Salazar, Raul Garza

Opinion

PD-1160-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 9/29/2015 10:19:29 AM Accepted 9/30/2015 3:12:53 PM IN THE COURT OF CRIMINAL APPEALS OF TEXAS ABEL ACOSTA CLERK NO.# PD-1160-15 & PD-1161-15

ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

Court of Appeals of Texas, Corpus Christi-Edinburg. Raul Garza Salazar, Appellant,

v. The State of Texas, Appellee. NUMBERS 13–14–00006–CR, 13–14–00007–CR Delivered and filed July 16, 2015 On appeal from the 445th District Court of Cameron County, Texas.

* * * * * * * * * * * * * * * * * * * * * * * * * * * * APPELLANT’S PETITION FOR DISCRETIONARY REVIEW * * * * * * * * * * * * * * * * * * * * * * * * * * * * Larry Warner Counsel for Raul Garza Salazar 3109 Banyan Drive Harlingen, Texas 78550 Phone (956)230-0361 Facsimile: 1-866-408-1968 Email: office@larrywarner.com Texas Bar#20871500; USDC,SDTX 1230; Board Certified, Criminal Law, Texas Board of Legal Specialization(1983) Member of the Bar of the September 30, 2015 Supreme Court of the United States (1984)

Page i of vi Pursuant to TEX.R.APP.P.68.4,Appellant provides the following identity of parties and counsel:

Identity of parties and counsel

1. Hon. Luis V. Saenz, District Attorney, Attorney at trial and on appeal and on Petition for Discretionary Review for the State; 964 East Harrison; Brownsville, TX 78520

2. Hon. Victor Ramirez, Attorney for Defendant at trial. Brownsville, TX 78520

3. Hon. Rene Gonzalez, Assistant Cameron County District Attorney, Attorney for Appellant on Appeal.

4. Hon. Larry Warner, Attorney for Petitioner on Petition for Discretionary Review and on appeal, 3109 Banyan Drive, Harlingen, Texas 78550 5. Raul Garza Salazar, Petitioner

Page ii of vi Pursuant to TEX.R.APP.P.68.4(a), Petitioner provides this Table of Contents with reference to the pages of the Petition, indicating the subject of each ground or question presented for review.

TABLE OF CONTENTS PAGE Identity of Parties and Counsel . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . iii

Index of Authorities . . . . . . . . . . . . . . . iv Statement re oral argument . . . . . . . . . . v - vi

Statement of the case . . . . . . . . . . . . . . . . 1

Statement of procedural history . . . . . . . . . . . 2 Grounds for Review . . . . . . . . . . . . . . . . 3-4 Argument . . . . . . . . . . . . . . . . . . . . 5-11

Prayer for Relief. . . . . . . . . . . . . . . . . 12-13 Certificate of Service . . . . . . . . . . . . . . .14-15

Certificate of Compliance . . . . . . . . . . . . . 16-17 Appendix. . . . . . . . . . . . . . . . . . . . . . . 18

Page iii of vi Pursuant to TEX.R.APP.P.68.4(b), Petitioner provides an Index of Authorities, arranged alphabetically and indicating the pages of the petition where the authorities are cited.

INDEX OF AUTHORITIES CASES: PAGES

Nava v. State, 415S.W.3d289,306(Tex.Crim.App.2013). . 4 The decision of the Court of Criminal Appeals with which the decision of the Court of Appeals is in conflict is Worthy v. Collagen Corp.,967 S.W.2d 360,365hn2(Tex. 1998). . . . . . . . . . . . . . . . . . . . . . . 9, 10 The former rule required supplementation unless the supplementation would have unreasonably delayed the appeal.

