                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-13-00047-CR

JOSEPH GLEN DAUBEN,
                                                             Appellant
v.

THE STATE OF TEXAS,
                                                             Appellee



                            From the 40th District Court
                                Ellis County, Texas
                              Trial Court No. 6560CR


                           MEMORANDUM OPINION


       Joseph Glen Dauben was convicted of Fraudulent Use or Possession of

Identifying Information and sentenced to one year in a state jail facility with a $2,400

fine. TEX. PENAL CODE ANN. § 32.51 (West Supp. 2013). His sentence and fine were

suspended and he was placed on community supervision for five years. Because the

trial court erred in assessing attorney’s fees but did not err in failing to grant Dauben’s
motion for a directed verdict, the assessment of attorney’s fees is deleted from the

judgment and trial court’s judgment is affirmed as modified.

BACKGROUND

        Dauben operated an internet “newspaper” in Ellis County, Texas, called the Ellis

County Observer. In 2011, Dauben interviewed Kristen Spencer who accused her ex-

husband, Christopher Buchert, of sexually abusing their children.1 With only the ex-

wife’s permission, Dauben published, with the interview, Buchert’s full name, date of

birth, and place of employment on the Observer’s website. Dauben also suggested,

encouraged, and promised violence against Buchert in comments posted to the story.

Buchert had been investigated and cleared of wrongdoing by the Red Oak Police

Department before the story was posted to the Observer’s website. Buchert testified

that his reputation had been harmed and that he feared harm to himself and his family.

Further, police patrols were increased around Buchert’s residences to protect Buchert

and his family. Although Dauben issued an apology after being threatened with a civil

lawsuit and the Observer website had been shut down, the accusations would still

appear if Buchert’s name was “Googled.”




1 We use the victim’s full name herein as a means to reiterate the Red Oak Police Department’s clearing
the victim of the conduct with which his ex-wife accused him. The record further indicates that the ex-
wife, Kristen Spencer, was charged with making a false police report but does not reveal the result of that
charge.

Dauben v. State                                                                                     Page 2
SUFFICIENCY OF THE EVIDENCE

       In his first issue, Dauben contends the trial court erred in failing to grant a

directed verdict for Dauben because “the evidence as presented by the State, taken as

true, does not constitute a criminal act under Texas law.”

       We review a challenge to the denial of a motion for directed verdict as a

challenge to the legal sufficiency of the evidence. Williams v. State, 937 S.W.2d 479, 482

(Tex. Crim. App. 1996). The Court of Criminal Appeals has expressed our standard of

review of a sufficiency issue as follows:

              In determining whether the evidence is legally sufficient to support
       a conviction, a reviewing court must consider all of the evidence in the
       light most favorable to the verdict and determine whether, based on that
       evidence and reasonable inferences therefrom, a rational fact finder could
       have found the essential elements of the crime beyond a reasonable doubt.
       Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Hooper v. State, 214 S.W.3d 9,
       13 (Tex. Crim. App. 2007). 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 facts
       to ultimate facts." Jackson, 443 U.S. at 319. "Each fact need not point
       directly and independently to the guilt of the appellant, as long as the
       cumulative force of all the incriminating circumstances is sufficient to
       support the conviction." Hooper, 214 S.W.3d at 13.

Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011).

       The Court of Criminal Appeals has also explained that our review of "all of the

evidence" includes evidence that was properly and improperly admitted. Conner v.

State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if the record supports conflicting

inferences, we must presume that the factfinder resolved the conflicts in favor of the


Dauben v. State                                                                            Page 3
prosecution and therefore defer to that determination. Jackson v. Virginia, 443 U.S. 307,

326, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). Further, direct and circumstantial evidence

are treated equally: "Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Finally, it is

well established that the factfinder is entitled to judge the credibility of witnesses and

can choose to believe all, some, or none of the testimony presented by the parties.

Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991).

       As it pertains to the offense as charged in this case, a person commits the offense

of fraudulent use or possession of identifying information if the person, with the intent

to harm another, uses an item of identifying information of another person without the

other person's consent. TEX. PENAL CODE ANN. § 32.51(b)(1) (West Supp. 2013). At the

time this offense occurred, "identifying information" meant information that alone or in

conjunction with other information identifies a person, including a person's name and

social security number, date of birth, or government issued identification number. Act

of June 15 2007, 80th Leg., R.S., ch. 1173, 2007 Tex. Gen. Laws 4012 (amended 2011)

(current version at TEX. PENAL CODE ANN. § 32.51(a)(1)(A) (West Supp. 2013)).

       Relying solely on the Court of Criminal Appeals’ opinion in Jones v. State for the

proposition that the purpose of section 32.51 is identity theft which centers around loss

of property, Dauben argues the evidence was insufficient because there was no


Dauben v. State                                                                     Page 4
evidence of an attempt to commit a fraudulent act or an attempt to control or convert

property by Dauben. See Jones v. State, 396 S.W.3d 558 (Tex. Crim. App. 2013). We

disagree with Dauben’s proposition.

