





NUMBER 13-01-664-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG 
 


JOSE RAMON LIMA,        Appellant,


v.



THE STATE OF TEXAS,       Appellee.
 
On appeal from the 389th District Court of Hidalgo County, Texas.

O P I N I O N

Before Justices Hinojosa, Yañez, and Garza
Opinion by Justice Yañez


 By two points of error, appellant Jose Ramon Lima challenges his conviction for making a false record. (1)  A jury found
him guilty and assessed punishment at four years imprisonment and a $3,000 fine.  On the jury's recommendation, the trial
judge suspended the sentence and placed Lima on four years of community supervision.  We affirm.
Background
 In 1997 Lima was a licensed midwife and administrator of a birthing center in Mission.  On October 21, 1997, a pregnant
mother visited the center to give birth. Appellant's wife, Irma, assisted the mother in the delivery of the baby.  Irma was not
allowed to practice midwifery as of the date of this delivery.  Appellant was not present during the delivery.
 The birth certificate reflects the following:  appellant's name and address are typed below the words "Attendant's Name
and Mailing Address" in section 8a;  appellant's signature, dated November 1, appears below the word "Certifier" in section
9a;  and a box, underneath the signature, marked "Attendant" is checked in section 9b.  There are two other boxes below
the signature line, in section 9b, that could have been checked, "Facility Administrator / Designee" and "Other (Specify)." 
The certificate was received by the local registrar and Bureau of Vital Statistics on November 5.
Applicable Law
 The health and safety code states, in relevant parts:
 § 192.003.  Birth Certificate Filed or Birth Reported


 (a) The physician, midwife, or person acting as a midwife in attendance at a birth shall file the birth certificate with the
local registrar of the registration district in which the birth occurs.
 
 (b) If a birth occurs in a hospital or birthing center, the hospital administrator, the birthing center administrator, or a
designee of the appropriate administrator may file the birth certificate in lieu of a person listed by Subsection (a).


Tex. Health & Safety Code Ann.  § 192.003 (Vernon 2001).  The health and safety code also provides that a person
commits the offense of making a false record if he or she intentionally or knowingly makes a false statement in a birth
certificate.  Id. § 195.003.
 According to the penal code, a person acts intentionally if it is his conscious objective or desire to engage in the conduct or
cause the result.  Tex. Pen. Code Ann. §6.03(a) (Vernon 2003).  A person acts knowingly when he is aware of the nature of
his conduct or that the circumstances exist.  Id. § 6.03(b).
Analysis
A. Legal Sufficiency

