                                                                 ACCEPTED
                                                             01-15-00511-CR
                                                  FIRST COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                       12/30/2015 3:44:32 PM
     No. 01-15-00511-CR                                CHRISTOPHER PRINE
                                                                      CLERK


             In the
       Court of Appeals
            For the                        FILED IN
                                    1st COURT OF APPEALS
    First District of Texas             HOUSTON, TEXAS
          At Houston                12/30/2015 3:44:32 PM
                         CHRISTOPHER A. PRINE
                                             Clerk

          No. 1425902
   In the 179th District Court
     Of Harris County, Texas

    

       SANJOSEPH TAN
           Appellant
              V.
     THE STATE OF TEXAS
            Appellee
    
   STATE’S APPELLATE BRIEF
    

                   DEVON ANDERSON
                   District Attorney
                   Harris County, Texas

                   KIMBERLY APERAUCH STELTER
                   Assistant District Attorney
                   Harris County Criminal Justice Center
                   1201 Franklin, Suite 600
                   Houston, Texas 77002
                   Telephone: 713.274.5826
                   stelter_kimberly@dao.hctx.net
                   State Bar Number: 19141400

                   CONNIE SPENCE
                   MARITZA ANTU
                   Assistant District Attorneys
                   Harris County, Texas

ORAL ARGUMENT NOT REQUESTED
                  STATEMENT REGARDING ORAL ARGUMENT

       The State believes that the matters raised by the appellant are well-
settled, and that the briefs in this case adequately apprise this Court of the
issues and the law. Therefore, the State does not request oral argument.

                         IDENTIFICATION OF THE PARTIES

Pursuant to Texas Rule of Appellate Procedure 38.2(a)(1)(A), a complete list
of the names of all interested parties is provided below.

Counsel for the State:

      Devon Anderson  District Attorney of Harris County

      Kimberly Aperauch Stelter  Assistant District Attorney on appeal

      Sean Powers, Stuart Tallichet  Assistant District Attorneys at trial

Appellant and counsel:
            Sanjoseph Tan  Appellant

               Patrick McCann  Counsel on appeal

               Benjamin Plaut  Defense counsel at trial

Trial Judge:

               Honorable Leslie Brock Yates  Judge Presiding




                                        i
                                            TABLE OF CONTENTS



STATEMENT REGARDING ORAL ARGUMENT ................................................i

IDENTIFICATION OF THE PARTIES ....................................................................i

TABLE OF CONTENTS ............................................................................................. ii

INDEX OF AUTHORITIES ....................................................................................... iii

STATEMENT OF THE CASE .................................................................................. 1

STATEMENT OF FACTS ........................................................................................ 1

SUMMARY OF THE ARGUMENT ........................................................................ 3

REPLY TO APPELLANT’S FIRST POINT OF ERROR ........................................ 4

REPLY TO APPELLANT'S SECOND AND THIRD POINTS OF ERROR .......... 6

PRAYER .................................................................................................................. 11

CERTIFICATE OF SERVICE ................................................................................ 12

CERTIFICATE OF COMPLIANCE ....................................................................... 13




                                                             ii
                                              INDEX OF AUTHORITIES
CASES
Brooks v. State,
  323 S.W.3d 893 (Tex. Crim. App. 2010).......................................................................... 8
Chambers v. State,
  805 S.W.2d 459 (Tex. Crim. App. 1991).......................................................................... 9
Clayton v. State,
  235 S.W.3d 772 (Tex. Crim. App. 2007)....................................................................... 10
Curry v. State,
  910 S.W.2d 490 (Tex. Crim. App. 1995).......................................................................... 6
Dues v. State,
  634 S.W.2d 304 (Tex. Crim. App. 1982)....................................................................... 12
Ervin v. State,
  331 S.W.3d 49 (Tex. App.-
  Houston [1st Dist.] 2010, pet. ref'd) ................................................................................. 8
Garcia v. State,
  887 S.W.2d 846 (Tex. Crim. App. 1994).......................................................................... 6
Horhn v. State,
  ___ S.W.3d ___, 2015 WL 7300558 (Tex. App.—
  Houston [1st Dist.] November 19, 2015 , no pet. reported) .................................. 7
Jackson v. Virginia,
  443 U.S. 307 (1979)................................................................................................................. 9
Johnson v. State,
  871 S.W.2d 183 (Tex. Crim. App. 1993)....................................................................... 10
Karenev v. State,
  281 S.W.3d 428 (Tex. Crim. App. 2009).......................................................................... 5
Kiffe v. State,
  361 S.W.3d 104 (Tex. App. –
  Houston [1st Dist.] 2011, pet. ref’d) ................................................................................. 8
King v. State,
  29 S.W.3d 556 (Tex. Crim. App. 2000) ......................................................................... 10


