                                                                              PD-1663-14
               PD-1663-14                                    COURT OF CRIMINAL APPEALS
                                                                              AUSTIN, TEXAS
                                                         Transmitted 12/22/2014 11:42:00 AM
                                                           Accepted 12/29/2014 11:52:56 AM
                                                                               ABEL ACOSTA
                                                                                       CLERK
                             In the
               Court of Criminal Appeals of Texas

                  Cause No. 14-13-00847-CR
                               In the
       Court of Appeals for the Fourteenth District of Texas
                            at Houston

                         Cause No. 1352314
                    , In the 176th District Court
                       Of Harris County, Texas


                          LISA HUNTER
                             Appellant

                                  v.

                      THE STATE OF TEXAS
                            Appellee


         PETITION FOR DISCRETIONARY REVIEW



                                          Casey Garrett
                                          Texas Bar No. 00787197
                                          1214 Heights Blvd.
                                          Houston, Texas 77008
                                          713-228-3800
                                          Casey.garrett@sbcglobal.net
December 29, 2014
               IDENTITY OF PARTIES AND COUNSEL

Counsel for Appellant at Trial:
            Crespin M. Linton
            Texas Bar No. 12392850
            Lloyd M. Corpening
            Texas Bar No. 04858400
            The Lyric Centre
            440 Louisiana, Ste 900
            Houston, Texas 77002
            713-236-1319

Counsel for Appellant on Appeal:
            Casey Garrett
            1214 Heights Boulevard
            Houston, Texas 77008
            Texas Bar No. 00787197
            713-228-3800

Counsel for the State at Trial:
             Jill Foltermann, Texas Bar No. 24055492
             Ed McClees, Texas Bar No. 2403279
             Assistant District Attorneys
             1201 Franklin
             Houston, Texas 77002
             713-755-5800

Counsel for the State on Appeal:
             Harris County District Attorney's Office
             Appellate Division
             1201 Franklin, Suite 600
             Houston, Texas 77002
             (713)755-5800

Trial Judge: The Honorable Stacey W. Bond




                                     2
                TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL       2

TABLE OF CONTENTS                     3

INDEX OF AUTHORITIES                  4

STATEMENT REGARDING ORAL ARGUMENT     5

STATEMENT OF THE CASE                 5

STATEMENT OF PROCEDURAL HISTORY       5

QUESTION PRESENTED FOR REVIEW         6

PRAYER,                               8

CERTIFICATE OF COMPLIANCE         ,   9

CERTIFICATE OF SERVICE                10
                       INDEX OF AUTHORITIES


Cases

Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1973)   8

Hammer v. State, 296 S.W.3d 555 (Tex. Grim. App. 2009)                8

Santellan v. State, 939 S.W.2d 155 (Tex. Crim. App. 1997)             8
Rules
Tex. R. Evid. 608(b) & 613(b)                                         8
Constitutional Provisions
U.S. Const. Amend. V                                                  8
            STATEMENT REGARDING ORAL ARGUMENT

      Ms. Hunter requests oral argument.

                       STATEMENT OF THE CASE

      Ms. Hunter was charged by indictment with the felony offense of

tampering with a governmental document (C.R. 7). In particular, she was

charged with unlawfully, intentionally       and knowingly presenting a

governmental record, namely "Temporary Texas Department of Public

Safety Permit," with knowledge of its falsity and with the intent to defraud

and harm another (C.R. 7). Ms. Hunter pled not guilty to the indictment and

the case was tried before a jury (R.R.3 - 3). The jury found Ms. Hunter

guilty as charged in the indictment (R.R.4 — 13). Thereafter, the jury

assessed punishment at confinement for nine years in the Institutional

Division of the Texas Department of Criminal Justice (C.R, 129). Ms.

Hunter timely filed notice of appeal.



            STATEMENT OF PROCEDURAL HISTORY
                                               /
      The Court of Appeals filed a memorandum opinion affirming the

conviction on December 9, 2014.         No motion for rehearing was filed.

Pursuant to Rule 68.2 of the Texas Rules of Appellate Procedure, this
Petition for Discretionary Review should be filed thirty days after the day

the court of appeals filed its opinion.

                  QUESTION PRESENTED FOR REVIEW

          If a criminal defendant exercises her Fifth Amendment right not to
          testify at trial to avoid the introduction of her prior criminal history
          and the State introduces it anyway, has her Fifth Amendment right
          been rendered ineffective?


                                 ARGUMENT

          If a criminal defendant exercises her Fifth Amendment right not to
          testify at trial to avoid the introduction of her prior criminal history
          and the State introduces it anyway, has her Fifth Amendment right
          been rendered ineffective?

      During its case-in-chief, the prosecutor asked Mike Mauldin, an

investigator for the D.A.s Office if he ran a criminal history check on Ms.