        Although the Court in Jones said that the purpose of section 32.51 is to prevent

identity theft and that its placement within Title 7 of the Penal Code, entitled "Offenses

Against Property" indicates the statute is “property-centric,” it made this determination

while performing an in pari materia analysis2, comparing section 32.51 with the failure to

identify statute, section 38.02. Id. It did not, however, hold that identity theft and

conversion or control of property is the only means by which a person may be

convicted under section 32.51. In Jones, the defendant had been stopped for speeding

and gave the name and date of birth of a high school classmate, in whose name the

ticket was issued. When the classmate was informed later by the police department that

a warrant had been issued for her arrest due to her failure to pay a ticket she never

received, it was determined that the defendant had used the classmate’s name. The

defendant, on appeal, claimed that she should have been charged with failure to

identify because it was in pari materia with section 32.51 and had the lesser punishment.

The Dallas Court of Appeals and the Court of Criminal Appeals disagreed with the

defendant and each held that the statutes were not in pari materia.


2 In pari materia is a rule of statutory construction where, in the context of penal provisions, one provision
has broadly defined an offense and a second has more narrowly defined another offense, complete within
itself, to proscribe conduct that would otherwise meet every element of, and be punishable under, the
broader provision. Jones, 396 S.W.3d at 561.

Dauben v. State                                                                                        Page 5
       Here, Dauben was charged with using Buchert’s identifying information without

his permission with the intent to harm Buchert. We construe a statute to give effect to

its plain meaning, unless that statutory language is ambiguous or would lead to absurd

results. Reed v. State, 268 S.W.3d 615, 617 (Tex. Crim. App. 2008). The word harm is

defined by the Penal Code as “anything reasonably regarded as loss, disadvantage, or

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

interested.” TEX. PENAL CODE ANN. § 1.07(25) (West Supp. 2013). And, just as there is

no requirement that harm be of a physical nature, there is no requirement that harm be

of a pecuniary nature. See Hudspeth v. State, 31 S.W.3d 409, 411 (Tex. App.—Amarillo

2000, pet. ref'd) (no requirement of physical harm); see also White v. State, No. 14-05-

00454-CR, 2006 Tex. App. LEXIS 8396, *6-7 (Tex. App.—Houston [14th Dist.] Sept. 28,

2006, pet. ref’d) (not designated for publication) (no requirement of physical or

pecuniary harm).    Further, the statute is not limited to a “fraudulent use” of the

information. A person commits an offense under section 32.51 if the person, with the

intent to harm or defraud another, obtains, possesses, transfers, or uses an item of

identifying information of another person without the other person's consent. TEX.

PENAL CODE ANN. § 32.51(b)(1) (West Supp. 2013) (emphasis added).

       The plain language of section 32.51 suggests that the subject of that statute is the

use of another's identifying information without permission. Jones v. State, 396 S.W.3d

558, 562 (Tex. Crim. App. 2013). Had the legislature wanted to limit the statute to only


Dauben v. State                                                                      Page 6
fraudulent use of identifying information which harmed the victim in only a pecuniary

manner, it could have easily limited the statute. See Reed v. State, 268 S.W.3d 615, 618

(Tex. Crim. App. 2008) (“The legislature's choice not to include such language, which

could have easily been added to the statute, indicates the legislature's intent not to bring

such conduct within the purview of this offense.”). Thus, we cannot conclude that the

language of the statute regarding use of identifying information with the intent to harm

is ambiguous or that a construction that this type of action by a person is a criminal

offense leads to an absurd result.

       Accordingly, after reviewing the evidence in the light most favorable to the

verdict, we determine, based on that evidence and reasonable inferences therefrom, a

rational fact finder could have found beyond a reasonable doubt that Dauben, with the

intent to harm Christopher Buchert, used an item of identifying information of Buchert

without Buchert’s consent. Dauben’s first issue is overruled.

ATTORNEY’S FEES

       In his second issue, Dauben complains that the trial court erred in assessing

attorney's fees in the judgment because there was no evidence that Dauben’s finances

had undergone a material change since he was determined to be indigent during the

underlying proceedings. The State agrees that the evidence was insufficient in this

regard. In accordance with the opinion of the Court of Criminal Appeals in Mayer v.

State, 309 S.W.3d 552, 557 (Tex. Crim. App. 2010), we agree that the evidence was


Dauben v. State                                                                       Page 7
insufficient and the judgment should be modified to delete this assessment. Dauben’s

second issue is sustained.

CONCLUSION

       The evidence was insufficient for the trial court to have assessed attorney's fees

in the judgment, therefore, that assessment is deleted and the judgment is modified to

show that the amount of costs owed by Dauben is $799.00 for court costs and no

attorney's fees. Having found no other reversible error, we affirm the trial court’s

judgment as modified.




                                           TOM GRAY
                                           Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed June 5, 2014
Do not publish
[CR25]




Dauben v. State                                                                    Page 8
