Reversed and Remanded and Opinion filed March 5, 2013.




                                      In The

                     Fourteenth Court of Appeals

                               NO. 14-11-00456-CR

                   ROMAN RAMIREZ-MEMIJE, Appellant
                                         V.

                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 174th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1256139

                                 OPINION

      A jury convicted appellant Roman Ramirez-Memije of fraudulent possession
of 10 or more but less than 50 items of identifying information, a second-degree
felony.   See TEX. PENAL CODE ANN. § 32.51(b), (c)(3) (West Supp. 2012).
Appellant challenges his conviction in three issues, arguing that the trial court
erred by (1) refusing to include in the jury charge appellant‘s requested instruction
on voluntary conduct under Section 6.01 of the Penal Code; (2) failing to include
in the jury charge an instruction concerning presumptions under Section 2.05 of the
Penal Code; and (3) admitting testimony that appellant was from Mexico and
working illegally in the United States.

       We sustain appellant‘s first issue, reverse the trial court‘s judgment, and
remand for further proceedings.

                                   I.     BACKGROUND

       The State presented evidence that appellant was a ―middleman‖ in a credit
card skimming operation. Appellant retrieved a credit card skimmer1 from Dante
Salazar and delivered it to Antonio Cercen, a waiter at Alicia‘s Mexican
Restaurant. After Cercen used the skimmer to collect credit card numbers and
other identifying information from Alicia‘s patrons, appellant would retrieve the
skimmer from Cercen and deliver it to Salazar.

       Special Agent Charles Hutchins with the United States Secret Service
learned from a fraud investigator at Chase Bank Card Services that several people
who had dined at Alicia‘s reported unauthorized credit card purchases.                   The
investigation revealed that Cercen had been the waiter for all of the customers.
Hutchins contacted Cercen, and Cercen agreed to help Hutchins arrest appellant in
a sting operation. After Cercen received the skimmer from appellant, Cercen gave
the skimmer to the Secret Service. Special Agent Jesse Kirkegaard used Exeba
software to ―dump‖ data from the skimmer onto a computer, which revealed that
the skimmer contained identifying information for multiple people.

       Secret Service agents observed Cercen meet with appellant and hand him the
skimmer; they arrested appellant within a few minutes. Appellant and the State


       1
        According to witness testimony, a credit card skimmer stores information obtained from
the magnetic strip on a credit card.

                                              2
dispute exactly what appellant said about the skimming operation after his arrest.2
However, appellant agreed to help the Secret Service set up delivery of the
skimmer to Salazar.3

       Appellant testified that he had never received any benefits from participating
in an illegal skimming scheme; he did not know what the device was; and it looked
like a walkie-talkie or recorder. He did not look into it and see what was in it. He
did not own any software that could look into the device.                       Special Agent
Kirkegaard testified that the skimmer ―probably looks like an old fashioned
beeper.‖ Special Agent Hutchins testified that a person could ―scroll through and
see what was on‖ the skimmer, but he never saw appellant look at the information
on the skimmer, and Hutchins had no information that appellant knew what was on
the skimmer.

       Appellant was indicted for the fraudulent possession of identifying
information. See TEX. PENAL CODE ANN. § 32.51(b). The jury charge stated that
―a person commits the offense of fraudulent possession of identifying information
if the person, with intent to harm or defraud another, possesses an item of
identifying information of another person without the other person‘s consent.‖ The
charge defined ―identifying information,‖ ―consent,‖ and ―harm.‖ The charge also
included (1) statutory language concerning intent and knowledge found in Section
6.03 of the Penal Code;4 (2) an application paragraph that tracked the language of

       2
         Special Agent Michael Johnson testified that he was proficient in Spanish, and he had a
brief conversation with appellant after the arrest. Johnson testified that appellant said he would
receive cash and electronics in return for delivering the skimmer to Salazar. Appellant testified
that Johnson misunderstood the translation, and appellant was talking about purchasing a video
game system from Salazar. We consider the entire record and state of the evidence when
conducting a harm analysis. See Abdnor v. State, 871 S.W.2d 726, 733 (Tex. Crim. App. 1994).
       3
        In a phone conversation with Salazar, appellant said, ―[Cercen] completed all fifty.‖
Appellant testified that the Secret Service agents told him to say this.
       4
           See TEX. PENAL CODE ANN. § 6.03(a)–(b) (West 2011).

