Cortez, Damien Hernandez

469 S.W.3d 593, 2015 Tex. Crim. App. LEXIS 677, 2015 WL 3776495
Court of Criminal Appeals of Texas·Decided June 17, 2015·No. NO. PD-0501-14·Published·Cited by 153 cases

Opinions

OPINION

ALCALA, J.,

delivered the opinion of the Court

in which KELLER, P.J., and MEYERS, JOHNSON, HERVEY, RICHARDSON, YEARY and NEWELL, JJ., joined.

This case addresses whether the application paragraph in jury instructions was properly phrased. In his petition for discretionary review, Damien Hernandez Cortez, appellant, contends that the court of appeals erred in its determination that the application paragraph of the jury instructions for fraudulent use or possession of identifying information properly described the applicable law. See Cortez v. State, 428 S.W.3d 338, 340 (Tex.App.Amarillo 2014, pet. granted). In particular, appellant asserts that the instructions were erroneous because they failed to instruct the jury that the term “item of identifying information” requires a “grouping of identifying information” such as is represented in a check, bank statement or credit card. See Tex. Penal Code Ann. § 32.51(a)(1), (b)(1) (West 2011).

[595]*595Furthermore, appellant contends that he was egregiously harmed by the alleged error because, had the jury been properly instructed, he would have been subjected to a lower punishment range that would have permitted the jury to find that he possessed fewer items of identifying information by deciding, for example, that fraudulent possession of a check would be ■counted as one item rather than the identifying information on the check being considered as multiple items. See id. Although we disagree with its reasoning, we agree with the ultimate conclusion by the court of appeals that the trial court’s instructions properly did not limit the jury with respect to the number of separate tangible documents on which the identifying information appears. We, therefore, affirm the judgment of the court of appeals.

I. Background

In 2010, an Amarillo police officer stopped a truck for a traffic violation, arrested the driver for driving with a suspended license, and inventoried the contents of the truck, which included an accordion folder containing various documents. Appellant was a passenger in the truck. Later, police found appellant’s fingerprints on three of the documents that were in the folder: (1) a canceled check made out to Wal-Mart belonging to complainant Shook, which bore her name, driver’s license number, mailing address in the form of a post-office box number, phone number, bank-account number and bank-routing number; (2) a Visa credit card statement belonging to complainant Archer, which bore her name, address, and credit-card account number; and (3) a Texas Medicaid form also belonging to complainant Archer, which bore her name, date of birth, driver’s license number, and Social Security number. The accordion file contained various other documents constituting identifying information of several other people, but police did not find appellant’s fingerprints on any of the other documents.

A grand jury indicted appellant for fraudulent possession of fifty or more items of identifying information. See id. § 32.51(b)(1), (c)(4) (West 2011). The indictment identified seven complainants by name and detailed the identifying information appellant possessed that belonged to each complainant. Later, by an amended indictment that reduced the number of complainants to five, including the two complainants whose documents contained appellant’s fingerprints, the State elected to prosecute appellant for the lesser offense of fraudulently possessing ten or more, but less than fifty, items of identifying information. See id. § 32.51(c)(3).

In three application paragraphs, the trial court’s instructions permitted the jury to find appellant guilty of fraudulent possession of identifying information in certain amounts that would constitute a second-degree felony, a third-degree felony, or a state-jail felony. Each application paragraph named the five complainants in the amended indictment and delineated the identifying information possessed by appellant. The first application paragraph stated in relevant part:

Now, if you find ... that ... the defendant ... possessed] the identifying information of [complainant Archer], to wit: name, address, date of birth, [and] social security number[;] possessed] the identifying information of [complainant Rantala], to wit: name, address, government issued driver license number, daté of birth, routing code, [and] [three] financial institution account numbers[;] possessed] the identifying information of [complainant Redding], to wit: name, address, government issued driver li[596]*596cense number, routing code, [and] financial institution account number[;] possessed] the identifying information of [complainant Gayle], to wit: name, address, government issued driver license number, date of birth, social security • number, unique electronic identification number, [and] [five] financial institution account numbers[;] possessed] the, identifying information of [complainant Shook], to wit: name, address, government issued driver license number, routing code, [and] financial institution account number[;] and the number of items of identifying information pos- . sessed was more than ten but less than fifty, then you will find .the defendant guilty as charged.

The second and third application paragraphs, while listing' the same complainants and their corresponding identifying information, alleged the lesser-included offense of fraudulent possession of identifying information as a third-degree; felony for the possession of five or more, but less than ten items, or, alternatively, as a state-jail felony for the possession of less than five items. The jury found appellant guilty of' the third-degree-felony offense and, after finding that he had previously been convicted of two prior felony offenses, it determined his sentence at fifty years’ imprisonment.1

On direct appeal, appellant asserted that “the trial court erred in using the phrase ‘identifying information’ in place of the phrase ‘item of identifying information’ in the application paragraph of the jury charge.” See Cortez, 428 S.W.3d at 340. This error, he contended, permitted the jury to convict him of a higher level of offense by allowing it to count each piece of information listed in the application paragraph as an “item of identifying information,” rather than requiring it to determine whether those individual pieces of information would have to be aggregated in order to form each item or items of identifying information. See id. In initially evaluating appellant’s argument, the court of appeals stated that his argument was- “a bit confusing since the phrase ‘item of identifying information’ appears in each application paragraph.” Id. at 341. Given this, the court had “difficulty understanding appellant’s complaint about the trial court omitting ‘item of identifying information’ from the application paragraphs.” Id. In light of this seeming inconsistency between the language of the charge and appellant’s argument, the court of appeals looked to the substance of appellant’s arguments and interpreted his complaint as being that “the jury should have been told that ‘item of identifying information’ meant the document upon which the information appeared!,] as opposed to each bit of identifying information appearing in the document.” Id.

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Cortez, Damien Hernandez, 469 S.W.3d 593, 2015 Tex. Crim. App. LEXIS 677, 2015 WL 3776495 (Tex. 2015).

469 S.W.3d 593 (Cortez, Damien Hernandez) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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