                                                                           PD-0604-15
                       PD-0604-15                        COURT OF CRIMINAL APPEALS
                                                                          AUSTIN, TEXAS
                                                         Transmitted 5/21/2015 4:36:48 PM
                                                          Accepted 5/22/2015 11:37:05 AM
                                                                           ABEL ACOSTA
                         No. 07-14-00038-CR                                        CLERK

               TO THE COURT OF CRIMINAL APPEALS

                      OF THE STATE OF TEXAS


PRISCILLA SANDERS,                                             Appellant

v.

THE STATE OF TEXAS,                                             Appellee


                      Appeal from Swisher County


                              * * * * *

         STATE’S PETITION FOR DISCRETIONARY REVIEW

                              * * * * *

May 22, 2015
                           LISA C. McMINN
                       State Prosecuting Attorney
                         Bar I.D. No. 13803300

                        JOHN R. MESSINGER
                  Assistant State Prosecuting Attorney
                         Bar I.D. No. 24053705

                            P.O. Box 13046
                         Austin, Texas 78711
                      information@spa.texas.gov
                      512/463-1660 (Telephone)
                          512/463-5724 (Fax)
   NAMES OF ALL PARTIES TO THE TRIAL COURT’S JUDGMENT

*The parties to the trial court’s judgment are the State of Texas and Appellant,
Priscilla Sanders.

*The case was tried before the Honorable Edward Lee Self , 242nd Judicial District
Court of Swisher County, Texas.

*Counsel for Appellant at trial was Daniel W. Hurley and David M. Guinn Jr., Hurley
& Guinn, 1805 13th Street, Lubbock, Texas 79401.

*Counsel for Appellant on appeal was Aaron R. Clements, Hurley & Guinn, 1805
13th Street, Lubbock, Texas 79401.

*Counsel for the State at trial and on appeal was Tina Davis Rincones, Swisher
County Attorney Pro Tem, 109 E 6th Street, Plainview, Texas 79072.

*Counsel for the State before this Court is John R. Messinger, Assistant State
Prosecuting Attorney, P.O. Box 13046, Austin, Texas 78711.




                                         i
                                     TABLE OF CONTENTS

INDEX OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

STATEMENT REGARDING ORAL ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

GROUND FOR REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

   Does a judge make a governmental record with knowledge of its falsity
   under TEX. PENAL CODE § 37.10(a)(5) when she signs an order containing
   findings she knows are not true?

ARGUMENT AND AUTHORITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

PRAYER FOR RELIEF. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

CERTIFICATE OF COMPLIANCE.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

APPENDIX
    Opinion of the Court of Appeals
    State’s Exhibit 1 (Order for Emergency Protection)




                                                      ii
                                     INDEX OF AUTHORITIES

Cases
Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1998) . . . . . . . . . . . . . . . . . . 4

Phea v. State, 767 S.W.2d 263 (Tex. App.–Amarillo 1989, pet. ref’d) .. . . . . . . . . 4

Sanders v. State, __S.W.3d__, 2015 Tex. App. LEXIS 2513 (Tex. App.–
     Amarillo 2015) (r’hng denied).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2-4

Statutes and Rules

TEX. CODE CRIM. PROC. art. 17.292. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. PENAL CODE § 37.10(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. PENAL CODE § 37.10(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

TEX. R. APP. P. 66.3(f).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

TEX. R. EVID. 801(e)(2)(B). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

TEX. R. EVID. 803(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4




                                                          iii
                               No. 07-14-00038-CR

                   TO THE COURT OF CRIMINAL APPEALS

                           OF THE STATE OF TEXAS

PRISCILLA SANDERS,                                                       Appellant

v.

THE STATE OF TEXAS,                                                       Appellee


                                    * * * * *

          STATE’S PETITION FOR DISCRETIONARY REVIEW

                                    * * * * *

TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      Comes now the State of Texas, by and through its State Prosecuting Attorney,

and respectfully urges this Court to grant discretionary review of the above named

cause, pursuant to the rules of appellate procedure.

              STATEMENT REGARDING ORAL ARGUMENT

      The State does not request oral argument.

                         STATEMENT OF THE CASE

      Appellee was convicted of tampering with a governmental record. The court

of appeals reversed, holding the evidence insufficient to prove that appellant knew

any of the information contained in the governmental record was false.



                                         1
                  STATEMENT OF PROCEDURAL HISTORY

      On March 18, 2015, the court of appeals reversed appellant’s conviction in a

published opinion.1 The State’s motion for rehearing was denied April 17, 2015. The

State’s petition was due on May 17, 2015, and a motion for extension of time is filed

herewith.