                                                3
Section 32.51(b); and (3) a statutory presumption found in Section 32.51(b-1) of
the Penal Code: ―You are instructed that the defendant is presumed to have the
intent to harm or defraud another if the defendant possesses the identifying
information of three or more other persons.‖5 The charge did not include any
language from Section 2.05(a)(2) of the Penal Code. See TEX. PENAL CODE ANN.
§ 2.05(a)(2) (West 2011).6

       Appellant objected to the charge and requested, among other things, that the
charge include paragraphs appearing in Section 6.01 of the Penal Code as follows:

       (a) A person commits an offense only if he voluntarily engages in
       conduct, including an act, an omission, or possession.
       (b) 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.

TEX. PENAL CODE ANN. § 6.01(a)–(b) (West 2011). The trial court refused to
include this instruction in the charge. Appellant did not object to the failure of the
charge to include an instruction about presumptions under Section 2.05(a)(2) of the

       5
      The charge also included standard instructions concerning the presumption of innocence,
communication with the jury, and outside evidence, among other things.
       6
           When a presumption is submitted to the jury, the trial court must instruct the jury as
follows:
       (A) that the facts giving rise to the presumption must be proven beyond a
       reasonable doubt;
       (B) that if such facts are proven beyond a reasonable doubt the jury may find that
       the element of the offense sought to be presumed exists;
       (C) that even though the jury may find the existence of such element, the state
       must prove beyond a reasonable doubt each of the other elements of the offense
       charged; and
       (D) 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.

TEX. PENAL CODE ANN. § 2.05(a)(2).

                                                4
Penal Code. Appellant was convicted and sentenced to three years‘ confinement.

                                        II.     ANALYSIS

       In his first issue, appellant contends the trial court erred by refusing to
include in the jury charge appellant‘s requested instruction on voluntary conduct
pursuant to Section 6.01 of the Penal Code. Appellant argues that the evidence
raised the issue of voluntary conduct because it indicated that he did not know the
skimmer contained identifying information, and Section 6.01(b) makes possession
a voluntary act only if the defendant ―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.‖ TEX. PENAL CODE ANN. § 6.01(b).

       The State responds that appellant was not entitled to the instruction because
―appellant proffered no evidence that he did not voluntarily possess[] the
skimmer,‖ and ―the evidence did not raise a voluntary conduct issue, but instead a
mens rea defense.‖ The State implicitly contends that ―the thing possessed‖ in
Section 6.01(b) is the skimmer—rather than identifying information.7 The State
also argues that appellant did not raise any evidence concerning an involuntary
―bodily movement.‖

       We conclude that ―the thing possessed‖ in Section 6.01(b) means the
identifying information in this case—not the skimmer. Further, appellant was
entitled to his requested instruction because issues concerning voluntary conduct
and culpable mental state are distinct, and the evidence raised the issue of whether
his possession was voluntary. We also find that appellant suffered some harm.


       7
          The parties did not brief a statutory interpretation issue, but oral argument revealed that
the parties dispute the meaning of ―the thing possessed‖ in Section 6.01(b). The State contends
that proving possession of the skimmer was adequate to establish possession of the identifying
information.

