Opinion issued April 2, 2019




                                      In The

                               Court of Appeals
                                      For The

                         First District of Texas
                            ————————————
                               NO. 01-18-00123-CR
                           ———————————
                  JUSTO ARMANDO JIMINEZ, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Case No. 1471970


                         MEMORANDUM OPINION

      After appellant, Justo Armando Jiminez, with an agreed punishment

recommendation from the State, pleaded guilty to the felony offense of theft,1 the

trial court deferred adjudication of his guilt and placed him on community


1
      TEX. PENAL CODE ANN. § 31.03.
supervision for five years.       The State, alleging numerous violations of the

conditions of appellant’s community supervision, subsequently moved to

adjudicate his guilt. After a hearing, the trial court found true the State’s allegation

that appellant violated Texas Penal Code section 32.512 in violation of a condition

of his community supervision prohibiting a “NEW LAW VIOLATION,” found

appellant guilty, and assessed his punishment at confinement for two years. In two

issues, appellant contends that the trial court erred in adjudicating his guilt based

on a new law violation because Texas Penal Code section 32.53 violates his First

Amendment rights and that the trial court’s judgment should be reformed to

accurately reflect that appellant pleaded “not true” to the allegations in the State’s

motion to adjudicate his guilt.

      We modify the trial court’s judgment and affirm as modified.

                                     Background

       On February 9, 2016, the trial court placed appellant on community

supervision, subject to certain conditions. On March 27, 2017, the State filed a

motion to adjudicate guilt, asserting that appellant had violated numerous

conditions of his community supervision, including the condition that he

“[c]ommit no offense against the laws of this or any other State of the United

States.”

2
      See TEX. PENAL CODE ANN. § 32.51.
3
      See id.
                                           2
      At the hearing on the State’s motion to adjudicate guilt, appellant pleaded

“not true” to the allegations in the State’s motion.

      Andrea Cruz, appellant’s ex-girlfriend, testified that, in November 2016, she

gave appellant permission to use her name and information to obtain a lease for an

apartment. They were no longer in a romantic relationship at the time. Appellant

asked Cruz for her help because they had a “close connection,” and he knew that

she did not “have any broken leases or [a] bad record.” However, according to

Cruz, she never agreed to assist him financially. Cruz provided appellant with her

full name, telephone number, date of birth, social security number, home address,

and driver’s license number (her “identifying information”). She did not have any

concerns with providing her identifying information to appellant because she

“trusted him” and viewed him as a “hardworking man,” who had “a good job” and

was “responsible with his bills.”

      Several weeks after she provided her identifying information to appellant,

Cruz received a letter in the mail from Speedy Cash regarding an account for a

direct loan that was opened in her name. The loan was in the amount of $600.

Cruz further testified that she did not open, or authorize anyone to open, the

account. Upon request, Speedy Cash provided her with information associated

with the account, which included her name and address, the name of the bank that

received the $600 loan money, and appellant’s cellular telephone number. She


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further testified that she did not have an account with the bank to which Speedy

Cash had transferred the loan money. Upon obtaining this information, Cruz filed

a report with the Galena Park Police Department (“GPPD”) “about the identity

fraud” and “loan that was taken out” at Speedy Cash in her name without her

authorization.

      Cruz later confronted appellant, who denied having any knowledge about the

account with Speedy Cash. However, he called her the following day and told her

that he “figured out” who “did the fraud.” Appellant told Cruz that a woman in the

management office of his apartment complex must have committed the fraud

because he had given her Cruz’s information when leasing his apartment. He also

told her that he discovered that this woman had “do[ne] this fraud to several other

people, including himself.”

      GPPD Detective Monica Rollier testified that she was assigned to

investigate Cruz’s report of “a fraudulent use” of her “identifying information” in a

“Speedy Cash loan application” for $600. Rollier reviewed the loan application

with Cruz, who advised Rollier that the bank account, telephone number, and place

of employment listed on the application did not belong to her. Further, Cruz was

able to identify the telephone number and place of employment as being associated

with appellant—her ex-boyfriend.




                                         4
      Detective Rollier obtained the records of the bank account listed on the

Speedy Loan application by subpoena through the district attorney’s office and

ultimately determined that the account belonged to appellant. She further testified

that she called the number listed on the Speedy Cash loan application, but never

spoke with anyone. She could not recall if the voicemail greeting associated with

the telephone number identified it as belonging to appellant. However, Cruz

identified the telephone number as belonging to appellant.

