                                                                                  PD-1501-14
                                                                COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
May 12, 2015                                                    Transmitted 5/11/2015 5:11:18 PM
                                                                  Accepted 5/12/2015 8:00:45 AM
                                                                                  ABEL ACOSTA
                              NO. PD-1501-14                                              CLERK

      IN THE COURT OF CRIMINAL APPEALS FOR THE STATE OF TEXAS

        ON APPEAL FROM THE COURT OF APPEALS FOR THE NINTH
             JUDICIAL DISTRICT OF TEXAS AT BEAUMONT
                           NO. 09-13-00203-CR

               ROBERT WILLIAM CORNWELL, Appellant,
                                        v.
                   THE STATE OF TEXAS, Appellee.

                  Arising from: Cause   No. 12-08-08579-CR
                     IN THE 435TH DISTRICT COURT OF
                      MONTGOMERY COUNTY, TEXAS

                     STATE’S APPELLATE BRIEF

                                                 BRETT W. LIGON
                                                 District Attorney
                                                 Montgomery County, Texas
                                                 SHANNA REDWINE
                                                 Assistant District Attorney
                                                 Montgomery County, Texas
                                                 JASON LARMAN
                                                 Assistant District Attorney
                                                 Montgomery County, Texas
                                                 T.B.C. No. 24072468
                                                 207 W. Phillips, Second Floor
                                                 Conroe, Texas 77301
                                                 936-539-7800
                                                 jason.larman@mctx.org

      Oral Argument Requested Only if Requested by Appellant
                     IDENTITY OF PARTIES AND COUNSEL
      Pursuant to Tex. R. App. P. 38.2, the State hereby supplements the

appellant’s list of parties to this appeal with the names of all trial and appellate

counsel for the State:


District Attorney:                                 BRETT W. LIGON
                                                   District Attorney
                                                   Montgomery County, Texas
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301

Counsel for the State in the trial court:          SHANNA REDWINE
                                                   JEFF HOHL
                                                   Assistant District Attorneys
                                                   Montgomery County, Texas
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301

Counsel for the State in the appellate courts:     JASON LARMAN
                                                   Assistant District Attorney
                                                   Montgomery County, Texas
                                                   207 W. Phillips, Second Floor
                                                   Conroe, Texas 77301




                                            ii
                                          TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ............................................................ ii
TABLE OF CONTENTS ......................................................................................... iii
INDEX OF AUTHORITIES .................................................................................... iv
STATEMENT OF THE CASE...................................................................................1
STATEMENT OF FACTS .........................................................................................1
SUMMARY OF THE STATE’S ARGUMENT.........................................................2
REPLY TO POINT OF ERROR ONE .......................................................................2
     I. Standard of review............................................................................................3
     II. The appellant misreads the indictment............................................................3
     III. Variance..........................................................................................................4
     IV. Pretended official acts ....................................................................................8
     V. The opinion of the Court of Appeals ............................................................. 11
CONCLUSION AND PRAYER ..............................................................................13
CERTIFICATE OF COMPLIANCE WITH RULE 9.4...........................................14
CERTIFICATE OF SERVICE .................................................................................14




                                                            iii
                                  INDEX OF AUTHORITIES

Cases
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010)..........................................3

Cornwell v. State,
  445 S.W.3d 488 (Tex. App.—Beaumont 2014, pet. granted) ....................1, 11, 12

Garfias v. State, 424 S.W.3d 54 (Tex. Crim. App. 2014) ..........................................6
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001) .........................................4

Gonzales v. State, 304 S.W.3d 838 (Tex. Crim. App. 2010) ......................................6

Isassi v. State, 330 S.W.3d 633 (Tex. Crim. App. 2010)............................................3
Jackson v. Virginia, 443 U.S. 307 (1979) ..................................................................3

Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App. 2012) ...................................4, 5

Young v. State, 341 S.W.3d 417 (Tex. Crim. App. 2011) ...........................................5

Statutes
Tex. Pen. Code Ann. § 37.11 (West 2011) .................................................. 5, 8, 9, 12




                                                    iv
TO THE HONORABLE JUDGES OF THE COURT OF CRIMINAL APPEALS:

                          STATEMENT OF THE CASE
      The appellant was charged with the offense of impersonating a public

servant (C.R. 19). He entered a plea of not guilty, but a jury found him guilty as

charged (C.R. 77, 79). The trial court assessed his punishment at imprisonment for

two years (C.R. 79). The Ninth Court of Appeals affirmed the appellant’s

conviction on October 8, 2014. Cornwell v. State, 445 S.W.3d 488 (Tex. App.—

Beaumont 2014, pet. granted). The appellant filed a petition for discretionary

review, and this Court granted the appellant’s petition on February 11, 2015.

