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).