RULES:

TEX.R.APP.P.10.5(b)(3)(B). . . . . . . . . . . . . . . 2 TEX.R.APP.P.10.5(b)(3)©. . . . . . . . . . . . . . . . 2 TEX.R.APP.P.10.5(b)(3)(D). . . . . . . . . . . . . . . 2

TEX.R.APP.P.66.3©. . . . . . . . . . . . . . . . . . . 3 TEX.R.APP.P.34.6(d). . . . . . . . . . . . . . . 3, 4, 11

Page iv of vi Pursuant to TEX.R.APP.P. 68.4©, Petitioner includes a short statement of why oral argument would be helpful.

STATEMENT RE ORAL ARGUMENT

Oral argument would be helpful to the decisional process because counsel and the Judges of the Court of

Criminal Appeals could discuss when a Court of Appeals

should allow supplementation of the record. Here, Appellant filed a misdemeanor writ application and a direct appeal. The writ was filed before the

appellate brief. It alleged prosecutorial misconduct in making a misleading argument by waving a purported agenda to prove that Appellant retaliated against witnesses. The

misdemeanor writ application was sworn to. In the direct appeal, he filed a verified bill of exceptions, making the same allegations as the writ

application, but on information and belief. The appellate lawyer said he believed what the trial lawyer told the

appellate lawyer about the misleading action of the

prosecutor at trial. Substantially later, but before decision, the trial

lawyer finally verified the bill of exceptions. Appellate

Counsel tendered the bill verified on personal knowledge

by trial counsel and moved to supplement the record.

Page v of vi The Court of Appeals denied the motion to supplement

the record. The Court of Appeals affirmed the judgment and sentence, holding the record insufficient to sustain the

allegations of prosecutorial misconduct. The Court and Counsel could discuss the general policy

under the more recent appellate rules of allowing

supplementation of the record before decision. They could discuss whether the Court of Appeals ought to have

supplemented the record with the bill of exceptions

verified on personal knowledge.

Page i of vi Pursuant to TEX.R.APP.P.68.4(d), Petitioner provides a statement of the case, noting briefly the nature of the case, and reserving the details of the case for statement with the pertinent grounds or questions.

STATEMENT OF THE CASE The nature of the case was a prosecution of Petitioner for misdemeanor tampering with a public record. It is now

a review of the action of the Court of Appeals for the

Thirteenth District in failing to allow supplementation of the record before decision. Petitioner pleaded not guilty and submitted the matter

to a jury on guilt/innocence. The jury found him guilty. The judge imposed a

sentence of ten months’ confinement in the County Jail. Petitioner appealed and moved to supplement the record with a bill of exceptions on personal knowledge showing

prosecutorial misconduct. The Court of Appeals denied the motion to supplement,

affirmed the judgment and sentence, saying that the record before it did not show prosecutorial misconduct.

Petition asked for and was granted an extension of

time to file this Petition for Discretionary Review.

Petitioner timely files this Petition for Discretionary

Review.

Page 1 of 16 Pursuant to TEX.R.APP.P.68.4(e), Petitioner provides a Statement of Procedural History.

STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE

The court of appeals is the Court of Appeals for the Thirteenth District of Texas.

Re: TEX.R.APP.P.10.5(b)(3)(B), the date of Court of

Appeals’ judgment is Re: TEX.R.APP.P.10.5(b)(3)© the case number in the Court of Appeals is No.

Re: TEX.R.APP.P.10.5(b)(3) (D), the date every motion for rehearing or en banc reconsideration was filed. On, August 6, 2015 petitioner filed both Motions for

Rehearing and Motion for Rehearing En Banc. On September 10, 2015, Petitioner sought and was granted an extension of thirty days to file the Petition

for Discretionary Review. This Court granted an extension to file the PDR until October 7, 2015.

This Petition is filed Electronically Via EFC and by

mailing it to the Clerk of the Court of Appeals to the following address:

Clerk, Court of Appeals for the Thirteenth District of Texas, 5th Floor, Hidalgo County Administration Building, 100 East Cano Street, Edinburg, Texas.

Page 2 of 16 Pursuant to TEX.R.APP.P.68.4(f), Petitioner states briefly, without argument, the question presented for review, expressed in the terms and circumstances of the case, but without unnecessary detail.

