OPINION
SHARON McCALLY, Justice.
A jury convicted appellant Roman Ramirez-Memije of fraudulent possession of 10 or more but less than 50 items of identifying information, a second-degree felony.
See
Tex. Penal Code Ann. § 32.51(b), (c)(3) (West Supp.2012). Appellant challenges his conviction in three issues, arguing that the trial court erred by (1) refusing to include in the jury charge appellant’s requested instruction on voluntary conduct under Section 6.01 of
the Penal Code; (2) failing to include in the jury charge an instruction concerning presumptions under Section 2.05 of the Penal Code; and (3) admitting testimony that appellant was from Mexico and working illegally in the United States.
We sustain appellant’s first issue, reverse the trial court’s judgment, and remand for further proceedings.
I.BACKGROUND
The State presented evidence that appellant was a “middleman” in a credit card skimming operation. Appellant retrieved a credit card skimmer
from Dante Salazar and delivered it to Antonio Cercen, a waiter at Alicia’s Mexican Restaurant. After Cercen used the skimmer to collect credit card numbers and other identifying information from Alicia’s patrons, appellant would retrieve the skimmer from Cer-cen and deliver it to Salazar.
Special Agent Charles Hutchins with the United States Secret Service learned from a fraud investigator at Chase Bank Card Services that several people who had dined at Alicia’s reported unauthorized credit card purchases. The investigation revealed that Cercen had been the waiter for all of the customers. Hutchins contacted Cercen, and Cercen agreed to help Hutch-ins arrest appellant in a sting operation. After Cercen received the skimmer from appellant, Cercen gave the skimmer to the Secret Service. Special Agent Jesse Kir-kegaard used Exeba software to “dump” data from the skimmer onto a computer, which revealed that the skimmer contained identifying information for multiple people.
Secret Service agents observed Cercen meet with appellant and hand him the skimmer; they arrested appellant within a few minutes. Appellant and the State dispute exactly what appellant said about the skimming operation after his arrest.
However, appellant agreed to help the Secret Sendee set up delivery of the skimmer to Salazar.
Appellant testified that he had never received any benefits from participating in an illegal skimming scheme; he did not know what the device was; and it looked like a walkie-talkie or recorder. He did not look into it and see what was in it. He did not own any software that could look into the device. Special Agent Kirkegaard testified that the skimmer “probably looks like an old fashioned beeper,” Special Agent Hutchins testified that a person could “scroll through and see what was on” the skimmer, but he never saw appellant look at the information on the skimmer, and Hutchins had no information that appellant knew what was on the skimmer.
Appellant was indicted for the fraudulent possession of identifying information.
See
Tex. Penal Code Ann. § 32.51(b). The jury charge stated that “a person commits the offense of fraudulent possession of identifying information if the person, with intent to harm or defraud another, pos
sesses an item of identifying information of another person without the other person’s consent.” The charge defined “identifying information,” “consent,” and “harm.” The charge also included (1) statutory language concerning intent and knowledge found in Section 6.03 of the Penal Code;
(2) an application paragraph that tracked the language of Section 32.51(b); and (3) a statutory presumption found in Section 32.51(b-1) of the Penal Code: “You are instructed that the defendant is presumed to have the intent to harm or defraud another if the defendant possesses the identifying information of three or more other persons.”
The charge did not include any language from Section 2.05(a)(2) of the Penal Code.
See
Tex. Penal Code ÁNN. § 2.05(a)(2) (West 2011).
Appellant objected to the charge and requested, among other things, that the charge include paragraphs appearing in Section 6.01 of the Penal Code as follows:
(a) A person commits an offense only if he voluntarily engages in conduct, including an act, an omission, or possession.
(b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing possessed or is aware of his-control of the thing for a sufficient time to permit him to terminate his control.
Tex. Penal Code Ann. § 6.01(a)-(b) (West 2011). The trial court refused to include this instruction in the charge. Appellant did not object to the failure of the charge to include an instruction about presumptions under Section 2.05(a)(2) of the Penal Code. Appellant was convicted and sentenced to three years’ confinement.
II. Analysis
In his first issue, appellant contends the trial court erred by refusing to include in the jury charge'appellant’s requested instruction on voluntary conduct pursuant to Section 6.01 of the Penal Code. Appellant argues that the evidence raised the issue of voluntary conduct because it indicated that he did not know the skimmer contained identifying information, and Section 6.01(b) makes possession a voluntary act only if the defendant “knowingly obtains or receives the thing possessed or is aware of his control of the thing for a sufficient time to permit him to terminate his control.” Tex. Penal Code Ann. § 6.01(b).