                                                 5
A.     Meaning of “The Thing Possessed”

       When interpreting statutes, we look first to the literal text for meaning.
Mahaffey v. State, 364 S.W.3d 908, 913 (Tex. Crim. App. 2012). We should
construe words in accordance with their common usage unless a word has acquired
a technical or particular meaning. See TEX. GOV‘T CODE ANN. § 311.011 (West
2005); State v. Rhine, 297 S.W.3d 301, 312 (Tex. Crim. App. 2009).8 We are
limited to reviewing the literal text unless the plain language is ambiguous or
would lead to absurd consequences. See Mahaffey, 364 S.W.3d at 913.9

       The literal text of the statute indicates that ―the thing possessed‖ refers to the
particular item of contraband             prohibited     by statute—here, ―identifying
information.‖ The State presents no authority for interpreting ―thing‖ to mean
anything other than the item of contraband prohibited by a penal statute. The
statute is unambiguous and does not lead to absurd results. Appellant was indicted
for the offense of possessing ―identifying information,‖ and the jury was so
charged. Both Kirkegaard and Hutchins testified that it is not illegal to possess the
skimmer. Given that there could be no offense for possessing the skimmer per se,
―the thing possessed‖ must refer to the object proscribed by statute—identifying
information.

B.     The Requirement of a “Voluntary Act” of Possession is Distinct from
       the Mens Rea “Intent to Harm or Defraud”
       ―It is settled law that criminal liability must be supported by proof of both a

       8
        See also TEX. PENAL CODE ANN. § 1.05(b) (West 2011) (Section 311.011 of the Code
Construction Act applies to the Penal Code).
       9
           A statute is ambiguous when it ―may be understood by reasonably well-informed
persons in two or more different senses; conversely, a statute is unambiguous where it
reasonably permits no more than one understanding.‖ Mahaffey, 364 S.W.3d at 913. A statute
leads to an absurd consequence when the Legislature could not have possibly intended the result.
See id. at 914.

                                               6
criminal act and a culpable mental state.‖ Alford v. State, 866 S.W.2d 619, 622
(Tex. Crim. App. 1993). This concept is codified in Sections 6.01 and 6.02 of the
Penal Code: (1) ―requirement of voluntary act or omission‖ and (2) ―requirement
of culpability.‖ See id.; see also TEX. PENAL CODE ANN. §§ 6.01, 6.02 (West
2011). More than thirty years ago, however, Judge Clinton observed that ―the
unique character of ‗possessory‘ offenses has always plagued and confounded the
bench and bar, for it defies analysis by the general methodology of viewing the
major components of offenses as ‗conduct‘ distinct from ‗intent.‘‖ Gorman v.
State, 634 S.W.2d 681, 685 (Tex. Crim. App. 1982) (Clinton, J., concurring).

      ―Possession‖ is defined as ―actual care, custody, control, or management.‖
TEX. PENAL CODE ANN. § 1.07(a)(39) (West Supp. 2012). But Section 6.01(b)
describes possession as 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) (emphasis added).
―Knowingly‖ is a culpable mental state. See id. §§ 6.02(a), 6.03(b). Thus, the
―voluntary act‖ of possession seemingly involves an overlap between actus reus
and mens rea. But a line must be drawn between the two concepts because a
defendant is not entitled to an instruction on ―voluntary act‖ if his defense is
merely that he did not act with the requisite culpable mental state. See Adanandus
v. State, 866 S.W.2d 210, 230 (Tex. Crim. App. 1993). A defendant is not entitled
to a jury instruction on a defensive theory that ―merely negates an element in the
State‘s case.‖ Walters v. State, 247 S.W.3d 204, 209 (Tex. Crim. App. 2007).

