Affirmed and Opinion filed May 2, 2019.




                                     In The

                    Fourteenth Court of Appeals

                              NO. 14-17-00643-CR

                       OMAR HERNANDEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee

                   On Appeal from the 339th District Court
                           Harris County, Texas
                       Trial Court Cause No. 1519114

                                  OPINION

      Appellant Omar Hernandez appeals his conviction for tampering with a
governmental record, raising challenges to the sufficiency of the evidence and the
trial court’s admission of extraneous bad-acts evidence. We conclude (1) a rational
trier of fact could have found the essential elements of the offense beyond a
reasonable doubt based on the trial evidence and (2) any error in admitting the
challenged evidence was harmless. We affirm.
                    I. FACTUAL AND PROCEDURAL BACKGROUND
        A motorist reported to police that she had been hit by another vehicle whose
driver had abandoned the scene of the accident. The motorist had followed the
fleeing vehicle in an effort to get a license plate number. After getting the plate
number, the motorist called law enforcement.

        Appellant, a police officer, responded to the call along with Officer Viet
Tran. When the officers arrived, they took the motorist’s statement. At trial, the
motorist testified that the police officer called her back after investigating the
license-plate number and told her that the owner had not been driving the vehicle
and that the police would continue investigating. The motorist heard nothing
further from the police.

        Officer Tran testified that on the date of the incident he and appellant did not
conduct an investigation at the address matched to the license-plate number. After
speaking with the motorist, the officers returned to the police station. Before
Officer Tran left work for the day, appellant told him that he would finish the
report. A printout of the offense report, admitted into evidence at trial, indicates
that appellant created the report for the motorist’s complaint (the “Offense
Report”) on the constable’s computer and that appellant entered statements on the
report about the investigation. That information then became available to others at
the precinct, including the officer who would approve the report.

        Internal affairs officers investigated the veracity of statements in the Offense
Report and other evidence of appellant’s on-duty whereabouts. They referred the
matter to the district attorney’s office. The State elected to prosecute appellant for
tampering with a governmental record.

        The superseding indictment on which the case went to trial stated in relevant
part:
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      OMAR HERNANDEZ, hereafter styled the Defendant, heretofore on
      or about MAY 4, 2015, did then and there unlawfully, knowingly
      make a false ENTRY IN a governmental record, namely, HARRIS
      COUNTY CONSTABLE OFFICE PRECINCT 6 OFFENSE
      REPORT NUMBER 15-67660, attached hereto as exhibit A. BY
      STATING THAT ON MAY 4, 2015 HE CONDUCTED AN
      INVESTIGATION AT 4855 W. FUQUA, APT. 2204 AND THE
      ACTIONS OF THE DEFENDANT WERE DONE WITH THE
      INTENT TO DEFRAUD AND HARM ANOTHER.
      Exhibit A to the indictment — a printed copy of a four-page document
entitled “Incident Report Precinct 6, Hiliodoro Martinez” — contained the offense
number “15 – 67660.” The document contains various boxes with descriptive field
identifiers. The boxes include the following entries:

      Field                        Entry
      Supplement No.               “Orig.”
      Report Date                  “05/04/2015”
      Reported Time                “18:22”
      From Date                    “05/04/2015”
      From Time                    “18:22”
      To Date                      “05/04/2015”
      To Time                      “19:00”
      Operator                     “C60357/Hernandez, Oma”
      Entered By                   “C60357”
      Report Officer               “C60357/Hernandez, Oma”
      2nd Operator                 “Tran, Viet”
      Approving Officer            “C60284”
      Approval Date                “05/10/2015”
      Printed at                   “06/05/2015 14:09”
      The third paragraph under the section entitled “Deputies Action” of the
incident report 15-67660 states:

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      Once deputies received an address, deputies then relocated to the
      license plate address. Once deputies arrived at the location of 4855
      W. Fuqua, deputies did not observe a possible vehicle that fit the
      description of the FSGI. Deputies attempted to make contact on Apt.
      2204 at the location, after several attempts were made by knocking on
      the front door, deputies were unable to make contact.


      In his interview with an internal affairs investigator, appellant admitted that
he and Officer Tran had not visited the license-plate number address on May 4,
2015, as the Offense Report states.

      The jury found appellant guilty as charged.          The trial court assessed
punishment at two years’ confinement, suspended the sentence, and placed
appellant on community supervision for two years.