Hunter during his investigation. He affirmed that he did (R.R.3 - 64-65).

The prosecutor asked him if the search showed that Ms. Hunter had a

criminal conviction (R.R.3 — 65). Counsel for the defense objected and the

court overruled the objection. The investigator was permitted to testify that

Ms. Hunter had a previous criminal conviction unrelated to the charge she

was defending at trial (R.R.3 - 65).

      Rule 404(b) prohibits the admission of evidence of extraneous

offenses committed by the defendant to prove that, on the occasion in

question, the defendant acted in conformity with the character demonstrated
by the other bad acts. Santellan v. State, 939 S.W.2d 155, 168 (Tex. Grim.

App. 1997). If a defendant chooses to testify, however, the State may

introduce evidence of extraneous offenses to impeach the defendant's

testimony, under certain circumstances. Tex. R. Evid. 608(b) & 613(b);

Hammer v. State, 296 S.w.Sd 555, 562 (Tex. Grim. App. 2009) (quoting

Davis v. Alaska, 415 U.S. 308, 316, 94 S.Ct 1105, 1110, 39 L.Ed.2d 347

(1973)).

       In its opinion, the court below stated that appellant cited no authority

to support her argument. To the contrary, appellant cited the United States

Constitution, the Rules of Evidence and at least two opinions from this

Court in support of her position.

       The Fifth Amendment to the United States Constitution gives all

defendants the right to be free from self-incrimination. U.S. Const Amend.

V. As such, the Constitution prevents the prosecution from compelling the

testimony of the accused in a trial for a criminal offense. In practical terms,

many defendants opt to exercise their Fifth Amendment right not to testify

because they know that if they do testify, the State will be permitted to

cross-examine them about prior convictions that otherwise could not come

in at trial.
      Ms. Hunter opted not to testify for precisely this reason. Her counsel

objected to the introduction of her prior conviction on the basis that the State

cannot compel her to be a witness against herself. By introducing the prior

conviction in the absence of her testimony, the State and the court rendered

her Fifth Amendment right not to testify ineffective. Ms Hunter's prior

convictions were irrelevant to the case at bar and should not have been

introduced by the State. Her conviction should be overturned and the case

should be remanded for a new trial.




                                  PRAYER

      Appellant respectfully prays this Honorable Court to grant his petition

for discretionary review.



                                              Respectfully submitted,


                                                  /s/Casey Garrett
                                              Casey Garrett
                                              Texas Bar No. 00787197
                                              1214 Heights Blvd.
                                              Houston, Texas 77008
                                              713-228-3800
                    CERTIFICATE OF COMPLIANCE

      This is to certify that the petition for discretionary review has 1,272

words in compliance with Rule 9 of the Texas Rules of Appellate Procedure.




                                                  _/s/Casey Garrett_
                                              Casey Garrett
                                              Texas Bar No. 00787197
                                              1214 Heights Blvd.
                                              Houston, Texas 77008
                                              713-228-3800
                                              Casey.garrett@sbcglobal.net
                       CERTIFICATE OF SERVICE

      This is to certify that a copy of the foregoing instrument has been sent

through the e-file system to the following party:

Harris County District Attorney's Office
Appellate Division
1201 Franklin, Suite 600
Houston, Texas 77002




                                                 /s/Casey Garrett
                                             Casey Garrett
                                             Texas Bar No. 00787197
                                             1214 Heights Blvd.
                                             Houston, Texas 77008
                                             713-228-3800
                                             Casey.garrett@sbcglobal.net




                                      10
                                                                 December 9, 2014




                                 JUDGMENT

                       5ff0ttrt£Etttfj (Ermrt nf Appeals
                           LISA HUNTER, Appellant
NO. 14-13-OOS47-CR                          V.

                       THE STATE OF TEXAS, Appellee




      This cause was heard on the transcript of the record of the court below.
Having considered the record, this Court holds that there was no error in the
judgment. The Court orders the judgment AFFIRMED.

      We further order this decision certified below for observance.
Affirmed and Memorandum Opinion filed December 9, 2014.




                                        In The

                                        (Enurt of Appeals

                                NO. 14-13-00847-CR

                             LISA HUNTER, Appellant

                                          V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 185th District Court
                               Harris County, Texas
                          Trial Court Cause No. 1352314

                   MEMORANDUM                      OPINION

      A jury found appellant Lisa Hunter guilty of tampering with a governmental
record with the intent to defraud or harm another and assessed punishment at nine years'
imprisonment. Appellant contends that the trial court erred in admitting evidence of a
previous conviction and that the evidence is insufficient to support her conviction. We
affirm.
                                 FACTUAL BACKGROUND
        Appellant and Jeanne Skipwith met at a mental health facility where Skipwith
was living and the appellant was employed as a cook. Skipwith eventually moved out of
the facility and into an apartment, where appellant lived with her for some period of
time.