GROUND FOR REVIEW 1. The Court of Appeals decision conflicts with an

important question of state law in a way that conflicts

with the applicable decision of the Court of Criminal Appeals. TEX.R.APP.P.66.3© The issue is whether the Court of Appeals should have

remanded the matter of the incomplete reporter’s record to the Trial Court pursuant to TEX.R.APP.P.34.6(d)to supplement the record with a verified, tendered bill of

exceptions. The reporter’s record was inaccurate and incomplete because it did not show that the prosecutor was waving a

purported agenda of the Commissioners’ Court in front of the jury during final argument, contending that the

Defendant had an item on that very agenda to demote

employees in retaliation for their cooperation with the prosecution; the bill of exceptions swore that there was

no such agenda existing when the prosecutor made that

argument.

The decision of the Court of Criminal Appeals with

Page 3 of 16 which the decision of the Court of Appeals is in conflict

is Nava v. State,415S.W.3d289,306(Tex.Crim.App.2013) The question is important to the jurisprudence of the

state for two reasons. One, it deals with a Rule of Appellate Procedure, TEX.R.APP.P.34.6(d),dealing with

supplementation of the record before decision.

Analogizing to the words of The Court of Criminal Appeals in Nava, the record can be supplemented...the

record needs to be supplemented. Nava v. State, 415 S.W.

3d289,306hn13(Tex.Crim.App.2013)[emphasis in original,lw]

Page 4 of 16 Pursuant to TEX.R.APP.P.68.4(g), Petitioner provides a direct and concise argument, with supporting authorities, amplifying the reasons for granting review.

ARGUMENT

STANDARD OF REVIEW “In answering that question, we start with the standard of review for construing court rules. We attempt to effectuate the plain language of a rule unless there are important countervailing considerations.37 Unlike the standard for construing statutes articulated in Boykin v. State,38 the standard for construing court rules permits the consideration of extratextual factors even if the text of the rule is not ambiguous and does not lead to absurd results.39 Extratextual factors include (but are not limited to) the object sought to be attained, common law or former provisions, and the consequences of a particular construction.”Nava v. State,415S.W.3d289,306hn13(Tex.Crim.App. 2013)[emphasis in original,lw] The presumption is that the record should be supplemented.

When determining whether a missing portion of the record is necessary for resolution of an appeal, in assessing a trial judge's recollection, the Court of Criminal Appeals should view the circumstances from the appellant's standpoint and resolve any reasonable doubt in his favor. Nava v. State (Cr.App. 2013) 415 S.W.3d 289, application for writ of habeas corpus held in abeyance 2014 WL 7188854

Page 5 of 16 The Court of Appeals for the Tenth District abated an

appeal when the record was incomplete. That is similar to

what the Court of Criminal Appeals should do here...grant

this petition, allow full briefing, and, on submission, require the Court of Appeals to allow supplementation of

the record and determination of the appeal upon a complete

record, rather than upon an incomplete record. Appeals from convictions of forgery and failure to identify would be abated for trial court to determine date by which supplemental reporter's record containing exhibits would be filed, where reporter had over eight months since original due date of record to obtain exhibits from clerk, Court of Appeals actively attempted to obtain complete reporter's record for over three months only to have incomplete record filed without reporter notifying court that record was not complete, and reporter never suggested that he could not file complete record because district clerk would not give him needed exhibits so they could be copied and made part of reporter's record. Jenkins v. State (App. 10 Dist. 2010) 312 S.W.3d 314, appeal decided 2011 WL 337338.

As a negative example: Evidence would be presumed to be sufficient to support trial court's findings of fact in action by parents of deceased workers' compensation claimant to recover death benefits from workers' compensation insurer, where record on

Page 6 of 16 appeal was incomplete because parents' exhibit was missing; trial court quoted language from parents' exhibit in one of trial court's findings of fact, and insurer did not attempt to supplement record, did not argue that parents' exhibit had been lost or destroyed, and did not designate partial reporter's record. Travelers Indem. Co. of Rhode Island v. Starkey (App. 5 Dist. 2005) 157 S.W.3d 899, rehearing overruled, review denied, rehearing of petition for review denied.