      Appellant testified that, in November 2016, Cruz was forced to move out of

her parents’ house. She asked appellant to borrow money to “get her own place.”

Although he did not loan her money, appellant helped her apply for a loan with

Speedy Cash.     Appellant and Cruz applied for the loan online together, but

appellant testified that the purpose of the loan was to assist Cruz in paying for “her

car and her rent.” At the time, Cruz did not have a bank account, so appellant

agreed to have the loan money sent to his personal bank account. Upon receiving

the loan money, appellant withdrew the amount in cash and gave the cash to Cruz.

Appellant testified that he did not “sign onto the loan” with Cruz, but “allow[ed]

her to use [his] bank to send the money if she was approved for the loan.”

      Appellant testified that he and Cruz were still in a romantic relationship at

the time that she obtained the loan. However, shortly after that time, appellant

ended their relationship. He testified that Cruz was very upset about the breakup.


                                          5
And a week after the breakup, he learned that there was a “a warrant out for [his]

arrest” relating to alleged identity theft in regard to the loan.

      After the hearing, the trial court found “true” the State’s allegation that

appellant had violated the condition of his community supervision requiring him to

“NOT COMMIT ANY NEW LAW VIOLATION AGAINST THIS STATE OR

ANY OTHER STATE,” found him guilty, and assessed his punishment at

confinement for two years.

                                 Standard of Review

      Appellate review of an order adjudicating guilt is limited to determining

whether the trial court abused its discretion. TEX. CODE CRIM. PROC. ANN. art.

42A.108(b) (“The determination [to adjudicate guilt] . . . is reviewable in the same

manner as a [community-service] revocation hearing . . . in which the adjudication

of guilt was not deferred.”); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

App. 2006). The trial court’s decision must be supported by a preponderance of

the evidence. Rickels, 202 S.W.3d at 763–64. The evidence meets this standard

when the greater weight of the credible evidence creates a reasonable belief that a

defendant has violated a condition of his community supervision. Id. at 764. We

examine the evidence in the light most favorable to the trial court’s order. Garrett

v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Jones v. State, 787 S.W.2d

96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). As the sole trier of fact, a


                                            6
trial court determines the credibility of witnesses and the weight to be given to

their testimony. See Garrett, 619 S.W.2d at 174; Jones, 787 S.W.2d at 97.

              Constitutionality of Texas Penal Code Section 32.51

      In his first issue, appellant argues that the trial court erred in adjudicating his

guilt based on a finding that he violated Texas Penal Code section 32.51 of the

Texas Penal Code, entitled “Fraudulent Use or Possession of Identifying

Information,” because that statute “[t]rigger[s] First Amendment [p]rotections.”

See TEX. PENAL CODE ANN. § 32.51.

      We review the constitutionality of a criminal statute de novo as a question of

law. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When presented

with a challenge to the constitutionality of a statute, we usually presume that the

statute is valid and the legislature has not acted unreasonably or arbitrarily. Id. at

14–15; Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). Therefore,

the party challenging the statute normally carries the burden to establish its

unconstitutionality. Ex parte Lo, 424 S.W.3d at 15. However, when a criminal

law restricts speech based upon content, the usual presumption of validity is

reversed, and the government must rebut the presumption that a content-based

restriction is invalid. Id.; Williams v. State, 499 S.W.3d 498, 500 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d). A regulation is content-based if one must




                                           7
consider the content of the speech to determine if the speaker violated the law.

Williams, 499 S.W.3d at 500 (citing Ex parte Lo, 424 S.W.3d at 15 n.12).

      While a general facial challenge requires the challenger to show that the

statute is unconstitutional in all applications, under the First Amendment’s

“overbreadth” doctrine, a law may be unconstitutional on its face even if it might

have some legitimate applications. State v. Johnson, 475 S.W.3d 860, 864–65

(Tex. Crim. App. 2015); Williams, 499 S.W.3d at 500. However, the overbreadth

doctrine is used “sparingly and only as a last result.” Johnson, 475 S.W.3d at 865

(internal quotations omitted).   The overbreadth of a statute must prohibit a

substantial amount of protected expression relative to the statute’s plainly

legitimate sweep. Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016).

And the danger that the statute will be unconstitutionally applied must be

“realistic” and “not based on fanciful hypotheticals.” Williams, 499 S.W.3d at 500.

“Moreover, the overbreadth doctrine is concerned with preventing the chilling of

protected speech and that concern attenuates as the otherwise unprotected behavior

that it forbids the State to sanction moves from pure speech toward conduct.”