                            STATEMENT OF FACTS
      The appellant, purporting to be an assistant district attorney from Dallas,

called Kourtney Teaff, at that time an assistant district attorney for Montgomery

County, and attempted to negotiate a favorable resolution to a friend’s criminal

case1 (R.R. 4: State’s ex. 9). Teaff initially received a voice message from the

appellant, and recognizing that it was unusual for a prosecutor to attempt to use

their office to influence a case in another county, recorded the subsequent

      1
         Michelle Salas entered a plea of guilty to the offense of DWI on April 18,
2007, and was placed on community supervision for a period of fifteen months
(R.R. 4: State’s ex. 1). An active warrant was issued for Salas’s arrest when the
State filed a motion to revoke alleging that Salas failed to comply with virtually all
the terms of her community supervision (R.R. 2: 177-78; 4: State’s exs. 2, 3). The
warrant remained active and the motion to revoke was pending when the appellant
attempted to intervene (R.R. 2: 197).

                                          1
conversations (R.R. 3: 8-11). The appellant was not an assistant district attorney

(R.R. 2: 154, 159-60).

       During Teaff’s interactions with the appellant, he claimed to have spoken to

the probation department in Montgomery County, run his friend’s criminal history,

reviewed the case file, discovered the Montgomery County Sheriff’s Office had

lost the fingerprint card, and sentenced his own nephew to “ten days in county” for

possession of marijuana (R.R. 4: State’s ex. 9).

                  SUMMARY OF THE STATE’S ARGUMENT
       Reply to Point of Error One: The Court of Appeals correctly determined

that the appellant identified himself as a public servant, and that he intended for

Teaff to rely on his pretended official acts in an attempt to resolve a pending

criminal case. The appellant’s claim that he had given his nephew jail time

constituted a pretended official act, and it was unquestionably fabricated to

convince Teaff to grant the appellant’s request by portraying the appellant as an

otherwise-hardnosed prosecutor who believed that leniency in this case was

justified.

                      REPLY TO POINT OF ERROR ONE
       The appellant argues that the evidence is insufficient to show that he

intended Teaff to rely on his pretended official acts.




                                           2
     I. Standard of review.
      In reviewing the sufficiency of the evidence, this Court views the evidence

“in the light most favorable to the verdict” to determine whether a reasonable fact-

finder could have found each element of the offense beyond a reasonable doubt.

Brooks v. State, 323 S.W.3d 893, 902 (Tex. Crim. App. 2010) (citing Jackson v.

Virginia, 443 U.S. 307 (1979)). It is “the responsibility of the trier of fact to fairly

resolve conflicts in testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts.” See Jackson, 443 U.S. at 319; see

also Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010).

    II. The appellant misreads the indictment.
      The appellant repeatedly asserts that the indictment alleged—and that his

conviction must therefore rest exclusively upon evidence—that the appellant

sought to induce reliance on “his pretended official act of ‘trying to resolve a

pending criminal case’” (br. at 9, 12). In other words, the appellant reads the

indictment to identify the pretended official act to be “by trying to resolve a

pending criminal case,” as though it said the appellant intended to induce Teaff to

rely on the pretended official acts of the defendant, to wit: by trying to resolve a

pending criminal case. But the indictment does not. Rather it states that the

appellant intended to induce Teaff to “rely on the pretended official acts of the

defendant by trying to resolve a pending criminal case” (C.R. at 9). This “by trying


                                           3
to resolve a pending criminal case” phrase is more accurately understood to be the

manner in which the appellant sought to induce Teaff.

