




Becker v. State



COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

)
ORLANDO DELEON II,)
		      No.  08-02-00146-CR

)
			Appellant,)
			Appeal from

)
v.)
		County Criminal Court No. 2

)
THE STATE OF TEXAS,)
		     of Dallas County, Texas

)
			Appellee.)
		      (TC# MB-0146148-M)



O P I N I O N

	Orlando Deleon II appeals his conviction for possession of a fictitious driver's license. 
Appellant waived his right to a jury trial and entered a plea of not guilty before the trial court.  The
court found Appellant guilty and assessed his punishment at confinement for ninety days and a fine
of $400, but suspended the sentence and placed Appellant on community supervision for one year. 
We affirm.
FACTUAL SUMMARY
	Joseph Heitjan, a Sachse police officer, stopped Appellant's vehicle when he failed to signal
a turn.  Appellant identified himself as Orlando Deleon and produced a driver's license bearing that
name.  Utilizing the driver's license produced by Appellant, Heitjan ran a computer check for
warrants and learned that Appellant had warrants for speeding tickets out of Garland, Texas.  After
confirming the warrants through the dispatcher, Heitjan arrested Appellant and transported him to
the jail.  During Heitjan's inventory of Appellant's property, Heitjan found a second driver's license
in Appellant's wallet.  It is a valid Texas driver's license with Appellant's picture on it but it bears
the name Andrew Charles Johnson.  It also shows an incorrect date of birth for Appellant, indicating
that he was over twenty-one years of age when in fact he was only nineteen.  When Heitjan found
the second license, Appellant became, in his words, depressed.  His shoulders sagged, his head
dropped down to his chest, and he began to shake his head from side to side.
LEGAL SUFFICIENCY
	In his sole issue for review, Appellant challenges the legal sufficiency of the evidence to
prove that he possessed a fictitious license.  He argues that since the license was duly issued by the
Department of Public Safety, it is not fictitious.
Standard of Review
	In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must
review all the evidence, both State and defense, 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, 318-19, 99 S.Ct. 2781, 2789, 61
L.Ed.2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991).  This familiar
standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. 
Jackson, 443 U.S. at 319, 99 S.Ct. at 2789, 61 L.Ed.2d at 573.  We do not resolve any conflict of fact
or assign credibility to the witnesses, as it was the function of the trier of fact to do so.  See Adelman
v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843
(Tex.Crim.App. 1991).  Instead, our duty is only to determine if both the explicit and implicit
findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most
favorable to the verdict.  Adelman, 828 S.W.2d at 422.  In so doing, any inconsistencies in the
evidence are resolved in favor of the verdict.  Matson, 819 S.W.2d at 843.  Further, the standard of
review is the same for both direct and circumstantial evidence cases.  Geesa, 820 S.W.2d at 158.
Elements of the Offense
	Appellant was charged with possession of a fictitious license pursuant to Section 521.451
of the Texas Transportation Code.  That section, entitled "General Violation," provides that, except
as provided by Section 521.452, a person may not:
	(1)  display, cause or permit to be displayed, or have in the person's
possession a driver's license or certificate that the person knows is fictitious or has
been altered . . .

Tex.Transp.Code Ann. § 521.451(a)(1)(Vernon Supp. 2003). (1)  The information alleged that
Appellant possessed a driver's license he knew was fictitious. (2) 
Definition of "Fictitious"

	Noting that Section 521.451 does not define "fictitious," Appellant directs us to Section
521.453(a), entitled "Fictitious License or Certificate":
	Except as provided by Subsection (f), a person under the age of 21 years commits an
offense if the person possesses, with the intent to represent that the person is 21 years
of age or older, a document that is deceptively similar to a driver's license or a
personal identification certificate unless the document displays the statement 'NOT
A GOVERNMENT DOCUMENT' diagonally printed clearly and indelibly on both
the front and back of the document in solid red capital letters at least one-fourth inch
in height.

