                                                                                  PD-1501-14
                                                                 COURT OF CRIMINAL APPEALS
                                                                                  AUSTIN, TEXAS
March 25, 2015                                                 Transmitted 3/25/2015 9:08:05 AM
                                                                 Accepted 3/25/2015 9:49:13 AM
                                                                                   ABEL ACOSTA
                                   PD-1501-14                                              CLERK

                     IN THE TEXAS COURT OF CRIMINAL APPEALS
                 _________________________________________________

                     ROBERT WILLIAM CORNWELL
                              PETITIONER-APPELLANT

                                        vs.

                           THE STATE OF TEXAS
                               RESPONDENT-APPELLEE
                 _________________________________________________

                          ON DISCRETIONARY REVIEW FROM
                           THE NINTH COURT OF APPEALS,
                            CAUSE NO. 09-13-00203-CR

                      APPEAL FROM THE 435TH DISTRICT COURT OF
                  MONTGOMERY COUNTY, CAUSE NO. 12-08-08579CR
                 _________________________________________________

             PETITIONER’S BRIEF ON THE MERITS
                 _________________________________________________

        BRUCE ANTON                           SORRELS, UDASHEN & ANTON
        State Bar No. 01274700                2311 Cedar Springs, Suite 250
        ba@sualaw.com                         Dallas, Texas 75201
                                              214-468-8100 (office)
        BRETT ORDIWAY                         214-468-8104 (fax)
        State Bar No. 24079086
        bordiway@sualaw.com                   Counsel for Petitioner-Appellant
                  Identity of Parties and Counsel

For Appellant Robert William Cornwell:

     DAN MADELEY
          Trial counsel
     208 W. Davis
     Conroe, Texas 77301

     RICHARD MARTIN P. CANLAS
          Trial counsel
     300 W. Davis, Suite 560
     Conroe, Texas 77301

     BRUCE ANTON
     BRETT ORDIWAY
          Appellate counsel
     SORRELS, UDASHEN & ANTON
     2311 Cedar Springs Suite 250
     Dallas, Texas 75201

For Appellee the State of Texas:

     SHANNA REDWINE
          Trial counsel of record
     MONTGOMERY COUNTY DISTRICT ATTORNEY’S OFFICE
     207 W. Phillips 2nd Floor
     Conroe, Texas 77301

     JASON LARMAN
          Appellate counsel
     MONTGOMERY COUNTY DISTRICT ATTORNEY’S OFFICE

Trial judge:

     THE HONORABLE MICHAEL SEILER
     MONTGOMERY COUNTY’S 435TH DISTRICT COURT


                                    2
                                        Table of Contents

Identity of Parties and Counsel ................................................................. 2

Index of Authorities .................................................................................... 4

Statement of the Case ................................................................................ 5

Issue Presented........................................................................................... 6

   Whether, to secure a conviction for impersonating a public servant on
   the theory that the defendant intended to induce another to rely on
   his acts, the State must prove that the defendant intended to induce
   another to rely on pretended official acts, not simply any acts. ........... 6

Statement of Facts...................................................................................... 7

Summary of the Argument ........................................................................ 8

Argument .................................................................................................... 9

      I. Appellant’s unwavering argument ................................................ 9

      II. The court of appeals ignored the statute’s requirement that the
      State prove the defendant pretended to act in an official capacity 11

      III. Conclusion ................................................................................... 16

Certificate of Service ................................................................................ 18

Certificate of Compliance ......................................................................... 18




                                                      3
                                      Index of Authorities

Cases

Boyett v. State, 368 S.W.2d 769, 771 (Tex. Crim. App. 1963)................. 15
Cornwell v. State, 445 S.W.3d 488 (Tex. App.—Beaumont 2014) .. passim
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2002) ................... 12
Dietz v. State, 62 S.W.3d 335, 337 (Tex. App.—Austin 2001, pet. ref’d) 11
Ex parte Niswanger, 335 S.W.3d 611, 617 & n. 11, 618 n. 15 (Tex. Crim.
  App. 2011).................................................................................. 10, 15, 16
Greene v. Massey, 437 U.S. 19 (1978) ...................................................... 17
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) ................. 17
Rice v. State, 195 S.W.3d 876, 878 (Tex. App.—Dallas 2006, pet. ref’d) 11
Studevant v. State, 833 S.W.2d 712, 712-14 (Tex. App.—Houston [14th
  Dist.] 1992, no pet.) ............................................................................... 11
Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet.
  ref’d) ................................................................................................. 13, 14
Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.—Corpus Christi 1989,
  pet. ref’d) .......................................................................................... 12, 15