      The Court of Criminal Appeals has held that the requirement of a voluntary
act under Section 6.01(a) is not subsumed by the mens rea requirement of an
offense. See Brown v. State, 955 S.W.2d 276, 280 (Tex. Crim. App. 1997). ―[T]he
issue of the voluntariness of one‘s conduct . . . is separate from the issue of one‘s

                                          7
mental state.‖ Adanandus, 866 S.W.2d at 230. Thus, if the evidence at trial raises
the issue of whether the defendant voluntarily engaged in conduct, the jury must be
instructed on the issue. See Brown, 955 S.W.2d at 280.10 This principle has been
applied to possessory offenses and Section 6.01(b). See Hernandez v. State, 867
S.W.2d 900, 906 (Tex. App.—Texarkana 1993, no pet.) (―where a fact issue as to a
defendant‘s possession of contraband had been raised at trial, the jury must be
instructed on what constitutes possession under the law‖; noting that the charge
included a Section 6.01(b) instruction).11 Further, a Section 6.01(b) instruction
does not itself incorporate the necessary mens rea element in the jury charge for a
case involving the possession of contraband. Compare Doyle v. State, 631 S.W.2d
732, 739 (Tex. Crim. App. 1980) (error to omit mens rea element from the jury
charge), with id. at 750 (McCormick, J., dissenting) (arguing there was no error
because the charge included a Section 6.01(b) instruction).

       Accordingly, we conclude that appellant is entitled to an instruction under
Section 6.01 if the evidence at trial raised the issue of whether appellant knowingly
obtained or received the identifying information or was aware of his control of the
identifying information for a sufficient time to permit him to terminate his control.

       10
        The State must disprove this defensive theory beyond a reasonable doubt. See Alford,
866 S.W.2d at 624 n.8.
       11
           See also Moss v. State, 850 S.W.2d 788, 795 (Tex. App.—Houston [14th Dist.] 1993,
pet. ref‘d) (no error to deny appellant‘s jury charge applying the definition of ―voluntary act‖
when there was no evidence that raised the issue of voluntariness in this possession of
contraband case; noting that the charge included a Section 6.01(b) instruction in the abstract
section); Manuel v. State, 782 S.W.2d 335, 337 (Tex. App.—Houston [1st Dist.] 1989, pet. ref‘d)
(no error to deny the defendant‘s particular voluntariness instruction in application paragraph of
charge when the defendant‘s defense was that there was no evidence he ―possessed the cocaine
‗knowing it was cocaine‘ . . . [b]ecause the abstract definition portion of the charge properly
defined ‗possession‘ and ‗voluntary possession‘‖ as defined in Section 6.01(b)); Gonzales v.
State, 706 S.W.2d 764, 765–66 (Tex. App.—San Antonio 1986, pet. ref‘d) (no error to deny
special application instruction about ―mere presence‖ at the scene; charge as submitted
―adequately addressed the question of knowing possession raised by the appellant‖ when it
included an abstract Section 6.01(b) instruction).

                                                8
This issue is distinct from the mens rea ―intent to harm or defraud.‖

C.    The Evidence Raised the Issue of Appellant’s Possession, Entitling Him
      to an Instruction Under Section 6.01
      A trial court ―must provide the jury with ‗a written charge distinctly setting
forth the law applicable to the case.‘‖ Walters, 247 S.W.3d at 208 (quoting TEX.
CODE CRIM. PROC. ANN. art. 36.14 (West 2007)). ―This law requires the trial judge
to instruct the jury on statutory defenses, affirmative defenses, and justifications
whenever they are raised by the evidence.‖ Id. at 208–09. ―A defendant is entitled
to an instruction on every defensive issue raised by the evidence, regardless of
whether the evidence is strong, feeble, unimpeached, or contradicted, and even
when the trial court thinks that the testimony is not worthy of belief.‖ Id. at 209.

      The State contends that appellant‘s evidence does not entitle him to an
instruction under Section 6.01 because appellant does not point to any involuntary
physical bodily movement. The State notes that the Court of Criminal Appeals has
repeatedly held that a defendant is not entitled to an instruction under Section
6.01(a) unless the evidence raises the issue of the defendant‘s ―physical bodily
movements.‖ See, e.g., Alford, 866 S.W.2d at 624 (―Voluntariness, within the
meaning of Section 6.01(a), refers only to one‘s physical bodily movements.‖).
For example, an instruction on voluntary conduct was required in a murder case
because the defendant testified that his gun accidentally fired when another person
bumped him from behind. Brown, 955 S.W.2d at 277, 280.