The State responds that appellant was not entitled to the instruction because “appellant proffered no evidence that he did not voluntarily possess[] the skimmer,” and “the evidence did not raise a voluntary conduct issue, but instead a mens rea defense.” The State implicitly contends that “the thing possessed” in Section 6.01(b) is the skimmer — rather than identifying in
formation.
The State also argues that appellant did not raise any evidence concerning an involuntary “bodily movement.”
We conclude that “the thing possessed” in Section 6.01(b) means the identifying information in this case — not the skimmer. Further, appellant was entitled to his requested instruction because issues concerning voluntary conduct and culpable mental state are distinct, and the evidence raised the issue of whether his possession was voluntary. We also find that appellant suffered some harm.
A. Meaning of “The Thing Possessed”
When interpreting statutes, we look first to the literal text for meaning.
Mahaffey v. State,
364 S.W.3d 908, 913 (Tex.Crim. App.2012). We should construe words in accordance with their common usage unless a word has acquired a technical or particular meaning.
See
Tex. Gov’t Code Ann. § 311.011 (West 2005);
State v. Rhine,
297 S.W.3d 301, 312 (Tex.Crim. App.2009).
We are limited to reviewing the literal text unless the plain language is ambiguous or would lead to absurd consequences.
See Mahaffey,
364 S.W.3d at 913.
The literal text of the statute indicates that “the thing possessed” refers to the particular item of contraband prohibited by statute — here, “identifying information.” The State presents no authority for interpreting “thing” to mean anything other than the item of contraband prohibited by a penal statute. The statute is unambiguous and does not lead to absurd results. Appellant was indicted for the offense of possessing “identifying information,” and the jury was so charged. Both Kirkegaard and Hutchins testified that it is not illegal to possess the skimmer. Given that there could be no offense for possessing the skimmer per se, “the thing possessed” must refer to the object proscribed by statute — identifying information.
B. The Requirement of a “Voluntary Act” of Possession is Distinct from the Mens Rea “Intent to Harm or Defraud”
“It is settled law that criminal liability must be supported by proof of both a criminal act and a culpable mental state.”
Alford v. State,
866 S.W.2d 619, 622 (Tex. Crim.App.1993). This concept is codified in Sections 6.01 and 6.02 of the Penal Code: (1) “requirement of voluntary act or omission” and (2) “requirement of culpability.”
See id.; see also
Tex. Penal Code Ann. §§ 6.01, 6.02 (West 2011). More than thirty years ago, however, Judge Clinton observed that “the unique character of ‘possessor/ offenses has always plagued and confounded the bench and bar, for it defies analysis by the general methodology of viewing the major components of offenses as ‘conduct’ distinct from ‘intent.’ ”
Gorman v. State,
634 S.W.2d 681, 685 (Tex.Crim.App.1982) (Clinton, J., concurring).
“Possession” is defined as “actual care, custody, control, or management.” Tex. Penal Code Ann. § 1.07(a)(39) (West Supp.2012). But Section 6.01(b) describes possession as a voluntary act “if the possessor
knowingly
obtains or receives the thing possessed or is
aware
of his control of the thing for a sufficient time to permit him to terminate his control.”
Id.
§ 6.01(b) (emphasis added). “Knowingly” is a culpable mental state.
See id.
§§ 6.02(a), 6.03(b). Thus, the “voluntary act” of possession seemingly involves an overlap between actus reus and mens rea. But a line must be drawn between the two concepts because a defendant is not entitled to an instruction on “voluntary act” if his defense is merely that he did not act with the requisite culpable mental state.
See Adanandus v. State,
866 S.W.2d 210, 230 (Tex.Crim.App.1993). A defendant is not entitled to a jury instruction on a defensive theory that “merely negates an element in the State’s case.”
Walters v. State,
247 S.W.3d 204, 209 (Tex.Crim.App. 2007).
The Court of Criminal Appeals has held that the requirement of a voluntary act under Section 6.01(a) is not subsumed by the mens rea requirement of an offense.
See Brown v. State,
955 S.W.2d 276, 280 (Tex.Crim.App.1997). “[T]he issue of the voluntariness of one’s conduct ... is separate from the issue of one’s mental state.”
Adanandus,
866 S.W.2d at 230. Thus, if the evidence at trial raises the issue of whether the defendant voluntarily engaged in conduct, the jury must be instructed on the issue.
See Brown,
955 S.W.2d at 280.
This principle has been applied to possessory offenses and Section 6.01(b).
See Hernandez v. State,
867 S.W.2d 900, 906 (Tex.App.-Texarkana 1993, no pet.) (“where a fact issue as to a defendant’s possession of contraband had been raised at trial, the jury must be instructed on what constitutes possession under the law”; noting that the charge included a Section 6.01(b) instruction).