Tex.Transp.Code Ann. § 521.453(a)(Vernon 1999).  Appellant reasons that a fictitious license is
limited to one which is deceptively similar to a driver's license.  Since the licenses he possessed were
both valid, he argues that the evidence is insufficient to show that he possessed a fictitious license. 
In essence, he contends that a license issued by the Texas Department of Public Safety which has
not subsequently been altered can never be a fictitious license.  We disagree with this overly
restrictive reading of the statute.  
	The Code Construction Act provides that when a statute does not define a term it must be
given its common meaning, except in the case of words and phrases that have acquired a technical
or particular meaning.  Tex.Gov't Code Ann. § 311.011 (Vernon 1998); see Neumuller v. State,
953 S.W.2d 502, 511 (Tex.App.--El Paso 1997, pet. ref'd).  The Transportation Code does not define 
"fictitious."  Section 521.453(a) simply describes one offense involving possession of a fictitious
license.  There is no indication that the Legislature intended to limit the term "fictitious" to only fake
or phony licenses and thereby exclude a valid license containing false information.  Consequently, 
the term "fictitious" as used in Section 421.451 must be given its plain meaning.
	In construing the plain meaning of the language of a statute, courts may resort to the use of
dictionary definitions.  See Bingham v. State, 913 S.W.2d 208, 209-10 (Tex.Crim.App. 1995). 
Webster's New Collegiate Dictionary defines fictitious as "feigned; imaginary; not genuine." 
Webster's New Collegiatiate Dictionary 308 (1961).  Webster's notes that "fictitious" implies
fabrication.  Id.
	We find some guidance in Olurebi v. State, 870 S.W.2d 58 (Tex.Crim.App. 1994).  There,
Olurebi was charged with credit card abuse under Section 32.31(b)(2) of the Penal Code.  That
section provides that a person commits credit card abuse if with intent to obtain property or service,
he uses a fictitious credit card or the pretended number or description of a fictitious credit card.  Id.
at 59.  The evidence at trial showed that Chevron issued a credit card to Wale R. Lawson based upon
information contained in a credit application.  Id.  The credit application stated that Lawson was a
dentist who resided at a certain address in Houston.  Id.  Chevron instituted an investigation after
Lawson failed to remit payment for purchases.  Id.  It discovered that Lawson did not reside at the
address stated on the application, that the bank and credit card references were false, and that the
social security number either did not exist or belonged to someone other than Lawson.  Id.  Lawson
did not have a driver's license in Texas or any neighboring states and Harris County tax records did
not contain Lawson's name.  Id.  A license plate number appearing on one of the credit card receipts 
was traced to Olurebi's car and the owner of a Chevron station where the card had been used several
times identified Olurebi's photograph as the person known to him as Wale Lawson.  Id.  Olurebi
testified that Wale Lawson was the name of a British friend with whom he had lived but who had
since returned to London.  Id.  Lawson gave him permission to use the credit card.  Id.  The
indictment alleged that Olurebi used a fictitious Chevron card knowing that it falsely purported to
be issued to Lawson.  Id.  The jury found Olurebi guilty.  Id.  On appeal, Olurebi argued that the
evidence failed to prove that the credit card was not in fact issued by Chevron to Lawson.
	The court noted that the Legislature had not defined a "fictitious credit card."  However, it
had defined a "credit card" as:

	[A]n identification card, plate, coupon, book, number, or any other device
authorizing a designated person or bearer to obtain property or services on credit. 
The term includes the number or description of the device if the device itself is not
produced at the time of ordering or obtaining the property or service.

Tex.Pen.Code Ann. § 32.31(a)(2)(Vernon 2003).  The cardholder is the person (3) named on the face
of the credit card to whom or for whose benefit the credit card is issued.  Tex.Pen.Code Ann.
§ 32.31(a)(1).  Given these definitions, a credit card authorizes someone who is alive to obtain
property or services on credit.  Olurebi, 870 S.W.2d at 61.  A credit card issued to a nonexistent
person is not really a credit card at all since it purports, falsely, to be issued to an existent person. 
Id.  As such, it is a fictitious credit card.  Id.  The court determined that a fictitious credit card is
either a credit card not issued by the purported owner or a credit card with an actual owner but issued
to a nonexistent cardholder.  Id.
	Applying Olurebi to Section 421.451, we conclude that a driver's license which contains
false information is a fictitious license.  A driver's license is an authorization issued by the
department for the operation of a motor vehicle.  Tex.Transp.Code Ann. § 521.001(a)(3).  A
license must include the full name, date of birth, and residence address of the holder. 
Tex.Transp.Code Ann. § 521.121(a)(3).  Under the reasoning of Olurebi, a driver's license issued
to a nonexistent person is a fictitious license.
	The second driver's license contained a picture of Appellant but listed a false name and date
of birth.  Accordingly, the license was issued to a non-existent person and as such was a fictitious
license.  We find the evidence legally sufficient to support Appellant's conviction.  His sole point
is overruled and the judgment of the trial court is affirmed.


March 6, 2003					 
							ANN CRAWFORD McCLURE, Justice

Before Panel No. 1
Larsen, McClure, and Chew, JJ.

(Publish)
1.   Section 521.451 also makes it an offense to possess more than one currently valid driver's license,
Tex.Transp.Code Ann. § 521.451(a)(4), to provide a false name, false address, or counterfeit document, or to
knowingly make a false statement, conceal a material fact, or otherwise commit fraud in an application for an original,
renewal, or duplicate driver's license, Tex.Transp.Code Ann. § 521.451(a)(5).  The State did not prosecute Appellant
under any of these sections.
2.   The information tracks the entire section verbatim except it is stated in the conjunctive.  Since we hold that
the State proved possession of a fictitious license, we do not consider sufficiency of the evidence to prove the other
allegations.  
3.   A person is an individual, corporation, or association.  Tex.Pen.Code Ann. § 1.07(a)(38).  An individual
is a human being who has been born and is alive.  Tex.Pen.Code Ann. § 1.07(a)(26).