                                                                  iii
Laster v. State,
  275 S.W.3d 512 (Tex. Crim. App. 2009).......................................................................... 9
Marin v. State,
 851 S.W.2d 275 (Tex. Crim. App. 1993), overruled on other grounds by Cain
 v. State, 947 S.W.2d 262 (1997) ......................................................................................... 5
Mason v. State,
 820 S.W.2d 896 (Tex. App. –
 Houston [1st Dist.] 1991, no pet. .................................................................................... 12
Rowshan ......................................................................................................................................... 13
Rowshan v. State,
  445 S.W.3d 294 (Tex. App. –
  Houston [1st Dist.]2013, pet. ref’d) ............................................................................... 12
Schuster v. State,
  435 S.W.3d 362 (Tex. App. –
  Houston [1st Dist.] 2014, no pet.) ..................................................................................... 5
Williams v. State,
 235 S.W.3d 742 (Tex. Crim. App. 2007).......................................................................... 9
Williams v. State,
 688 S.W.2d 486 (Tex. Crim. App. 1985)....................................................................... 11

STATUTES
TEX. PENAL CODE ANN. § 32.51 (West 2014) .................................................................... 3, 6
Texas Penal Code § 32.51 .......................................................................................................... 4



RULES
TEX. R. APP. P. 38.2(a)(1)(A) ....................................................................................................... i




                                                                        iv
TO THE HONORABLE COURT OF APPEALS:
                  STATEMENT OF THE CASE


        Appellant was charged by indictment with fraudulent use of

identifying information (CR 9). He entered a plea of not guilty and the case

was tried before a jury (CR 60). The jury found appellant guilty as charged,

and the court assessed punishment at one year in the state jail division of the

Texas Department of Criminal Justice (CR 60). Appellant filed timely notice

of appeal, and the court certified his right to appeal (CR 664-66).

                      



                           STATEMENT OF FACTS

        Tony Ho had bad credit. He purchased a Hyundai Sonata in 2013 from

the Ron Carter dealership but was told to return it once the dealership did a

credit check (RR3 188, 192). The second time Ho had Appellant purchase a

Hyundai Sonata from the dealership for him (RR3 189, 197). Ho just went to

the dealership to pick up the car from appellant in the parking lot (RR3-189,

192).

        The problem with this arrangement was that Appellant used someone

else’s identify to finance the Sonata. Appellant represented himself to the

sales representative and the director of the finance department as Songfan
Jin (RR3 165-166, 199). He put Songfan Jin’s name, date of birth, and Social

Security number on the finance application for the Sonata, and presented

proof of identity under that name (RR3 18). The two forms of identification,

a passport and an international driver’s license, had Jin’s identifying

information, but appellant’s picture (RR3 204, 166, State’s Exhibit No. 10).

      Eventually the bank which financed the loan for the Sonata did an

investigation, discovered this identify theft, and required the dealership to

buy back the loan from the bank (RR3 14). The dealership, not knowing who

was actually in possession of the Sonata, reported it stolen, and with the help

of police and a built in tracking system, were able to locate and repossess the

vehicle (RR3 15, 50). Ho was driving the car at the time of the recovery, and

agreed to lead the police to appellant (RR3 189, 190). When arrested,

appellant had several pieces of identification in his own name, but also

identified himself as the person pictured on the international driver’s license

in Jin’s name (RR3 75, 77). Also, the vehicle appellant was driving was

registered in Jin’s name (RR3 82). Appellant was arrested, his fingerprints

were taken, and it was determined that his real name was Sanjoseph Tan

(RR3 83-84).



                                      2
      Eventually, the dealership resold the Sontana that had purchased by

appellant in Jin’s name, but since the vehicle had already been preowned, the

dealership could not resell it as a new. Instead, the dealership sold the

vehicle wholesale at auction for a $17,000 loss (RR3 14).

      Songfan Jin was also adversely impacted. Jin lived in New York City,

had never been to Texas, and did not know appellant or give him

authorization to use his identifying information (RR3 143, 148-149). He

only learned that someone was using his identity when he got a letter from a

collection agency (RR3 144). He then hired an attorney who investigated the

identity theft and wrote letters to clear Jin’s name with the collection agency

(RR3 145). Despite these efforts, Jin’s credit rating, which had formally been

very good, was “completely destroyed” by appellant’s actions (RR3 153).

                     



                      SUMMARY OF THE ARGUMENT

      Appellant did not preserve any constitutional challenge to Section

32.51 of the Penal Code by raising the issue for the first time on appeal.