  III. Variance.
      In determining the sufficiency of the evidence, the reviewing court utilizes a

hypothetically correct jury charge, which “does not necessarily have to track

exactly all of the charging instrument’s allegations … [and] ‘need not incorporate

allegations that give rise to immaterial variances.’” Johnson v. State, 364 S.W.3d

292, 294 (Tex. Crim. App. 2012) (citing Gollihar v. State, 46 S.W.3d 243 (Tex.

Crim. App. 2001)). In Johnson, this Court explained that variance occurs in two

ways. The first is a variance between the pleading and the proof with regard to the

statutory language that defines the offense. Id. This type of variance is material,

will render the evidence insufficient to support a conviction. Id. at 295.

      The second is a variance with regard to a nonstatutory allegation. This

second type of variance will not render the evidence insufficient unless the proof at

trial shows an “entirely different offense” than the allegations in the indictment.

See id. at 295-98. In evaluating this second category of variance, this Court looked

to the gravamen of the offense and the allowable unit of prosecution for the

offense. This Court also suggested that the analysis used to evaluate a jury

unanimity question provided a useful framework:

      The jury unanimity context may provide a useful framework for
      evaluating non-statutory variances because any issue involving a non-

                                          4
      statutory variance can be converted into a jury unanimity question. If
      the non-statutory allegations that were pled and proved had both been
      pled, could both have been submitted in the jury charge in support of a
      single offense without violating principles of jury unanimity? For
      example, an indictment might allege that Dangerous Dan was
      murdered by being stabbed with a knife, but the proof at trial might
      [have] showed that he was, instead, bludgeoned with a baseball bat.
      The issue could be re-framed as whether the principles of jury
      unanimity would be violated if “stabbed with a knife” and
      “bludgeoned with a baseball bat” were both submitted in support of
      the single murder offense to the jury. The answer is no, because the
      two methods of committing murder do not result in two offenses.

Id.at 296. Murder is a result oriented offense, and thus, the Court’s example of

Dangerous Dan requires unanimity only with regard to the result of the alleged

conduct. See id.; Young v. State, 341 S.W.3d 417, 424 (Tex. Crim. App. 2011). For

a conduct oriented offense, the jury must unanimously agree about the specific

criminal act. See Young, 341 S.W.3d at 424.

      No court in Texas appears to have taken up the units-of-prosecution analysis

with regard to impersonating a public servant. See Tex. Penal Code Ann. § 37.11

(West 2011). The statute essentially contains three components potentially

instructive to the appropriate unit of prosecution: (1) each discrete act of

impersonating a public servant, (2) each discrete victim targeted by the act of

impersonation, or (3) the official authority or pretended official act upon which the

defendant had the intent to induce reliance or submission. Because the

impersonating a public servant statute criminalizes the actor’s conduct, even if

unsuccessful, it is best understood to be a conduct oriented offense. Accordingly,
                                         5
assigning units of prosecution based on either the number of victims or the number

of discrete acts of impersonation is consistent with this Court’s other holdings. See,

e.g., Garfias v. State, 424 S.W.3d 54, 61 (Tex. Crim. App. 2014); Gonzales v. State,

304 S.W.3d 838, 849 (Tex. Crim. App. 2010). Permitting the third component,

which focuses solely on the appellant’s intent, to determine the appropriate unit of

prosecution would permit multiple prosecutions for a single act of impersonating a

public servant if one intended for a single person to rely on multiple pretended

official acts. Most appropriately, each time a person impersonates a public servant

with the requisite intent is a single unit of prosecution. Therefore, because a

variance between the pretended official act alleged and the pretended official act

proven at trial does not result in a completely different offense, any variance is

immaterial.

      Further, applying the jury unanimity analysis referenced in Johnson, it is

abundantly clear that the pretended official act would not require that the jury

unanimously agree on the precise pretended official act supporting the conviction.

It could hardly be contested that the jury would be forced to reach a unanimous

agreement about the specific pretended official act upon which the defendant

sought reliance. For example, had the indictment alleged that the appellant

impersonated a public servant with the intent to induce Teaff to submit to the

pretended official authority or rely on the pretended official acts of the appellant, to

                                           6
wit:2 trying to resolve a pending criminal case, giving his nephew ten days in the

county jail for possession of marijuana, or by running a criminal history, the jury

would not be required to unanimously agree on which pretended act supported the

conviction, nor could the State have charged the appellant with three separate

counts of impersonating a public servant under those circumstances. In fact, the

jury was not even asked to unanimously decide between intent to induce Teaff to

(1) submit to his pretended authority, or (2) rely on his pretended official acts.