Johnson, 475 S.W.3d at 865 (internal quotations omitted). “Rarely, if ever, will an

overbreadth challenge succeed against a law or regulation that is not specifically

addressed to speech or to conduct that is necessarily associated with speech (such

as picketing or demonstrating).” Id.


                                        8
      Appellant argues that Texas Penal Code section 32.51 is an overbroad,

content-based restriction on speech and, thus, violates the First Amendment.

Specifically,   appellant   argues   that       section   32.51   “explicitly   regulates

non-fraudulent expression based on content because it restricts the ‘obtaining,’

‘possession,’ or ‘use,’ i.e., the communication, of ‘identifying information.’”

However, he concedes that his claim is “foreclosed” by this Court’s precedent and

acknowledges that he is raising this issue “for purposes of preservation.” Indeed,

this Court has twice rejected the same arguments concerning Texas Penal Code

section 32.51. See Williams, 499 S.W.3d at 502; Horhn v. State, 481 S.W.3d 363

(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). And the doctrine of stare decisis

creates a strong presumption that precedents should be followed to foster

“efficiency, fairness, and legitimacy.” Grapevine Excavation, Inc. v. Md. Lloyds,

35 S.W.3d 1, 5 (Tex. 2000). It has its greatest force in matters of statutory

interpretation because the Legislature can rectify a mistaken judicial interpretation,

and if it does not do so, there is little reason for courts to reconsider a prior

statutory construction. Sw. Bell Tel. Co. v. Mitchell, 276 S.W.3d 443, 447 (Tex.

2008). Consequently, we follow Horhn and Williams.

A.    Texas Penal Code section 32.51

      The first step in an overbreadth analysis is to construe the challenged statute.

Johnson, 475 S.W.3d at 871. Section 32.51 provides as follows:


                                            9
      (b)   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;

            (2)    information concerning a deceased natural person,
                   including a stillborn infant or fetus, that would be
                   identifying information of that person were that person
                   alive, if the item of information is obtained, possessed,
                   transferred, or used without legal authorization; or

            (3)    identifying information of a child younger than 18 years
                   of age.

      (b-1) For the purposes of Subsection (b), the actor is presumed to
            have the intent to harm or defraud another if the actor
            possesses:

             (1)   the identifying information of three or more other
                   persons;

             (2)   information described by Subsection (b)(2) concerning
                   three or more deceased persons; or

             (3)   information described by Subdivision (1) or (2)
                   concerning three or more persons or deceased persons.

TEX. PENAL CODE ANN. § 32.51(b), (b-1). “Identifying information” is defined as

“information that alone or in conjunction with other information” that identifies a

person, including “name and date of birth,” “unique biometric data, including the

person’s fingerprint, voice print, or retina or iris image,” “unique electronic

identification number, address, routing code, or financial institution account

number,” “telecommunication identifying information or access device,” and
                                        10
“social security number or other government-issued identification number.” Id. at

§ 32.51(a)(1). And the Texas Penal Code defines “harm” as “anything reasonably

regarded as loss, disadvantage, or injury, including harm to another person in

whose welfare the person affected is interested.” Id. at § 1.07(a)(25).

B.    Section 32.51(b) does not implicate the First Amendment and is not
      unconstitutional as decided in Horhn and Williams

      In Horhn, this Court held that Texas Penal Code section 32.51(b) does not

implicate the free speech guarantees of the First Amendment.4 Horhn, 481 S.W.3d

at 376.      We explored the difference between expressive conduct and

non-communicative conduct. Id. While expressive conduct implicates the First

Amendment, non-communicative conduct does not. Id. at 373. Here, we are

concerned with how the conduct prohibited in section 32.51(b) fits into this

framework.

      The prohibited conduct can be divided into conduct intended to

communicate and conduct intended to harm or harass.             Conduct intended to

communicate implicates the First Amendment protections if it is: (1) “inherently

expressive,” such as parades and works of visual or literary art or (2) it is not


4
      The First Amendment to the United States Constitution provides that “Congress
      shall make no law . . . abridging the freedom of speech.” U.S. CONST., amend. I.
      It “generally protects the free communication and receipt of ideas, opinions, and
      information.” Scott v. State, 322 S.W.3d 662, 668 (Tex. Crim. App. 2010),
      abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App.
      2014).
                                         11
inherently expressive, but is intended to convey a “particularized message” and the

message would likely be understood by those who viewed it. Horhn, 481 S.W.3d

at 373 (citing Ex parte Thompson, 442 S.W.3d 325, 334 (Tex. Crim. App. 2014)).