        In December 2011, appellant was hired as a saleswoman by David McDavid
Honda, a car dealership in Houston. Appellant filled out the new employee paperwork
using Skipwith's name, and presented as identification Skipwith's Social Security card
and a Texas Department of Public Safety temporary driving permit issued with
Skipwith's name and appellant's picture. Appellant also identified herself as Jeanne
Skipwith with coworkers and management while at the dealership.

        At some point, police received a Crime Stoppers tip concerning a possible
identity theft case involving appellant, who was identified as working at David
McDavid Honda. A police investigation revealed that the appellant and Skipwith were
two different people, that both were affiliated with the mental health facility, and that
appellant had presented the temporary driving permit, a governmental record, to the
dealership when she applied for employment. In June 2012, police arrested the appellant
at the dealership as she was attempting to collect a paycheck. Appellant initially
identified herself to police as Jeanne Skipwith, but then admitted she was Lisa Hunter.

                                ANALYSIS OF THE ISSUES

        In two issues, appellant contends that the trial court erred in allowing evidence
that she had a previous conviction, even though appellant did not testify in her defense,
rendering her Fifth Amendment right not to testify ineffective. Appellant also contends
that the evidence is insufficient to support her conviction because there is no evidence
she acted with the intent to defraud or harm another.
      I.     Admission of Evidence of Previous Conviction

      Among the State's witnesses at trial was Mike Mauldin, an investigator for the
District Attorney's Office. The prosecutor asked Mauldin if he had run the type of
criminal background check that a civilian could run on the name Lisa Hunter, as the
prosecutor had previously requested. Mauldin confirmed that he had done so and
explained the steps he took to search online. The prosecutor asked him if the search
showed that the appellant had a criminal conviction. Over defense counsel's objection
based on "the Fifth Amendment right to testify and hearsay," Mauldin answered
affirmatively. The nature of the conviction was not specified.

       On appeal, appellant contends the admission of this evidence vitiated her Fifth
Amendment right to be free from self-incrimination. See U.S. Const, amend. V ("No
person . . . shall be compelled in any criminal case to be a witness against himself. . .
."). Appellant reasons that although Texas Rule of Evidence 404(b) prohibits the
admission of evidence of extraneous offenses to prove that a defendant acted in
conformity with that conduct, the State may, in certain circumstances, introduce such
evidence to impeach the defendant's testimony if the defendant chooses to testify. See
Tex. R. Evid. 60S(b), 613(b). As a practical matter, appellant argues, many defendants
opt to exercise their Fifth Amendment right not to testify because they know that if they
do testify, the State will be permitted to cross-examine them about prior convictions that
otherwise would be inadmissible. Because appellant decided to exercise her right not to
testify in this case, she concludes that the evidence of her previous conviction was
irrelevant and consequently its admission "rendered her Fifth Amendment right not to
testify ineffective."

      The State argues that the evidence of appellant's previous conviction was
admissible under Rule 404(b) to explain why appellant used Skipwith's name to get a
job. At trial, the State presented testimony that David McDavid Honda performs
criminal background checks before hiring salespeople and would not have offered a job
to appellant if appellant's criminal record had come to light. See Tex. R. Evid. 404(b)
(evidence of extraneous offenses may be admissible for other purposes, "such as proof
of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident"); DeLaPaz v. State, 279 S.W.3d 336, 343 (Tex. Grim. App. 2009)
(holding extraneous offense evidence need not fit within one of the laundry-list
exceptions in Rule 404, but proponent of evidence must show a relevant non-character
basis for its admission). As the State points out, appellant's exercise of her Fifth
Amendment right against self-incrimination to avoid discussing her prior convictions
does not determine whether the evidence may be admissible through another witness.
Additionally, appellant cites no authorities in support of her argument, and we are aware
of none. Accordingly, we reject appellant's argument that the trial court erred in
admitting the evidence of her previous conviction on the asserted Fifth Amendment
grounds and overrule appellant's first issue.

      II.    Sufficiency of the Evidence

      In her second issue, appellant contends that the evidence is insufficient to support
her conviction because there was no evidence that she acted with intent to harm or
defraud David McDavid Honda.

      In a legal sufficiency review, we examine all the evidence in the light most
favorable to the verdict to determine whether a 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). This standard of review applies to cases involving both direct
and circumstantial evidence. Clayton v. State, 235 S.W.Sd 772, 778 (Tex. Grim. App.
2007).

      Although we consider all of the evidence presented at trial, we do not substitute
our judgment regarding the weight and credibility of the evidence for that of the fact
                                                4
finder. Williams v. State, 235 S.W.Sd 742, 750 (Tex. Grim. App. 2007). We presume the
jury resolved conflicting inferences in favor of the verdict, and defer to that
determination. Clayton, 235 S.W.Sd at 778. We also determine whether the necessary
inferences are reasonable based upon the combined and cumulative force of all the
evidence when viewed in the light most favorable to the verdict. Id.

