NUMBER 13-22-00429-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
ALFREDO AVALOS II A/K/A ALFREDO AVALOS, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 404th District Court of Cameron County, Texas.
MEMORANDUM OPINION
Before Justices Longoria, Silva, and Peña Memorandum Opinion by Justice Longoria
Appellant Alfredo Avalos II a/k/a Alfredo Avalos was convicted of two counts of
misuse of official information, for which he was sentenced to three years’ incarceration,
probated for a period of four years, and given a fine of $1,000. See TEX. PENAL CODE ANN.
§ 39.06(b). Appellant argues on appeal that (1) there was insufficient evidence to support his conviction; and (2) § 39.06(b) in conjunction with § 39.06(d) of the Texas Penal Code
is “unconstitutionally vague on its face.” We affirm.
I. BACKGROUND
The State of Texas indicted appellant on two counts of misuse of official
information, alleging that appellant used his official capacity as a police officer to obtain
information related to two different vehicles located at a home in Cameron County. See
id. The indictment specifically alleged that appellant acted:
with intent to obtain a benefit and harm and defraud another, intentionally or knowingly use[d] for a non-governmental purpose information to which [appellant] had access because of [appellant’s] office and employment as a public servant, namely, Lieutenant with the Bishop Police Department, and which information had not been made public . . . .
At trial, the State presented Virginia Aguirre who testified that she and appellant
met in 2012 when they were both security guards for the same company. When they first
met, appellant was married, but soon thereafter he informed Aguirre that he was
separated from his wife. They began dating and she and appellant moved in together in
2014. Aguirre testified that the relationship was “on and off” because appellant “would go
back” to his wife. Around May of 2015, Aguirre learned she was pregnant with appellant’s
child. In August 2015, Aguirre testified that appellant moved out of their apartment, and
she found a new place to live. They had a “very rocky” relationship, but appellant
eventually moved in with her again.
Appellant later began working for the Bishop Police Department (BPD) and the
couple resided in Kingsville together. At some point in 2019, Aguirre and appellant
separated, and Aguirre moved away from Kingsville back to the Rio Grande Valley with
2 their son. Aguirre then began dating David Hernandez. Aguirre explained that there was
a time that appellant told her he tried to look up Hernandez’s license and could not find it.
According to Aguirre’s testimony, she never told appellant that Hernandez was a threat
to either her or her son. She testified that Hernandez was neither violent nor aggressive
toward her or her son.
On October 20, 2019, she and appellant were meeting to exchange their son after
visitation with appellant. Aguirre testified that appellant informed her that he wanted to
speak with Hernandez because of Hernandez’s involvement in their son’s life. According
to Aguirre, appellant wanted to confront Hernandez because he felt that Hernandez was
“playing” Aguirre and their son—referring to the fact that Hernandez was married to
someone else and was supposedly not taking the relationship with Aguirre seriously.
Aguirre directed appellant to Hernandez’s parents’ home, where Hernandez stayed.
When they arrived, there were vehicles parked at the home, but Hernandez’s vehicle was
not there. Aguirre, appellant, and their son went to the front door. Aguirre stated that
appellant was dressed like a civilian but carried his gun and his badge. Hernandez was
not present, but appellant spoke to Hernandez’s mother with Aguirre assisting in
translating Spanish for appellant.
According to Aguirre, when they had gotten back to the car to leave, appellant
decided he was going to “run” the license plates of the vehicles parked at the home.
Appellant then called Theodore Gutierrez, a BPD police officer, and gave him the vehicle
information of the two vehicles parked at Hernandez’s parents’ home and asked Gutierrez
to run the vehicles and to send the information to his personal cell phone. After he
3 received the information he requested, he brought Aguirre and their son back to Aguirre’s
vehicle. At that point, according to Aguirre’s testimony, appellant called Hernandez and
left a voicemail stating that Hernandez needed to call him back to discuss his relationship
with appellant’s son and Aguirre. Aguirre explained that a couple of days later, she
decided she needed to report what had happened to the police.