                               GROUND FOR REVIEW

  Does a judge make a governmental record with knowledge of its falsity
  under TEX. PENAL CODE § 37.10(a)(5) when she signs an order containing
  findings she knows are not true?

                        ARGUMENT AND AUTHORITIES

      Section 37.10(a)(5) prohibits making a governmental record with knowledge

of its falsity. Appellant, a justice of the peace, signed an emergency protective order

without any of the statutory requirements being met. However, the order stated “that

all necessary prerequisites of law have been legally satisfied.”2 Did appellant

knowingly make a governmental record that she knew to contain false information?

      It is undisputed that appellant signed a Magistrate’s Order of Protection.3 The

order protects her nephew’s child.4 The second line on the pre-printed form is a


  1
        Sanders v. State, __S.W.3d__, 2015 Tex. App. LEXIS 2513 (Tex. App.–Amarillo 2015)
(r’hng denied).
  2
      Appendix, State’s Ex. 1. The order itself begins on page 2 of the exhibit.
  3
      3 RR 85, 89, 90, 93, 95, 97, 103-06, 117.
  4
      2 RR 39; 3 RR 43, 78.

                                               2
finding that all necessary prerequisites had been met. Appellant knew that one of

these prerequisites is an arrest for a specific type of offense, and that there had been

no such arrest.5 Yet, the court of appeals acquitted her because “there is no evidence

in this record reflecting that appellant knowingly made a governmental record that

she knew to contain false information.”6 The Court’s analysis focused on the

information that was hand-written into the order—the date, the child’s name, the

child’s residence, etc.—calling it “the sum and total of the information contained

within the order.”7 Because there was no evidence that any of these entries were

false, “there is no evidence in this record reflecting that appellant knowingly made




      5
        See TEX. CODE CRIM. PROC. art. 17.292(a), (b) (listing prerequisites). As the following
exchange explains:
   Q. Now, when you put your name on an Emergency Magistrate’s Order, you are not to do so
   unless there has been an arrest for an offense involving family violence or an offense under
   22.01, 22.021 or 42.072 of the Penal Code, correct?
   A. Correct.
   Q. You put your signature on an order, State’s Exhibit 1, that you now hold in your hand, prior
   to an arrest, correct?
   A. Correct.
(3 RR 94-95). See also 3 RR 84 (“I did not complete [the order] because so far there had not been
an act of violence done yet.”).
  6
         Slip op. at 6. The court of appeals focused exclusively on the falsity of information contained
within the order because, in its view, an allegation that the entire document was false cannot be
prosecuted under section (a)(5). Slip op. at 6 n.3 (“Such a contention might establish a violation of
section 37.10(a)(2)”—which prohibits the making of any record, document, or thing with knowledge
of its falsity and with intent that it be taken as a genuine governmental record—but not (a)(5)). The
State does not accept this view but, because the court of appeals did not actually reach appellant’s
claim that the order was not a genuine governmental record, will address the court’s holding on its
own terms.
      7
          Slip op. at 6.

                                                  3
a governmental record that she knew to contain false information.”8

       This result is absurd. None of the handwritten entries were made on a blank

piece of paper. The first finding made in the order—one included on the form in

every emergency protective order from appellant’s court—was patently false, and she

knew it. It makes no difference whether the information was hand-written or typed;

she adopted everything that was in the order at the time she signed it.9 Ignoring the

findings that appellant adopted by her signature is inconsistent with the treatment of

police witness statements,10 admissions of party opponents,11 and the whole of this

Court’s jurisprudence on findings of fact. It is almost inconceivable that a judge

would be responsible only for the hand-written contents of an order she signs.

       By reaching this holding in a published case, the court of appeals has done real

damage to basic legal tenets. Worse, it insulates from accountability those who

would abuse the judicial power entrusted to them. This departure from the accepted

and usual course of judicial proceedings calls for the exercise of this Court’s power


   8
       Slip op. at 6.
   9
         Dismissing the pre-printed words in favor of the hand-written ones makes even less sense
in this case because most of the hand-writing was someone else’s. 3 RR 100-03.
  10
         See TEX. R. EVID. 803(5) (providing a hearsay exception for statements “made or adopted”
by the witness); Johnson v. State, 967 S.W.2d 410, 416 (Tex. Crim. App. 1998) (part of predicate
is that the witness must vouch for the accuracy of the written memorandum); Phea v. State, 767
S.W.2d 263, 267 (Tex. App.–Amarillo 1989, pet. ref’d) (rule permits use of statements written by
law enforcement officers and signed and sworn to by witness).
  11
        TEX. R. EVID. 801(e)(2)(B) (“The statement is offered against an opposing party and: . . . (B)
is one the party manifested that it adopted or believed to be true.”).