      Appellant was charged with            intentionally and knowingly presenting a
governmental record, namely, the Texas Department of Public Safety temporary driving
permit, with knowledge of its falsity and, further, that her actions were done with the
intent to defraud or harm another. See Tex. Penal Code § 37.10. The additional
requirements that an accused's actions involve a specific type of document and were
done with the intent ccto defraud or harm another" elevate the felony from third degree to
second degree. Id. § 37.10(c)(2)(A).

      Neither the Penal Code nor the court's charge defines what it means to "defraud"
another.1 Appellant, citing generally to two dictionaries, argues that to be convicted, she
had to have intended to either harm someone or "to trick or cheat them out of money."
Applying this definition, appellant contends that no evidence establishes that she
defrauded the dealership out of money.

      Generally, undefined statutory terms are to be understood as ordinary usage
allows, and jurors may freely read statutory language to have any meaning which is
acceptable in common parlance. Clinton v. State, 354 S.W.3d 795, 800 (Tex. Grim.
App. 2011). Consistent with this general rule, the State argued at closing that the jurors
were entitled to use their common sense when determining what the undefined term
"defraud" meant. Further, courts have recognized that "intent to defraud" has been


          Although "defraud" was undefined, the court's charge defined "harm" to mean "anything
reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose
welfare the person affected is interested." See Tex. Penal Code § 1.07(a)(25).
defined as "the intent to cause another to rely upon the falsity of a representation, such
that the other person is induced to act or to refrain from acting." See Wingo v. State, 143
S.W.3d 178, 187 (Tex. App.—San Antonio 2004), aff'd, 189 S.W.3d 270 (Tex. Grim.
App. 2006); Martinez v. State, 6 S.W.Sd 674, 678 (Tex. App.—Corpus Christi 1999, no
pet.). Therefore, we disagree with appellant's suggestion that the term "defraud" must
be narrowly defined to require that the defendant have intended to trick or cheat
someone out of money.

      To support her evidentiary challenge, appellant points to the testimony of the
investigating officer and the dealership's controller. The officer testified that he had no
knowledge whether the dealership was harmed or defrauded, and commented that such a
question would have to be directed to the people at the dealership. The dealership's
controller, Michelle Norris, testified that appellant was hired as a sales associate, she
sold cars at the dealership, and she was paid a commission for her sales. Norris also
testified that to her knowledge, the dealership had not been harmed or defrauded, nor
did the dealership lose any money. Consequently, appellant argues, no rational jury
could have found that she was guilty of the charged offense. See Geick v. State, 349
S.W.3d 542, 548 (Tex. Grim. App. 2011) (defendant indicted for theft by deception
acquitted when State proved appellant committed theft but failed to produce any
evidence of deception).

      The intent to defraud or harm another may be established by circumstantial
evidence such as acts, words, and the conduct of appellant. See Guevara v. State, 152
S.W.3d 45, 50 (Tex. Crim. App. 2004); Williams v. State, 688 S.W.2d 486, 488 (Tex.
Crim. App. 1985). As discussed above, appellant had a previous criminal conviction at
the time she applied for the job with David McDavid Honda. Norris testified that David
McDavid Honda performs a criminal background check on all applicants for
employment, and those applicants who have a criminal background are not eligible for
employment. Viewing the evidence in the light most favorable to the verdict, the jury
could have found that appellant intended to harm or defraud David McDavid Honda by
falsely claiming to be Jeanne Skipwith to induce the dealership to rely on that false
identity to offer her employment for which she would not have otherwise been eligible.2
See Tottenham v. State, 285 S.W.Sd 19, 24-25 n.ll, 28-29 (Tex. App.—Houston [1st
Dist] 2009, pet. ref d) (holding circumstantial evidence supported conviction of
constable who presented county judge with falsified training certificates to maintain his
position even though county judge testified that he had not been personally harmed and
the county had not been sued as a result of the constable's actions).

       Therefore, we conclude that the evidence is sufficient to support appellant's
conviction and we overrule appellant's second issue.

                                           CONCLUSION
       We overrule appellant's issues and affirm the trial court's judgment.



                                             /s/    Ken Wise
                                                    Justice



Panel consists of Justices Boyce, Busby, and Wise.
Do Not Publish — TEX. R. APP. P. 47.2(b).




        2 Even accepting appellant's proposed definition of "defraud" to mean tricking another out of
money, the jury could have concluded that getting ajob—which pays money—under false pretenses is
tricking someone out of money. In this case, the dealership paid appellant to work as a sales associate,
a position she would not have obtained but for her deception.

                                                   7