Even if appellant had preserved error, the statute is clearly not directed at

any speech or free expression. On its face, the statute neither abridges

                                      3
constitutionally protected speech, nor inhibits an individual’s right to

petition for redress of grievances. The statute has been utilized to prevent

identity theft and does not reach a substantial amount of constitutionally

protected conduct.       Consequently, the appellant’s First Amendment and

overbreadth challenges to the statute should fail.

      The evidence is also legally sufficient to sustain appellant’s conviction

for the offense of fraudulent use or possession of identifying information.

Specifically, the evidence established beyond a reasonable doubt that

appellant intended to defraud or harm another. While the evidence is also

factually sufficient, the State is no longer required to prove factual

sufficiency on appeal.

                     



             REPLY TO APPELLANT’S FIRST POINT OF ERROR

      In his first point of error, appellant claims that Texas Penal Code §

32.51, the statute upon which his prosecution is based, violates the First,

Fifth, Sixth and Fourteenth Amendments to the United States Constitution.

Specifically, appellant contends that the Statute in question is facially



                                       4
unconstitutional because it is an overbroad regulation of speech, and might

“chill” constitutionally protected speech (appellant’s brief, p. 11).

      Appellant Failed to Preserve Error

      Appellant does not indicate and the State could find no reference to

this issue ever being raised or ruled on at trial. A defendant may not raise

for the first time on appeal a facial challenge to the constitutionality of a

statute. Karenev v. State, 281 S.W.3d 428, 434 (Tex. Crim. App. 2009). Under

Karenev, “[a] facial challenge to the constitutionality of a statute” falls within

the category of matters for which an objection is necessary to preserve

error. Id. at 434; Schuster v. State, 435 S.W.3d 362, 365 (Tex. App. –Houston

[1st Dist.] 2014, no pet.); Marin v. State, 851 S.W.2d 275, 279–80 (Tex. Crim.

App. 1993), overruled on other grounds by Cain v. State, 947 S.W.2d 262

(1997) (recognizing three different rules for error preservation). Similarly,

an “as applied” constitutional challenge is also a forfeitable right under

Marin and must be preserved in the trial court during or after trial. Curry v.

State, 910 S.W.2d 490, 496 (Tex. Crim. App. 1995); Garcia v. State, 887

S.W.2d 846, 861 (Tex. Crim. App. 1994). Since appellant did not preserve his




                                        5
constitutional challenges to Texas Penal Code §32.51, his first point of error

should be overruled.1


                        



                  REPLY TO APPELLANT’S SECOND AND
                         THIRD POINTS OF ERROR
      Appellant’s final two point of error concern the sufficiency of the

evidence to support appellant’s conviction.             Appellant claims that the

evidence is both legally and factually insufficient to prove that appellant

committed this offense with the intent to harm or defraud another.

      Standard of Review on Sufficiency of the Evidence

      Courts in Texas no longer conduct independent factual sufficiency

reviews of the evidence in criminal cases. Brooks v. State, 323 S.W.3d 893,

901 (Tex. Crim. App. 2010). Instead, Texas courts review legal and factual

sufficiency challenges using the same standard of review. Ervin v. State, 331




1 Even if appellant had preserved error on this issue, this Court has recently held that
Texas Penal Code § 32.51 does not implicate the free speech guarantee of the First
Amendment, is not facially overbroad, and is not a content based restriction on speech.
See Horhn v. State, ___ S.W.3d ___, 2015 WL 7300558 (Tex. App.—Houston [1st Dist.]
November 19, 2015 , no pet. reported)

                                           6
S.W.3d 49, 54 (Tex. App.-Houston [1st Dist.] 2010, pet. ref'd); Kiffe v. State,

361 S.W.3d 104, 107-08 (Tex. App. –Houston [1st Dist.] 2011, pet. ref’d).

Under this standard, evidence is insufficient to support a conviction if,

considering all the record evidence in the light most favorable to the verdict,

no rational factfinder could have found that each essential element of the

charged offense was proven beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979); Laster v. State, 275 S.W.3d 512, 517 (Tex.

Crim. App. 2009); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.

2007). Viewed in the light most favorable to the verdict, the evidence is

insufficient under this standard in two circumstances: (1) the record

contains no evidence, or merely a “modicum” of evidence, probative of an

element of the offense; or (2) the evidence conclusively establishes a

reasonable doubt. See Jackson, 443 U.S. at 314, 318 n. 11, 320; Laster, 275

S.W.3d at 518; Williams, 235 S.W.3d at 750.

      The jury is the sole judge of the weight of the evidence under this

review and can choose to believe all, some, or none of it. Chambers v. State,

805 S.W.2d 459, 461 (Tex. Crim. App. 1991). The presumption is that the

jury resolved conflicting inferences in favor of the verdict, and a reviewing



                                      7
court should defer to that determination. Clayton v. State, 235 S.W.3d 772,

778 (Tex. Crim. App. 2007).

