                                    In The
                               Court of Appeals
                      Seventh District of Texas at Amarillo

                                     No. 07-12-00165-CR


                     DAMIEN HERNANDEZ CORTEZ, APPELLANT

                                              V.

                            THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 320th District Court
                                    Potter County, Texas
               Trial Court No. 62,862-D, Honorable Don R. Emerson, Presiding

                                       February 27, 2014

                                         OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

       Damien Hernandez Cortez was convicted of fraudulently possessing five or more

but less than ten items of identifying information. In seeking to overturn that conviction,

he contends 1) the trial court erred in failing to include a jury instruction on a presumed

fact, 2) the trial court erred in failing to include a jury instruction on voluntariness, 3) the

trial court erred in using the phrase “identifying information” in place of the phrase “item

of identifying information” in the application paragraph of the jury charge, 4) the trial

court erred in failing to grant his motion for directed verdict, and 5) the evidence was
legally insufficient to sustain the conviction. Upon considering the issues in their logical

rather than numerical order, we affirm the judgment.

       Cortez was one of two passengers in a truck in which the driver was arrested for

driving with a suspended license. During an inventory search of the vehicle, police

discovered a blue backpack in the bed of the truck. The backpack contained a folder

and inside the folder were numerous documents containing “identifying information” of

persons other than the driver or passengers.         Although appellant was not initially

arrested, his fingerprints were later discovered on several of the documents, and that

resulted in his arrest and prosecution.


       Jury Instruction on Identifying Information


       We consider appellant’s fourth issue first. Therein, he contends:

       It was error to substitute the defined term ‘identifying information’ for the
       term ‘item of identifying information’ . . . in the application paragraphs of
       the court’s charge. This error altered the proof requirement of the statute
       to allow conviction of a higher level of offense than intended under the
       law.


We overrule the issue.

       Under the Penal Code, a person commits the offense of fraudulent use or

possession of identifying information if he, with the intent to harm or defraud another,

obtains, possesses, transfers, or uses an “item of identifying information” of another

person without consent. TEX. PENAL CODE ANN. § 32.51(b)(1) (West 2011).1 In turn,

“identifying information” is defined or described within the statute as information that

alone or in conjunction with other information identifies a person; it includes 1) a


       1
           The offense occurred in 2010.

                                             2
person’s name, social security number, date of birth, or government-issued identification

card, 2) unique biometric data, 3) unique electronic identification number, address,

routing code, or financial institution account number, and 4) telecommunication

identifying information or access device. Id. § 32.51(a)(1).          The level of offense is

determined by the number of items possessed.               Id. § 32.51(c).     And, while the

legislature defined the phrase “identifying information,” it failed to define the phrase

“item of identifying information.”

       Again, appellant questions the trial court’s substitution of “the defined term

‘identifying information’ for the term ‘item of identifying information’ . . . in the application

paragraphs . . . .” What he means, though, is a bit confusing since the phrase “item of

identifying information” appears in each application paragraph. For instance, in the first

application paragraph, the jury was told that if it concluded that appellant possessed

“identifying information” of various named individuals “and the number of items of

identifying information possessed was more than ten but less than fifty, then you will

find the defendant guilty as charged.” (Emphasis added). The two other application

paragraphs read similarly but substituted the phrases “five or more but less than 10”

and “less than five” for the passage “more than ten but less than fifty." Given this, we

have difficulty understanding appellant’s complaint about the trial court omitting “item of

identifying information” from the application paragraphs.

       Nonetheless, liberally reading the substance of his argument suggests that what

he actually complains about is whether the jury should have been told that “item of

identifying information” meant the document upon which the information appeared as

opposed to each bit of identifying information appearing in the document. For instance,



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if an accused possessed one check on which appeared 1) a unique electronic

identification number, 2) the address of the account owner, 3) a routing code, and 4) the

financial institution account number, appellant would have us conclude that the accused

possessed only one item of identifying information. The State, however, would argue

that the accused possessed four items of identifying information under that scenario.

And, though the dispute appears to be one of first instance, we agree with the State.2

        Again, while the legislature defined “identifying information,” it did not define “item

of identifying information.” As can be seen, the substantive difference between the two

phrases is the word “item.” Furthermore, the latter is commonly understood as meaning

“a distinct part in an enumeration, account, or series,” MERRIAM-WEBSTER’S COLLEGIATE

DICTIONARY 666 (11th ed. 2003), and it is the common or plain meaning that we must

apply here. LaGrone v. State, 384 S.W.3d 439, 440 (Tex. App.—Amarillo 2012, pet.

ref’d) (stating that we assign words appearing in a statute their common or plain

meaning).

