                           NUMBER 13-10-00659-CR

                             COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                       CORPUS CHRISTI - EDINBURG


MAURICIO CELIS,                                                          Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                  On appeal from the 148th District Court
                        of Nueces County, Texas.


                           MEMORANDUM OPINION

      Before Chief Justice Valdez and Justices Garza and Perkes
            Memorandum Opinion by Chief Justice Valdez

      By four issues, appellant, Mauricio Celis, appeals his conviction for false

identification as a peace officer, a class B misdemeanor. See TEX. PENAL CODE ANN. §

37.12 (West 2011). We affirm.

                                   I. BACKGROUND

      Appellant was indicted for impersonating a public servant, a third-degree felony.

See id. § 37.11(a)(1) (West 2011). According to the indictment, on September 15,
2007, appellant impersonated a “reserve deputy sheriff” by displaying a badge and

either requesting the police to allow him to take with him a person being questioned or

attempting to stop the police from questioning that person.

       At trial, Officer Talagosa Taufaasau of the Corpus Christi Police Department

testified that, on the date in question, he had detained a female at a Stripes

convenience store parking lot, when appellant approached him. According to Officer

Taufaasau, appellant “asked for the female to be released into his custody,” stating, “I’m

a reserve deputy, I’m a five,” which according to Officer Taufaasau, meant peace

officer.

       Officer Maria Pici of the Corpus Christi Police Department testified that, when

appellant drove up to the scene, he identified himself as a deputy and displayed a five-

point star badge.

       Officer Phillip Bintliff of the Corpus Christi Police Department testified that, when

he encountered appellant at the scene, appellant flipped out a wallet with a five-point

star badge, which was consistent with a sheriff’s department badge. Appellant then

identified himself as a reserve deputy and offered to “go ahead and take care of this

female.”

       Captain Michael Markle of the Corpus Christi Police Department testified that

appellant walked up to him, pulled out a five-point star badge, said “I’ll take custody of

her,” and identified himself as a deputy.

       The badge in question is a solid metal, five-point star, with the following wording:

“Deputy Sheriff, Duval County, State of Texas, 514.” Duval County Sheriff Romeo

Ramirez testified that, in 1997, appellant was a “duly qualified, appointed, and



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recognized Duval reserve deputy” and that he had the title of a “conditional reserve

officer.” Sheriff Ramirez testified that appellant was not a certified peace officer, but

Sheriff Ramirez testified that, in 1997, a person could be a reserve deputy, without

being a peace officer, for a two-year period. Sheriff Ramirez explained that appellant

was no longer a reserve officer in 1999 because his conditional license had expired.

      According to the testimony of Santiago Barrera, the former sheriff of Duval

County, appellant was no longer a reserve deputy at the time of the alleged offense in

2007. Barrera testified that, as of October 15, 2003, appellant had been terminated for

non-compliance with the requirements of the Texas Commission of Law Enforcement

Officer Standards and Education (“TCLEOSE”).

      Officer Bruno Valdez, criminal investigator for the Duval County Sheriff’s

Department, testified that he had overseen the reserve deputies and that from April

2000 through December 2008, he had not seen appellant performing duties as a deputy

sheriff. Officer Valdez testified that he terminated appellant as of October 15, 2003 for

non-compliance with mandated courses. Officer Valdez testified that the reserve badge

in question had been validly issued to appellant.

      Timothy Braaten, the executive director of TCLEOSE, testified that appellant had

been issued a conditional reserve license on May 14, 1997.         Braaten testified that

appellant then had until May 14, 2001 to pass the basic peace officer licensing exam,

but that he did not pass that exam.       According to Braaten, as of May 14, 2001,

appellant’s conditional reserve license had expired.




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       At the charge conference, appellant requested that false identification be

submitted to the jury as a lesser-included offense. Over the State’s objection, the trial

court included false identification in the jury charge.

       The jury found appellant not guilty of impersonating a peace officer, but guilty of

false identification. This appeal ensued.

                              II. SUFFICIENCY OF THE EVIDENCE

       In his first, second, and third issues, appellant argues that the evidence was not

sufficient to support the jury’s finding of guilt and rejection of his defenses.

A. Standard of Review

       When a defendant challenges the sufficiency of evidence with regard to the jury’s

finding of guilt and rejection of a defense, we view all the evidence in the light most

favorable to the verdict and ask if “any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt and also could have found

against appellant on the defensive issue beyond a reasonable doubt.”               Adelman v.

State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). Sufficiency of the evidence is

measured by the elements of the offense as defined by a hypothetically correct jury

charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009); Malik v. State,

953 S.W.2d 234, 240 (Tex. Crim. App. 1997). “Such a charge is one that accurately

sets out the law, is authorized by the indictment, does not unnecessarily increase the

State’s burden of proof or unnecessarily restrict the State’s theories of liability, and

adequately describes the particular offense for which the defendant was tried.”

Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.




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B. Applicable Law

       A person commits an offense if he (1) “makes, provides to another person, or

possesses a card, document, badge, insignia, shoulder emblem, or other item bearing

an insignia of a law enforcement agency that identifies a person as a peace officer or a

reserve law enforcement officer,” and (2) “knows that the person so identified by the

item is not commissioned as a peace officer or reserve law enforcement officer as

indicated on the item.” TEX. PENAL CODE ANN. § 37.12(a). It is a defense if “the person

identified as a peace officer or reserve law enforcement officer by the item bearing the

insignia was commissioned in that capacity when the item was made.”                 Id. §

37.12(b)(2).

       Section 37.12(b)(2) is a “defense” within the meaning of section 2.03 of the

Texas Penal Code. See id. §§ 2.03 (West 2011), 37.12(b)(2). Therefore, “the burdens

at trial alternated between the defense and the State.” Zuliani v. State, 97 S.W.3d 589,

594 (Tex. Crim. App. 2003). The “defendant bears the burden of production, which

requires the production of some evidence that supports the particular defense.”        Id.

“Once the defendant produces such evidence, the State then bears the burden of

persuasion to disprove the raised defense.” Id. “The burden of persuasion is not one

that requires the production of evidence, rather it requires only that the State prove its

case beyond a reasonable doubt.” Id. “When a jury finds the defendant guilty, there is

an implicit finding against the defensive theory.” Id.

C. Discussion

       As a preliminary matter, the State argues that the estoppel rule bars appellant

from challenging the sufficiency of the evidence to support his conviction for false



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identification because he requested that the offense be included in the jury charge as a

lesser-included offense of impersonating a public servant. The State maintains that

false identification is not a lesser-included offense of impersonating a public servant and

that appellant was therefore not entitled to an instruction on false identification. At trial,

the State objected to the inclusion of the instruction on false identification. Although the

State contends that the trial court erred in submitting the instruction, it has not

attempted to appeal that ruling. Accordingly, we do not address the issue of whether

appellant was entitled to the instruction; instead, we confine our analysis to the State’s

contention that the estoppel rule bars appellant from challenging the sufficiency of the

evidence.

       “[E]stoppel is a flexible doctrine that manifests itself in various forms.” Murray v.

State, 302 S.W.3d 874, 881 (Tex. Crim. App. 2009). Nevertheless, the Texas Court of

Criminal Appeals has observed that “it makes little sense to preclude a defendant from

challenging the legal sufficiency of the evidence on appeal simply because he

requested and received an instruction on a lesser-included offense.” See McKinney v.

State, 207 S.W.3d 366, 374 (Tex. Crim. App. 2006). Accordingly, the Court has held

that “the estoppel rule will not be applied to all criminal cases where the legal sufficiency

of the evidence is challenged and a lesser-included offense instruction is requested and

received.”   Id. (holding that “application of this estoppel rule should be confined

exclusively to the limited number of cases that challenge the sufficiency of the evidence

as it relates to the sudden-passion element of voluntary manslaughter and that arose

before September 1, 1994”). Therefore, we conclude that the estoppel rule does not




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preclude appellant from challenging the sufficiency of the evidence to support his

conviction for false identification. See id.

       In his first issue, appellant argues that the evidence was not sufficient to prove

the elements of the offense.        We disagree.      There was evidence that appellant

possessed a badge that identified him as a reserve deputy sheriff. There was also

evidence that appellant was not commissioned in that capacity at the time of the

offense. Furthermore, there was circumstantial evidence that appellant knew he was

not commissioned at the time of the offense. For instance, Sheriff Ramirez testified that

appellant’s two-year conditional license had expired in 1999, approximately eight years

before the commission of the offense.          Moreover, Officer Valdez, who oversaw the

reserve deputies from April 2000 through December 2008, testified that he had not seen

appellant performing any duties as a deputy sheriff during that period of time.

Accordingly, we conclude that there was sufficient evidence to support the jury’s verdict

with regard to the essential elements of the offense. Appellant’s first issue is overruled.

       In his second issue, appellant argues that the evidence was not sufficient to

support the jury’s rejection of his defense of mistake of fact. TEX. PENAL CODE ANN. §

8.02(a) (West 2011) (“It is a defense to 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.”). Mistake of fact negates the

culpable mental state required for the offense. See Granger v. State, 3 S.W.3d 36, 41

(Tex. Crim. App. 1999) (explaining that the mistake of fact, by its terms, negates the

culpable mental state). In this case, appellant argues that the evidence established that

he had a reasonable belief that he was commissioned as a reserve deputy sheriff at the



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time of the offense. As noted above, however, there was direct evidence that appellant

was not commissioned at the time of the offense, and there was also circumstantial

evidence that appellant knew he was not commissioned at the time of the offense.

