                Case No. PD-0962-15
         IN THE COURT OF CRIMINAL APPEALS
              FOR THE STATE OF TEXAS

                NO. 09-13-00536-CR
   ON APPEAL FROM THE COURT OF APPEALS FOR THE
       NINTH DISTRICT OF TEXAS AT BEAUMONT

              THE STATE OF TEXAS
                         v.
           JESSICA SEKERKA SIEGEL

                    Arising from:
             Cause No. 12-03-02754-CR
            IN THE 221ST DISTRICT COURT,
            MONTGOMERY COUNTY, TEXAS

STATE’S PETITION FOR DISCRETIONARY REVIEW

                                    BRETT W. LIGON
                                    District Attorney
                                    Montgomery County, Texas
                                    TIANA JEAN SANFORD
                                    Assistant District Attorney
                                    JASON LARMAN
                                    Assistant District Attorney
                                    Montgomery County, Texas
  August 25, 2015
                                    T.B.C. No. 24072468
                                    207 W. Phillips, Second Floor
                                    Conroe, Texas 77301
                                    936-539-7800
                                    jason.larman@mctx.org
                     IDENTITY OF PARTIES AND COUNSEL
      Pursuant to Tex. R. App. P. 68.4, the State hereby lists all parties to the trial

court’s judgment:

District Attorney:                                   BRETT W. LIGON
                                                     District Attorney
                                                     Montgomery County, Texas
                                                     207 W. Phillips, Second Floor
                                                     Conroe, Texas 77301

Counsel for the State in the trial court:            TIANA JEAN SANFORD
                                                     JASON LARMAN
                                                     Assistant District Attorneys
                                                     Montgomery County, Texas
                                                     207 W. Phillips, Second Floor
                                                     Conroe, Texas 77301

Counsel for the State in the appellate court:        JASON LARMAN
                                                     Assistant District Attorney
                                                     Montgomery County, Texas
                                                     207 W. Phillips, Second Floor
                                                     Conroe, Texas 77301

Counsel for the appellant in the trial court:        JARROD WALKER
                                                     301 N. Thompson
                                                     Conroe, Texas 77301

Counsel for the appellant in the appellate court:    RICHARD MARTIN P. CANLAS
                                                     300 West Davis, Suite 560
                                                     Conroe, Texas 77301




                                            ii
                                          TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES .................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT .................................................1
STATEMENT OF THE CASE...................................................................................1
GROUND FOR REVIEW .........................................................................................2
STATEMENT OF FACTS .........................................................................................2
ARGUMENT .............................................................................................................3
     The court of appeals adopted a definition of “makes” that is far
     too narrow. ...........................................................................................................3
CONCLUSION AND PRAYER ................................................................................6
CERTIFICATE OF COMPLIANCE WITH RULE 9.4.............................................7
CERTIFICATE OF SERVICE ...................................................................................7


                                       INDEX OF AUTHORITIES

Cases
Constructors Unlimited Inc. v. State, 717 S.W.2d 169
  (Tex. App.—Houston [1st Dist.] 1986, pet. ref’d) .................................................4
Ex parte Graves, 436 S.W.3d 395 (Tex. App.—Texarkana 2014, pet. ref’d)........4, 5

Pokladnik v. State, 876 S.W.2d 525 (Tex. App.—Dallas 1994, no pet.) ...................4

Statutes
Tex. Penal Code Ann. § 37.10 (West Supp. 2014).....................................................3




                                                            iii
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

                STATEMENT REGARDING ORAL ARGUMENT
         The State believes oral argument is necessary because this case presents an

undecided issue of important Texas law.

                           STATEMENT OF THE CASE
         The appellant was charged by two separate indictments with the offense of

tampering with a governmental record related to conduct occurring on March 9,

2012. The cases were tried in a single proceeding; the appellant entered a plea of

not guilty, but the jury found her guilty. The jury assessed her punishment at two

years confinement in a state jail facility, but recommended that the sentence be

suspended and that the appellant be placed on community supervision. The trial

court sentenced the appellant in accordance with the jury’s verdict, suspended the

sentence, and placed the appellant on community supervision for a period of four

years.