      The State‘s reliance on cases addressing Subsection (a) of Section 6.01 is
misplaced.    The Court of Criminal Appeals has explained that ―possession‖
describes ―a relationship to property; hence . . . the term ‗does not go to an act or
omission of the defendant.‘‖ Phelps v. State, 623 S.W.2d 936, 937 (Tex. Crim.
App. 1981) (quoting Thomas v. State, 621 S.W.2d 158, 164 (Tex. Crim. App.

                                          9
1981)). ―Possession is not an act, nor is it an omission, but is defined as something
distinct from both act and omission.‖ Id. at 937 n.1; see also MODEL PENAL CODE
§ 2.01 cmt. 4 (Official Draft 1962) (―[P]ossession is neither simply a bodily
movement nor an omission . . . .‖).12 The Penal Code defines ―act‖ as ―a bodily
movement,‖ including speech. See TEX. PENAL CODE ANN. § 1.07(a)(1) (West
Supp. 2012). Possession ―simply cannot be reduced to specific ‗bodily movement‘
conduct.‖ Gorman, 634 S.W.2d at 686 (Clinton, J., concurring).

       Accordingly, we reject the State‘s argument that appellant was not entitled
to a Section 6.01 instruction due to the lack of an involuntary physical bodily
movement.       The State acknowledged at oral argument that a Section 6.01
instruction is generally given ―in every possession of a controlled substance jury
charge—it‘s just part of the definition of possession.‖ Indeed, our review confirms
that a Section 6.01 instruction is routinely given in cases involving contraband. 13
The instruction is given frequently even when no evidence raises the issue. See,
e.g., Moss, 850 S.W.2d at 795.

       The State has not cited any case holding that a defendant was not entitled to
an abstract Section 6.01 instruction for a possessory offense. We have found only
two published decisions holding as such, but in both cases there was no evidence
that the defendants did not knowingly receive or obtain contraband. See Moreno v.
State, 821 S.W.2d 344, 351–52, 356 (Tex. App.—Waco 1991, pet. ref‘d) (one
defendant had cocaine in his wallet; another defendant had cocaine under the hood
of his vehicle; no mention of any evidence about the defendants‘ not knowingly
       12
          Section 6.01(a) refers to ―an act, an omission, or possession.‖ TEX. PENAL CODE ANN.
§ 6.01(a) (emphasis added).
       13
           See, e.g., Farris v. State, 811 S.W.2d 577, 581 (Tex. Crim. App. 1990) (narcotics);
Powell v. State, 112 S.W.3d 642, 646 (Tex. App.—Houston [1st Dist.] 2003, pet. ref‘d)
(firearm); Hutto v. State, 775 S.W.2d 407, 408–09 (Tex. App.—Dallas 1989, no pet.) (obscene
devices).

                                             10
obtaining or receiving the cocaine); see also Jones v. State, 632 S.W.2d 646, 648
(Tex. App.—El Paso 1982, pet. ref‘d) (finding ―no harm‖ by the trial court‘s
refusal to instruct on the definition of voluntary possession when no evidence
raised the issue; marijuana was found in multiple locations and in plain view inside
the defendant‘s apartment).