“In other words, prohibited conduct implicates the First Amendment if the statute

proscribes conduct intended to communicate an understandable message.”

Williams, 499 S.W.3d at 501. Conversely, if conduct is intended to “harm or

harass, then the statute focuses on the non-communicative part of the interaction,

or the manner of communication, even if the conduct includes spoken words.” Id.

      In Hornh, this Court held that section 32.51 criminalized conduct that was

“essentially non-communicative” and, therefore, did not criminalize protected

speech on its face. 481 S.W.3d at 375–76. Further, to the extent that section 32.51

could be applied to communicative conduct, we determined that “it is susceptible

of such application only when that communicative conduct . . . invades the

substantial privacy interest of another . . . in an essentially intolerable manner by

using his identifying information without his permission and with the intent to

defraud or harm him.” Id. (citing Scott, 322 S.W.3d at 669–70). This Court again

affirmed this holding in Williams. See 499 S.W.3d at 501–02. And it has been

followed by our sister court in Ex parte Harrington, 499 S.W.3d 142, 147 (Tex.

App.—Houston [14th Dist.] 2016, pet. ref’d).




                                         12
      Appellant argues that we should overrule this Court’s precedent because the

statute is “clearly so broad, it criminalizes legitimate communication under the

guise of preventing fraud.” He asserts that the statute criminalizes obtaining,

possessing, transferring, or using information “that is not especially private,

including ‘name and date of birth.’” But the statute’s reach cannot be considered

without the limitations imposed by the requisite intent to “harm or defraud

another.” See TEX. PENAL CODE ANN. § 32.51(b). And the Court of Criminal

Appeals has explained that the statute’s “plain language . . . demonstrates” that its

purpose is to “prevent identity theft.” Jones v. State, 396 S.W.3d 558, 562 (Tex.

Crim. App. 2013).

      Appellant asserts that his argument is not foreclosed by the intent

requirement of “harm or defraud” because this Court has not specifically addressed

that the “sweeping breadth” of the term “harm” reaches “well beyond any

conceivable criminal act predicated on a falsehood.” The definition of “harm” in

the Texas Penal Code is “anything reasonably regarded as loss, disadvantage, or

injury, including harm to another person in whose welfare the person affected is

interested.” See TEX. PENAL CODE ANN. § 1.07(a)(25). Taken out of context, the

word “disadvantage” could be susceptible to multiple and wide-ranging meanings.

But section 32.51 criminalizes actions taken with intent to harm or defraud. And

the statute, entitled “Fraudulent Use or Possession of Identifying Information,” is


                                         13
located in the Texas Penal Code’s chapter addressing fraud. Therefore, taken in

context, the meaning of the word “harm” is “narrowed by the commonsense canon

of noscitur a scociis—which counsels that a word is given more precise content by

the neighboring words with which it is associated.” U.S. v. Williams, 553 U.S.

285, 294 (2008) (explaining that use of the term “promotes” in “a list that includes

‘solicits,’ ‘distributes,’ and ‘advertises,’ is most sensibly read to mean the act of

recommending purported child pornography to another person for his

acquisition”). The term “harm,” thus, is most sensibly read to prevent criminal

acts predicated on falsehood or fraud and does not embrace situations well beyond

that scope, as suggested by appellant.5              See TEX. PENAL CODE ANN.

§ 32.51(b); SMI Realty Mgmt. Corp. v. Underwriters at Lloyd’s London, 179

S.W.3d    619,   625    n.2    (Tex.   App.—Houston         [1st   Dist.]   2005,    pet.

denied) (observing under maxim of noscitur a sociis, meaning of word may be

determined by reference to meaning of words associated with it).

      Appellant’s position is not strengthened by the fact that “the intent to harm

or defraud another” is presumed if the defendant merely possesses “the identifying

information of three or more persons.” See TEX. PENAL CODE ANN. § 32.51(b-1).

The Penal Code defines “possession” as “actual care, custody, or management.”

