Priscilla Sanders v. State

Opinion

ACCEPTED 07-14-00038-CR SEVENTH COURT OF APPEALS AMARILLO, TEXAS 4/2/2015 3:03:49 PM Vivian Long, Clerk

No. 07-14-00038-CR

IN THE SEVENTH COURT OF APPEALS FILED IN 7th COURT OF APPEALS AMARILLO, TEXAS AMARILLO 4/2/2015 3:03:49 PM VIVIAN LONG CLERK

PRISCILLA SANDERS, Appellant

v.

THE STATE OF TEXAS, Appellee

Appeal from Swisher County

* * * * *

STATE PROSECUTING ATTORNEY’S

MOTION FOR REHEARING

LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

JOHN R. MESSINGER Assistant State Prosecuting Attorney Bar I.D. No. 24053705

P.O. Box 13046 Austin, Texas 78711 512/463-1660 (Telephone) 512/463-5724 (Fax) information@spa.texas.gov No. 07-14-00038-CR

IN THE SEVENTH COURT OF APPEALS

AMARILLO

TO THE HONORABLE SEVENTH COURT OF APPEALS:

Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully submits to the Court its Motion for Rehearing in the above entitled

cause.

POINT ON REHEARING

The “Magistrate’s Order of Protection” signed by appellant contains information appellant knew to be false.

1 ARGUMENT AND AUTHORITIES

This Court acquitted appellant of tampering with a governmental record

because “there is no evidence in this record reflecting that appellant knowingly made

a governmental record that she knew to contain false information.” Slip op. at 6. The

Court’s analysis focused on the information that was (or was not) hand-written into

the order—the date, the child’s residence, and the defendant’s name—but this is not

“the sum and total of the information contained within the order.” Slip op. at 6.

None of these entries were made on a blank piece of paper. The first finding

made in the order was “that all necessary prerequisites of the law have been legally

satisfied and that this Court has jurisdiction over the parties and subject matter of this

cause.” State’s Ex. 1. This was patently false. Emergency protective orders are

issued during a defendant’s appearance before a magistrate after arrest for enumerated

offenses and under certain conditions. TEX. CODE CRIM. PROC. art. 17.292(a), (b).

Appellant knew none of that happened, yet signed an order finding that it did.1 That

1 See, e.g., 3 RR 84 (“I did not complete it because so far there had not been an act of violence done yet.”), and the following exchange: Q. Now, when you put your name on an Emergency Magistrate’s Order, you are not to do so unless there has been an arrest for an offense involving family violence or an offense under 22.01, 22.021 or 42.072 of the Penal Code, correct? A. Correct. Q. You put your signature on an order, State’s Exhibit 1, that you now hold in your hand, prior to an arrest, correct? A. Correct. (3 RR 94-95).

2 was a falsity sufficient to support her conviction.

PRAYER

WHEREFORE, the State prays that its Motion for Rehearing be granted, the

original opinion be withdrawn, and appellant’s conviction be affirmed after

consideration of the remaining issues.

Respectfully submitted,

LISA C. McMINN State Prosecuting Attorney Bar I.D. No. 13803300

/s/ John R. Messinger JOHN R. MESSINGER Assistant State Prosecuting Attorney Bar I.D. No. 24053705

P.O. Box 13046 Austin, Texas 78711 512/463-1660 (Telephone) 512/463-5724 (Fax) information@spa.texas.gov

3 CERTIFICATE OF COMPLIANCE

Pursuant to TEX. R. APP. P. 9.4(i)(2)(D) & (3), this document contains 589

words according to WordPerfect X5’s “word count” tool.

CERTIFICATE OF SERVICE

The State Prosecuting Attorney’s Motion for Rehearing has been eFiled with

the Court on the 2nd day of April, 2015, and served on each of the following:

Tina Davis Rincones Swisher County Attorney Pro Tem 109 E 6th Street Plainview, Texas 79072 trincones@redraiderlaw.com

Aaron R. Clements Hurley & Guinn 1805 13th Street Lubbock, Texas 79401 aaronrc@swbell.net

/s/ John R. Messinger JOHN R. MESSINGER Assistant State Prosecuting Attorney