         The Ninth Court of Appeals found that the evidence was legally insufficient,

reversed the appellant’s conviction, and rendered a judgment of acquittal. See

Siegel v. State, No. 09-13-00536-CR, 2015 WL 3897860, at *3 (Tex. App.—

Beaumont June 24, 2015, no. pet. h.).




                                           1
                            GROUND FOR REVIEW
      The court of appeals erred in concluding that the evidence was

      insufficient to support the appellant’s conviction because it adopted

      too narrow of a meaning for the term “makes,” as used in Texas Penal

      Code § 37.10(a)(1).

                            STATEMENT OF FACTS
      On December 19, 2011, the appellant filed an application to appear on the

2012 Republican Party primary ballot as a candidate for the office of judge of the

418th District Court of Montgomery County, Texas (R.R. 8: State’s ex. 14). On that

application, the appellant asserted that she had resided continuously in

Montgomery County for one year prior to that date (R.R. 8: State’s ex. 14). 1 That

application was refused because it failed to satisfy the requirement that she live

continuously in Montgomery County for two years before the general election in

November of 2012. Due to redistricting efforts, the deadline for filing an

application was subsequently extended to March 9, 2012.

      On March 9, 2012, the appellant returned to the Montgomery County

Republican Party Headquarters and again filed an application to appear on the


      1
        The appellant was charged by a separate indictment with the offense of
tampering with a governmental record for allegedly false statements related to her
period of residency contained in the December 19th application, and she was tried
in a single proceeding for both indictments. The jury found her not guilty of the
offense alleged to have occurred on or about December 19, 2011.
                                         2
primary ballot. This application indicated that the appellant had lived in

Montgomery County for the preceding one year and five months (R.R. 8: State’s

ex. 15). Because the appellant did not live or work in Montgomery County during

that period of time, and lived in Harris County until after she leased an apartment

in Montgomery County beginning February 5, 2012, that assertion was false (R.R.

4: 18-25).

                                  ARGUMENT
THE COURT OF APPEALS ADOPTED A DEFINITION OF          “MAKES”    THAT IS FAR TOO
NARROW.

      As charged in the present indictment, a person commits the offense of

tampering with a governmental record if, with the intent to harm or defraud

another, the person knowingly makes a false entry in a governmental record. See

Tex. Penal Code Ann. § 37.10 (West Supp. 2014).

      The court of appeals held that the evidence was insufficient because, at the

moment the appellant wrote false information on the application, it was not a

governmental record. In reaching its conclusion, the court of appeals focused

exclusively on the status of the document containing the false statement at the

moment the false statement was written. Certainly, by writing a false statement on

a governmental record, a person “makes a false entry in a governmental record.”

But that does not mean the person who makes a false statement in an application

and files that application with government does not also make a false entry in a

                                        3
governmental record. In even the most simplistic of terms, the actor’s conduct in

the latter scenario has created a false entry in a governmental record that did not

previously exist.

      Admittedly, the court of appeals relied on several other opinions from courts

of appeals that reached similar conclusions and found the evidence to be

insufficient to support a conviction under section 37.10(a)(1) when the false

statement is written on an application or other document before it is received by

government. See Ex parte Graves, 436 S.W.3d 395, 398 (Tex. App.—Texarkana

2014, pet. ref’d); Pokladnik v. State, 876 S.W.2d 525, 527 (Tex. App.—Dallas

1994, no pet.); Constructors Unlimited Inc. v. State, 717 S.W.2d 169 (Tex. App.—

Houston [1st Dist.] 1986, pet. ref’d).

      Assuming that the reasoning of the cases relied on by the court of appeals is

correct, those cases are distinguishable from the instant case. In Pokladnik, the

documents were never filed with any governmental agency, and thus, no false entry

ever appeared in a governmental record. See Pokladnik, 876 S.W.2d at 527 (“In

short, no government entity ever put its hands on these documents”). In

Constructors Unlimited, the defendant, who was the president of a general

contracting company, submitted an invoice containing a false statement regarding

whether the subcontractors had been paid in full. Constructors Unlimited Inc., 717

S.W.2d at 172. The invoice itself was ultimately submitted to government, but was

                                         4
found not to be a governmental record at the time of the false entry. Id. There was

no evidence that it ever resulted in any other false entries in a governmental record.

Id. at 174. Similarly, in Graves, the State conceded that the records were not a

governmental record at the time the false entries were made and presented no

evidence that the false information from the form resulted in the creation of a false

entry in any governmental record. See Graves, 436 S.W.3d at 398.