Statutes

TEX. PEN. CODE § 37.11 .................................................................... 5, 9, 16
TEX. PEN. CODE §37.11 .............................................................................. 13


Other Authorities

BLACK’S LAW DICTIONARY (9th ed. 2009).................................................. 15




                                                       4
                        Statement of the Case

     Cornwell pretended to be a Dallas County Assistant District At-

torney. But though there was no evidence that, in so doing, Cornwell in-

tended to induce the complainant to submit to his pretended official au-

thority, or to rely on any pretended official acts, Cornwell was nonethe-

less charged by information on August 13, 2012, with impersonating a

public servant. (CR: 9); see TEX. PEN. CODE § 37.11(a)(1). And the jury

nonetheless found Cornwell guilty, and the court then sentenced him to

two years’ confinement. (RR3: 83, 188; CR: 79).

     Accordingly, on appeal Cornwell argued that the evidence was le-

gally insufficient to support his conviction because it was plain that he

did not intend to induce the complainant to submit to his pretended of-

ficial authority or to rely on a pretended official act. Cornwell v. State,

445 S.W.3d 488 (Tex. App.—Beaumont 2014). The court of appeals af-

firmed Cornwell’s conviction, though, simply because there was evi-

dence that Cornwell intended to induce the complainant to rely on his

false identification—not on any pretended official acts—when consider-

ing his request for the favor. Id. No motion for rehearing was filed.




                                    5
                Issue Presented

Whether, to secure a conviction for impersonating
a public servant on the theory that the defendant
intended to induce another to rely on his acts, the
State must prove that the defendant intended to
induce another to rely on pretended official acts,
not simply any acts.




                        6
                          Statement of Facts

     Robert Cornwell telephoned Montgomery County Assistant Dis-

trict Attorney Kourtney Teaff and asked her to be lenient with a friend

whose probation her office sought to revoke. (SX9). In so doing, Corn-

well averred that he, too, was an assistant district attorney, in Dallas

County, and that they “were on the same team and everything and that

he was just doing a friend a favor.” (RR3: 13). Furthermore, Cornwell

lied about running the friend’s criminal history, speaking with the pro-

bation department, investigating the friend’s medical issues, and giving

his own nephew jail time for possessing marijuana. (SX9). Teaff con-

firmed at trial, however, that Cornwell “never ordered [her] to do any-

thing” or “pretend[ed] he [had] any authority over [her],” and that he

acted “in his personal capacity.” (RR3: 30, 33, 41).




                                     7
                     Summary of the Argument

     A person commits the offense of impersonating a public servant if

he impersonates a public servant with the intent to induce another to

rely on his pretended official acts. And this Court in Niswanger af-

firmed as much—a defendant must have pretended to act in that official

capacity (regardless of whether that act in fact would be in his official

capacity). The court of appeals in this case discarded this requirement,

though, because it misunderstood a sister court of appeals’s opinion to

read that the defendant’s intent to induce was all that mattered. This

was plainly incorrect.




                                   8
                               Argument

           To secure a conviction for impersonating a public
           servant on the theory that the defendant intend-
           ed to induce another to rely on his acts, the State
           must prove that the defendant intended to induce
           another to rely on pretended official acts, not
           simply any acts.

                                 w   w   w

 I.   Appellant’s unwavering argument

      A person commits the offense of impersonating a public servant if

he impersonates a public servant with the intent to induce another (1)

“to submit to his pretended official authority” or (2) “to rely on his pre-

tended official acts.” TEX. PEN. CODE § 37.11(a). In Cornwell’s case, the

State has never contended that Cornwell intended to induce Teaff to

submit to any pretended official authority. Not at trial, or before the

court of appeals—it couldn’t. (RR3: 65-70, 76-81); see Cornwell v. State,

445 S.W.3d 488 (Tex. App.—Beaumont 2014). For, as Teaff herself testi-

fied, “it would [have been] ridiculous” for Cornwell to behave as if he

had any authority over her. (RR3: 33). Instead, the State urged, and the

jury apparently agreed, that Cornwell intended to induce Teaff to rely

on his pretended official act of “trying to resolve a pending criminal

case.” (CR: 9); (RR3: 67); Cornwell, 445 S.W.3d at 490.

                                      9
      As to that contention, Cornwell has never contested that he im-

personated an assistant district attorney with the intent to induce Teaff

to rely on that identification. (RR3: 70-76). He couldn’t—it’s intrinsic

that that’s why he identified himself as such. Rather, Cornwell urged at

trial, and then before the court of appeals, that not an ounce of evidence

supported that he intended to induce her to rely on any pretended offi-

cial acts. Simply identifying himself as an assistant district attorney

doesn’t qualify as such, and he never pretended that asking for a favor

“from one DA to another” was an official act. (RR3: 70-76); (App. Br. at

5-6) (citing Ex parte Niswanger, 335 S.W.3d 611, 617 & n. 11, 618 n. 15

(Tex. Crim. App. 2011) (stating that to allege a crime, the indictment

“must provide that the defendant had been engaged in some overt ac-

tion in an official capacity that is more than merely showing official

identification”)).

