             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS

                           NO. PD-1346-17


              PABLO ALFARO-JIMENEZ, Appellant

                                    v.

                        THE STATE OF TEXAS

ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
        FROM THE FOURTH COURT OF APPEALS
                  BEXAR COUNTY

      N EWELL, J., filed an opinion in which K EASLER, H ERVEY,
R ICHARDSON, Y EARY, K EEL, W ALKER and S LAUGHTER, JJ., joined.
K ELLER, P.J., dissented.

     Appellant Pablo Alfaro-Jimenez carried around a fake social security

card in his wallet and admitted that he used it to get work. But to convict

Appellant of tampering with a governmental record under the theory of

liability authorized by the indictment in this case, the State had to prove
                                                        Alfaro-Jimenez — 2

that Appellant had possessed or presented a real social security card.

The State did not prove that in this case. Consequently, we reverse the

court of appeals’ holding that the evidence was sufficient to support

Appellant’s conviction.

                                    Facts

        On July 10, 2014, San Antonio Police Officer Edward Rodriguez was

dispatched to an apartment after a woman called 911 saying her

ex-boyfriend, who she identified as Juan Alberto Torres Landa, “was at

the location, banging on the door, kicking on the door, screaming, yelling,

making threats to her.” By the time the officer got there, Appellant had

left.    After a report had been taken from the woman, Appellant

approached the officer, saying that “he wanted to set the record straight.”

Officer Rodriguez handcuffed Appellant for officer safety and asked

Appellant his name. Appellant said it was “Juan Alberto Torres Landa.”

        Officer Rodriguez asked for some ID, and Appellant said it was in his

wallet in his back pocket. He then gestured for Officer Rodriguez to take

the wallet from his pocket. Officer Rodriguez opened the wallet and took

out an ID, an alien card, a Mexican driver’s license, and a social security

card.    All documents bore the name “Juan Alberto Torres Landa,” but

Officer Rodriguez immediately recognized that the social security card
                                                            Alfaro-Jimenez — 3

was fake. The paper was too thin for an authentic social security card

issued by the government. Additionally, the ink on the card had smudged

in a manner inconsistent with a government-issued social security card.

     Officer Rodriguez checked the social security number. It matched

a person from Vietnam, but Appellant did not appear to be Vietnamese.

Based upon the information he had gathered about the social security

card, Officer Rodriguez placed Appellant under arrest for tampering with

a governmental record. At that point Appellant admitted that his real

name was Pablo Alfaro-Jimenez, contrary to the information on his

various forms of identification, including the social security card.

     The State charged Appellant with tampering with a governmental

record. The indictment contained alternative paragraphs, both of which

alleged that the record at issue was “a governmental record.” The first

paragraph alleged that Appellant had presented a social security card

“with knowledge of its falsity,”1 and the second paragraph alleged that

Appellant had possessed the social security card “with the intent that it

be used unlawfully.”2               Both paragraphs alleged that Appellant had

committed the offense with the “intent to defraud or harm” the Social


     1
         See T EX . P ENAL C O D E § 37.10(a)(5).

     2
         See T EX . P ENAL C O D E § 37.10(a)(4).
                                                          Alfaro-Jimenez — 4

Security Administration, which elevated the degree of offense.3

                                                Trial

     At trial, Officer Rodriguez testified about Appellant’s arrest.

Regarding the card he found in Appellant’s possession, Officer Rodriguez

explained that he immediately recognized that the social security card

was a fake:

     Q         When you got the Social Security card, what did you
               notice about it?

     A         Immediately looked at the paper. I noticed it was a little
               too flimsy, kind of—edges was kind of tearing off, it was
               like a bad kind of paper. And I noticed the ink was not
               dark, it was kind of faded. I looked down in the left-
               hand corner and you could see where drops of water or
               something was on the ink and it started to dry out and
               blur with a wet mark on there, which Social Security
               cards don’t do that.

     The State also called a criminal investigator for the United States

Social Security Administration who testified that the card seized from

Appellant was not an authentic social security card.         The investigator

acknowledged that social security cards are issued by a governmental

agency and that they are governmental records.           But the investigator

explained that Appellant had possessed a counterfeit card with a real




     3
         T EX . P ENAL C O D E § 37.10(c)(1).
                                                        Alfaro-Jimenez — 5

social security number printed on it.