But in Petitioner’s appeal, the incomplete record does

not support the decision of the Court of Appeals precisely because the Court of Appeals did not allow supplementation

of the record with the bill of exceptions verified on personal knowledge (by the trial lawyer, who said the prosecutor misled the jury by waving a purported [but non-

existent] Commissioners’ Court agenda saying that it contained evidence of Petitioner’s seeking vengeance

against two witnesses for the prosecution by having them demoted).

Someone quoted from the missing document in

Petitioner’s trial...the prosecutor did. But this time there was nothing to quote from. There was no

Commissioners’ Court agenda in being at the time of the

argument containing any attempted demotion of prosecution

Page 7 of 16 witnesses. So, the quoting in Starkey serves to supplement

the record while the quoting at Petitioner’s trial is the

essence of the Petition: Send the case back to the Court

of Appeals and tell it to allow the Bill of Exceptions; then decide the case on a complete record rather than on

an incomplete record.

In Petitioner’s appeal, Counsel did obtain a complete record. Mr. Warner personally paid for the reporter’s

complete record when the trial court denied Appellant a record at the cost of the county. (Motion for Record at

Cost of the state) Extra textual factors include (but are not limited to) the object sought to be attained, common law or former provisions, and the consequences of a particular construction.”Nava v. State,415S.W.3d289, 06hn13(Tex.Crim.App.2013)[emphasis in original,lw]

THE OBJECT SOUGHT TO BE ATTAINED

Petitioner seeks to have his appeal decided upon a complete record, rather than upon an incomplete record.

COMMON LAW OR FORMER PROVISIONS

The current appellate rules make it easier to

supplement the record.

A Court of Appeals did not abuse its discretion in

Page 8 of 16 denying leave to supplement record after its opinion

issued, where appellant had previously failed to

supplement record after requesting and being granted leave

to do so. Worthy v. Collagen Corp.,967 S.W.2d 360,365hn2 (Tex.1998)

In Petitioner’s appeal, he did indeed try to

supplement the record with a Bill of Exceptions before decision. The Court of Appeals denied leave to supplement

the record with the Bill of Exceptions. The former rule required supplementation unless the

supplementation would have unreasonably delayed the appeal. Worthy v. Collagen Corp.,967 S.W.2d 360,365hn2(Tex.1998)

There was no showing or finding that the filing of the bill of exceptions would have unreasonably delayed the

decision on appeal. Under prior appellate rules, the trial judge had to

approve the record on appeal. It required a motion to

make a change. This Court’s opinion notes: “Under article 2248, Revised Civil Statutes 1925, only the judge who tries a criminal cases is authorized to approve the statement of **294 facts, except where the trial judge dies before the time for said approval or filing, in which event Page 9 of 16 the statement of facts may be approved or filed by the deceased judge's successor. The record does not disclose the death of the trial judge, nor is any reason shown why he did not approve the statement of facts. For this reason we cannot consider s a m e . ” H u d n a l l v . State,296S.W.293(Tex.Crim.App.1927)

CONSEQUENCES OF A PARTICULAR CONSTRUCTION Construing the rule to require supplementation of the

reporter’s record will promote the end of the current

rules that any party by letter [not motion], the Trial Court, or the Court of Appeals can direct that the reporter supplement the record.TEX.R.APP.P.34.6(d)

“d) Supplementation. If anything relevant is omitted from the reporter's record, the trial court, the appellate court, or any party may by letter direct the official court reporter to prepare, certify, and file in the appellate court a supplemental reporter's record containing the omitted items. Any supplemental reporter's record is part of the appellate record.”TEX.R.APP.P.34.6(d)

Page 10 of 16 CONCLUSION AND REQUEST FOR RELIEF

Courts of Appeals should decide cases based on a

complete record.