      In this case, the indictment and proof established that, on or about June 1,

2012, the appellant represented himself to be an assistant district attorney for

Dallas County, and that he made that representation to Kourtney Teaff while

attempting to resolve a pending criminal case. Even if this Court concludes that the

indictment specified that “attempting to resolve a pending criminal case” was an

express allegation of the pretended official act upon which the appellant sought

reliance, because evidence of a different pretended official act would not affect the

units of prosecution or require the jury to select between multiple options, that

variance is not material.




      2
        As noted above, adding the phrase “to wit” is necessary to give the
indictment the meaning sought by the appellant.

                                           7
   IV. Pretended official acts.
      As charged in the present case, a person commits the offense of

impersonating a public servant if the person “impersonates a public servant with

intent to induce another to submit to his pretended official authority or to rely on

his pretended official acts.” See Tex. Pen. Code Ann. § 37.11 (West 2011).

      The appellant correctly observes that the State’s evidence did not prove any

intent to induce “another to submit to his pretended official authority,” as he

consistently claimed to be acting in his personal capacity when requesting leniency

for his friend. Accordingly, the State was required to prove that the appellant

impersonated a public servant with intent to induce another to rely on his pretended

official acts. The appellant concedes that he represented himself to be a public

servant with the intent to induce Teaff to resolve a pending criminal case, and

disputes only the sufficiency of the evidence supporting the allegation that he

intended Teaff to rely on his pretended officials acts. Because the appellant’s calls

were recorded, the evidence itself is undisputed.

      During the appellant’s conversation with Teaff, during which the appellant’s

sole objective was to resolve a pending criminal case, the appellant represented to

Teaff that he had previously given his nephew “ten days in county” for possessing

marijuana (R.R. 4: State’s ex. 9). Quite obviously, this act constituted a pretended

official act reserved almost exclusively for a prosecutor, and a rational jury could


                                         8
have concluded that the appellant intended for Teaff to rely on that act in deciding

whether to grant his plea for leniency, even if he expressly represented his plea for

leniency to be a personal—rather than an official—request.

      The appellant dismisses this act as unimportant because it is not, standing

alone, the official act of “trying to resolve a pending criminal case” (br. at 12). But,

as discussed above, the indictment did not purport to identify the pretended official

act as trying to resolve a criminal case, and even if it did, any variance would be

immaterial.

      The appellant also appears to require that the pretended official act occur

simultaneously with the representation of one as a public servant, and that one does

not commit an offense by inducing another to rely on pretended official acts

represented to have occurred in the past. Such an argument is plainly flawed, and

hypothetical examples demonstrating its absurdity readily come to mind. For

example, if a man went to his friend’s employer, represented himself to be a city

councilman, and informed the manager that the city council recently approved an

increase in the minimum wage and continuing to pay employees such a pittance

was a violation of city ordinance purportedly voted for by that man, that conduct

would violate section 37.11 of the Texas Penal Code. Likewise, if the same man

approached a stranger, identified himself as a police officer, asked the stranger to

move the stranger’s unlawfully parked car, and supported his request with a

                                           9
representation that he had ticketed and towed the vehicle of another from the same

spot on an earlier day, that conduct would violate section 37.11.

      The appellant in this case sought to induce Teaff to resolve a pending

criminal case, and, in doing so, expressly sought to induce her reliance on his

pretended official act of giving his nephew to “ten days in county” (R.R. 4: State’s

ex. 9).3 Accordingly, the evidence is sufficient to support his conviction.

      The appellant’s argument could also arguably raise a question about the

meaning of the phrase “pretended official act” because that phrase could mean a

false pretension about the official nature of the act the defendant actually

performed, a false pretension that the act ever occurred, or both. In the instant case,

the false pretension was with regard to whether the act ever occurred. Should this

Court assume for the first time that the legislature intended the word “pretended”

to modify only “official,” and hold that only an act committed, but pretended to be

official, supports conviction under the statute, then the appellant’s conduct would

not violate the statute.