                            II. ISSUES AND ANALYSIS
      On appeal, appellant raises three issues challenging his conviction.

A. Legal Sufficiency of the Evidence

      In his first issue, appellant complains that the evidence is legally insufficient
to support the jury’s finding that the Offense Report in which he allegedly made a
false entry did not amount to a “governmental record” at the time appellant made
the entries. In evaluating a challenge to the sufficiency of the evidence supporting
a criminal conviction, we view the evidence in the light most favorable to the
verdict. Wesbrook v. State, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000). The
issue on appeal is not whether we, as a court, believe the State’s evidence or
believe that appellant’s evidence outweighs the State’s evidence. Wicker v. State,
667 S.W.2d 137, 143 (Tex. Crim. App. 1984). We may not overturn the verdict
unless it is irrational or unsupported by proof beyond a reasonable doubt. Matson
v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991). The jury “is the sole judge

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of the credibility of the witnesses and of the strength of the evidence.” Fuentes v.
State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999). The jury may choose to
believe or disbelieve any portion of the witnesses’ testimony. Sharp v. State, 707
S.W.2d 611, 614 (Tex. Crim. App. 1986). When faced with conflicting evidence,
we presume the jury resolved conflicts in favor of the prevailing party. Turro v.
State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993). Therefore, if any rational trier
of fact could have found the essential elements of the crime beyond a reasonable
doubt, we must affirm. McDuff v. State, 939 S.W.2d 607, 614 (Tex. Crim. App.
1997). We measure sufficiency to support a conviction by comparing the evidence
presented at trial to “the elements of the offense as defined by the hypothetically
correct jury charge for the case.” Hernandez v. State, 556 S.W.3d 308, 312 (Tex.
Crim. App. 2017) (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App.
1997)). A hypothetically correct jury charge “is one that accurately sets out the
law, is authorized by the indictment, does not unnecessarily increase the State’s
burden of proof or unnecessarily restrict the State’s theories of liability, and
adequately describes the particular offense for which the defendant was tried.” Id.

      A person commits the offense of tampering with a governmental record if
the person knowingly makes a false entry in, or false alteration of, a governmental
record. Tex. Pen. Code Ann. §37.10(a)(1) (West, Westlaw through 2017 1st C.S.).
Under the Penal Code, the term “governmental record” means . . . anything
belonging to, received by, or kept by government for information, including a court
record.” Tex. Pen. Code Ann. §37.01(2)(A) (West, Westlaw through 2017 1st
C.S.). With exceptions not applicable to this case, the offense of tampering with a
governmental record is a state jail felony if “the actor’s intent is to defraud or harm
another.” Tex. Pen. Code Ann. §37.10(c)(1).

      In a hypothetically-correct charge the trial court would instruct the jury to

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find the defendant guilty of tampering with a governmental record only if the jury,
considering the evidence, finds beyond a reasonable doubt that on or about May 4,
2015, in Harris County, Texas, appellant knowingly made a false entry in a
governmental record with intent to defraud or harm another.              And, in the
hypothetically correct charge, the trial court would instruct the jury on the statutory
definition of “governmental record.”

        1. Made an entry in a “governmental record”

        To determine whether the Offense Report, a document in electronic form
on the criminal justice database, falls within the statutory definition of
“governmental record,” we look to the text of the statute: “anything belonging to,
received by, or kept by government for information, including a court record.”
Tex. Penal Code Ann. § 37.01(2)(A). The statute contains broad terms. That
suggests the statute casts a wide net. Our task is to determine if the Offense Report
falls within the scope of “governmental record.”

      If a statute’s language is unambiguous, we are to interpret the statute in
accordance with the plain meaning of the language, unless doing so would lead to
absurd results that the Legislature could not possibly have intended. Sanchez v.
State, 995 S.W.2d 677, 683 (Tex. Crim. App. 1999); Wagner v. State, 539 S.W.3d
298, 306 (Tex. Crim. App. 2018). In determining plain meaning, we must read
words and phrases in context and construe them according to the rules of grammar
and usage. Sanchez v. State, 995 S.W.2d at 683. We presume that every word has
been used for a purpose and that each word, phrase, clause, and sentence should be
given effect if it is reasonably possible to do so. Arteaga v. State, 521 S.W.3d 329,
334 (Tex. Crim. App. 2017).

      The plain, unambiguous text of section 37.01(2)(A) includes “anything
belonging to, received by, or kept by government for information.”                The
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Thirteenth Court of Appeals has found that documents created by a government
officer may exist at the time they are created as governmental records immediately
susceptible to a false entry. Lewis v. State, 773 S.W.2d 689, 692 (Tex. App.—
Corpus Christi 1989, pet. ref’d) (stating that “[a]ppellant’s act of making the entire
warrant a government record constituted an act of making the false portion of the
warrant a false entry in a government record. Appellant’s actions constituted a
single, simultaneous transaction wherein he both created a government record and
inserted a false entry in the record. . .”); see also Chambers v. State, 523 S.W.3d
681, 686 (Tex. App.—Corpus Christi 2017, pet. granted) (finding that firearms
qualification forms kept by police department were governmental records at the
time false information was entered on them).