Aguirre testified on cross-examination that, at some point following her report to
the police, she and appellant had reconciled and moved back in together. She
subsequently met with appellant’s attorneys after he had been indicted and signed an
affidavit of non-prosecution. Aguirre stated that, although she signed the affidavit, the
words were not her own. On re-direct, she stated she felt pressured to sign the affidavit.
Luz Dove, the senior director for the crime records division of the Texas
Department of Public Safety testified that the information received through the Texas Law
Enforcement Telecommunications System (TLETS) is “restricted to criminal justice
agencies for criminal justice purposes only.” Officers who have access to TLETS are
required to complete a training regarding access to and dissemination of the information
available through TLETS. Dove explained that it is a misdemeanor if information is
accessed through TLETS “for their own personal use,” and it is a felony “if they are using
it for renumeration.” Dove confirmed that on October 15, 2019, appellant accessed
TLETS to run a driver’s license check on Hernandez. As part of the search, appellant was
required to indicate the purpose for his search and appellant indicated it was for a
“criminal justice purpose.” Shortly after running the driver’s license search, appellant also
ran a search to determine if there was any “wanted information” for Hernandez.
4 Dove confirmed through TLETS, that on October 20, 2019, Gutierrez accessed the
system to run two registered vehicle searches, which Dove stated contained privileged
information “not available to the public.” Dove stated that running a search for non-
criminal justice purposes is a “violation” of the policy and a crime. As part of the search,
Gutierrez accessed information contained in the Texas Crime Information Center (TCIC),
which contains information related to whether a vehicle is stolen, as well as registration
information from the Department of Motor Vehicles, and information from the National
Crime Information Center (NCIC). Dove testified that access to the TCIC and NCIC is for
law enforcement purposes only. Gutierrez ran a search on two vehicles. On cross-
examination, Dove explained that accessing and disseminating the information on TLETS
for personal use is a misdemeanor, but it becomes a felony if you are getting money for
it. She stated that she did not know whether the information accessed was also available
through public websites.
Gutierrez testified that he and appellant attended the police academy together.
Several years after the police academy, they were both working for BPD. Appellant was
a lieutenant and Gutierrez was a patrolman. In October 2019, appellant was Gutierrez’s
superior. He testified that there were often requests among the officers to run “suspicious”
vehicle information. On October 20, 2019, appellant was off duty and called Gutierrez,
who was on duty at the time, and asked him to “run some plates” and to send him a
“screenshot” of the information. Appellant relayed the plate numbers to Gutierrez, who
then ran the plates through TLETS. Gutierrez agreed that the information he accessed is
not made available to the public. When appellant made the request, he did not tell
5 Gutierrez the reason he wanted the plates searched.
On cross-examination, Gutierrez explained that he sent two screenshots to
appellant, one for each vehicle. The screenshots showed the names of the owners, the
owners’ registered addresses, and whether the vehicles had insurance. According to the
screenshots, there is no criminal history. Gutierrez stated that there are various reasons
that off-duty officers call in plate searches, including suspicious vehicles.
Hernandez 1 testified that he and Aguirre knew each other from childhood, having
attended the same middle school. In or around 2019, they were both working at the same
office. At the time they were “reacquainted,” Hernandez was married, but stated that his
marriage was “complicated.” He began dating Aguirre in 2019, while he was still married.
Hernandez resided with his parents in Brownsville at the time. He has never spoken to
appellant, though he testified that appellant left him a voicemail at some point, but
Hernandez did not return the call. Hernandez confirmed that he had spent time with
Aguirre and appellant’s son during his relationship with Aguirre. After appellant, Aguirre,
and their son went to Hernandez’s parent’s house, Hernandez’s mother called him
regarding the incident. After learning that his plates were run by appellant, he stated that
he felt unsafe.