     Q     Okay. As far as this Social Security card is concerned,
           then, is there anything you can tell us about the use of
           this card number?

     A     All I can say is that this number was miss—the number
           on the card was misused because it’s actually—it’s
           printed on a counterfeit card, that’s all I can say how it
           was used.

     Appellant testified in his own defense, describing the card at issue

and how he got it. Appellant admitted that the card was a fake.

     Q     Now, do you admit that that Social Security card—Did
           you get that Social Security card from the Social
           Security Office?

     A     No.

     Q     Where did you get it?

     A     A guy sold it to me so I could get a job.

     Q     How much did you pay for it?

     A     Sixty dollars.

     Q     Where did the number on the Social Security card come
           from?

     A     They made it up.

     The   jury   charge    included    multiple   different   definitions   of

“governmental record.” At the charge conference, the trial court stated

that it would, on the defense’s request, give an instruction on the lesser-
                                                              Alfaro-Jimenez — 6

included offense of tampering with a governmental record without the

intent to defraud element.               The jury charge mirrored the indictment,

except that it included the lesser-included offense. The jury convicted

Appellant of the lesser-included offense.

     The trial court reset the case for sentencing.             At the sentencing

hearing, the trial court entered a conviction for a Class A misdemeanor

based upon the trial court’s reading of the statute.                Neither party

objected, and the trial court sentenced Appellant to one year in jail,

probated for two years along with a $1,500 fine.

                                            Appeal

     Appellant challenged the sufficiency of the evidence, arguing, among

other things, that the State never proved that the fake social security

card was a governmental record.4 The State argued that a social security

card is a governmental record issued by the United States Social Security

Administration and that social security numbers are used for identification

as well as for employment and applying for loans or benefits.5 The State

also asserted that Appellant’s conviction for a Class A misdemeanor

amounted to an “illegal sentence” because a social security card is a


     4
         Appellant’s Direct Appeal Br. 7.

     5
         State’s Direct Appeal Br. 25.
                                                                           Alfaro-Jimenez — 7

certificate issued by the United States, and therefore the offense of

conviction is a third-degree felony.6

       In this regard, the State argued that “a” social security card is a

governmental record.7                But Appellant had actually argued that the

evidence was insufficient to show that “the” social security card—the one

Appellant possessed and presented in this case—was a certificate issued

by government, by another state, or by the United States. Compounding

the problem, the court of appeals analyzed the sufficiency of the evidence

for the underlying conviction under a different statutory subsection than

the ones relied upon by the State to convict Appellant.8

       Ultimately, the court of appeals adopted the State’s arguments and

reformed the judgment to reflect a conviction for a third-degree felony.

In doing so, the court of appeals held that the evidence was legally

sufficient to establish that the record Appellant possessed and presented

was a governmental record because it was a certificate issued by the



       6
           State’s Direct Appeal Br. 26-27; see T EX . P ENAL C O D E § 37.10 (c)(2)(A).

       7
         The only definition of “governm ental record” urged in this case is the one found in §
37.01(2)(C). The State argued to the court of appeals that the social security card in this
case was a governm ental record because it was a certificate issued by the United States.
State’s Direct Appeal Br.25-26.

       8
         Alfaro-Jim enez v. State, 536 S.W .3d 579, 590 (Tex. App.— San Antonio 2017) (op.
on reh’g) (setting out elem ents of tam pering with a governm ental docum ent under §
37.10(a)(2)).
                                                                     Alfaro-Jimenez — 8