TEX. PEN. CODE ANN. § 1.07(a)(39). Black’s Law Dictionary similarly defines

5
      For the same reasons, appellant’s argument that “this Court has elevated the stated
      purpose of the statute over its operation” is without merit.
                                          14
possession in terms that suggest control of physical items, referring to it as “the

exercise    of    dominion      over     property.”     Possession, BLACK’S       LAW

DICTIONARY (10th ed. 2014). Because the usual definition of the term assumes

actual control or exercise of dominion over property, we construe possession in

this context to require physical control of, or exercise of dominion over,

identifying information in written or recorded form. See TEX. PENAL CODE

ANN. §§ 1.07(a)(39), 32.51; Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d) (“If a statute can be construed in two different

ways, one of which sustains its validity, we apply the interpretation that sustains its

validity.”); Goldberg v. State, 95 S.W.3d 345, 373 (Tex. App.—Houston [1st Dist.]

2002, pet. ref’d) (explaining State cannot criminalize thoughts). This construction

comports with the general purpose of the Texas Penal Code, which is to deal with

actually or potentially harmful conduct. See TEX. PENAL CODE ANN. § 1.02.

      Appellant provides the following examples of conduct that would be

unconstitutionally prohibited: a journalist possessing a politician’s name and

birthdate “while researching and writing a column exposing that the politician had

violated the law and criticizing that politician for their illegal actions” or a

“voter . . . forward[ing] [a] candidate’s name and date of birth with a message

suggesting the recipient not vote for the candidate.” But the statute does not

criminalize the use of identifying information in political news articles or


                                          15
possession of identifying information of a politician by a voter in researching

political candidates.   Jones, 396 S.W.3d at 562 (explaining statute’s “plain

language . . . demonstrates” its purpose is to “prevent identity theft”).         As

explained above, these examples do not meet the intent requirement of the statute,

which is to harm or defraud another. See id; see also Williams, 499 S.W.3d at

501–02; Horhn, 481 S.W.3d at 375–76.

      This Court previously rejected essentially the same hypotheticals in

Williams, where the defendant argued that the statute “unconstitutionally

criminalizes the use of identifying information in political attacks and for leverage

in negotiation.” 499 S.W.3d at 501 (rejecting following examples provided by

defendant to argue section 32.51 criminalizes protected conduct: “releasing a birth

certificate to prove a candidate’s ineligibility for office; using voter registration

records to prove an opponent voted in the other party’s primary; providing criminal

or bankruptcy records to the news media; and using a person’s criminal record for

concessions in a divorce proceeding”). Similarly, in Horhn, this Court rejected the

defendant’s argument that the statute criminalized “‘routine and innocuous

activities’ such as employers[] performing background checks on potential

employees or journalists[] investigating corrupt practices that affect the public at

large” because “these types of actions do not fall within the purview” of the

requisite intent to harm or defraud in section 32.51(b). 481 S.W.3d at 375.


                                         16
      Appellant has presented no compelling reason to overrule our prior

precedent on this issue.     Since Texas Penal Code section 32.51(b) does not

implicate the First Amendment, the statute is also not overly broad because it does

not reach a substantial amount of constitutionally protected speech. Horhn, 481

S.W.3d at 376. Accordingly, we hold that the trial court did not err in adjudicating

appellant’s guilt on this ground.

      We overrule appellant’s first issue.

                            Modification of Judgment

      In his second issue, appellant argues that the trial court’s judgment should be

reformed to reflect that appellant pleaded “NOT TRUE” instead of “TRUE” to the

allegations in the State’s motion to adjudicate. The State concedes that the trial

court’s judgment does not accurately comport with the record in regard to

appellant’s plea.

      “An appellate court has the power to correct and reform a trial court

judgment ‘to make the record speak the truth when it has the necessary data and

information to do so, or make any appropriate order as the law and nature of the

case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st

Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet ref’d)). It is clear from the record that appellant pleaded “not

true” to all of the alleged community-supervision violations asserted in the State’s


                                         17
motion to adjudicate his guilt. We conclude that the portion of the judgment

reflecting that appellant pleaded “true” to these allegations does not accurately

comport with the record and should be corrected. See, e.g., id.

      Accordingly, we modify the trial court’s judgment to state that appellant

pleaded “NOT TRUE” to the alleged violations of his community supervision

asserted in the State’s motion to adjudicate his guilt. TEX. R. APP. P. 43.2(b); see,

e.g., Rodriguez-Sanchez v. State, 01-17-00344-CR, 2018 WL 1189106, at *6 (Tex.

App.—Houston [1st Dist.] Mar. 8, 2018, no pet.) (mem. op., not designated for

publication) (reforming judgment to reflect defendant pleaded not true to

allegations in State’s motion to adjudicate).

      We sustain appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court as modified.




                                                Julie Countiss
                                                Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).




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