                                        In The
                                   Court of Appeals
                          Seventh District of Texas at Amarillo

                                         No. 07-14-00038-CR


                                   PRISCILLA SANDERS, APPELLANT

                                                 V.

                                   THE STATE OF TEXAS, APPELLEE

                            On Appeal from the 242nd District Court
                                     Swisher County, Texas
               Trial Court No. B-4475-12-12, Honorable Edward Lee Self, Presiding

                                          March 18, 2015

                                            OPINION
                       Before CAMPBELL and HANCOCK and PIRTLE, JJ.

      Appellant, Priscilla Sanders, appeals her conviction for tampering with a

governmental record,1 with intent to defraud or harm another,2 and resulting sentence of

nine months’ incarceration in a State Jail Facility, suspended for a period of nine

months, and $500 fine. We will reverse.




      1
          See TEX. PENAL CODE ANN. § 37.10(a)(5) (West Supp. 2014).
      2
          See id. § 37.10(c)(1).
                          Factual and Procedural Background


       Appellant’s nephew, Billy Cruz, has a child, N.G.C., with the child’s mother, Alma

Gutierrez. In September 2012, Cruz and Gutierrez were not married and were not

cohabitating. In accordance with a 2008 order, Gutierrez was managing conservator of

N.G.C. with the exclusive right to establish the child’s residence without geographical

restriction.


       In September 2012, appellant’s sister and the child’s paternal grandmother,

Christina Garza, became concerned about the manner in which Gutierrez was caring for

N.G.C. As a result of this concern, Garza contacted appellant who had, mere months

before, been elected Justice of the Peace of Swisher County, Texas. On September

24, appellant signed an incomplete Emergency Magistrate Order for Protection of

N.G.C., and gave the document to Garza. Garza evidently provided a copy of the

document to Cruz.


       On September 25, Corporal George Brenes of the Amarillo Police Department

was dispatched to investigate an alleged harassment. When Brenes arrived at the

scene, he encountered Gutierrez, Cruz, and Garza. Either Cruz or Garza provided

Brenes the Emergency Magistrate Order for Protection that had been acquired from

appellant. In reliance upon this document, Brenes allowed Cruz to take custody of

N.G.C.


       On September 26, Gutierrez presented a copy of the 2008 custody order to the

Tulia Police Department. On the basis of this order, N.G.C. was returned to Gutierrez.



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After seeing this order and speaking with Gutierrez, an officer contacted the Swisher

County Attorney about the event of the preceding days.


       The Swisher County Attorney contacted the Texas Rangers about the events that

had been reported to him. In the course of its investigation, Ranger Jaime Downs

contacted appellant for an interview. During this interview, appellant stated that, while

she knew what she had done was ill-advised, the order was never completed, executed,

filed, or formally issued by her office.


       Appellant was charged by indictment with the offense of making a governmental

record with knowledge of its falsity and with the intent to defraud or harm another. After

trial, appellant was found guilty of the indicted offense. Subsequently, appellant timely

filed a motion for new trial, which was expressly overruled. Appellant then timely filed

notice of appeal.


       By her appeal, appellant presents four issues.        By her first issue, appellant

contends that the evidence is insufficient to support the jury’s conviction of appellant for

the offense of tampering with a governmental record. By her second issue, appellant

contends that the evidence is insufficient to establish that appellant acted with the intent

to defraud or harm another. By her third issue, appellant contends that the trial court

abused its discretion by excluding evidence relevant to appellant’s state of mind when

she signed the order. By her fourth issue, appellant contends that the trial court erred in

failing to conduct a Batson hearing despite appellant’s prima facie showing of a Batson

violation.




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                               Sufficiency of the Evidence


       Appellant’s first issue contends that the State’s evidence is insufficient to

establish that she committed the offense of tampering with a governmental record as

alleged in the indictment.


       In assessing the sufficiency of the evidence, we review all the evidence in the

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, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Brooks v. State,

323 S.W.3d 893, 912 (Tex. Crim. App. 2010). “[O]nly that evidence which is sufficient in

character, weight, and amount to justify a factfinder in concluding that every element of

the offense has been proven beyond a reasonable doubt is adequate to support a

conviction.” Brooks, 323 S.W.3d at 917 (Cochran, J., concurring). We remain mindful

that “[t]here is no higher burden of proof in any trial, criminal or civil, and there is no

higher standard of appellate review than the standard mandated by Jackson.”             Id.