      Appellant asks us to construe “governmental record” to exclude the Offense
Report, a draft document in electronic form on the criminal justice system
database. Appellant points to the absence of evidence showing that the record had
been filed or “received by” the government. He relies heavily on a line of cases
holding that private individuals making false statements on documents later
submitted or filed with a state governmental unit did not violate section 37.10(a)(1)
(for making a false entry or alteration of a governmental record) because at the
time the false entry was made the government had not yet received the document.
See State v. Vasilas, 187 S.W.3d 486, 491 (Tex. Crim. App. 2006) (finding that a
petition for expunction was not a governmental record when the defendant
prepared it, but that for purposes of section 37.10(a)(5) it became one once the
court received it and he used it in seeking to obtain the expunction); Constructors
Unlimited, Inc., v. State, 717 S.W.2d 169, 174 (Tex. App.—Houston [1st Dist.]
[1st Dist.] 1986, no pet.)(holding that pleading containing false statements did not
become a government record until it was filed); Pokladnik v. State, 876 S.W.2d


                                          7
525, 527 (Tex. App.—Dallas 1984, no pet.) (holding false statement on affidavit
for foreclosure under statutory storage mechanics lien submitted on State
Department of Highways and Public Transportation form was not a governmental
record until filed with the Department of Public Safety). These cases involve
entries made by non-governmental actors on documents not owned by or in the
custody of a governmental agency. The courts deciding them all relied on the
“received by” component of the definition. These cases have no application to
today’s case, which involves something generated by a government employee on
government property as part of the actor’s regular governmental duties.

      “Government” includes the Harris County Constable’s Office. Tex. Penal
Code Ann. § 1.07(24). The only authority appellant cites that arguably might
support the proposition that the Offense Report is not a governmental record is a
civil Whistleblower case. In that case, Connally v. Dallas Indep. Sch. Dist., 506
S.W.3d 767, 786 (Tex. App.—El Paso 2016, no pet.), the Eighth Court of Appeals
evaluated whether the civil plaintiff, a school district employee, had made a good
faith report of a criminal wrongdoing that led to the employee’s termination. The
Connally court appears to have analyzed the issue under the “received by” clause
of the statutory definition. Id. The Connally court suggested that the University
Interscholastic League (UIL) forms were not governmental records at the time the
employee entered false information on them because they had not yet been filed
with the school district, a statement that amounts to an obiter dictum — not
essential to the court’s holding and not binding even in that court, because the
court found that the reported conduct showed a criminal offense under section
37.10(a)(5). See id. (“[W]e agree with Connally that merely because the residency
forms had not yet been filed with the district before they were allegedly falsified or
altered by DISD [school district] personnel does not prevent them from being


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considered governmental records under subsections (a)(5).”)

      The copy of the Offense Report provides some evidence upon which the jury
reasonably could have relied to discern identifying information showing that
appellant created the report on the Constable’s criminal justice database from
which the printout came. Officer Tran testified that appellant told him he intended
to write the Offense Report on the day the report was made. According to Officer
Tran, the Offense Report bore the indicia that appellant had written the report on
the precinct’s computer system, property which the jury reasonably could have
inferred belonged to and was kept by appellant’s government employer for
information.

      We conclude that the trial evidence would allow a rational trier of fact to
find beyond a reasonable doubt that the Offense Report was a governmental record
when appellant made the false entry in it. See Chambers, 523 S.W.3d at 686.
Moreover, even under the “received by” line of authority upon which appellant
relies, the result would be the same because the evidence shows that appellant, a
government official, made the questioned entry on an electronic record after
generating a case number for that electronic record on his government employer’s
criminal justice database and that he did so in the course of his regular duties. See
Lewis, 773 S.W.2d at 692.

      2. Knowingly made a false entry

      The third paragraph of the Offense Report, under the section entitled
“Deputies Action” quoted above, recites what the deputies did upon arrival at the
license-plate address. In appellant’s videotaped interview with an internal-affairs
investigator, consistent with Officer Tran’s testimony, appellant admitted that these
actions did not occur.    Additionally, Officer Tran testified that he rode with
appellant at the time of the service call and returned to the station with appellant
                                         9
after the call. According to Officer Tran, he and appellant did not follow up by
visiting the address that matched the license plate number that day. The trial
evidence would allow a rational trier of fact to find beyond a reasonable doubt that
appellant knowingly made a false entry in the Offense Report.

      3. Intent to defraud or harm another

      The evidence of intent to defraud or harm another is not disputed on appeal.
To establish intent to defraud, the State presented evidence of other dates on which
appellant was at home or not performing his job duties even though he was on
duty, thereby defrauding his employer. The jury also could have discerned this
intent from the Offense Report printout, which indicates that appellant submitted
the report in a way that made it available, at a minimum, for the immediate use and
review of the approving officer, whose badge number is noted on the printout and
who approved the report several days after appellant’s entry.