      We conclude that the evidence in this case is of a different sort. There is
some evidence raising the issue of whether appellant knowingly obtained or
received identifying information or was aware of his control of the identifying
information for a sufficient time to permit him to terminate his control. Upon
request, the jury should have been instructed on the issue of possession. Cf. Troyer
v. State, 516 S.W.2d 163, 164 (Tex. Crim. App. 1974) (trial court erred by not
charging on ―the knowledge issue‖ when the ―testimony of the appellant clearly
raised the defense of lack of knowledge‖ based on his testimony that he arrived at
his apartment shortly before the police, his employees had access to the apartment,
and he did not know there was marijuana in the apartment; noting that the State
had the burden of proving the defendant ―knew the object which he possessed was
contraband‖); Ramos v. State, 478 S.W.2d 102, 103–05 (Tex. Crim. App. 1972)
(trial court erred by not charging on the defensive issue concerning whether the
defendant ―knew that the object he possessed was contraband‖ when drugs were
found inside the wall of the defendant‘s unlocked shed; court‘s charge defined
possession as ―the care, custody, or control or management of the item in
question,‖ but ―nothing in the charge mention[ed] lack of knowledge‖), overruled
on other grounds by Hankins v. State, 646 S.W.2d 191 (Tex. Crim. App. 1981);
Rodriguez v. State, 372 S.W.2d 541, 542 (Tex. Crim. App. 1963) (trial court erred
by not charging the jury ―to the effect that if appellant came into possession of the
capsules by having picked them up to keep his nieces from playing with them, and


                                         11
did not know they contained barbiturate that he should be acquitted‖; the defendant
testified that he did not know what was in the capsules); Fawcett v. State, 127
S.W.2d 905, 905 (Tex. Crim. App. 1939) (trial court erred by not charging on
―affirmative defense‖ that ―if some person gave him the package and he did not
know that it contained marihuana, to acquit him‖; evidence was that the defendant
had a sack containing marijuana on his person, but the defendant testified that he
did not know that the sack contained marijuana, and some person handed him the
sack while he sat on a park bench).14

D.     Appellant Suffered “Some Harm”

       When error in the jury charge is preserved, as here, reversal is required if the
error is ―‗calculated to injure the rights of the defendant,‘ which means no more
than that there must be some harm to the accused from the error.‖ Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (quoting TEX. CODE CRIM.
PROC. ANN. art. 36.19). Reversal is required if we find ―some actual, rather than
merely theoretical, harm from the error.‖ Dickey v. State, 22 S.W.3d 490, 492
(Tex. Crim. App. 1999). In making this determination, we will review the entire
record, including the jury charge, state of the evidence, contested issues, weight of
probative evidence, and the arguments of counsel. Abdnor v. State, 871 S.W.2d
726, 733 (Tex. Crim. App. 1994).

       14
          Although the Court of Criminal Appeals decided these cases before enactment of the
1974 Penal Code (which altered the method of instructing juries on defensive issues) they reflect
the long-standing principle that a defendant cannot be found guilty of a possessory offense unless
the defendant knew the matter he possessed was contraband. See, e.g., Poindexter v. State, 153
S.W.3d 402, 405 (Tex. Crim. App. 2005). The Fort Worth Court of Appeals applied this
principle when reviewing the sufficiency of the evidence for a conviction based on the
possession of identifying information under Section 32.51. See Richardson v. State, 328 S.W.3d
61, 65–66, 71 (Tex. App.—Fort Worth 2010, pet. ref‘d) (analyzing possession with the ―links‖
test; describing the defendant‘s defensive theory as ―he had no knowledge of the identifying
information found in his car‖). We similarly apply traditional notions of ―possession‖ in this
case.

                                               12
      A defendant likely suffers some harm if the omitted instruction ―go[es] to
the central issue in the case.‖ Allen v. State, 253 S.W.3d 260, 267 (Tex. Crim.
App. 2008). Harm is also likely when the instruction concerns the defendant‘s
―primary defense.‖ See Payne v. State, 33 S.W.3d 374, 376 (Tex. App.—Houston
[1st Dist.] 2000, pet. ref‘d) (voluntariness of conduct). A defendant ―clearly‖
suffers some harm in the absence of a requested defensive instruction if the
absence left the jury no option but to convict the defendant. Pennington v. State,
54 S.W.3d 852, 859 (Tex. App.—Fort Worth 2001, pet. ref‘d) (finding some harm
when the defendant admitted to possessing contraband and no instruction was
given on the defense of necessity).