Further, a Section 6.01(b) instruction does not itself incorporate the necessary mens rea element in the jury charge for a case involving the possession of contraband.
Compare Doyle v. State,
631 S.W.2d 732, 739 (Tex.Crim.App.1980) (error to omit mens rea element from the jury charge),
with id.
at 750 (McCormick, J., dissenting) (arguing there was no error because the charge included a Section 6.01(b) instruction).
Accordingly, we conclude that appellant is entitled to an instruction under Section 6.01 if the evidence at trial raised the issue of whether appellant knowingly obtained or received the identifying information or
was aware of his control of the identifying information for a sufficient time to permit him to terminate his control. This issue is distinct from the mens rea “intent to harm or defraud.”
C. The Evidence Raised the Issue of Appellant’s Possession, Entitling Him to an Instruction Under Section 6.01
A trial court “must provide the jury with ‘a written charge distinctly setting forth the law applicable to the case.’ ”
Walters,
247 S.W.3d at 208 (quoting Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007)). “This law requires the trial judge to instruct the jury on statutory defenses, affirmative defenses, and justifications whenever they are raised by the evidence.”
Id.
at 208-09. “A defendant is entitled to an instruction on every defensive issue raised by the evidence, regardless of whether the evidence is strong, feeble, un-impeached, or contradicted, and even when the trial court thinks that the testimony is not worthy of belief.”
Id.
at 209.
The State contends that appellant’s evidence does not entitle him to an instruction under Section 6.01 because appellant does not point to any involuntary physical bodily movement. The State notes that the Court of Criminal Appeals has repeatedly held that a defendant is not entitled to an instruction under Section 6.01(a) unless the evidence raises the issue of the defendant’s “physical bodily movements.”
See, e.g., Alford,
866 S.W.2d at 624 (“Voluntariness, within the meaning of Section 6.01(a), refers only to one’s physical bodily movements.”). For example, an instruction on voluntary conduct was required in a murder case because the defendant testified that his gun accidentally fired when another person bumped him from behind.
Brown, 955
S.W.2d at 277, 280.
The State’s reliance on cases addressing Subsection (a) of Section 6.01 is misplaced. The Court of Criminal Appeals has explained that “possession” describes “a relationship to property; hence ... the term ‘does not go to an act or omission of the defendant.’”
Phelps v. State,
623 S.W.2d 936, 937 (Tex.Crim.App.1981) (quoting
Thomas v. State,
621 S.W.2d 158, 164 (Tex. Crim.App.1981)). “Possession is not an act, nor is it an omission, but is defined as something distinct from both act and omission.”
Id.
at 937 n. 1;
see also
Model Penal Code § 2.01 cmt. 4 (Official Draft 1962) (“[P]ossession is neither simply a bodily movement nor an omission.... ”).
The Penal Code defines “act” as “a bodily movement,” including speech.
See
Tex. Penal Code Ann. § 1.07(a)(1) (West Supp. 2012). Possession “simply cannot be reduced to specific ‘bodily movement’ conduct.”
Gorman,
634 S.W.2d at 686 (Clinton, J., concurring).
Accordingly, we reject the State’s argument that appellant was not entitled to a Section 6.01 instruction due to the lack of an involuntary physical bodily movement. The State acknowledged at oral argument that a Section 6.01 instruction is generally given “in every possession of a controlled substance jury charge—it’s just part of the definition of possession.” Indeed, our review confirms that a Section 6.01 instruction is routinely given in cases involving contraband.
The instruction is
given frequently even when no evidence raises the issue.
See, e.g., Moss,
850 S.W.2d at 795.
The State has not cited any case holding that a defendant was not entitled to an abstract Section 6.01 instruction for a pos-sessory offense. We have found only two published decisions holding as such, but in both cases there was no evidence that the defendants did not knowingly receive or obtain contraband.
See Moreno v. State,
821 S.W.2d 344, 351-52, 356 (Tex.App.Waco 1991, pet. ref'd) (one defendant had cocaine in his wallet; another defendant had cocaine under the hood of his vehicle; no mention of any evidence about the defendants’ not knowingly obtaining or receiving the cocaine);
see also Jones v. State,
632 S.W.2d 646, 648 (Tex.App.-El Paso 1982, pet. ref'd) (finding “no harm” by the trial court’s refusal to instruct.on the definition of voluntary possession when no evidence raised the issue; marijuana was found in multiple locations and in plain view inside the defendant’s apartment).