United States.9 The court of appeals then remanded the case for new

punishment hearing.10

       Appellant filed a petition for discretionary review challenging the

court of appeals’ decision.11 Though Appellant couches his issues in terms

of a violation of his right to a jury,12 Appellant also argues, in part, that

the evidence was insufficient to establish that Appellant’s fake social

security card was a governmental record.13 Appellant’s sufficiency claim

is subsumed within the grounds we granted for review. To the extent

that Appellant’s sufficiency challenge is not contained within the granted




       9
         Id. at 590-91 (citing the § 37.01(2)(C) definition and the § 37.10(c)(2)(A)
elevating elem ent).

       10
            Id. at 591.

       11
            Appellant’s Pet. 15-16.

       12
            Appellant asked, and we granted review on, the following questions:

1.     W hether the right to a jury trial m andated by U.S. Const. Sixth and Fourteenth
       Am endm ents, and U.S. Const. art. III § 2, and the concepts set out by [the Suprem e
       Court] in Apprendi and Blakely, is violated by the procedure utilized by the Court of
       Appeals, that is, a judicial finding of an elem ent not alleged in the indictm ent or
       subm itted to the jury, which is an unacceptable departure from the jury tradition, an
       indispensable part of our crim inal justice system , by m aking appellate courts fact
       finders as to an elem ent not considered by the jury?

2.     W hether the right to a jury trial and Due Process required by the Fifth, Sixth, and
       Fourteenth Am endm ents, and Jackson v. Virginia, 443 U.S. 307, 560 (1979), was
       violated when the Court of Appeals reform ed the Petitioner’s conviction to the
       conviction of a higher offense, when such higher offense was not determ ined by the
       jury, the factfinder resulting in a reform ed verdict which was not rendered by the
       jury or the trial court?

       13
            Appellant’s Br. 9.
                                                                            Alfaro-Jimenez — 9

points of error, we exercise our authority to review the court of appeals’

decision in this regard on our own motion.14 We agree with Appellant that

the State did not prove at trial that the social security card found in

Appellant’s wallet was a governmental record.

                                             Analysis

        In assessing the sufficiency of the evidence to support a criminal

conviction, “we consider all the evidence in the light most favorable to the

verdict and determine whether, based on that evidence and reasonable

inferences therefrom, a rational juror could have found the essential

elements of the crime beyond a reasonable doubt.” 15 The elements of the

offense are defined by the hypothetically correct jury charge. 16                                  This

hypothetically correct jury charge 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




       14
          T EX . C O D E C RIM . P RO C ., art. 44.45(a). (“The Court of Crim inal Appeals m ay review
decisions of the court of appeals on its own m otion.”); T EX . R. A PP . P. 66.1, 67.1.

       15
          Hooper v. State, 214 S.W .3d 9, 13 (Tex. Crim . App. 2007) (citing Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979)).

        16
             Malik v. State, 953 S.W .2d 234, 240 (Tex. Crim . App. 1997).
                                                                    Alfaro-Jimenez — 10

was tried.17        “As authorized by the indictment” means the statutory

elements of the offense as modified by the charging instrument.18

       Of course, in some cases, sufficiency of the evidence also turns on

the meaning of the statute under which the defendant has been

prosecuted.19 In other words, does certain conduct actually constitute an

offense under the statute with which the defendant has been charged?

That question, like all statutory construction questions, is a question of

law, which we review de novo.20

       Texas Penal Code § 37.10, the “Tampering with Governmental

Record” statute, is complicated, covering a multitude of potential harms.21

The offense can be committed six different ways22 —and may involve a

       17
            Ram jattansingh v. State, 548 S.W .3d 540, 546 (Tex. Crim . App. 2018).

       18
            Id.

       19
            Liverm an v. State, 470 S.W .3d 831, 836 (Tex. Crim . App. 2015).

       20
            Id.

       21
          State v. Vasilas, 187 S.W .3d 486, 492 (Tex. Crim . App. 2006) (“The legislature
obviously m eant to protect the people of the State by m aking it a crim e to tam per with
governm ental records. By enacting § 37.10, the legislature intended to prevent a m ultitude
of harm s, including the destruction of governm ental records, the perpetration of a fraud
upon the court, and the m iscarriage of justice that could result from the use of falsified
records. There is nothing absurd about the legislature crim inalizing such conduct.”).