      The possession issue permeated the entire trial.        Appellant admitted to
physically holding the skimmer; his sole defense was that he did not know he had
obtained or received identifying information by receiving the skimmer. The State
repeatedly argued that it did not need to prove appellant knew he was possessing
identifying information, and the State relied heavily on a statutory presumption
that appellant was presumed to have the only mens rea identified in the statute
because he possessed identifying information of more than three people.

      During opening arguments, defense counsel argued, ―[T]hey do not have
evidence to show Mr. Ramirez had any knowledge of what was on this
machine. . . . You will hear that they do not have evidence to show that Mr.
Ramirez actually had knowledge of what that machine was. . . . [J]ust like we
talked about in voir dire, that is the key element that they are going to be missing.‖

      As discussed above, appellant‘s evidence supported this defense, but he was
not permitted to fully present his defensive theory. Defense counsel questioned
Special Agent Hutchins: ―Now isn‘t it true that [to] complete possession, you not
only have to have care, custody, control, management, but you also have to have

                                          13
knowledge of what it is you are possessing?‖ The State objected because ―there is
no knowingly in it,‖ and the trial court sustained the objection. Counsel later asked
Hutchins if appellant had a way of knowing that the skimmer had credit card
numbers on it. The State objected again, ―Knowingly is not in the indictment,‖ and
the trial court sustained the objection. Then a discussion was held outside the
jury‘s presence. Initially the State argued that it did not have to prove knowing
possession because the statute and indictment did not use the word ―knowingly.‖
When defense counsel explained, ―That is part of the simple definition of
possession,‖ the State responded, ―I will allow him to ask the questions.            I
apologize. It will be up to the province of the jury. I will withdraw my objection.‖
The trial court agreed, ―It is an issue for the jury to decide.‖         Accordingly,
appellant was led to believe initially that he would be able to present this defensive
issue to the jury.

       Later, however, defense counsel asked Sergeant Joel Jorski, ―Well, you
would agree with me that to have legal possession of something, you have to have
knowledge of what you are possessing?‖ The State objected, ―Misstatement of the
law in this case,‖ and the trial court sustained. Jorski testified, ―I would have to
say that just holding the device is when, yes, he took possession.‖

       On the next day of trial, another discussion was held outside the jury‘s
presence. Again, the State made inconsistent arguments on the issue of possession:

       I have no problem with saying he knew he was possessing contraband.
       . . . [Y]ou have to know it‘s contraband, I agree, but you don‘t have
       to know what the credit card numbers are or anything like that. . . .
       [A]ll I have to prove is he had that device and he knew it was
       contraband. . . . [A]ll I have to prove is it was contraband, and that he
       knew it was contraband. . . . All it says is that he has to possess that
       device knowing that there are numbers on there and knowing that
       there is something funky about it.

                                          14
Again, this discussion likely led appellant to believe that he could present his
defense to the jury. Immediately after this discussion, appellant waived his Fifth
Amendment right and testified in support of his sole defensive issue. He testified
that he did not participate in a skimming scheme, he did not know what the
skimmer was, he thought it was a walkie-talkie or recorder, he did not look into it
and see what was in it, and he did not own any software that could look into the
device.