Petitioner tried to complete the record before decision.

The Court of Appeals should not have decided the

appeal based on an incomplete record. A complete record would have resulted in a different

decision, since it would have shown blatant, material prosecutorial misconduct...misleading the jury by arguing

that evidence existed which did not exist. The Court of Criminal Appeals should allow full briefing.

Respectfully submitted September 29, 2015

By: Larry Warner Attorney for Raul Garza Salazar 3109 Banyan Drive Harlingen, Texas 78550 Office: 956-230-0361 Facsimile: 1-866-408-1968 Email: office@larrywarner.com State Bar of TX 20871500; USDC, SDTX 1230(1981) Board Certified, Criminal Law,

Page 11 of 16 Texas Board Legal Specialization(1983) Member of the Bar of the Supreme Court of the United States(1984)

Page 12 of 16 IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO.# PD-1160-15 & PD-1161-15 ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING:

In the Court of Appeals for the Thirteenth District of Texas

* * * * * * * * * * * * * * * * * * * * * * * * * * * * CERTIFICATE OF SERVICE * * * * * * * * * * * * * * * * * * * * * * * * * * * *

This is to certify that a true and correct copy of the foregoing APPELLANT’S PETITION FOR DISCRETIONARY REVIEW, was sent Electronically Via EFC to the following counsel of record on September 29, 2015, the day it was filed. LUIS V. SAENZ, Cameron County District Attorney’s Office, 964 E. Harrison, Brownsville, Texas 78520. Phone (956) 544-0849. Fax (956) 544-0869. Email: district.attorney@co.cameron.tx.us

LAW OFFICE OF LARRY WARNER RESPECTFULLY SUBMITTED September 29, 2015

Larry Warner, Counsel for Raul Garza Salazar 3109 Banyan Circle Harlingen, Texas 78550 Phone: (956)230-0361 Facsimile: (866)408-1968 Email: office@larrywarner.com State Bar of TX 20871500; USDC,SDTX 1230(1981) Board Certified, Criminal Law, TX Board Legal Specialization (1983)Member of the Bar of the Supreme Court of the United States(1984)

Page 13 of 16 IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NO.# PD-1160-15 & PD-1161-15

In the Court of Appeals for the Thirteenth District of Texas * * * * * * * * * * * * * * * * * * * * * * * * * * * * CERTIFICATE OF COMPLIANCE * * * * * * * * * * * * * * * * * * * * * * * * * * * *

1. This brief complies with the type-volume limitation of FED. R. APP. P. 32(a)(7)(B) because: this brief contains 2991 words, excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii).

2. This brief uses a monospaced typeface and contains 754 lines of text, excluding the parts of the brief exempted by FED. R. APP. P. 32(a)(7)(B)(iii). 3. This brief complies with the typeface requirements of FED. R. APP. P. 32(a)(5) and the type style requirements of FED. R. APP. P. 32(a)(6) because: this brief has been prepared in a proportionally spaced typeface using Word Perfect X6 in Courier in font size 14pt.

The undersigned understands a material misrepresentation in completing this certificate, or circumvention of the type-volume limits in 5th CIR. R. 32.2.7, may result in the court’s striking the brief and imposing sanctions against the person signing the brief.

LAW OFFICE OF LARRY WARNER RESPECTFULLY SUBMITTED September 29, 2015 By:

Page 14 of 16 Larry Warner, Counsel for Raul Garza Salazar 3109 Banyan Circle, Harlingen, Texas 78550 Phone: (956) 230-0361 Facsimile: (866)408-1968 office@larrywarner.com State Bar of TX 20871500; USDC,SDTX 1230(1981) Board Certified, Criminal Law, Texas Board Legal Specialization(1983) Member of the Bar of the Supreme Court of the United States(1984)

Page 15 of 16 IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO.# PD-1160-15 & PD-1161-15

ON PETITION FOR DISCRETIONARY REVIEW OF THE FOLLOWING: In the Court of Appeals for the Thirteenth District of Texas

* * * * * * * * * * * * * * * * * * * * * * * * * * * * APPENDIX * * * * * * * * * * * * * * * * * * * * * * * * * * * * Order

A copy of the opinion of the Court of Appeals for the Thirteenth District is attached.