On cross-examination, Hernandez explained that he decided to end his romantic
relationship with Aguirre because of his marriage. He also stated that while he understood
appellant’s concern about having someone around his son, he would not have
approached the situation in the way appellant did.
1 At trial Hernandez stated that his full name is David Hernandez Garces. We refer to him as the
parties did throughout the record as David Hernandez or Hernandez. 6 Patricia Hernandez, Hernandez’s mother, testified that Hernandez lived with her in
2019 when he was separated from his wife. Patricia recalled that in October 2019,
appellant, along with a “girl and a small boy” came to her home unannounced. Appellant
introduced himself and stated that he was a police officer. Patricia stated that she thought
that appellant told her that the young boy was Hernandez’s son. She stated that appellant
spoke to her in Spanish and that Aguirre did not speak at all. Patricia told appellant she
would talk to Hernandez when he got home. Appellant did not ask her about the vehicles
at her home.
On cross-examination, Patricia testified that her conversation with appellant left
her feeling worried for the little boy. She also agreed that it was normal that a father would
want to know who was around his children.
Detective Juan Alvarez with the Brownsville Police Department testified that he
was the lead investigator assigned to the case. Detective Alvarez testified that as a police
officer, he is a public servant. Detective Alvarez was assigned to the case after Aguirre
filed her report regarding appellant running the license plates of the vehicles at
Hernandez’s home. Detective Alvarez wanted to determine why appellant, an officer in
Bishop, was running license plates in Brownsville. He explained that using the system to
run license plates “has to be for a government purpose, for an official [use].” As part of
his investigation, Detective Alvarez visited Hernandez’s parents’ home. There were two
vehicles parked there with license plates matching those that had been run through the
law enforcement system. There was no official government reason to run the plates, and
Detective Alvarez determined the plates were run through the system for personal
7 reasons. Through his investigation, Detective Alvarez was able to confirm that appellant
told Gutierrez, his subordinate, to run the plates on October 20, 2019. Appellant also
placed a call to Hernandez later that same day. Based on his investigation, it was
determined that there were sufficient grounds to conclude that the offense of misuse of
official information had been committed by appellant.
As to the charges brought against appellant, Detective Alvarez testified that
appellant did not need to receive a monetary benefit from the information he obtained,
but rather just a benefit or an advantage. Detective Alvarez stated that his understanding
was that the “advantage” did not have to be monetary or economic in nature. On cross-
examination, Detective Alvarez agreed that the information obtained by running the two
license plates could likely be found “through private companies online.” However,
according to Detective Alvarez, the information received was not the crime, but rather,
appellant’s use of TLETS, which is not accessible to the public, for personal benefit,
rendered his actions illegal under the penal code.
Appellant testified that there would be a “custody battle” with Aguirre for their son
following his trial, and if he were convicted of a felony, he believed it would not be
beneficial for his chances of gaining custody. When Aguirre started dating Hernandez,
appellant believed Hernandez was being “inappropriate” in front of appellant’s son,
sleeping shirtless. Appellant explained that, according to Aguirre, Hernandez had
possible cartel connections, which concerned him. He stated that he knew Aguirre had
connections to “armed men” in Mexico.
8 Appellant explained that on October 20, 2019, he met with Aguirre to exchange
their son. On that day, they went to Hernandez’s house with Aguirre giving him directions.
Appellant wanted to discuss Hernandez being around his son. When they arrived, there
were four vehicles at the property, and Aguirre informed appellant that “they were looking
for [him],” which he believed to mean cartel connected individuals were looking for him.
At that time, he decided to take down the plates to corroborate anything that occurred
after that point, as a preventative measure. He had Gutierrez run the plates for him and
obtained the information. Afterwards, when he determined it was a “fake allegation”
regarding the men looking for him, he did nothing with the information. Appellant stated
that he did not obtain a benefit, intentionally harm anyone, or intentionally defraud
anyone. When asked how running the two plates was “indeed for a governmental
purpose,” appellant stated: “Well, the allegation was that somebody was coming to look
for me, for my capacity as a police officer.”