      The closing arguments again dealt with appellant‘s defensive theory and the
statutory presumption. The State began:

      In reality, the only thing we‘re talking about here is the possession of
      that device with intent to defraud and harm another. Now, the
      defendant took the stand and admitted he took the device and we
      know that there were 56 credit cards on the device. And as the charge
      will tell you, if there is more than three people then you can presume
      that he had the intent to defraud or harm you. I want you to remember
      this, the only thing that we have to prove is that the defendant had that
      device and he had that intent. Now, no matter what the defense
      attorney gets up here and says, that is the law.
Defense counsel said, ―I agree with the prosecutor about this, he has to prove
possession.‖ When counsel suggested that the State would need to prove appellant
―had knowledge of the information,‖ the State objected to a misstatement of the
law, and the trial court sustained the objection. Counsel argued:

      I know they are going to use the word possession and say, you know
      he possessed it because he held it in his hand. Clearly, ladies and
      gentlemen, we showed you where the law is not that. They have to
      show you that he knew what was in there.
The State objected to a misstatement of the law, and the trial court sustained the
objection. Counsel continued, ―[T]o prove possession the State must show that
Mr. Ramirez exercised control, management—.‖ The State objected, and the trial

                                          15
court sustained the objection.

       In rebuttal, the State argued, ―Now, the defense attorney talked a lot about
knowing, knowing what is on the machine. That is not how the law is written.‖
Defense counsel objected to a misstatement of law, and the trial court overruled the
objection. The State continued, ―Why is it written that way? Well, look at this
case.‖ The State also addressed the statutory presumption: ―Nobody is disputing
that there were 56 credit card numbers in the device. And nobody is disputing that
there is a presumption if you have more than three you automatically have the
intent to defraud and harm.‖ Defense counsel objected to a misstatement of the
law, and the trial court overruled.15

       Further, after reviewing the charge as a whole, we find that the jury had no
option but to convict the defendant. The error was compounded by the inclusion of
a statutory presumption without additional instructions concerning presumptions
found in Section 2.05 of the Penal Code.16 The predicate fact of the presumption
for ―intent to harm or defraud‖ was that appellant ―possesse[d] the identifying
information of three or more other persons.‖                   Because appellant‘s theory
concerning possession was omitted from the charge, the jury had no option but to
find the predicate fact true, thus ―automatically‖ (as the State argued) supplying
intent to harm or defraud.

       15
         The State finished its argument by asking the jury to ―go back there and tell him we
don‘t want that in Harris County, go back to where you came from.‖ Defense counsel objected
and requested a mistrial, which the trial court denied. Appellant cites this improper argument in
support of his third issue on appeal concerning the admission of testimony about appellant
working illegally in the United States. Because we have found harmful error in the jury charge,
we do not address appellant‘s third issue on appeal. See TEX. R. APP. P. 47.1
       16
          The State conceded at oral argument that the charge erroneously omitted instructions
required by Section 2.05. These instructions would have told the jury that they had to find the
predicate facts proven beyond a reasonable doubt before considering the presumption, and even
if they did, they would not be required to use the presumption. See TEX. PENAL CODE ANN. §
2.05(a)(2).
                                               16
      Finally, the State argues on appeal that appellant suffered no harm because
the State mentioned during closing argument that ―if a person just had a device,
without know[ing] what is on it, without the intent to defraud or harm another, is
he guilty? Of course he‘s not.‖ Given the multiple other conflicting statements
made during closing argument, the state of the evidence, and the jury charge as a
whole, we nonetheless conclude that appellant suffered ―some harm‖ as a result of
the trial court‘s refusal to submit an instruction pursuant to Section 6.01 of the
Penal Code. ―Lack of the requested instruction effectively prevented appellant
from presenting his defense and is not harmless.‖ Louis v. State, No. PD-0323-11,
— S.W.3d —, 2012 WL 2007632, at *8 (Tex. Crim. App. June 6, 2012).

      Appellant‘s first issue is sustained.

                                            CONCLUSION

      Having sustained appellant‘s first issue, we reverse the trial court‘s judgment
and remand for further proceedings.17


                                      /s/            Sharon McCally
                                                     Justice

Panel consists of Justices Christopher, Jamison, and McCally.
Publish — TEX. R. APP. P. 47.2(b).




      17
           We decline to address appellant‘s second and third issues. See TEX. R. APP. P. 47.1.

                                                17
