           IN THE COURT OF CRIMINAL APPEALS
                       OF TEXAS
                                     NO. PD-0501-14

                      DAMIEN HERNANDEZ CORTEZ, Appellant

                                             v.

                                 THE STATE OF TEXAS


           ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
                  FROM THE SEVENTH COURT OF APPEALS
                            POTTER COUNTY

      R ICHARDSON, J., filed a concurring opinion in which K ELLER, P.J., and J OHNSON
and H ERVEY, J.J., joined.


                          CONCURRING OPINION

       I concur in the Court’s analysis of the issue presented for our review and therefore

join in the majority’s opinion affirming the judgment of the court of appeals. I write

separately only to highlight what I perceive to be errors in the jury charge that, under a

different set of facts, might have resulted in egregious harm to appellant. The jury charge

omitted key wording (“an item of”) from its statutory definition of the offense of Fraudulent

Use or Possession of Identifying Information. But more importantly, the jury charge
                                                                      Cortez concurring opinion — 2


inaccurately defined the term, “identifying information,” in sentence form instead of in list

form as set out in the statute. Nevertheless, as explained herein, because I do not believe that

these charge errors resulted in egregious harm to appellant,1 I concur in the decision to affirm

the judgment of the court of appeals.

       A trial court must give the jury a written charge that sets forth the law applicable to

the case.2 A charge sets forth the law applicable to the case by tracking the language of the

statute.3 The version of Texas Penal Code Section 32.51(b)(1) in effect at the time of the

offense defined the offense of Fraudulent Use or Possession of Identifying Information as

follows:

       A person commits an offense if the person, with the intent to harm or defraud
       another, obtains, possesses, transfers, or uses an item of: (1) identifying
       information of another person without the other person’s consent.4

According to Section 32.51(c), the range of punishment for this offense is dictated by the

“number of items obtained, possessed, transferred, or used.”5 In this case, the Charge of the




       1
         There were no objections by the defense to the Charge of the Court. Unless there is a timely
objection, error in the jury charge will not require reversal of the conviction without a showing of
egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g).
       2
           T EX. C ODE. C RIM. P ROC. A NN. art. 36.14 (West 2011).
       3
           Casey v. State, 215 S.W.3d 870, 887 (Tex. Crim. App. 2007).
       4
           T EX. P ENAL C ODE A NN. § 32.51(b)(1) (West 2011) (emphasis added).
       5
           T EX. P ENAL C ODE A NN. § 32.51(c)(1)-(4) (West 2011).
                                                                    Cortez concurring opinion — 3


Court omitted the phrase “an item of” from its definition of the offense:6

       Our law provides that a person commits an offense if the person possesses
       identifying information of another person without the other person’s consent
       and with intent to harm or defraud another.

       The version of Texas Penal Code Section 32.51(a)(1) in effect at the time of the

offense defined “identifying information” as follows:

       (1)       “Identifying information” means information that alone or in
                 conjunction with other information identifies a person, including a
                 person’s:

                 (A) name and social security number, date of birth, or government-
                 issued identification number;

                 (B) unique biometric data, including the person’s fingerprint, voice
                 print, or retina or iris image;

                 (C) unique electronic identification number, address, routing code, or
                 financial institution account number;

                 (D) telecommunication identifying information or access device.7

The Charge of the Court, however, defined the term, “identifying information,” in sentence

form, as follows:



       6
         The jury charge’s omission of the words “obtains,” “transfers,” and “uses” from the statutory
definition of the offense was not erroneous. Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App.
2011) (“[W]hen the statute defines alternative methods of manner and means of committing an element
and the indictment alleges only one of those methods, ‘the law’ for purposes of the hypothetically
correct charge is the single method alleged in the indictment.”) (quoting Gollihar v. State, 46 S.W.3d
243, 254 (Tex. Crim. App. 2001)).
       7
           T EX. P ENAL C ODE A NN. § 32.51(a)(1)(A)-(D) (West 2011).
                                                                      Cortez concurring opinion — 4


       “Identifying information” means information that alone or in conjunction with other
       information identifies a person, including a person’s name, address, date of birth,
       financial institution, account number, routing code, unique electronic identification
       number, government-issued identification number, telecommunication identifying
       information or access device.

       The application paragraph in the jury charge essentially tracked the language of the

indictment (as amended), charging fraudulent possession of identifying information

belonging to five people in the amount of ten or more but less than fifty items.8 The jury

charge also included a lesser-included offense of possession of identifying information in the

amount of five or more but less than ten items, and a lesser-included offense of possession