        Given that the legislature provided us with a list or series of things it deemed to

be “identifying information,” an “item” within that series would necessarily be a distinct

part of that series. In other words, an “item of identifying information” would be one of

the many categories of material within the definition of “identifying information.” The

phrase does not refer to the physical object or document upon which the identifying

information appears. And, the jury charge here comported with that interpretation. It

allowed the jury to tally each bit of identifying information appearing on the particular


        2
          In Ngetich v. State, No. 05-12-00734-CR, 2013 Tex. App. LEXIS 15385, at *8 (Tex. App.—
Dallas December 20, 2013, no pet.) (not designated for publication), the court assumed without deciding
that each identification card contained multiple items of identifying information (name and date of birth,
social security number, driver’s license number, and address).

                                                    4
documents when deciding the number of “items of identifying information” appellant

possessed.


      Sufficiency of the Evidence


      Via the next issues we address, appellant contends:

      The evidence was legally insufficient to establish that Appellant possessed
      the items of identifying information that did not bear Appellant’s
      fingerprints. Appellant is linked to those items by his proximity to them
      and his having touched other papers located in the backpack. There was
      nothing to indicate Appellant was voluntarily in possession of those items,
      knew the items were contraband or had any intent with regard to them.
      The trial court should have granted Appellant’s motion for instructed
      verdict.

      [and]

      The evidence was legally insufficient to establish that Appellant possessed
      the items of identifying information. Appellant touched three of the items at
      some point, but there was no evidence illuminating the circumstances of
      that touching and no evidence linking Appellant to [the] backpack wherein
      the items were found.



      Again, of what he actually complains is a bit confusing for he was not convicted

of possessing the identifying information upon which his fingerprints did not appear; so,

we have difficulty understanding why he is complaining about the jury’s consideration of

allegations for which he was not convicted. But, to the extent he may be suggesting

that the trial court should not have submitted those allegations, we do not see how he

was harmed.

      As for the sufficiency of the evidence underlying his conviction for possessing the

items on which appeared his fingerprints, we note that the applicable standard of review

is in Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010).             And, to prove


                                           5
possession, the State was required to show that appellant exercised care, custody,

control or management over the contraband while knowing it to be contraband. Evans

v. State, 202 S.W.3d 158, 161 (Tex. Crim. App. 2006).

       Here, evidence appears of record illustrating that appellant’s fingerprints

appeared on the documents containing the five or more but less than ten items of

identifying information.   From this, a juror could rationally infer, beyond reasonable

doubt, that appellant exercised care, custody, or control over the contraband (i.e.

identifying information). As for his doing so while knowing it to be contraband, it is clear

that the documents on which his prints appeared belonged to and contained information

about third parties. Additionally, one of those third parties (i.e., Archer) testified to

having seen appellant in her home shortly before the documents went missing and that

appellant did not have her permission to possess them. The owner of the other set of

documents containing appellant’s prints also testified about appellant lacking her

permission to possess the information contained in them. This is some evidence from

which jurors could rationally infer beyond a reasonable doubt that appellant knew the

documents containing his prints were contraband.       See Guevara v. State, 152 S.W.3d

45, 50 (Tex. Crim. App. 2004) (stating that the jury may infer intent from circumstantial

evidence). Thus, the evidence was legally sufficient to support his conviction.


       Jury Instruction on a Presumed Fact


       Next we consider the complaint that:

       It was error to omit the instructions on a presumed fact mandated by
       Section 2.05(a)(2) of the Texas Penal Code. Without such an instruction, a
       presumption becomes a mandatory presumption instead of the permissive
       presumption intended by the legislature. That error alone, or compounded
       with other omissions caused Appellant egregious harm.

                                              6
And, upon considering it, we overrule it.

       We begin our discussion by again referring to the penal statute involved.        It

states that a person commits the offense of fraudulent use or possession of identifying

information if he, with the intent to harm or defraud another, obtains, possesses,

transfers, or uses an item of identifying information of another person without consent.

TEX. PENAL CODE ANN. § 32.51(b)(1) (West 2011). The statute further allows the jury to

be informed that a person is presumed to have the intent to harm or defraud another if

the actor possesses the identifying information of three or more persons. Id. § 32.51(b-

1)(1). But, the jury must also be told that 1) the facts giving rise to the presumption

must be proven beyond a reasonable doubt, 2) if the facts are proven beyond a

reasonable doubt, the jury may find that the element of the offense sought to be

presumed does exist but it is not required to so find, 3) the State must prove each of the

other elements of the offense beyond a reasonable doubt, and 4) if the jury has a

reasonable doubt as to the existence of a fact or facts giving rise to the presumption,

the presumption fails and the jury shall not consider the presumption for any purpose.