      But the instant case is different. The appellant’s conduct resulted in a false

entry in a governmental record beyond the act of writing the false statement on the

application. The application in this case was filed with the office of the Republican

Party and used to determine the appellant’s eligibility, and as a result, the appellant

was falsely listed as an eligible candidate on the Republican Party primary ballot

(R.R. 4: 53). The definition of a governmental record includes both election

records and records required by law to be kept for information of government. See

Tex. Penal Code Ann. § 37.01 (West Supp. 2014). The appellant’s conduct caused

to exist a false statement in a governmental record that would not have otherwise

existed. Therefore, the appellant “made a false entry in a governmental record.” By

artificially restricting the meaning of “makes” to apply only to the direct action by

a person who has physical possession of a governmental record, the court of

appeals unnecessarily excluded conduct that results deliberately but indirectly in

the creation of a false entry in a governmental record. Accordingly, this Court

                                          5
should grant the State’s petition for discretionary review and reverse the opinion

issued by the court of appeals.

                         CONCLUSION AND PRAYER
       It is respectfully submitted that the judgment of the Ninth Court of Appeals

is in error and that this Court should exercise its powers of discretionary review to

correct that error.

                                                    BRETT W. LIGON
                                                    District Attorney
                                                    Montgomery County, Texas

                                                    /s/Jason Larman
                                                    JASON LARMAN
                                                    T.B.C. No. 24072468
                                                    Assistant District Attorney
                                                    Montgomery County, Texas
                                                    207 W. Phillips, Second Floor
                                                    Conroe, Texas 77301
                                                    936-539-7800
                                                    936-788-8395 (FAX)
                                                    jason.larman@mctx.org




                                         6
             CERTIFICATE OF COMPLIANCE WITH RULE 9.4
      I hereby certify that this document complies with the requirements of Tex. R.

App. P. 9.4(i)(2)(D) because there are 993 words in this document, excluding the

portions of the document excepted from the word count under Rule 9.4(i)(1), as

calculated by the Microsoft Word computer program used to prepare it.



                                                   /s/Jason Larman
                                                   JASON LARMAN
                                                   Assistant District Attorney
                                                   Montgomery County, Texas


                           CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing instrument was

mailed to counsel for the appellant on the date of the submission of the original to

the Clerk of this Court.


                                                   /s/Jason Larman
                                                   JASON LARMAN
                                                   Assistant District Attorney
                                                   Montgomery County, Texas




                                         7
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  Case # PD-0962-15
   Case Information
   Location                               Court Of Criminal Appeals
   Date Filed                             08/20/2015 03:37:53 PM
   Case Number                            PD-0962-15
   Case Description
   Assigned to Judge
   Attorney                               Jason Larman
   Firm Name                              Montgomery County District Attorney's Office
   Filed By                               Jason Larman
   Filer Type                             Not Applicable
   Fees
   Convenience Fee                        $0.00
   Total Court Case Fees                  $0.00
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   Account Name                           Exempt filings
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   Petition for Discretionary Review
   Filing Type                                            EFileAndServe
   Filing Code                                            Petition for Discretionary Review
   Filing Description                                     State's PDR in State v. Siegel
   Reference Number
   Comments
   Status                                                 Rejected
   Fees
   Court Fee                                              $0.00
   Service Fee                                            $0.00
   Rejection Information
   Rejection Time       Rejection Comment
   Reason
             08/25/2015 The petition for discretionary review does not contain a copy of the court of appeals
   Other     03:48:08 opinion [Rule 68.4(j)]. You have ten days to tender a corrected petition for


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Envelope Details

           PM                    discretionary review.
   Documents
   Lead Document                          siegeljessica.pdr.pdf                                                    [Original]


   eService Details
   Name/Email                 Firm                                 Service Type               Status        Served        Date/Time Opened
   Richard Martin P. Canlas                                                                                               08/20/2015
                                                                   EServe                     Sent          Yes
   r.canlas.esquire@gmail.com                                                                                             03:56:01 PM
   State Prosecuting Attorney                                                                                             08/20/2015
                                                                   EServe                     Sent          Yes
   information@spa.texas.gov                                                                                              04:10:17 PM




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