      To that end, Teaff specifically testified “[Cornwell] was doing a

friend a favor.” (RR3: 38). In no way did Cornwell hold himself out to be

acting in his official capacity; he didn’t pretend to call from an office

phone, instead specifically requesting she call him on his “[p]ersonal cell

phone”; he didn’t pretend to write from an office e-mail account. Cf. Rice


                                    10
v. State, 195 S.W.3d 876, 878 (Tex. App.—Dallas 2006, pet. ref’d) (evi-

dence legally sufficient where defendant told officer that initiated traffic

stop that he was a Louisiana corrections officer picking up a prisoner);

Studevant v. State, 833 S.W.2d 712, 712-14 (Tex. App.—Houston [14th

Dist.] 1992, no pet.) (evidence legally sufficient where defendant repre-

sented herself as assistant attorney general and sought information

from witness as part of her “investigati[on]”); Dietz v. State, 62 S.W.3d

335, 337 (Tex. App.—Austin 2001, pet. ref’d) (legally sufficient evidence

where bail bondsman pretended to be a sheriff’s deputy so as to request

assistance serving warrant from police officers). As acknowledged in the

State’s brief on appeal, Teaff recorded Cornwell’s calls precisely because

“it was unusual for a prosecutor to attempt to use their office to influ-

ence a case in another county.” (St. Br. at 6) (citing RR3: 8-11). In fact,

Teaff explicitly testified that Cornwell made clear he was acting “in his

personal capacity.”(RR3: 41).

II.   The court of appeals ignored the statute’s requirement that
      the State prove the defendant pretended to act in an offi-
      cial capacity

      Faced with Teaff’s unambiguous testimony, the State on appeal

did not dispute that Cornwell did not pretend his favor request was an


                                    11
official act. (St. Br. at 4-5). Instead, the State argued that, in so making

that request, Cornwell referred to having previously made official acts,

and that he intended for Teaff to rely on those. (St. Br. at 4-5). But even

assuming that Cornwell in fact represented to having previously made

official acts, to be guilty of the offense the “pretended official act” on

which he intended for Teaff to rely must be that act for which he was

charged—here, “trying to resolve a pending criminal case.” (CR: 9); Cur-

ry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2002) (holding that suf-

ficiency of evidence must be weighed against “manner and means of ab-

duction” alleged in indictment). And that he was charged as such was

no error; the Corpus Christi Court of Appeals has specifically held that,

to be guilty of impersonating a public servant, there must be a false

“pretension by a person that he is a public servant and overt action in

this capacity”—not reference to action in this capacity, or overt action

outside this capacity. Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.—

Corpus Christi 1989, pet. ref’d). Indeed, if, instead, the statute required

only a false pretension and reference to previously making an overt ac-

tion in that capacity, then any impersonation of a public servant would

be a crime, as inherent in such a pretension is the representation to


                                    12
have previously made official acts. See TEX. PEN. CODE § 37.11 (simply

pretending to be a public official is not a crime).

     Considering, then, that the State essentially urged the court of

appeals to ignore the charging instrument, or enlarge the statute to

cover any impersonation of a public official, it is understandable that

the court declined to follow its lead. Cornwell, 445 S.W.3d 488. The

court’s alternative reasoning, though, was just as strained. For, instead

of evaluating whether Cornwell’s request for a favor was a “pretended

official act,” the court simply announced that because it was “an act,” at

all, the evidence was sufficient:

     While the term “official act” is not defined in the Penal Code,
     the Penal Code defines “[a]ct” as “a bodily movement ... and
     includes speech.”

     …

     Given that an act under the Penal Code involves speech, and
     that the Montgomery County assistant district attorney had
     the ability to use her prosecutorial discretion with respect to
     Cornwell’s friend’s case, we hold the evidence supports
     Cornwell’s conviction under the “pretended official acts”
     prong of section 37.11(a)(1) of the Penal Code.

Id. at 491. Believing that it was following San Antonio Court of Ap-

peals’s lead in Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San An-

tonio 2011, pet. ref’d), the court in its opinion made clear that its suffi-

                                     13
ciency review instead solely “focused upon” Cornwell’s intent to induce

Teaff. Cornwell, 445 S.W.3d at 491.