We conclude that the evidence in this case is of a different sort. There is some evidence raising the issue of whether appellant knowingly obtained or received identifying information or was aware of his control of the identifying information for a sufficient time to permit him to terminate his control. Upon request, the jury should have been instructed on the issue of possession.
Cf. Troyer v. State,
516 S.W.2d 163, 164 (Tex.Crim.App.1974) (trial court erred by not charging on “the knowledge issue” when the “testimony of the appellant clearly raised the defense of lack of knowledge” based on his testimony that he arrived at his apartment shortly before the police, his employees had access to the apartment, and he did not know there was marijuana in the apartment; noting that the State had the burden of proving the defendant “knew the object which he possessed was contraband”);
Ramos v. State,
478 S.W.2d 102, 103-05 (Tex.Crim.App. 1972) (trial court erred by not charging on the defensive issue concerning whether the defendant “knew that the object he possessed was contraband” when drugs were found inside. the wall of the defendant’s unlocked shed; court’s charge defined possession as “the care, custody, or control or management of the item in question,” but “nothing in the charge mention[ed] lack of knowledge”),
overruled on other grounds by Hankins v. State,
646 S.W.2d 191 (Tex. Crim.App.1981);
Rodriguez v. State,
372 S.W.2d 541, 542 (Tex.Crim.App.1963) (trial court erred by not charging the jury “to the effect that if appellant came into possession of the capsules by having picked them up to keep his nieces from playing with them, and did not know they contained barbiturate that he should be acquitted”; the defendant testified that he did not know what was in the capsules);
Fawcett v. State,
137 Tex.Crim. 14, 127 S.W.2d 905, 905 (1939) (trial court erred by not charging on “affirmative defense” that “if some person gave him the packagé and he did not know that it contained marihuana, to acquit him”; evidence was that the defendant had a sack containing marijuana on his person, but the defendant testified that he did not know that the sack contained marijuana, and some person handed him the sack while he sat on a park bench).
D. Appellant Suffered “Some Harm”
When error in the jury charge is preserved, as here, reversal is required if the error is “‘calculated to injure the rights of the defendant,’ which means no more than that there must be
some
harm to the accused from the error.”
Almanza v. State,
686 S.W.2d 157, 171 (Tex.Crim. App.1984) (quoting Tex.Code Crim. Proo. Ann. art. 36.19). Reversal is required if we find “some actual, rather than merely theoretical, harm from the error.”
Dickey v. State,
22 S.W.3d 490, 492 (Tex.Crim. App.1999). In making this determination, we will review the entire record, including the jury charge, state of the evidence, contested issues, weight of probative evidence, and the arguments of counsel.
Abdnor v. State,
871 S.W.2d 726, 733 (Tex. Crim.App.1994).
A defendant likely suffers some harm if the omitted instruction “go[es] to the central issue in the case.”
Allen v. State,
253 S.W.3d 260, 267 (Tex. Crim.App.2008). Harm is also likely when the instruction concerns the defendant’s “primary defense.”
See Payne v. State,
33 S.W.3d 374, 376 (Tex.App.-Houston [1st Dist.] 2000, pet. refd) (voluntariness of conduct). A defendant “clearly” suffers some harm in the absence of a requested defensive instruction if the absence left the jury no option but to convict the defendant.
Pennington v. State,
54 S.W.3d 852, 859 (Tex.App.-Fort Worth 2001, pet. ref'd) (finding some harm when the defendant admitted to possessing contraband and no instruction was given on the defense of necessity).
The possession issue permeated the entire trial. Appellant admitted to physically holding the skimmer; his sole defense was that he did not know he had obtained or received identifying information by receiving the skimmer. The State repeatedly argued that it did not need to prove appellant knew he was possessing identifying information, and the State relied heavily on a statutory presumption that appellant was presumed to have the only mens rea identified in the statute because he possessed identifying information of more than three people.
During opening arguments, defense counsel argued, “[T]hey do not have evidence to show Mr. Ramirez had any knowledge of what was on this machine. ... You will hear that they do not have evidence to show that Mr. Ramirez actually had knowledge of what that machine was.... [J]ust like we talked about in voir dire, that is the key element that they are going to be missing.”
As discussed above, appellant’s evidence supported this defense, but he was not permitted to fully present his defensive theory. Defense counsel questioned Special Agent Hutchins: “Now isn’t it true that [to] complete possession, you not only have to have care, custody, control, management, but you also have to have knowledge of what it is you are possessing?” The State objected because “there is no knowingly in it,” and the trial court sustained the objection. Counsel later asked Hutchins if appellant had a way of knowing that the skimmer had credit card numbers on it. The State objected again, “Knowingly is not in the indictment,” and the trial court sustained the objection. Then a discussion was held outside the jury’s presence. Initially the State argued
that it did not have to prove knowing possession because the statute and indictment did not use the word “knowingly.” When defense counsel explained, “That is part of the simple definition of possession,” the State responded, “I will allow him to ask the questions. I apologize. It will be up to the province of the jury. I will withdraw my objection.” The trial court agreed, “It is an issue for the jury to decide.” Accordingly, appellant was led to believe initially that he would be able to present this defensive issue to the jury.