When reviewing all of the evidence under the Jackson standard of review, the ultimate

question is whether the jury’s finding of guilt was a rational finding. See id. at 906–07

n.26 (discussing Judge Cochran’s dissenting opinion in Watson v. State, 204 S.W.3d

404, 448–50 (Tex. Crim. App. 2006), as outlining the proper application of a single

evidentiary standard of review). “[T]he reviewing court is required to defer to the jury’s

credibility and weight determinations because the jury is the sole judge of the witnesses’

credibility and the weight to be given their testimony.” Id. at 899. If a reviewing court

determines that the evidence is insufficient to establish any element of the offense, it

must reverse and render a judgment of acquittal. Dean v. State, 449 S.W.3d 267, 268

                                            4
(Tex. App.—Tyler 2014, no pet.) (citing Cuddy v. State, 107 S.W.3d 92, 95 (Tex. App.—

Texarkana 2003, no pet.)); see Saldana v. State, 418 S.W.3d 722, 726 (Tex. App.—

Amarillo 2013, no pet.).


       Appellant was charged with the offense of tampering with a governmental record

under Texas Penal Code section 37.10(a)(5), which provides that, “[a] person commits

an offense if he makes, presents, or uses a governmental record with knowledge of its

falsity.” TEX. PENAL CODE ANN. § 37.10(a)(5). The indictment also alleged that appellant

committed the offense with the “intent . . . to defraud or harm another,” which statutorily

elevates the offense from a Class A misdemeanor to a state jail felony.              Id. §

37.10(c)(1).   Thus, in the present case, the State was required to prove that (1)

appellant, (2) made, presented, or used, (3) a governmental record, (4) with knowledge

of its falsity, and (5) with the intent to defraud or harm another. Appellant presents

challenges to the evidence to support that the challenged document was a

governmental record, she knew the document to be false, and she acted with specific

intent to defraud or harm another. We will limit our analysis to the challenge that is

dispositive of this appeal. See TEX. R. APP. P. 47.1.


       Appellant challenges the sufficiency of the evidence to establish that she made a

governmental record “with knowledge of its falsity.”           TEX. PENAL CODE ANN. §

37.10(a)(5). A person “acts knowingly, or with knowledge, with respect to the nature of

his conduct or to circumstances surrounding his conduct when he is aware of the nature

of his conduct or that the circumstances exist.”        Id. § 6.03(b) (West 2011). Under

section 37.10(a)(5), the knowledge that is required is that the governmental record is



                                             5
false.       Thus, to meet this element, the evidence had to establish that appellant

knowingly made a governmental record that she knew to contain false information. 3


         In this case, there is no evidence that appellant signed the Magistrate’s Order of

Protection on another date than the date indicated.                   The only other information

contained within the document is consistent with information apparently provided by

Cruz in what appears to be an application for the order. Included within this information

is an identification that N.G.C.’s residence was in Tulia, which would bring the matter

within the jurisdiction of appellant’s court. No evidence was presented that appellant

had any knowledge of the falsity of any of this information. Finally, the order does not

identify any “defendant” who had been arrested for family violence and was appearing

before the magistrate for the first time following such an arrest. As this is the sum and

total of the information contained within the order, there is no evidence in this record

reflecting that appellant knowingly made a governmental record that she knew to

contain false information. As such, we conclude that the evidence is insufficient to

support appellant’s conviction. We sustain appellant’s first issue.


                                             Conclusion


         Having determined that there is no evidence to support an essential element of

appellant’s conviction for tampering with a governmental record, we reverse the trial




         3
          The State argued, at trial, that the challenged document was false because appellant knew that
it was not a valid order yet appellant intended it to be taken as a genuine governmental record. Such a
contention might establish a violation of section 37.10(a)(2), but it will not support a conviction under
section 37.10(a)(5). See Thompson v. State, 215 S.W.3d 557, 559 & n.2 (Tex. App.—Texarkana 2007,
no pet.); Mendoza v. State, No. 05-05-00476-CR, 2006 Tex. App. LEXIS 5060, at *3 & n.1 (Tex. App.—
Dallas June 14, 2006, no pet.) (mem. op.).

                                                   6
court’s judgment and render judgment of acquittal. See TEX. R. APP. P. 43.2(c); Dean,

449 S.W.3d at 268.




                                       Mackey K. Hancock
                                           Justice


Publish.




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