       8
           The application paragraph reads as follows:

                 Now, if you find from the evidence beyond a reasonable doubt that on or about
                 the 25th day of November, 2010, in Potter County, Texas, the defendant,
                 Damien Hernandez Cortez, did then and there, without the consent and with
                 intent to harm and defraud another, possess the identifying information of
                 Linda Archer, to wit: name, address, date of birth, social security number,
                 possess the identifying information of Nancy Rantala, to wit: name, address,
                 government issued driver license number, date of birth, routing code, 3
                 financial institution account numbers, possess the identifying information of
                 Debra Redding, to wit: name, address, government issued driver license
                 number, routing code, financial institution account number, possess the
                 identifying information of Joe Gayle, to wit: name, address, government issued
                 driver license number, date of birth, social security number, unique electronic
                 identification number, 5 financial institution account numbers, possess the
                 identifying information of Nena Shook, to wit: name, address, government
                 issued driver license number, routing code, financial institution account
                 number, and the number of items of identifying information possessed was
                 more than ten but less than fifty, then you will find the defendant guilty as
                 charged. Unless you so find from the evidence beyond a reasonable doubt, or
                 if you have a reasonable doubt thereof, or if you are unable to agree, you will
                 next consider whether the defendant is guilty of Fraudulent Use of Possession
                 of Identifying Information five of [sic] more but less than 10, lesser offense.
                                                                      Cortez concurring opinion — 5


of identifying information in the amount of less than five items. Because the indictment

omitted the phrase, “an item of,” before the first use of the term “identifying information,” 9

the three application paragraphs likewise omitted that phrase.

        Nevertheless, these errors did not cause appellant egregious harm.10 Appellant’s

fingerprints were on three of several documents found in a backpack in the bed of a truck in

which appellant was a passenger. Of those three documents, two contained identifying

information of complainant, Linda Archer, and the third contained identifying information

of complainant, Nena Shook.           The indictment charged appellant with possessing the

following identifying information of Linda Archer: (1) name, (2) address, (3) date of birth,

and (4) Social Security number. The indictment charged appellant with possessing the

following identifying information of Nena Shook: (5) name, (6) address, (7) government

issued driver’s license number, (8) routing code, and (9) financial institution account number.

        Appellant was found guilty by the jury of possessing five or more but less than ten

items of identifying information. The appellate court found that since there were nine items


       9
         What the pertinent language of the indictment should have said was, “. . . on or about the 25 th
day of November, 2010, in Potter County, Texas, the defendant, Damien Hernandez Cortez, did then
and there, with the intent to harm and defraud another, possess an item of identifying information of
Linda Archer, without the consent of Linda Archer, to wit: . . , [etc.]” However, the court of appeals
found that the phrase in the application paragraph identifying the level of offense—depending upon
how many items of identifying information were possessed by appellant—sufficiently explained the
significance of distinguishing the separate “items of” identifying information (“. . . and the number of
items of identifying information possessed was more than ten but less than fifty. . .”).
       10
          Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007) (holding that jury-charge error
is egregiously harmful if “it affects the very basis of the case, deprives the defendant of a valuable
right, or vitally affects a defensive theory.”)
                                                                     Cortez concurring opinion — 6


of identifying information pertaining to these two complainants,11 appellant “was not

convicted of possessing identifying information upon which his fingerprints did not

appear.”12 This suggests that the appellate court followed the jury charge’s definition of

“identifying information” (in sentence form) and counted the complainant’s name as one item

of identifying information. Such charge error could have resulted in egregious harm had

appellant been convicted of possessing a number of items within a higher range of

punishment. But, in this case, he was not. Even if the charge had correctly defined the term

“identifying information” in list form, the evidence supported a finding that appellant

possessed seven items of identifying information pertaining to these two complainants: (1)

Linda Archer’s name and date of birth, (2) Linda Archer’s name and address, (3) Linda

Archer’s name and Social Security number, (4) Nena Shook’s name and address, (5) Nena

Shook’s name and government-issued driver’s license number, (6) Nena Shook’s name and

bank routing code, and (7) Nena Shook’s name and financial institution account number.13

       Under the facts of this particular case, the charge errors did not affect the very basis

of the case, or deprive the defendant of a valuable right, or vitally affect a defensive theory,



       11
            Id. at 343.
       12
            Cortez v. State, 428 S.W.3d 338, 342 (Tex. App.–Amarillo 2014).
       13
           The statutory definition (in list form) does not contemplate that a person’s name, alone, is
an item of “identifying information.” This makes sense. As the majority opinion points out, simply
possessing a name, without more, is not enough to “identif[y] a person,” but having a name paired with
a social security number, or a date of birth, or a government-issued identification number, as was done
in Section 32.51(a)(1)(A), would be enough to qualify as an “item” of “identifying information.”
                                                                    Cortez concurring opinion — 7


and thus did not result in egregious harm. Nevertheless, this case illustrates why it is critical

to define terms in the jury charge exactly the way that they are set out in the statute.14 The

charge’s definition of “identifying information” in sentence form left room for

misinterpretation that could have altered the range of punishment under a different set of

facts.

         With these additional comments, I join in this Court’s decision to affirm the appellate

court’s judgment.




FILED: June 17, 2015
PUBLISH




         14
          As noted herein, the only exception to this rule is when the definition includes alternative
methods of manner and means that are not pertinent to the indicted offense. In such case, it is
appropriate to tailor the definition provided in the jury charge to coincide with the offense as it is
indicted. Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011).