Page 16 of 16 NUMBERS

13-14-00006-CR 13-14-00007-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

RAUL GARZA SALAZAR, Appellant,

v.

THE STATE OF TEXAS, Appellee.

On appeal from the 445th District Court of Cameron County, Texas.

MEMORANDUM OPINION Before Justices Rodriguez, Garza and Longoria Memorandum Opinion by Justice Longoria Appellant Raul Garza Salazar challenges his convictions on two counts of abuse

of official capacity and one count of tampering with governmental records. 1 See TEX.

PENAL CODE ANN. §§ 39.02, 37.10 (West, Westlaw through Chapter 46, 2015 R.S.).

Salazar raises the following twelve issues: (1) we should grant a new trial in the interest

of justice; (2) the verdict is contrary to the law and the evidence;

(3)–(6) the State presented misleading testimony and evidence calculated to harm

Salazar; (7) the witness failed to identify Salazar prior to trial; (8) the State alleged untrue

facts regarding an item of evidence; (9) the overall conduct by the State in presenting

misleading arguments warrants a new trial; (10)–(11) cumulative error deprived Salazar

of a fair trial; and (12) the indictment failed to state an offense. We affirm.

I. BACKGROUND

On November 15, 2013, a Cameron County jury convicted Salazar on two counts

of abuse of official capacity and one count of tampering with governmental records. See

See TEX. PENAL CODE ANN. §§ 39.02, 37.10. The State alleged that between March and

August of 2011 Salazar committed the offenses of abuse of official capacity and

tampering with governmental records in his effort to assist Roberto Cadriel obtain a job

with Cameron County. Salazar was Cameron County Commissioner Ernie Hernandez’s

administrative assistant at the time. Cadriel is Hernandez’s brother-in-law.

In June of 2011, Carmen Vera worked for the Cameron County Human Resources

Department. On June 10, 2011, Cadriel took a computerized civil service exam in order

to apply for a position in the Cameron County Animal Control Department. Cadriel failed

1 The State alleged two counts of abuse of official capacity in trial court cause No. 2013-DCR-1700 (appellate cause no. 13-13-0006-CR) and one count of tampering with a government record in trial court cause No. 2013-DCR-1701 (appellate cause no. 13-13-0007-CR).

2 the exam twice. Vera testified that, at Salazar’s direction, she took the exam in place of

Cadriel for his third attempt and received a passing score. On June 28, 2011, Cadriel

came back to the Human Resources Department to apply for a security guard position.

Cadriel testified that he copied the correct answers for the security guard exam from an

answer key. Cadriel further testified that Salazar gave him the answer key.

In trial court cause number 2013-DCR-1701, the State alleged that Salazar abused

his official capacity by directing Vera to take the civil service exam on Cadriel’s behalf

(count one), and by providing the answer key for the security guard exam to Cadriel (count

two). In trial court cause 2013-DCR-1700, the State alleged that Salazar tampered with

government records by directing Vera to take the civil service exam in Cadriel’s place

(count three). The jury found Salazar guilty on all three counts. The trial court sentenced

him to three concurrent ten-month terms in prison. The trial court assessed no fine.

II. WAIVER

We first address whether Salazar waived his issues by failing to cite to the record

in his brief. The State did not address any of Salazar’s issues but rather argued that

Salazar waived any error because he “completely failed to include any cites to the record

in support of these twelve issues.”