On cross-examination appellant stated that as a police officer, he did not have the
ability to run criminal background reports, that “would have to be a dispatcher” because
he lacks the access. When questioned regarding the October 15 background check he
performed, appellant responded that he was only doing a “name and date of birth check.”
While he agreed that he wanted to be sure he knew who was around his son, appellant
also stated that he checked into Hernandez because of his potential cartel connections.
He confirmed that he understood that police officers are not supposed to run license plate
information through TLETS for personal use. When he spoke to Hernandez’s mother, he
was attempting to discern Hernandez’s intent, given that he was a married man “playing
9 father” to appellant’s son. Appellant explained that he “wanted to make sure [his] son was
safe.”
Appellant called Dr. Michael Raymond Sanchez, a police officer and professor at
the University of Texas Rio Grande Valley, who testified that there is a difference between
“a violation of the access of TLETS” and disclosing the information. According to Dr.
Sanchez’s testimony, if an officer accesses TLETS improperly, it is merely a violation of
their policy, it is only “criminal” behavior when that information is disclosed. Given his
understanding of the facts of the case, Dr. Sanchez testified that appellant’s actions in
running the license plates was not criminal, but it “could be seen as an improper access
of the information.” Because appellant did not “sell it, use it, leverage” the information, his
actions did not rise to the level of criminal. Further, Dr. Sanchez testified that appellant’s
actions in having the plates run was not necessarily in violation of the TLETS policy
because appellant had information that the vehicles may have been connected to cartel
members. Dr. Sanchez also stated that the information appellant received on the
screenshots from Gutierrez could all be located on “numerous online publicly available
tools.” He did state that he was not certain if you could obtain insurance information
through a public search. Dr. Sanchez explained that the information received by appellant
did not contain any criminal background checks.
On cross-examination, Dr. Sanchez stated that he was not currently certified in
TLETS, as his certification had expired. He also explained that he interpreted the
definition of benefit to mean “an economic gain or an economic advantage,” which he
stated appellant received neither. Dr. Sanchez stated that his belief was that appellant’s
10 actions were not criminal and were not done for personal reasons, but rather because he
believed there was a potential criminal matter.
Appellant also called several witnesses including his parents, younger brother,
fiancé, ex-wife, and stepmother to testify as to his good character and reputation for being
a law-abiding citizen.
Appellant was found guilty on both counts of misuse of official information and was
sentenced to three years’ incarceration which was suspended with appellant being placed
on community supervision for four years. This appeal followed.
II. LEGAL SUFFICIENCY
By his first issue, appellant challenges the sufficiency of the evidence against him,
arguing that the State failed to prove that he received “any economic gain or advantage”
and failed to prove that the information received was “of a kind prohibited by disclosure.”
A. Standard of Review & Applicable Law
The legal sufficiency of the evidence to support a conviction is measured by the
standard articulated in Jackson v. Virginia, 443 U.S. 307, 319 (1979). Brooks v. State,
323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010). Under that standard, a reviewing court
views all the evidence in the light most favorable to the prosecution to determine whether
any rational trier of fact could have found the essential elements of the offense beyond a
reasonable doubt. Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012); Brooks,
323 S.W.3d at 894–95 (citing Jackson, 443 U.S. at 319). As the trier of fact, the jury is the
sole judge as to the weight and credibility of witness testimony, and therefore, on appeal
we must give deference to the jury’s determinations. Brooks, 323 S.W.3d at 894–95. If
11 the record contains conflicting inferences, we must presume the jury resolved such facts
in favor of the verdict and defer to that resolution. Id. On appeal, we serve only to ensure
the jury reached a rational verdict, and we may not reevaluate the weight and credibility
of the evidence produced at trial and, in so doing, substitute our judgment for that of the
fact finder. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The sufficiency
standard is the same for both direct and circumstantial evidence. Wise, 364 S.W.3d at
903.