      Evidence can be legally sufficient for a conviction even if it is entirely

circumstantial. King v. State, 29 S.W.3d 556, 565 (Tex. Crim. App. 2000). The

standard of review for circumstantial and direct evidence is the same. Id. It is

not necessary that every fact point directly and independently to the

defendant’s guilt; it is enough if the conclusion is warranted by the combined

and cumulative force of all the incriminating circumstances. Johnson v. State,

871 S.W.2d 183, 186 (Tex. Crim. App. 1993).



      The evidence is sufficient to prove that appellant intended to
      defraud or harm another

      Appellant claims there is no evidence appellant used Jin’s identifying

information, but merely possessed it. The facts, however, show otherwise.

      Appellant used Jin’s identifying information to establish his

creditworthiness to purchase a car (State’s Exhibit No. 10). He filled out the

loan application in Jin’s name, which made Jin, not appellant, liable for the

loan amount. He provided the dealership with two pieces of identification

with Jin’s information and appellant’s photo (State’s Exhibit No. 10). He also


                                       8
traded in his Volkswagen Passat, which he also owned under Jin’s name, and

which was valued at far less than the amount appellant still owed on it.2

       The intent to defraud or harm another may be established by

circumstantial evidence, including an accused’s acts, words, or conduct.

Williams v. State, 688 S.W.2d 486, 488 (Tex. Crim. App. 1985); Mason v. State,

820 S.W.2d 896, 897 (Tex. App. –Houston [1st Dist.] 1991, no pet.) (citing

Dues v. State, 634 S.W.2d 304, 305 (Tex. Crim. App. 1982)); Rowshan v. State,

445 S.W.3d 294, 298 (Tex. App. –Houston [1st Dist.]2013, pet. ref’d).

Appellant’s acts clearly indicate intent to defraud or harm another.

       As a result of appellant’s deception, the Ron Carter dealership lost

$17,000 after having to buy back the loan, repossess the Sonata, and sell it

wholesale as a used car and at a price that was substantially less than they

could have received by selling it new to a legitimate buyer. Jin also suffered

harm by having to hire a lawyer to respond to the collection agency and

subsequently having his credit destroyed. Jin’s credit line was burdened by




2
  The Sonata had a sale price of $22,500, but after a $15,000 credit for the trade-in of the
Volkswagen and a $24,000 payoff of the loan on the Volkswagen (plus other small fees)
the balance remaining was $32,274.16 (State’s Exhibit No. 10, page 6). Thus, appellant
obtained a loan on the Sonata that was more than the worth of the car, as he actually paid
off his “underwater” loan on the Volkswagen.
                                             9
the loan, while appellant’ s credit was unaffected, as he failed to take any of

these actions under his own identity. This evidence is sufficient to establish

an intent to defraud or harm another. Rowshan v. State, 445 S.W.3d at 298.

      For the above reasons, appellant’s last two points of error are without

merit, and should be overruled.


                     




                                      10
                                  PRAYER



      The State respectfully requests that this Court affirm the judgment of

the trial court.



                                            DEVON ANDERSON
                                            District Attorney
                                            Harris County, Texas



                                            /s/Kimberly Aperauch Stelter

                                            KIMBERLY APERAUCH STELTER
                                            Assistant District Attorney
                                            Harris County, Texas
                                            1201 Franklin, Suite 600
                                            Houston, Texas 77002
                                            (713) 755-5826
                                            State Bar Number: 19141400
                                            stelter_kimberly@dao.hctx.net




                                    11
                       CERTIFICATE OF SERVICE


     This is to certify that a copy of the foregoing instrument is being
served by EFileTXCourts.Gov e-filer to the following email address

     Patrick McCann
     Attorney at Law
     Suite 205, Rice Hotel
     Houston, Texas 77002
     writlawyer@justice.com




                                          /s/Kimberly Aperauch Stelter

                                          KIMBERLY APERAUCH STELTER
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002
                                          (713) 274-5826
                                          State Bar Number: 19141400
                                          stelter_kimberly@dao.hctx.net




                                  12
                    CERTIFICATE OF COMPLIANCE

      The undersigned attorney certifies that this computer-generated
document has a word count of 2,628 words, based upon the representation
provided by the word processing program that was used to create the
document.


                                         /s/Kimberly Aperauch Stelter
                                         KIMBERLY APERAUCH STELTER
                                         Assistant District Attorney
                                         Harris County, Texas
                                         1201 Franklin, Suite 600
                                         Houston, Texas 77002-1923
                                         (713) 274-5826
                                         TBC No. 19141400
                                         stelter_kimberly@dao.hctx.net




                                  13