Id. § 2.05(a)(2)(A), (B), (C), (D).

       While the charge at issue here incorporated the presumption itself, the four

caveats that must accompany it were omitted. Yet, appellant did not object to their

absence, so we look to see whether appellant was egregiously harmed by the error.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). And, in doing so, we

examine the entire jury charge, the evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole. Id.




                                             7
      First, the charge did include the general admonition about every element of the

offense having to be established beyond reasonable doubt, though it was not in

reference to the presumption itself. It also included the three application paragraphs we

discussed under the first issue discussed. And though the jury had the opportunity of

finding appellant guilty of possessing more than ten but less than 50 items of identifying

information, it did not. Rather, it found him guilty of possessing from five to ten such

items. From this, one must logically deduce that the jury did not believe he possessed

documents containing the identification of all five individuals named in the application

paragraphs.

      At this point, we again harken back to the evidence of his fingerprints appearing

on three documents. Of those three, two contained identifying information of Archer

while the third held information pertaining to Snook.     Next, the number of items of

identifying information contained in those three documents was nine, which number just

happened to be within the range of items for which he was found guilty of possession.

So, the record supports the inference that identifying information of only two people

formed the basis of his conviction, and that, in turn, tends to render irrelevant the

presumption arising from the possession of material belonging to three or more

individuals. To that, we add those excerpts from the record indicating that 1) the State

informed the jury during voir dire that the presumption could be overcome or

disbelieved, 2) the State said nothing of the presumption in its closing argument, and 3)

only appellant mentioned the presumption at closing and did so by arguing that it had

been overcome because his fingerprints were found on the information of only two

persons.



                                            8
       Given these circumstances, we necessarily conclude that appellant did not suffer

egregious harm arising from the defect in the jury charge at issue. Warner v. State, 245

S.W.3d 458, 461 (Tex. Crim. App. 2008) (stating that the denial of a fair trial is the

standard for egregious harm). Simply put, the record fails to support the notion that the

presumption was utilized in convicting appellant; so, the deficient manner in which it

was described in the charge was inconsequential. The issue is overruled.


       Jury Instruction on Voluntariness


       Next, appellant contends that it "was error to omit an instruction on voluntariness

as directed by Section 6.01 of the Texas Penal Code. Such instruction is normally

required in any possession case." We overrule the issue.

       First, the instruction omitted apparently was one informing the jury that 1) a

person commits an offense only if he voluntarily engages in conduct, including an act,

an omission, or possession, TEX. PENAL CODE ANN. § 6.01(a) (West 2011), and 2)

possession “is a voluntary act if the possessor knowingly obtains or receives the thing

possessed or is aware of his control of the thing for a sufficient time to permit him to

terminate his control.” Id. § 6.01(b). Yet, appellant did not request it below. Nor did he

cite us to authority indicating that the trial court was obligated to provide the instruction

sua sponte.

       Second, the case authority he did cite, Ramirez-Memije v. State, 397 S.W.3d 293

(Tex. App.—Houston [14th Dist.] 2013, pet granted), states that "if the evidence at trial

raises the issue of whether the defendant voluntarily engaged in conduct, the jury must

be instructed on the issue." Id. at 299. In other words, there must appear evidence of

record establishing a question of fact regarding whether the accused voluntarily

                                             9
engaged in the conduct. This is so since "[v]oluntariness, per se, is not a jury question."

Rhodes v. State, 997 S.W.2d 692, 695 (Tex. App.—Texarkana 1999, pet. ref’d); Wade

v. State, 630 S.W.2d 418, 419 (Tex. App.—Houston [14th Dist.] 1982, no pet.). And, in

absence of evidence indicating that the accused's conduct was not voluntary, we deem

it voluntary as a matter of law. Id.; accord Airheart v. State, No. 08-11-00037-CR, 2012

Tex. App. LEXIS 3235, at *29-30 (Tex. App.—EL Paso April 25, 2012, pet. ref’d) (not

designated for publication) (stating the same and adding that no instruction is necessary

unless the evidence creates a question of fact on the matter). And, the jury need not be

asked to determine something that exists as a matter of law.

       Here, appellant failed to cite us to evidence affirmatively illustrating that he did

not 1) voluntarily possess the identifying information in question or 2) know the nature of

the information appearing in the documents carrying his fingerprints. Consequently, he

did not satisfy his burden on appeal to show that the trial court erred in omitting the

instruction.

           Accordingly, the judgment is affirmed.



                                                        Brian Quinn
                                                        Chief Justice

Publish.




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