We measure the sufficiency of the evidence in reference to the elements of the
offense as defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d
321, 327 (Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997). “Such a charge [is] one that accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily
restrict the State’s theories of liability, and adequately describes the particular offense for
which the defendant was tried.” Villarreal, 286 S.W.3d at 327 (quoting Malik, 953 S.W.2d
at 240).
Misuse of official information can be committed in various ways. See TEX. PENAL
CODE ANN. § 39.06. The State charged appellant under § 39.06(b) which provides that:
(b) A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, he discloses or uses information for a nongovernmental purpose that:
(1) he has access to by means of his office or employment; and
(2) has not been made public.
12 Id. In § 39.06, “information that has not been made public” means any information to
which the public does not generally have access, and that is prohibited from disclosure
under Chapter 552, Government Code. See id. § 39.06(d). Chapter 552 of the
Government Code is known as the Public Information Act (formerly known as the Open
Records Act). See TEX. GOV’T CODE ANN. §§ 552.001–.353.
B. Analysis
While his issue states that he challenges the State’s evidence on whether a benefit
was received and he generally concludes that the State failed to meet its burden in that
regard, appellant does not present an analysis on this issue citing to authority and case
law regarding this point. See TEX. R. APP. P. 38.1. Rather, appellant’s first issue in his
brief is focused entirely on the State’s alleged failure to present sufficient evidence to
satisfy § 39.06(d) of the penal code. Appellant’s issue as it pertains to the “benefit”
argument is overruled. See id.
Section 39.06(d)’s definition of information that has not been made public contains
two components: (1) information to which the public does not generally have access; and
(2) that is prohibited from disclosure under the Public Information Act (PIA). TEX. PENAL
CODE ANN. § 39.06(d); State v. Ford, 179 S.W.3d 117, 122 (Tex. App.—San Antonio 2005,
no pet.); State v. Newton, 179 S.W.3d 104, 108–09 (Tex. App.—San Antonio 2005, no
pet.); see also Tidwell v. State, No. 08-11-00322-CR, 2013 WL 6405498, at *12 (Tex.
App.—El Paso Dec. 4, 2013, pet. ref’d) (mem. op., not designated for publication).
1. Information the Public Does Not Generally Have Access To
While it does not appear in his appellate briefing that appellant is challenging the
13 evidence as to the first component of § 39.06(d), we will address it. The State alleged that
appellant used a law enforcement system, TLETS, to access information regarding two
vehicles parked at Hernandez’s residence. Appellant does not deny that TLETS was the
source of the information regarding the two license plates. TLETS is not a public system
and there is no access to it outside of those certified in the program within law
enforcement positions. The information obtained through the system is not for the public.
As such, the public does not have access to TLETS information and the first component
of § 39.06(d) has been satisfied and is supported by legally sufficient evidence.
2. Information Prohibited from Disclosure
Appellant argues that the State “ignored” the second component of § 39.06(d) and
presented no evidence that the information obtained “is prohibited from disclosure under
Chapter 552.” TEX. PENAL CODE ANN. § 39.06(d). The State presented evidence that
Gutierrez sent appellant two screenshots from TLETS, one for each vehicle.
While different plates, each returned similar information, which included: license
plate, vehicle identification number, name and address of the vehicle owner, confirmation
of insurance, and confirmation of “NO RECORD” per “TCIC.” The State argues that, while
appellant attempted to show that the information obtained could be found through public
databases online, the information regarding confirmation of insurance is not public and,
more importantly, the TCIC information that there was “no record” is “confidential
information excepted from disclosure under Chapter 552 of the Texas Government
Code.”