      3
        The appellant also represented to Teaff that he previously performed a
background check in the case, which would likewise constitute an official act
regulated by Chapter 411 of the Texas Government Code if performed by a
prosecutor.

                                          10
    V. The opinion of the Court of Appeals.
      The Court of Appeals appears to have focused more on the intent-to-induce

element than on the pretended official acts shown by the evidence. For example,

the Court of Appeals described the appellant’s argument as, inter alia, contesting

the sufficiency of the evidence that the appellant intended Teaff “to rely on his act

of falsely representing that he was an assistant district attorney.” See Cornwell, 445

S.W.3d at 489. Similarly, the Court addressed the fact that the State was not

required to prove that the appellant was successful, but only that he intended for

the State to rely on his representations:

      Essentially, Cornwell argues that his false identification as a public
      official is insufficient to demonstrate that he intended for the assistant
      district attorney in Montgomery County to negotiate with him to
      resolve his friend’s case based on the false impression he created by
      saying that he was an assistant district attorney. However, the State
      was not required to prove that the assistant district attorney in
      Montgomery County actually relied on his false representation about
      his position to act on his friend’s case; instead, the State was only
      required to prove that Cornwell intended the assistant district attorney
      to do so.
Cornwell, 445 S.W.3d at 490-91. Relying on the appellant’s act of claiming to be

an assistant district attorney, the Court of Appeals opinion then concludes that the

appellant’s intent to influence Teaff to use her authority to resolve the pending

criminal case supported the appellant’s conviction:

      In Cornwell’s case, the jury could have reasonably believed that
      Cornwell falsely represented he was an assistant district attorney
      because he believed that another assistant district attorney was more

                                            11
      likely to consider his requests to move the case along if she thought he
      held a similar official position. When viewed in the light most
      favorable to the evidence, the jury’s conclusion that Cornwell
      intended to induce an assistant district attorney to use her authority to
      resolve an active case was reasonable. Given that an act under the
      Penal Code involves speech, and that the Montgomery County
      assistant district attorney had the ability to use her prosecutorial
      discretion with respect to Cornwell’s friend’s case, we hold the
      evidence supports Cornwell’s conviction under the “pretended official
      acts” prong of section 37.11(a)(1) of the Penal Code.

Id. at 491. Because the mere act of claiming to be an assistant district attorney

(which satisfies only the element of impersonating a public servant), even if

coupled with a request for a personal favor, would not constitute a violation of

section 37.11, to the extent that the opinion of the Court of Appeals could be

understood to suggest otherwise, it should be clarified by this Court.




                                         12
                         CONCLUSION AND PRAYER
      It is respectfully submitted that all things are regular and the judgment of the

trial court should be affirmed.

                                                    BRETT W. LIGON
                                                    District Attorney
                                                    Montgomery County, Texas


                                                    /s/ Jason Larman
                                                    JASON LARMAN
                                                    T.B.C. No. 24072468
                                                    Assistant District Attorney
                                                    Montgomery County, Texas
                                                    207 W. Phillips, Second Floor
                                                    Conroe, Texas 77301
                                                    936-539-7800
                                                    936-788-8395 (FAX)
                                                    jason.larman




                                         13
             CERTIFICATE OF COMPLIANCE WITH RULE 9.4
      I hereby certify that this document complies with the requirements of Tex. R.

App. P. 9.4(i)(2)(B) because there are 2,819 words in this document, excluding

the portions of the document excepted from the word count under Rule 9.4(i)(1), as

calculated by the MS Word computer program used to prepare it.



                                                   /s/ Jason Larman
                                                   JASON LARMAN
                                                   Assistant District Attorney
                                                   Montgomery County, Texas


                          CERTIFICATE OF SERVICE
      I hereby certify that a true and correct copy of the foregoing instrument was

e-mailed to counsel for the appellant on the date of the submission of the original

to the Clerk of this Court.


                                                   /s/ Jason Larman
                                                   JASON LARMAN
                                                   Assistant District Attorney
                                                   Montgomery County, Texas




                                        14