                                                 4
of supervision.12

                                  PRAYER FOR RELIEF

       WHEREFORE, the State of Texas prays that the Court of Criminal Appeals

grant this Petition for Discretionary Review, and that the decision of the Court of

Appeals be reversed.

                                         Respectfully submitted,

                                         LISA C. McMINN
                                         State Prosecuting Attorney
                                         Bar I.D. No. 13803300

                                           /s/ John R. Messinger
                                         JOHN R. MESSINGER
                                         Assistant State Prosecuting Attorney

                                         P.O. Box 13046
                                         Austin, Texas 78711
                                         John.Messinger@SPA.Texas.gov
                                         512/463-1660 (Telephone)
                                         512/463-5724 (Fax)




  12
       TEX. R. APP. P. 66.3(f).

                                          5
                      CERTIFICATE OF COMPLIANCE

      The undersigned certifies that according to the WordPerfect word count tool

the applicable portion of this document contains 1,590 words.

                                           /s/ John R. Messinger
                                         JOHN R. MESSINGER
                                         Assistant State Prosecuting Attorney

                         CERTIFICATE OF SERVICE

      The undersigned certifies that on this 21st day of May, 2015, the State’s Petition

for Discretionary Review was served electronically through the electronic filing

manager or e-mail on the parties below.

Tina Davis Rincones
Swisher County Attorney Pro Tem
109 E 6th Street
Plainview, Texas 79072
trincones@redraiderlaw.com

Aaron R. Clements
Hurley & Guinn
1805 13th Street
Lubbock, Texas 79401
aaronrc@swbell.net


                                           /s/ John R. Messinger
                                         JOHN R. MESSINGER
                                         Assistant State Prosecuting Attorney




                                           6
APPENDIX
                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                         No. 07-14-00038-CR


                                   PRISCILLA SANDERS, APPELLANT

                                                 V.

                                   THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 242nd District Court
                                     Swisher County, Texas
               Trial Court No. B-4475-12-12, Honorable Edward Lee Self, Presiding

                                          March 18, 2015

                                            OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.

      Appellant, Priscilla Sanders, appeals her conviction for tampering with a

governmental record,1 with intent to defraud or harm another,2 and resulting sentence of

nine months’ incarceration in a State Jail Facility, suspended for a period of nine

months, and $500 fine. We will reverse.




      1
          See TEX. PENAL CODE ANN. § 37.10(a)(5) (West Supp. 2014).
      2
          See id. § 37.10(c)(1).
                          Factual and Procedural Background


       Appellant’s nephew, Billy Cruz, has a child, N.G.C., with the child’s mother, Alma

Gutierrez. In September 2012, Cruz and Gutierrez were not married and were not

cohabitating. In accordance with a 2008 order, Gutierrez was managing conservator of

N.G.C. with the exclusive right to establish the child’s residence without geographical

restriction.


       In September 2012, appellant’s sister and the child’s paternal grandmother,

Christina Garza, became concerned about the manner in which Gutierrez was caring for

N.G.C. As a result of this concern, Garza contacted appellant who had, mere months

before, been elected Justice of the Peace of Swisher County, Texas. On September

24, appellant signed an incomplete Emergency Magistrate Order for Protection of

N.G.C., and gave the document to Garza. Garza evidently provided a copy of the

document to Cruz.


       On September 25, Corporal George Brenes of the Amarillo Police Department

was dispatched to investigate an alleged harassment. When Brenes arrived at the

scene, he encountered Gutierrez, Cruz, and Garza. Either Cruz or Garza provided

Brenes the Emergency Magistrate Order for Protection that had been acquired from

appellant. In reliance upon this document, Brenes allowed Cruz to take custody of

N.G.C.


       On September 26, Gutierrez presented a copy of the 2008 custody order to the

Tulia Police Department. On the basis of this order, N.G.C. was returned to Gutierrez.



                                            2
After seeing this order and speaking with Gutierrez, an officer contacted the Swisher

County Attorney about the event of the preceding days.


       The Swisher County Attorney contacted the Texas Rangers about the events that

had been reported to him. In the course of its investigation, Ranger Jaime Downs

contacted appellant for an interview. During this interview, appellant stated that, while

she knew what she had done was ill-advised, the order was never completed, executed,

filed, or formally issued by her office.


       Appellant was charged by indictment with the offense of making a governmental

record with knowledge of its falsity and with the intent to defraud or harm another. After

trial, appellant was found guilty of the indicted offense. Subsequently, appellant timely

filed a motion for new trial, which was expressly overruled. Appellant then timely filed

notice of appeal.


