                                                                                                PD-0501-14
                                                                               COURT OF CRIMINAL APPEALS
                                                                                               AUSTIN, TEXAS
                                                                               Transmitted 7/2/2015 3:55:56 PM
                                                                                 Accepted 7/2/2015 4:21:02 PM
                                                                                                ABEL ACOSTA
July 2, 2015          IN THE COURT OF CRIMINAL APPEALS                                                  CLERK
                        IN AND FOR THE STATE OF TEXAS



DAMIEN HERNANDEZ CORTEZ                        X
                                               X
VS.                                            X                   PDR 0501-14
                                               X
THE STATE OF TEXAS                             X


                              MOTION FOR REHEARING

         Petitioner requests that the Court of Criminal Appeals rehear this matter and

grant Petitioner a new trial based on the issue raised in the first ground of his

petition for discretionary review, the mandatory presumption of intent to defraud

applied in his case. Petitioner, the State, the Seventh Court of Appeals and now

the Court of Criminal Appeals all agree that the jury found that Petitioner

possessed items of identifying information belonging to only two people.1 This

means that all concerned parties are in agreement that the presumption substituted

for the State’s duty to prove that the items were possessed “with intent to

defraud”, contained in Texas Penal Code Section 32.51(b-1), should not apply.

However, the jury was erroneously given instructions requiring that the



         1
          The Opinion of the Court so indicates at footnote 1, and the concurring Opinion so
indicates at page 6.

                                                1
presumption be applied without allocating any burden to the State or giving the

jury the option to disregard the presumption. The Seventh Court of Appeals found

that the mandatory presumption given was erroneous. That court opined, “While

the charge at issue here incorporated the presumption itself, the four caveats that

must accompany it were omitted. Yet, appellant did not object to their absence, so

we look to see whether appellant was egregiously harmed by the error.” Opinion

page 7. The instruction put no burden on the State to prove the facts giving rise to

the presumption, and bound the jury to apply the presumption. However, instead

of determining whether independent proof of intent to defraud existed in the

absence of the statutory presumption, the Seventh Court of Appeals simply found

that there was sufficient proof of possession of the items belonging to Archer and

Shook. That court concluded, “So, the record supports the inference that

identifying information of only two people formed the basis of his conviction, and

that, in turn, tends to render irrelevant the presumption arising from the possession

of material belonging to three or more individuals.” (Opinion from Seventh Court

of Appeals at page 8).2

       This conclusion fails logically for two reasons. First, the jury was not



       2
        The Seventh Court of Appeals made no reference to the element “with intent to harm or
defraud another” in reaching this holding.

                                              2
required to find the facts supporting the presumption beyond a reasonable doubt.

Within the container holding the items belonging to the two people the jury found

beyond a reasonable doubt that Petitioner possessed, were items belonging to three

other people. The jury charge regarding the presumption did not require that the

jury find beyond a reasonable doubt that Petitioner possessed these other items in

order to apply the presumption. The instructions put no burden on the State.

Therefore, though the jury required fingerprint evidence to establish possession of

the items belonging to Archer and Shook, any level of proof was sufficient to

establish Petitioner’s possession of items belonging to the other three named

complainants in order to establish the presumption. Once the jury found

possession under the reduced burden, it was required to apply the presumption

substituted for proof of intent to defraud. Second, no proof of intent to defraud

was presented at trial. The State did not offer any evidence demonstrating that

Petitioner had any plans for the use of the items, or that he would have had any

contact with the items once he exited the vehicle where the items were present.

Petitioner had no ties, other than proximity, to the vehicle where the items were

discovered. Nor was any evidence introduced connecting him with the container

in which the items were found. There is no evidence demonstrating that Petitioner

possessed the items of Archer and Shook with intent to defraud. Had the jury been

                                         3
properly instructed, there was no evidence to support a guilty verdict.

      The holding of the Seventh Court of Appeals is that an erroneous mandatory

instruction to apply a presumption is given a jury is harmless error, if the

requirements necessary for application of the presumption are not proved by the

State. The holding is the direct opposite of logic. If there was clear evidence that

the Petitioner had possessed items belonging to three or more persons, the

mandatory presumption might not have harmed the Petitioner. However, under

these circumstances, where all agree that the presumption should not have applied,

Petitioner was egregiously harmed by the application of the mandatory

presumption. This is true because of the lack of any proof of intent to defraud in

the record.



                                      PRAYER

      For the foregoing reasons, Petitioner respectfully prays that the Court

reconsider its Opinion, reverse the Seventh Court of Appeals and order a new trial

for Petitioner, or remand the case to the Seventh Court of Appeals to determine if

sufficient evidence of intent to defraud exists in the record to render the

application of the mandatory presumption of such intent harmless.




                                          4
                                      Respectfully submitted by,

                                          /S/ Eric Coats
                                      Eric Coats
                                      Appellant’s Lawyer
                                      SBN: 00783845
                                      1716 S. Polk St.
                                      Amarillo, TX 79102
                                      ecoatslaw@gmail.com




                       CERTIFICATE OF COMPLIANCE

      I hereby certify that this document contains 921 words.



                                        /S/ Eric Coats
                                      Eric Coats


                          CERTIFICATE OF SERVICE

      I hereby certify that a true copy of the above was delivered to State’s

Counsel at jackowen@co.potter.tx.us and to the State Prosecuting Attorney at

information@spa.texas.gov on June 25, 2015.



                                        /S/ Eric Coats
                                      Eric Coats



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