      We conclude that the trial evidence would allow a rational trier of fact to
find the essential elements of the charged offense beyond a reasonable doubt.
Accordingly, we overrule appellant’s first issue.

B. Notice of Extraneous Bad Acts

      In his second issue, appellant complains that the trial court erred in allowing
the State to introduce evidence of appellant’s on-duty whereabouts on another date
without first giving proper notice. Specifically, appellant complains that the trial
court should not have let the State introduce evidence of appellant lying about
being on duty on May 17, 2015, because the State failed to give notice of its intent
to introduce evidence of that act.

      Under Texas Rule of Evidence 404(b)(2), “[o]n timely request by a
defendant in a criminal case, the prosecutor must provide reasonable notice before

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trial that the prosecution intends to introduce such evidence--other than that arising
in the same transaction--in its case-in-chief.” Tex. R. Evid. 404(b)(2). Presuming,
without deciding, that the trial court erred in admitting the challenged evidence of
an extraneous bad act in violation of Rule 404(b), we consider whether appellant
suffered harm by the failure to provide reasonable notice.

      At trial, the State introduced extraneous evidence to show appellant was
somewhere other than where he reported to be on May 17, 2015. The evidence
included testimony of the internal affairs officer describing surveillance of
appellant via tracking the location of appellant’s patrol vehicle. When the internal
affairs officer found that appellant’s patrol car was parked at appellant’s residence,
the internal affairs officer coordinated with dispatch to contact appellant and
request his location. The internal affairs officer testified that appellant stated that
he was on duty at one of the housing projects appellant was assigned to patrol. The
internal affairs officer’s testimony was supported by reference to an exhibit
showing appellant’s GPS-tracking location for that date.

      Over a year before trial the State filed a notice of its intention to use
evidence of appellant’s whereabouts during the nights of the Houston Rockets
basketball team playoff games during the 2015 playoff season, and, in fact, the
Rockets were in a playoff game on May 17, 2015 (the “May 17 Incident”). But,
the State’s notice also specified the evidence would show that on the nights
appellant was visiting a hotel near downtown Houston to watch the games on
television, not that appellant was at his home.

      The trial court held a hearing on appellant’s motion in limine in which
appellant sought to exclude of the May 17 Incident. The State raised the issue of
presenting GPS data for May 17, 2015, and other dates for the purpose of showing
appellant’s intent to defraud. Appellant’s trial counsel acknowledged the evidence

                                          11
but argued for its exclusion on the basis that it was not relevant under Rule 404(b)
for that purpose.

      The State represented to the trial court that it had tendered the GPS records
for the May 17 Incident and for other incidents on other dates. Appellant’s trial
counsel did not dispute that the defense had actual knowledge of the allegation
pertaining to the May 17 Incident raised under Rule 404(b) and instead focused on
objections to the rule’s substantive requirements. See Hayden v. State, 66 S.W.3d
269, 273 (Tex. Crim. App. 2001). Appellant’s trial counsel did not request a
continuance on the basis of the extraneous bad-act evidence nor did appellant show
how the allegedly deficient notice lacked the requisite information to allow
appellant to mount an effective defense. See Pena v. State, 554 S.W.3d 242, 250
(Tex. App.—Houston [14th Dist.] 2018, pet. ref'd).           We overrule appellant’s
second issue.

C. Alleged Misstatements by the State in Arguing Evidentiary Points

      Appellant asserts in his third issue that the State improperly urged the trial
court to admit the challenged evidence of an extraneous bad act despite the lack of
notice by arguing that any error would be deemed harmless on appeal. He presents
the question: “what appellate relief should be granted to a losing defendant when
the State affirmatively misstated case law to the trial court and essentially told the
court that any error would be found harmless?”

      The State raised several arguments in the trial court in response to
appellant’s contention that the State had violated Rule 404(b)’s notice requirement.
In the course of referring the trial court to cases on the subject, the State pointed to
a passage from Hernandez v. State, 176 S.W.3d 821 (Tex. Crim. App. 2005), and
paraphrased the factors courts consider in a harm analysis. But, appellant does not
cite to any place in the record (and we have found none) where the prosecutor
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asked the trial court to admit the extraneous bad-act evidence despite the lack of
notice on the basis that any error in doing so would be held harmless. We overrule
appellant’s third issue.

      Having overruled all of appellant’s issues, we affirm the trial court’s
judgment.




                                     /s/     Kem Thompson Frost
                                             Chief Justice

Panel consists of Chief Justice Frost and Justices Zimmerer and Hassan.
Publish — TEX. R. APP. P. 47.2(b).




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