A. Applicable Law

An appellant's brief must contain both citations to authorities and to the record, and

a failure to include either waives an issue on appeal. TEX. R. APP. P. 38.1(i) (“The brief

must contain a clear and concise argument for the contentions made, with appropriate

citations to authorities and to the record.”); see Vuong v. State, 830 S.W.2d 929, 940

(Tex. Crim. App. 1992) (holding that when an appellant cites to no specific constitutional

3 provisions, statutory authority, or case law to support claims, then the court does not need

to address the claims). As an appellate court, we have no duty to make an independent

search of a voluminous record for evidence supporting a party's position. See Alvarado

v. State, 912 S.W.2d 199, 210 (Tex. Crim. App. 1995) (“As an appellate court, it is not our

task to pore through hundreds of pages of record in an attempt to verify an appellant’s

claims.”). However, if an issue presented in an appellant's brief directs our attention to

the location of the error or complaint in the record, then the appellant has sufficiently

briefed the facts of the issue. See id.; Martinez v. El Paso Cnty., 218 S.W.3d 841, 844

(Tex. App.—El Paso 2007, no pet.).

B. Analysis

We have thoroughly reviewed Salazar's brief and found that Salazar failed to

include any citations to the record in either his argument or statement of facts. See TEX.

R. APP. P. 38.1(i). Salazar only included two citations to the record in his statement of the

case. See id. Salazar does not cite the specific pages in the record that support any of

his issues. See Alvarado, 912 S.W.2d at 210; Vuong, 830 S.W.2d at 940.

Salazar argues in his first two issues that we should grant a new trial in the interest

of justice and that the verdict is contrary to the law and the evidence but cites neither the

record nor any authorities. Therefore, we are unable to review these issues. See TEX.

R. APP. P. 38.1(i).

By his third through sixth issues, Salazar claims that the State presented

misleading testimony calculated to harm him. Salazar contends that certain testimony

centered on Salazar conspiring to retaliate against witnesses by demoting or firing them,

specifically those witnesses who were employees at the Cameron County Human

4 Resources Department. Salazar contends that the reorganization of the Human

Resources Department by the Cameron County Commissioners’ Court was not his idea

and so could not constitute retaliation. Salazar fails to cite where in the 400-page record

this allegedly misleading or false evidence is located. Salazar does not specify which

witnesses allegedly provided misleading or false testimony. Without more, we are unable

to ascertain which witness provided the testimony that he alleges is misleading or false.

See Martinez, 218 S.W.3d at 844. Since we are unable to analyze the testimony, we are

unable to reach a conclusion as to its nature. See Alvarado, 912 S.W.2d at 210.

Salazar’s seventh issue, arguing that “the witness failed to identify the defendant

prior to trial,” refers to Dalia Salinas, an employee within the Human Resources

Department. But Salinas never testified at trial. Again, Salazar provides no record

citations to direct us to where he claims that Salinas testified or where she failed to identify

Salazar. We are unable to address this issue on the merits without any record citations.

See id.

Salazar’s eighth issue mirrors his third through sixth issues. Salazar contends that

the State alleged that Salazar caused an agenda item calling for the reorganization of the

Human Resources Department to be placed on the agenda of the Cameron County

Commissioners’ Court as retaliation against those employees who testified. Salazar

contends that the prosecutor offered a misleading argument by claiming that the piece of

paper in his hand during closing argument was the agenda item for the day to discuss the

reorganization. We are unable to address this issue because Salazar does not cite to the

prosecutor’s closing statement or cite to anything in the record that illustrates how the

prosecutor’s argument was misleading. See id.

5 In sum, we will not attempt to perform an independent review of the record and

verify each of Salazar’s twelve issues. See id. With one exception, which we discuss

below, we agree with the State and conclude that Salazar’s brief contains no citations to

the record. As a result, Salazar’s brief presents nothing for our review. See Alvarado,

912 S.W.2d at 210; Martinez, 218 S.W.3d at 844.

III. FAILURE OF INDICTMENT TO ALLEGE AN OFFENSE

In the interest of justice, we address Salazar’s twelfth issue that addresses the

indictment because Salazar cited to the indictment within the record in his statement of

the case. Salazar argues that the indictment failed to state an offense.