       22
          T EX . P ENAL C O DE § 37.10(a) (“A person com m its an offense if he: (1) knowingly
m akes a false entry in, or false alteration of, a governm ental record; (2) m akes, presents,
or uses any record, docum ent, or thing with knowledge of its falsity and with intent that it
be taken as a genuine governm ental record; (3) intentionally destroys, conceals, rem oves,
or otherwise im pairs the verity, legibility, or availability of a governm ental record; (4)
possesses, sells, or offers to sell a governm ental record or a blank governm ental record form
with intent that it be used unlawfully; (5) m akes, presents, or uses a governm ental record
                                                                       Alfaro-Jimenez — 11

real “governmental record” (itself defined six different ways23 ) or a fake

one.24 It sets out offenses ranging from a Class A misdemeanor 25 to a

second-degree felony.26 The degree of offense is determined by the type

of record tampered with (e.g., a license or certificate issued by

government, a ballistics report, a document to establish a student’s

residency, an appraisal filed by an interested person) and whether or not

the “actor’s intent is to defraud or harm another.” 27

       Here, the State charged Appellant with committing an offense under

§ 37.10(a)(4) and § 37.10(a)(5). Those subsections make it an offense

if a person:

       (4) possesses, sells, or offers to sell a governmental record or



with knowledge of its falsity; or (6) possesses, sells, or offers to sell a governm ental record
or a blank governm ental record form with knowledge that it was obtained unlawfully.”).

       23
          T EX . P ENAL C O DE § 37.01(2). W e have previously held that the Legislature’s
definition of a governm ental record is “clear and unam biguous.” Vasilas, 187 S.W .3d at
491 (“Although the petition for expunction was not a governm ental record when Appellee
prepared it, it becam e a governm ental record once the court received it and he used it in
seeking to obtain the expunction of records.”).

       24
            T EX . P ENAL C O DE § 37.10(a)(2).

       25
           T EX . P ENAL C O DE § 37.10(c)(1) (“Except as provided by Subdivisions (2), (3), and
(4) and by Subsection (d), an offense under this section is a Class A m isdem eanor unless
the actor’s intent is to defraud or harm another, in which event the offense is a state jail
felony.”).

       26
          T EX . P ENAL C O DE § 37.10(c)(2)(A) (“An offense under this section is a felony of the
third degree . . . unless the actor’s intent is to defraud or harm another, in which event the
offense is a felony of the second degree[.]”). See also T EX . P ENAL C O D E § 37.10(d)(3).

       27
            T EX . P ENAL C O DE § 37.10 (c), (d).
                                                                       Alfaro-Jimenez — 12

     blank governmental record form with intent that it be used
     unlawfully;

     (5) makes, presents, or uses a governmental record with
     knowledge of its falsity[.] 28

According to their plain language, both subsections require proof that the

document the defendant possessed or presented was a “governmental

record.”       In other words, those subsections do not provide for a

conviction by merely proving that the defendant intended for a fake

document to be taken as a genuine governmental record.

     By way of contrast, § 37.10(a)(2) does not require proof that the

record presented was an authentic governmental record.                         Under that

subsection, it is an offense if a person:

     (2) makes, presents, or uses any record, document, or thing
     with knowledge of its falsity and with intent that it be taken as
     a genuine governmental record[.] 29

Section 37.10(a)(2) is designed for the prosecution of someone who

presents a counterfeit governmental record as if it were authentic. But

that was not a theory authorized by the indictment in this case.

     By indicting Appellant for tampering with a governmental record

under § 37.10 (a)(4) and § 37.10(a)(5), the State was required to prove


     28
          T EX . P ENAL C O DE § 37.10(a)(4), (5) (em phasis added).

     29
          T EX . P ENAL C O DE § 37.10(a)(2) (em phasis added).
                                                                     Alfaro-Jimenez — 13

that the social security card at issue was an actual governmental record,

not merely that Appellant intended the social security card be taken as a

genuine         governmental            record.30   Under      the    tampering        statute,

“governmental record” means:

       (A) anything belonging to, received by, or kept by government
       for information, including a court record;

       (B) anything required by law to be kept by others for
       information of government;

       (C) a license, certificate, permit, seal, title, letter of patent, or
       similar document issued by government, by another state, or
       by the United States;

       (D) a standard proof of motor vehicle liability insurance form
       described by Section 601.081, Transportation Code, a
       certificate of an insurance company described by Section
       601.083 of that code, a document purporting to be such a
       form or certificate that is not issued by an insurer authorized
       to write motor vehicle liability insurance in this state, an
       electronic submission in a form described by Section
       502.046(i), Transportation Code, or an evidence of financial
       responsibility described by Section 601.053 of that code;

       (E) an official ballot or other election record; or

       (F) the written documentation a mobile food unit is required
       to obtain under Section 437.0074, Health and Safety Code.31



       30
          See, e.g., Thom pson v. State, 215 S.W .3d 557, 559 (Tex. App.— Texarkana 2007,
no pet.) (an actual driver’s license is a “license, certificate, perm it, seal, title, letter of
patent, or sim ilar docum ent issued by governm ent, by another state, or by the United
States”; a counterfeit driver’s license is not).