The purpose of the Open Records Act is to provide public access to “complete information about the affairs of government and the official acts
14 of public officials and employees.” TEX. GOV’T CODE ANN. § 552.001(a) [ ]; City of Garland [v. Dall. Morning News], 22 S.W.3d [351,] 355–56 [(Tex. 2000)]. The Act defines “public information” as any information that is “collected, assembled, or maintained under a law or ordinance or in connection with the transaction of official business: (1) by a governmental body; or (2) for a governmental body . . . . TEX. GOV’T CODE ANN. § 552.002(a) [ ]. Under the Act, public information is required to be made available to the public during normal business hours of the governmental body. [Id.] § 552.021.
Ford, 179 S.W.3d at 123. The State argues that Chapter 552 excepts from disclosure
information that is considered to be confidential by law, either constitutional, statutory, or
by judicial decision, and that because criminal history record information is “confidential”
under the government code, the State met its burden under § 39.06(d)(2). See TEX. GOV’T
CODE ANN. §§ 411.083, 552.101. We agree. The State presented evidence that the TCIC
notations on the screenshots provided to appellant related to the criminal history of the
vehicle’s owners. This type of information is considered to be confidential and “may not
be disseminated.” See id.§ 411.083(a). Accordingly, the State met its burden to establish
that the information received was prohibited from disclosure, and the second component
of § 39.06(d) has been satisfied and is supported by legally sufficient evidence.
We overrule appellant’s first issue.
III. CONSTITUTIONALITY OF THE STATUTE
Though appellant’s second issue states that § 39.06(b) in conjunction with
§ 39.06(d) “is unconstitutionally vague on its face” because it “contains a vague
enforcement standard that is susceptible to arbitrary enforcement and because it fails to
give fair and adequate notice of the type of conduct that is prohibited,” his second issue
actually argues that § 39.06 is unconstitutionally vague as it applies to him “because it
15 turns on multiple interpretations.”
A. Standard of Review
The Due Process Clause of the Fourteenth Amendment requires a legislature to
define a criminal offense in its penal statutes in a manner sufficient to inform ordinary
people whether their conduct is prohibited and to provide minimal guidelines to govern
law enforcement. See State v. Edmond, 933 S.W.2d 120, 125 (Tex. Crim. App. 1996).
“Without such guidance, a penal statute might be susceptible to arbitrary and
discriminatory enforcement.” Id.
An appellate court presumes the validity of a statute or ordinance attacked on
constitutional grounds. See Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App.
1978); Webb v. State, 991 S.W.2d 408, 414 (Tex. App.—Houston [14th Dist.] 1999, pet.
ref’d). The court must uphold the ordinance if a reasonable construction will render it
constitutional and carry out the legislative intent. Flores v. State, 33 S.W.3d 907, 920
(Tex. App.—Houston [14th Dist.] 2000, pet. ref’d); see Ely v. State, 582 S.W.2d 416, 419
(Tex. Crim. App. 1979). A statute need not be mathematically precise; it need only give
fair warning, in light of common understanding and practices. Rivera v. State, 363 S.W.3d
660, 672 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing Ex parte Anderson, 902
S.W.2d 695, 699 (Tex. App.—Austin 1995, pet. ref’d)). A statute is not unconstitutionally
vague merely because the words or terms used are not defined. See Edmond, 933
S.W.2d at 126.
We apply a two-part inquiry to determine if a criminal statute is unconstitutionally
vague. To overcome a vagueness challenge, a criminal statute must define the offense
16 (1) with sufficient specificity that ordinary people can understand what actions are
prohibited, and (2) in a manner that does not permit arbitrary and discriminatory
enforcement. See State v. Holcombe, 187 S.W.3d 496, 499 (Tex. Crim. App. 2006). Either
the lack of notice or lack of guidelines for law enforcement constitutes an independent
ground for finding a statute void for vagueness. Adley v. State, 718 S.W.2d 682, 685 (Tex.
Crim. App. 1985); State v. River Forest Dev. Co., 315 S.W.3d 128, 131 (Tex. App.—
Houston [1st Dist.] 2010, no pet.).