       By her appeal, appellant presents four issues.        By her first issue, appellant

contends that the evidence is insufficient to support the jury’s conviction of appellant for

the offense of tampering with a governmental record. By her second issue, appellant

contends that the evidence is insufficient to establish that appellant acted with the intent

to defraud or harm another. By her third issue, appellant contends that the trial court

abused its discretion by excluding evidence relevant to appellant’s state of mind when

she signed the order. By her fourth issue, appellant contends that the trial court erred in

failing to conduct a Batson hearing despite appellant’s prima facie showing of a Batson

violation.




                                             3
                               Sufficiency of the Evidence


       Appellant’s first issue contends that the State’s evidence is insufficient to

establish that she committed the offense of tampering with a governmental record as

alleged in the indictment.


       In assessing the sufficiency of the evidence, we review all the evidence in the

light most favorable to the verdict to determine whether any rational trier of fact could

have found the essential elements of the offense beyond a reasonable doubt. Jackson

v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899. If a reviewing court

determines that the evidence is insufficient to establish any element of the offense, it

must reverse and render a judgment of acquittal. Dean v. State, 449 S.W.3d 267, 268

                                            4
(Tex. App.—Tyler 2014, no pet.) (citing Cuddy v. State, 107 S.W.3d 92, 95 (Tex. App.—

Texarkana 2003, no pet.)); see Saldana v. State, 418 S.W.3d 722, 726 (Tex. App.—

Amarillo 2013, no pet.).


       Appellant was charged with the offense of tampering with a governmental record

under Texas Penal Code section 37.10(a)(5), which provides that, “[a] person commits

an offense if he makes, presents, or uses a governmental record with knowledge of its

falsity.” TEX. PENAL CODE ANN. § 37.10(a)(5). The indictment also alleged that appellant

committed the offense with the “intent . . . to defraud or harm another,” which statutorily

elevates the offense from a Class A misdemeanor to a state jail felony.              Id. §

37.10(c)(1).   Thus, in the present case, the State was required to prove that (1)

appellant, (2) made, presented, or used, (3) a governmental record, (4) with knowledge

of its falsity, and (5) with the intent to defraud or harm another. Appellant presents

challenges to the evidence to support that the challenged document was a

governmental record, she knew the document to be false, and she acted with specific

intent to defraud or harm another. We will limit our analysis to the challenge that is

dispositive of this appeal. See TEX. R. APP. P. 47.1.


       Appellant challenges the sufficiency of the evidence to establish that she made a

governmental record “with knowledge of its falsity.”           TEX. PENAL CODE ANN. §

37.10(a)(5). A person “acts knowingly, or with knowledge, with respect to the nature of

his conduct or to circumstances surrounding his conduct when he is aware of the nature

of his conduct or that the circumstances exist.”        Id. § 6.03(b) (West 2011). Under

section 37.10(a)(5), the knowledge that is required is that the governmental record is



                                             5
false.       Thus, to meet this element, the evidence had to establish that appellant

knowingly made a governmental record that she knew to contain false information. 3


         In this case, there is no evidence that appellant signed the Magistrate’s Order of

Protection on another date than the date indicated.                   The only other information

contained within the document is consistent with information apparently provided by

Cruz in what appears to be an application for the order. Included within this information

is an identification that N.G.C.’s residence was in Tulia, which would bring the matter

within the jurisdiction of appellant’s court. No evidence was presented that appellant

had any knowledge of the falsity of any of this information. Finally, the order does not

identify any “defendant” who had been arrested for family violence and was appearing

before the magistrate for the first time following such an arrest. As this is the sum and

total of the information contained within the order, there is no evidence in this record

reflecting that appellant knowingly made a governmental record that she knew to

contain false information. As such, we conclude that the evidence is insufficient to

support appellant’s conviction. We sustain appellant’s first issue.


                                             Conclusion


         Having determined that there is no evidence to support an essential element of

appellant’s conviction for tampering with a governmental record, we reverse the trial




         3
          The State argued, at trial, that the challenged document was false because appellant knew that
it was not a valid order yet appellant intended it to be taken as a genuine governmental record. Such a
contention might establish a violation of section 37.10(a)(2), but it will not support a conviction under
section 37.10(a)(5). See Thompson v. State, 215 S.W.3d 557, 559 & n.2 (Tex. App.—Texarkana 2007,
no pet.); Mendoza v. State, No. 05-05-00476-CR, 2006 Tex. App. LEXIS 5060, at *3 & n.1 (Tex. App.—
Dallas June 14, 2006, no pet.) (mem. op.).

                                                   6
court’s judgment and render judgment of acquittal. See TEX. R. APP. P. 43.2(c); Dean,

449 S.W.3d at 268.




                                       Mackey K. Hancock
                                           Justice


Publish.




                                         7