 In his second point of error, Lima challenges the legal sufficiency of the evidence. For such a challenge, we review the
evidence in a 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, 319 (1979); Johnson v.
State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  Appellant specifically contends the State offered no evidence that he
intentionally or knowingly made a false statement. We disagree.
 Whether a defendant acted intentionally or knowingly (i.e., defendant's culpable mental state) must usually be inferred
from the facts and circumstances.  See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991).  Thus, the jury
may infer intent or knowledge from any facts in evidence that tend to prove the existence of such a culpable mental state. 
Id.
 At trial, the State elicited testimony from Edward Mata, an investigator/administrator for the Bureau of Vital Statistics
("the Bureau").  Mata testified, "Midwives must be documented on an annual basis.  They receive training, so many hours
of training.  And so every year they have to renew their certification."  Mata stated that Lima's registration was current for
1997.  Mata also answered "no" when asked if appellant's wife was allowed to practice midwifery on the date of the
delivery in question.
 The State also elicited testimony from Debra Owens, a state registrar chief for the Bureau.  Owens explained that the
Bureau is "the official custodian of all Texas records found:  Birth, death, marriage applications and divorce applications." 
Owens also explained, regarding the birth certificate itself, "The fields of information is [sic] completed typically by the
person who is . . . attending the mother at the time of the birth.  After that also there is a certifier, and that's the person who
assures that everything on the particular birth certificate document is accurate and correct information."  Her testimony
further revealed that only a person who actually attended the birth should be listed as the attendant in section 8a of a birth
certificate.  Owens then answered affirmatively when asked if Lima had certified that he was the attendant midwife on the
document.
 The State then offered the birth certificate.  Finally, the State presented evidence that Lima's wife was present at the
delivery, while he was not.
 In sum, the face of the birth certificate misrepresents Lima as the attendant to the delivery twice.  First, appellant's name
and address are listed as that of the attendant. Second, the box under appellant's certifying signature is marked "Attendant." 
Despite these representations, appellant's wife was the attendant at the delivery and appellant was not.  We conclude the
twice-made misrepresentation on the birth certificate and the witnesses' testimony were sufficient to allow the jury to infer
Lima's mental state and find beyond a reasonable doubt that he intentionally or knowingly made a false record.  After
reviewing the evidence in a light most favorable to the verdict, we conclude that a rational trier of fact could have found the
essential elements of the offense beyond a reasonable doubt.  We hold that the evidence is legally sufficient to support
appellant's conviction. Appellant's second point of error is overruled.
B. Ineffective Assistance
 In his first point of error, Lima contends he was denied effective assistance of counsel.  Appellant specifically argues that
his conviction should be reversed because counsel failed to request an instruction on the defense of mistake of fact or, in
the alternative, counsel failed to pursue this defense at all.  We disagree.
 Appellant bears the burden of proving by a preponderance of the evidence that counsel was ineffective.  Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). To prevail on an ineffective assistance point in accordance with
Strickland v. Washington, 466 U.S. 668 (1984), the appellant must first show that his trial counsel's performance was
deficient, in that it fell below an objective standard of reasonableness.  Thompson, 9 S.W.3d at 812.  Second, appellant
must further prove that there is a reasonable probability that but for counsel's deficient performance, the result of the
proceeding would have been different.  Id.  A reasonable probability is a probability sufficient to undermine confidence in
the outcome.  Id.
1. Failure to Request an Instruction
 The penal code states, "It is a defense to the prosecution that the actor through mistake formed a reasonable belief about a
matter of fact if his mistaken belief negated the kind of culpability required for commission of the offense."  Tex. Pen.
Code Ann. § 8.02(a) (Vernon 2003).  To raise this defense, evidence must be presented that the defendant through mistake
formed a reasonable belief about a matter of fact and the mistaken belief would negate the culpable mental state required
for commission of the offense.  See Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991).  The defendant is not
required to testify to raise the defense of mistake of fact and may rely on other evidence admitted at trial.  Id.  When
properly requested by the defense, the trial court is required to give an instruction on any defensive issue raised by the
evidence.  Id.
 Here, Lima did not testify at trial and no other evidence raised the issue of mistake of fact.  Not a single witness testified,
nor was any other evidence offered, regarding appellant's alleged mistaken belief.  Counsel did not err by not requesting an
instruction to the jury on the defense of mistake of fact because the evidence presented did not raise the issue.
2. Failure to Pursue a Defense
 Regarding Lima's alternative argument that trial counsel failed to pursue the defense of mistake of fact, there is a strong
presumption that counsel's conduct fell within the wide range of reasonable professional assistance.  Thompson, 9 S.W.3d
at 813.  Consequently, appellant "must overcome the presumption that, under the circumstances, the challenged action
'might be considered sound trial strategy.'"  Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101
(1955)).
 After reviewing the record of the trial, it appears defense counsel's strategy was to challenge the State's evidence regarding
the elements of the offense.  Counsel argued to the jury that there was no evidence that appellant actually signed the
document or checked the wrong box.  The defensive theory pursued at trial (he was not the person who made the false
record) essentially precludes the theory appellant pursues now (he did fill out the birth certificate, but under a mistake of
fact).  We conclude the record is insufficient to rebut the presumption that trial counsel's decision not to pursue the defense
of mistake of fact was the result of "sound trial strategy."  See id.
 Considering both of Lima's arguments within this point, he has not met his burden to prove that trial counsel's alleged
failure fell below an objective standard of reasonableness.  Appellant's first point of error is overruled.
 We have considered all of appellant's points, and they are all overruled.  The judgment of the trial court is affirmed.


 
LINDA REYNA YAÑEZ
Justice





Publish.  Tex. R. App. P. 47.2(b).


Opinion delivered and filed this the
22nd day of May, 2003.
1. Tex. Health & Safety Code Ann.  § 195.003 (Vernon 2001).