In addressing an as-applied challenge, we do not address hypothetical situations.
Bynum v. State, 767 S.W.2d 769, 774 (Tex. Crim. App. 1989). Instead, we consider
whether the statute is vague as applied to the defendant’s conduct. Id. In other words, a
defendant must show that the statute is unconstitutional when applied to his specific
situation. Id.
As relevant here, appellant was convicted under § 39.06(b) and (d), which provide:
(b) A public servant commits an offense if with intent to obtain a benefit or with intent to harm or defraud another, he discloses or uses information for a nongovernmental purpose that:
(1) he has access to by means of his office or employment; and
(2) has not been made public. ...
(d) In this section, “information that has not been made public” means any information to which the public does not generally have access, and that is prohibited from disclosure under Chapter 552, Government Code.
TEX. PENAL CODE ANN. §§ 39.06(b), (d). Appellant contends that the statute can turn on
“multiple interpretations” making it vague. He argues that “as applied” to him, the phrase
17 “obtaining a benefit” is vague because there is no evidence of a pecuniary gain. He
asserts that the State’s evidence related to the benefit was “that the mere obtaining of
information” was an “advantage” under the penal code’s definition of benefit. See id.
§ 1.07(a)(7) (“‘Benefit’ means anything reasonably regarded as economic gain or
advantage, including benefit to any other person in whose welfare the beneficiary is
interested.”). Appellant states that there is uncertainty as to whether the word “economic”
applies to both “gain” and “advantage” or not, and he asserts that without clarification, the
meaning of benefit is vague because someone can be charged on “some unknown
advantage.” However, this is not the case. The State presented evidence that the benefit
obtained by appellant was the advantage of obtaining non-public information related to
his ex-girlfriend’s new boyfriend, an advantage an ordinary citizen would not have. How
the appellant benefitted need not be alleged in the indictment, it is essentially evidentiary.
See State v. Goldsberry, 14 S.W.3d 770, 773 (Tex. App.—Houston [1st Dist.] 2000, pet.
ref’d) (citing Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. [Panel Op.] 1980)).
Though appellant also asserts there is a “vagueness problem” with the “statute
with reference to ‘any information to which the public does not generally have access,’”
he goes on to explain that “if” appellant had received information that the vehicle was
stolen or related to criminal activity, it would have been a governmental purpose and he
would not have been charged—this is a purely hypothetical situation, and one we will not
address. See Bynum, 767 S.W.2d at 774. Further, because we have already discussed
appellant’s issue related to whether the information was available to the public, we need
not readdress it here.
18 There are different ways in which a person can violate a statute, the statute need
not be uniform nor “mathematically precise; it need only give fair warning, in light of
common understanding and practices.” Rivera, 363 S.W.3d at 672 (citing Ex parte
Anderson, 902 S.W.2d at 699). Appellant asserts the phrases “advantage,”
“nongovernmental purpose,” and “information to which the public does not generally have
access” are unconstitutionally vague because there were discrepancies in their meanings
during his trial—specifically he argues that Detective Alvarez and appellant, as a police
officer, had a different understanding of whether the TLETS system could be used in an
off-duty capacity to run license plates. We disagree with this characterization. The issue
was not whether an off-duty police officer could run a license plate, at issue was the
reason for running the license plate—governmental or nongovernmental. Here, the State
presented evidence that the appellant’s purpose in running the two license plates of the
vehicles parked at Hernandez’s residence were for nongovernmental reasons, namely,
to learn information about his ex-girlfriend’s new boyfriend. The record thus does not
overcome the presumption that laws passed by the Legislature are constitutional.
We overrule appellant’s second issue.
IV. CONCLUSION
The judgment of the trial court is affirmed.
NORA L. LONGORIA Justice
Do not publish. TEX. R. APP. P. 47.2 (b).
Delivered and filed on the 21st day of March, 2024.