“An indictment must allege, in plain and intelligible language, all the facts and

circumstances necessary to establish all the material elements of the offense charged.”

Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998). These material elements

include “the facts necessary to show that the offense was committed, to bar a subsequent

prosecution for the same offense, and to give the defendant notice of precisely what he

is charged with.” Bynum v. State, 767 S.W.2d 769, 779 (Tex. Crim. App. 1989). If the

State fails to allege an element of an offense in an indictment or information then this

failure is a defect in substance. Studer v. State, 799 S.W.2d 263, 268 (Tex. Crim. App.

1990). The accused must object to substance defects before trial begins; otherwise the

accused forfeits his right to raise the objection on appeal or by collateral attack. Id. In

order to be an effective indictment or information, the charging instrument need not

necessarily allege every element of the offense charged, as long as no material element

is missing. Id.

6 B. Analysis

The indictment includes the basic facts of the case, specifying in count one, that

Salazar:

on or about the 1st day of March, 2011 and through the 1st day of August, 2011, through a continuing course of conduct and one scheme . . . did then and there, with the intent to obtain a benefit and defraud another, intentionally or knowingly violate a law relating to the defendant’s office as a public servant, namely, tampering with governmental records relating to the testing of and by Roberto Cadriel, by directing another to take the civil service test for and in the place of Roberto Cadriel.

The language of the indictment for count two mirrors count one except for referring to

Salazar providing test answers to Roberto Cadriel.

Salazar cites one case in his brief in support of this issue. See Ex parte Nivens,

619 S.W.2d 184, 185 (Tex. Crim. App. 1981) (holding a conviction void as the felony

information was fundamentally defective for failing to allege an essential element of the

offense), overruled on other grounds, Ex parte Patterson, 969 S.W.2d 16, 20 (Tex. Crim.

App. 1998) (holding that a defect in a charging instrument does not automatically render

a judgment void). Salazar asserts that the indictment does not allege that Salazar gave

the answers to Cadriel without the owner’s consent. Salazar contends that lack of

consent is a material element of the offense and that when the State omits a material

element from the indictment, then the indictment fails to state an offense. Again, he fails

to refer to the record; therefore, the exact offense to which he is referring remains unclear.

We reject Salazar’s argument for two reasons. First, lack of consent of the owner

is not a material element of either offense. See Bynum, 767 S.W.2d at 779. The Texas

Penal Code does not mention consent in either offense. See TEX. PENAL CODE ANN.

§§ 39.02, 37.10; see also Harrelson v. State, 153 S.W.3d 75, 80 (Tex. App.—Beaumont

7 2005, pet. ref’d) (setting out the elements of abuse of official capacity); Pokladnik v. State,

876 S.W.2d 525, 526 (Tex. App.—Dallas 1994, no pet.) (discussing the elements of

tampering with a governmental record). The indictment in this case sufficiently states the

material elements for abuse of official capacity by tampering with a governmental record.

See Campbell v. State, 139 S.W.3d 676, 686 (Tex. App.—Amarillo 2003, pet. ref’d)

(holding that the indictment did not fail to state an offense when it specifically alleged the

acts that appellant had to perform and that appellant acted with intent to obtain a benefit).

Furthermore, the indictment included sufficient information to put Salazar on notice of the

offense because it specifically alleged that he intended to obtain a benefit and defraud

another while intentionally or knowingly violating a law relating to Salazar’s office as a

public servant. See TEX. PENAL CODE ANN. § 39.02; see also Bynum, 767 S.W.2d at 799.

Second, since Salazar did not object to any defects of substance or form in the

charging instrument prior to the day of trial, Salazar waived any error. See Ex parte

Patterson, 969 S.W.2d at 20; see also Studer, 799 S.W.2d at 268. We overrule Salazar’s

twelfth issue.

IV. CONCLUSION

We affirm the judgment of the trial court.

NORA L. LONGORIA Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 16th day of July, 2015.