Later, however, defense counsel asked Sergeant Joel Jorski, “Well, you would agree with me that to have legal possession of something, you have to have knowledge of what you are possessing?” The State objected, “Misstatement of the law in this case,” and the trial court sustained. Jorski testified, “I would have to say that just holding the device is when, yes, he took possession.”
On the next day of trial, another discussion was held outside the jury’s presence. Again, the State made inconsistent arguments on the issue of possession:
I have no problem with saying he knew he was possessing contraband.... [Y]ou have to know it’s contraband, I agree, but you don’t have to know what the credit card numbers are or anything like that.... [A]ll I have to prove is he had that device and he knew it was contraband .... [A]ll I have to prove is it was contraband, and that he knew it was contraband.... All it says is that he has to possess that device knowing that there are numbers on there and knowing that there is something funky about it.
Again, this discussion likely led appellant to believe that he could present his defense to the jury. Immediately after this discussion, appellant waived his Fifth Amendment right and testified in support of his sole defensive issue. He testified that he did not participate in a skimming scheme, he did not know what the skimmer was, he thought it was a walkie-talkie or recorder, he did not look into it and see what was in it, and he did not own any software that could look into the device.
The closing arguments again dealt with appellant’s defensive theory and the statutory presumption. The State began:
In reality, the only thing we’re talking about here is the possession of that device with intent to defraud and harm another. Now, the defendant took the stand and admitted he took the device and we know that there were 56 credit cards on the device. And as the charge will tell you, if there is more than three people then you can presume that he had the intent to defraud or harm you. I want you to remember this, the only thing that we have to prove is that the defendant had that device and he had that intent. Now, no matter what the defense attorney gets up here and says, that is the law.
Defense counsel said, “I agree with the prosecutor about this, he has to prove possession.” When counsel suggested that the State would need to prove appellant “had knowledge of the information,” the State objected to a misstatement of the law, and the trial court sustained the objection. Counsel argued:
I know they are going to use the word possession and say, you know he possessed it because he held it in his hand. Clearly, ladies and gentlemen, we showed you where the law is not that. They have to show you that he knew what was in there.
The State objected to a misstatement of the law, and the trial court sustained the objection. Counsel continued, “[T]o prove possession the State must show that Mr. Ramirez exercised control, manage
ment — The State objected, and the trial court sustained the objection. ■
In rebuttal, the State argued, “Now, the defense attorney talked a lot about knowing, knowing what is on the machine. That is not how the law is written.” Defense counsel objected to a misstatement of law, and the trial court overruled the objection. The State continued, “Why is it written that way? Well, look at this case.” The State also addressed the statutory presumption: “Nobody is disputing that there were 56 credit card numbers in the device. And nobody is disputing that there is a presumption if you have more than three you. automatically have the intent to defraud and harm.” Defense counsel objected to a misstatement of the law, and the trial court overruled.
Further, after reviewing the charge as a whole, we find that the jury had no option but to convict the defendant. The error was compounded by the inclusion of a statutory presumption without additional instructions concerning presumptions found in Section 2.05 of the Penal Code.
The predicate fact of the presumption for “intent to harm or defraud” was that appellant “possesse[d] the identifying information of three or more other persons.” Because appellant’s theory concerning possession was omitted from the charge, the jury had no option but to find the predicate fact true, thus “automatically” (as the State argued) supplying intent to harm or defraud.
Finally, the State argues on appeal that appellant suffered no harm because the State mentioned during closing argument that “if a person just had a device, without know[ing] what is on it, without the intent to defraud or harm another, is he guilty? Of course he’s not.” Given the multiple other conflicting statements made during closing argument, the state of the evidence, and the jury charge as a whole, we nonetheless conclude that appellant suffered “some harm” as a result of the trial court’s refusal to submit an instruction pursuant to Section 6.01 of the Penal Code. “Lack of the requested instruction effectively prevented appellant from presenting his defense and is not harmless.”
Louis v. State,
393 S.W.3d 246, 255 (Tex.Crim.App. 2012).
Appellant’s first issue is sustained.
Conclusion
Having sustained appellant’s first issue, we reverse the trial court’s judgment and remand for further proceedings.