Based on this evidence, a rational juror could find against appellant on the defense of

mistake of fact. Appellant’s second issue is overruled.

      In his third issue, appellant argues that the evidence was not sufficient to support

the jury’s rejection of his defense under subsection (b)(2), which provides a defense if

“the person identified as a peace officer or reserve law enforcement officer by the item

bearing the insignia was commissioned in that capacity when the item was made.” TEX.

PENAL CODE ANN. § 37.12(b)(2). We disagree.

      The parties dispute the meaning of the defense.          Appellant argues that the

defense applies if he was commissioned at the time the badge was issued to him. The

State argues that the defense applies only if appellant was commissioned at the time

the badge was made. We agree with the State.

      In construing a criminal statute, we seek to effectuate the intent of the legislature,

focusing on the statute’s literal text, and we attempt to discern the fair, objective

meaning of that text. See Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991).

We read the words and phrases in context according to the rules of grammar and

common usage. TEX. GOV’T CODE ANN. § 311.011 (West 2010); Ex parte Kuester, 21

S.W.3d 264, 266 (Tex. Crim. App. 2000). Additionally, we attempt to construe a statute

according to its plain textual meaning without resort to extratextual sources.         See

Kutzner v. State, 75 S.W.3d 427, 433 (Tex. Crim. App. 2002). If a statute is ambiguous,




                                            8
however, we may resort to extratextual sources, such as legislative history, to construe

the statute. Id.

       The statutory language specifically states “when the item was made,” not when

the item was issued. TEX. PENAL CODE ANN. § 37.12(b)(2). In this case, these are two

different points in time. Appellant’s interpretation of the statute would replace the word

“made” with the word “issued.” We cannot do so because it would defeat the plain

meaning of the statute’s language. Therefore, we hold that appellant had the burden to

prove that he was commissioned when the badge was made.

       At trial, there was no evidence that appellant was commissioned as a reserve

deputy sheriff when the badge was made. However, there was evidence that the badge

was issued to appellant when he was first commissioned as a reserve deputy sheriff. A

rational finder of fact could reasonably infer that the badge was made before it was

issued, before appellant was first commissioned. Accordingly, we conclude that the

evidence was sufficient to support the jury’s rejection of appellant’s defense.

Appellant’s third issue overruled.

                                 III. MOTION TO SUPPRESS

       In his fourth issue, appellant argues that the trial court erred in denying his

motion to suppress the badge in question. Appellant argues that the State violated his

Fourth Amendment rights in obtaining possession of the badge; however, appellant

argues that this violation occurred some days after the commission of the offense.

Assuming for the sake of argument that there was a violation of the Fourth Amendment,

and assuming further that the trial court erred in denying appellant’s motion to suppress,

we will conduct a harm analysis.



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A. Applicable Law

       “If we find, beyond a reasonable doubt, that a constitutional error did not

contribute to the verdict, then the error was harmless such that we will not reverse the

judgment.” Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim. App. 2008). “To make this

determination, we must calculate, as nearly as possible, the probable impact of the error

on the jury in light of the other evidence.” Id. “The error was not harmless if there is a

reasonable likelihood that it materially affected the jury's deliberations.” Id.

B. Discussion

       At trial, there was uncontroverted testimony from a number of eyewitnesses that

appellant was in possession of a badge that identified him as a reserve deputy sheriff.

The physical evidence of the badge was additional evidence of the same fact. The

badge did not introduce a new fact issue.

       On its own, the uncontroverted eyewitness testimony was sufficient to prove that

appellant was in possession of a badge that identified him as a reserve deputy sheriff.

In addition, we note that the eyewitness testimony included accounts of the statements

made by appellant when he displayed the badge and orally identified himself as a

reserve deputy sheriff. See McCarthy v. State, 65 S.W.3d 47, 55–56 (Tex. Crim. App.

2001) (“A defendant’s statement, especially a statement implicating [him] in the

commission of the charged offense, is unlike any other evidence that can be admitted

against the defendant.”).

       In sum, there is no reasonable likelihood that the physical evidence of the badge

materially affected the course or outcome of the jury’s deliberations. Based on the

foregoing, we find beyond a reasonable doubt that the error, if any, in the trial court’s



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ruling regarding the suppression of the badge was harmless. See Neal, 256 S.W.3d at

284. Appellant’s fourth issue is overruled.

IV. Conclusion

       The judgment of the trial court is affirmed.

                                                      ___________________
                                                      ROGELIO VALDEZ
                                                      Chief Justice


Do not Publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
21st day of March, 2013.




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