couldn’t—it’s intrinsic
that that’s why he identified himself as such. Rather, Cornwell urged at
trial, and then before the court of appeals, that not an ounce of evidence
supported that he intended to induce her to rely on any pretended offi-
cial acts. Simply identifying himself as an assistant district attorney
doesn’t qualify as such, and he never pretended that asking for a favor
“from one DA to another” was an official act. (RR3: 70-76); (App. Br. at
5-6) (citing Ex parte Niswanger, 335 S.W.3d 611, 617 & n. 11, 618 n. 15
(Tex. Crim. App. 2011) (stating that to allege a crime, the indictment
“must provide that the defendant had been engaged in some overt ac-
tion in an official capacity that is more than merely showing official
identification”)).
To that end, Teaff specifically testified “[Cornwell] was doing a
friend a favor.” (RR3: 38). In no way did Cornwell hold himself out to be
acting in his official capacity; he didn’t pretend to call from an office
phone, instead specifically requesting she call him on his “[p]ersonal cell
phone”; he didn’t pretend to write from an office e-mail account. Cf. Rice
10
v. State, 195 S.W.3d 876, 878 (Tex. App.—Dallas 2006, pet. ref’d) (evi-
dence legally sufficient where defendant told officer that initiated traffic
stop that he was a Louisiana corrections officer picking up a prisoner);
Studevant v. State, 833 S.W.2d 712, 712-14 (Tex. App.—Houston [14th
Dist.] 1992, no pet.) (evidence legally sufficient where defendant repre-
sented herself as assistant attorney general and sought information
from witness as part of her “investigati[on]”); Dietz v. State, 62 S.W.3d
335, 337 (Tex. App.—Austin 2001, pet. ref’d) (legally sufficient evidence
where bail bondsman pretended to be a sheriff’s deputy so as to request
assistance serving warrant from police officers). As acknowledged in the
State’s brief on appeal, Teaff recorded Cornwell’s calls precisely because
“it was unusual for a prosecutor to attempt to use their office to influ-
ence a case in another county.” (St. Br. at 6) (citing RR3: 8-11). In fact,
Teaff explicitly testified that Cornwell made clear he was acting “in his
personal capacity.”(RR3: 41).
II. The court of appeals ignored the statute’s requirement that
the State prove the defendant pretended to act in an offi-
cial capacity
Faced with Teaff’s unambiguous testimony, the State on appeal
did not dispute that Cornwell did not pretend his favor request was an
11
official act. (St. Br. at 4-5). Instead, the State argued that, in so making
that request, Cornwell referred to having previously made official acts,
and that he intended for Teaff to rely on those. (St. Br. at 4-5). But even
assuming that Cornwell in fact represented to having previously made
official acts, to be guilty of the offense the “pretended official act” on
which he intended for Teaff to rely must be that act for which he was
charged—here, “trying to resolve a pending criminal case.” (CR: 9); Cur-
ry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2002) (holding that suf-
ficiency of evidence must be weighed against “manner and means of ab-
duction” alleged in indictment). And that he was charged as such was
no error; the Corpus Christi Court of Appeals has specifically held that,
to be guilty of impersonating a public servant, there must be a false
“pretension by a person that he is a public servant and overt action in
this capacity”—not reference to action in this capacity, or overt action
outside this capacity. Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.—
Corpus Christi 1989, pet. ref’d). Indeed, if, instead, the statute required
only a false pretension and reference to previously making an overt ac-
tion in that capacity, then any impersonation of a public servant would
be a crime, as inherent in such a pretension is the representation to
12
have previously made official acts. See TEX. PEN. CODE § 37.11 (simply
pretending to be a public official is not a crime).
Considering, then, that the State essentially urged the court of
appeals to ignore the charging instrument, or enlarge the statute to
cover any impersonation of a public official, it is understandable that
the court declined to follow its lead. Cornwell, 445 S.W.3d 488. The
court’s alternative reasoning, though, was just as strained. For, instead
of evaluating whether Cornwell’s request for a favor was a “pretended
official act,” the court simply announced that because it was “an act,” at
all, the evidence was sufficient:
While the term “official act” is not defined in the Penal Code,
the Penal Code defines “[a]ct” as “a bodily movement ... and
includes speech.”
…
Given that an act under the Penal Code involves speech, and
that the Montgomery County assistant district attorney had
the ability to use her prosecutorial discretion with respect to
Cornwell’s friend’s case, we hold the evidence supports
Cornwell’s conviction under the “pretended official acts”
prong of section 37.11(a)(1) of the Penal Code.
Id. at 491. Believing that it was following San Antonio Court of Ap-
peals’s lead in Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San An-
tonio 2011, pet. ref’d), the court in its opinion made clear that its suffi-
13
ciency review instead solely “focused upon” Cornwell’s intent to induce
Teaff. Cornwell, 445 S.W.3d at 491.