     Even forgetting, for a moment, that a sister court of appeals would

have no authority to dispense of an element of the statute, the Tiller

court, of course, did no such thing. Instead, it properly evaluated

whether Tiller purported his act to be in his pretended official capacity,

and because it held it was, it affirmed his conviction because he also in-

tended it to induce reliance. Tiller, 362 S.W.3d at 128.

     That is the analysis the court in this case entirely failed to per-

form, and which this Court should instruct it to do on remand. Cornwell

cannot be guilty of a crime unless he purported to act officially. And up-

on recognizing the Beaumont court’s misreading of Tiller to stand for

otherwise—for the proposition that the defendant’s intent to induce sat-

isfies all—other errors in the court’s opinion are at once explained. For,

though the court avoided one analysis, it became forced to confront an-

other: in addition to flagrantly ignoring the language of the statute, it

also had to discard this Court’s opinion in Niswanger, which explained

(and as Cornwell urged) that to allege a crime, the charging instrument

“must provide that the defendant had been engaged in some overt ac-


                                    14
tion in an official capacity that is more than merely showing official

identification.” Niswanger, 335 S.W.3d at 617 n. 11.

     The court of appeals waved that off by dismissing it as “dicta”

[sic], and by noting that, in that case, unlike this one, “the circumstanc-

es did not show that Niswanger identified himself as a public official to

induce others to engage in conduct that involved a governmental func-

tion.” Cornwell, 445 S.W.3d at 491. Considering it was certainly a cor-

rect statement of law, though, both justifications are predictably un-

sound.

     That dictum which the court so readily disregarded is the holding

of the cases to which it cites. See Niswanger, 335 S.W.3d at 617 n. 11

(citing Tovar, 777 S.W.2d at 489; Boyett v. State, 368 S.W.2d 769, 771

(Tex. Crim. App. 1963)). And even if it weren’t, dictum is “frequently,

and indeed usually, correct.” BLACK’S LAW DICTIONARY (9th ed. 2009).

Moreover, as to the identified distinction between Niswanger and this

case, the court of appeals in no way explained why that distinction mat-

tered; why the action which the defendant sought to induce—addressed

nowhere in the statute—at all permitted the court to dispense with an

element of the crime very definitely required. Cornwell, 445 S.W.3d at


                                    15
491. Certainly, Niswanger does not assert as much. See Niswanger, 335

S.W.3d at 617 n. 11. And a distinction without meaning is meaningless.

       All of this is to say, in short, that the court of appeals’s holding

was plainly incorrect. The statute very clearly states that, to be guilty of

impersonating a public servant, a defendant must have pretended to act

in that official capacity (regardless of whether that act in fact would be

in his official capacity). TEX. PEN. CODE § 37.11(a)(1). And this Court in

Niswanger affirmed as much. See Niswanger, 335 S.W.3d at 617 n. 11.

The court of appeals in this case discarded this requirement, though,

because it misunderstood Tiller to read that the defendant’s intent to

induce was all that mattered. This was wrong, and Cornwell’s convic-

tion cannot stand until the court properly considers whether he pur-

ported to act officially.

III.   Conclusion

       Because the court of appeals ignored this analysis in affirming

Cornwell’s conviction, at the very least this Court should vacate the

judgment of the court of appeals and remand this case to that court to

determine as much. But for all those reasons urged in Cornwell’s origi-

nal briefing before that court, and now summarized in this brief, Corn-


                                    16
well urges this Court that, because it is so plain that he did not act in

any pretended official capacity, in the interests of judicial economy this

Court should simply reverse the judgments of the courts below and en-

ter a verdict of acquittal. See Guevara v. State, 152 S.W.3d 45, 49 (Tex.

Crim. App. 2004); Greene v. Massey, 437 U.S. 19 (1978) (re-trial not

permissible after reviewing court has determined evidence is insuffi-

cient).

                                  Respectfully submitted,


                                       /s/ Bruce Anton
                                  BRUCE ANTON
                                  Bar Card No. 01274700
                                  ba@sualaw.com

                                       /s/ Brett Ordiway
                                  BRETT ORDIWAY
                                  Bar Card No. 24079086
                                  bordiway@sualaw.com

                                  SORRELS, UDASHEN & ANTON
                                  2311 Cedar Springs Road Suite 250
                                  Dallas, Texas 75201
                                  (214)-468-8100 (office)
                                  (214)-468-8104 (fax)

                                  Attorneys for Petitioner-Appellant




                                   17
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Petitioner’s Brief on the Merits was electronically served
to the Montgomery County District Attorney’s Office and the State
Prosecuting Attorney on March 24, 2015.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because
     this petition contains 2,017 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.

                                      /s/ Bruce Anton
                                  BRUCE ANTON




                                   18