       31
            T EX . P ENAL C O DE § 37.01(2).
                                                                 Alfaro-Jimenez — 14

       The court of appeals held that the evidence was sufficient to

establish that the record at issue in this case was a governmental record

because “the testimony clearly supported the social security card was a

certificate.”32 We agree with the court of appeals that a social security

card is a certificate issued by the United States.33 But we disagree with

the court of appeals that the testimony clearly supported that Appellant

possessed or presented a social security card issued by the United States.

The State did not prove that. The State proved that Appellant possessed

a fake social security card, not a real one.

       During opening statements, the prosecution noted that the social

security card was not “authentic.” Later, the prosecutor stated that the

social security card merely purported to be a legitimate, authentic social

security card. Officer Rodriguez testified that he immediately recognized

that the social security card was a fake because of the blurred ink and low

quality paper. And when asked to identify the card he had seized from

Appellant, the officer stated that the card was “a forgery, a counterfeit,

a false Social Security card.”            The criminal investigator for the United



       32
            Alfaro-Jim enez, 536 S.W.3d at 591.

       33
         See, e.g., Lopez v. State, 25 S.W .3d 926, 929 (Tex. App.— Houston [1st Dist.]
2000, no pet.).
                                                                      Alfaro-Jimenez — 15

States Social Security Administration also testified that the card seized

from Appellant was not an authentic social security card. At no point did

the investigator testify that the card possessed and presented by

Appellant had been issued by the United States or any governmental

agency. Finally, Appellant himself admitted that the card was a fake.

Appellant had paid sixty dollars to “a guy” to make the card so Appellant

could use it to get a job; Appellant admitted that he did not get it from

the Social Security Office.

       Simply put, the State elicited testimony establishing that “a” social

security card is a governmental record.34 The State did not present any

evidence that “the” social security card possessed or presented by

Appellant “was” a governmental record.

       Though we have not dealt with this type of scenario before, at least

one intermediate court of appeals has.                      In Thompson v. State, the

defendant was charged with altering a governmental record after police

discovered numerous counterfeit driver’s licenses on the defendant’s




       34
         See, e.g., Lopez, 25 S.W .3d at 929 (a social security card is a “certificate issued by
the United States” and so a “governm ental record” under Section 37.01(2)(C) and an
elevating elem ent under Section 37.10(c)(2)(A)); see also Ram os v. State, 303 S.W.3d 302,
309-10 (Tex. Crim . App. 2009) (Keller, P.J., dissenting) (forgery of a social security card is
forgery under T EX . P EN . C O D E § 32.21(e)(2), which covers a writing that is or purports to be
“a governm ent record listed in Section 37.01(2)(C)”).
                                                     Alfaro-Jimenez — 16

computer.35       The State argued that those “counterfeit licenses” were

governmental records because the statutory definition of “governmental

records” includes “licenses issued by the government,” and a Texas

driver’s license constitutes a governmental record.36 The Texarkana Court

of Appeals agreed that “a driver’s license is a governmental record,” but

nevertheless held the evidence insufficient because there was no evidence

that the licenses in the case had been issued by the government.37

     We find the reasoning of the Texarkana Court of Appeals persuasive,

and we reach the same conclusion in this case. Social security cards are

governmental records. However, the State did not prove that the fake

social security card at issue in this case was a governmental record.

Consequently, the evidence was legally insufficient to support the

conviction. We reverse the judgment of the court of appeals and render

an acquittal.




Delivered: July 3, 2019

Publish


     35
          Thom pson, 215 S.W .3d at 558.

     36
          Id. at 558-59.

     37
          Id. at 559.