Even forgetting, for a moment, that a sister court of appeals would
have no authority to dispense of an element of the statute, the Tiller
court, of course, did no such thing. Instead, it properly evaluated
whether Tiller purported his act to be in his pretended official capacity,
and because it held it was, it affirmed his conviction because he also in-
tended it to induce reliance. Tiller, 362 S.W.3d at 128.
That is the analysis the court in this case entirely failed to per-
form, and which this Court should instruct it to do on remand. Cornwell
cannot be guilty of a crime unless he purported to act officially. And up-
on recognizing the Beaumont court’s misreading of Tiller to stand for
otherwise—for the proposition that the defendant’s intent to induce sat-
isfies all—other errors in the court’s opinion are at once explained. For,
though the court avoided one analysis, it became forced to confront an-
other: in addition to flagrantly ignoring the language of the statute, it
also had to discard this Court’s opinion in Niswanger, which explained
(and as Cornwell urged) that to allege a crime, the charging instrument
“must provide that the defendant had been engaged in some overt ac-
14
tion in an official capacity that is more than merely showing official
identification.” Niswanger, 335 S.W.3d at 617 n. 11.
The court of appeals waved that off by dismissing it as “dicta”
[sic], and by noting that, in that case, unlike this one, “the circumstanc-
es did not show that Niswanger identified himself as a public official to
induce others to engage in conduct that involved a governmental func-
tion.” Cornwell, 445 S.W.3d at 491. Considering it was certainly a cor-
rect statement of law, though, both justifications are predictably un-
sound.
That dictum which the court so readily disregarded is the holding
of the cases to which it cites. See Niswanger, 335 S.W.3d at 617 n. 11
(citing Tovar, 777 S.W.2d at 489; Boyett v. State, 368 S.W.2d 769, 771
(Tex. Crim. App. 1963)). And even if it weren’t, dictum is “frequently,
and indeed usually, correct.” BLACK’S LAW DICTIONARY (9th ed. 2009).
Moreover, as to the identified distinction between Niswanger and this
case, the court of appeals in no way explained why that distinction mat-
tered; why the action which the defendant sought to induce—addressed
nowhere in the statute—at all permitted the court to dispense with an
element of the crime very definitely required. Cornwell, 445 S.W.3d at
15
491. Certainly, Niswanger does not assert as much. See Niswanger, 335
S.W.3d at 617 n. 11. And a distinction without meaning is meaningless.
All of this is to say, in short, that the court of appeals’s holding
was plainly incorrect. The statute very clearly states that, to be guilty of
impersonating a public servant, a defendant must have pretended to act
in that official capacity (regardless of whether that act in fact would be
in his official capacity). TEX. PEN. CODE § 37.11(a)(1). And this Court in
Niswanger affirmed as much. See Niswanger, 335 S.W.3d at 617 n. 11.
The court of appeals in this case discarded this requirement, though,
because it misunderstood Tiller to read that the defendant’s intent to
induce was all that mattered. This was wrong, and Cornwell’s convic-
tion cannot stand until the court properly considers whether he pur-
ported to act officially.
III. Conclusion
Because the court of appeals ignored this analysis in affirming
Cornwell’s conviction, at the very least this Court should vacate the
judgment of the court of appeals and remand this case to that court to
determine as much. But for all those reasons urged in Cornwell’s origi-
nal briefing before that court, and now summarized in this brief, Corn-
16
well urges this Court that, because it is so plain that he did not act in
any pretended official capacity, in the interests of judicial economy this
Court should simply reverse the judgments of the courts below and en-
ter a verdict of acquittal. See Guevara v. State, 152 S.W.3d 45, 49 (Tex.
Crim. App. 2004); Greene v. Massey, 437 U.S. 19 (1978) (re-trial not
permissible after reviewing court has determined evidence is insuffi-
cient).
Respectfully submitted,
/s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
ba@sualaw.com
/s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com
SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)
Attorneys for Petitioner-Appellant
17
Certificate of Service
I, the undersigned, hereby certify that a true and correct copy of
the foregoing Petitioner’s Brief on the Merits was electronically served
to the Montgomery County District Attorney’s Office and the State
Prosecuting Attorney on March 24, 2015.
/s/ Bruce Anton
BRUCE ANTON
Certificate of Compliance
Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:
1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because
this petition contains 2,017 words, excluding the parts of the brief
exempted by TEX. R. APP. P. 9.4(i)(1).
2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
style requirements of TEX. R. APP. P. 9.4(e) because this brief has
been prepared in a proportionally spaced typeface using Microsoft
Word 2011 in 14-point Century Schoolbook.
/s/ Bruce Anton
BRUCE ANTON
18