Opinion issued September 24, 2015




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00320-CR
                           ———————————
                        ERIC BAUMGART, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 183rd District Court
                           Harris County, Texas
                       Trial Court Case No. 1382166


                       MEMORANDUM OPINION

      A jury convicted Eric Baumgart of tampering with a governmental record.1

The trial court assessed Baumgart’s punishment at two years’ incarceration, but


1
      See TEX. PENAL CODE ANN. § 37.10(a)(1) (West Supp. 2014).
suspended the sentence and placed him on community supervision for five years.

In his sole issue, Baumgart contends that the evidence is insufficient to support his

conviction and the jury’s implicit rejection of his defense. We affirm.

                                      Background

      Baumgart was employed as a reserve deputy constable for Liberty County,

Texas, in 2011. During that time, Baumgart learned that his ex-girlfriend, Ana

Johnson, had been involved with other men while they were dating, and that

Johnson was wanted for outstanding felony warrants in Travis County, Texas.

Baumgart set up a meeting between Johnson and a mutual friend in downtown

Houston on September 27, 2011, and when she arrived, Baumgart arrested her on

the outstanding warrants. Baumgart went to the Harris County jail the next day and

met with Johnson. During that meeting, Baumgart issued Johnson a ticket for

driving with an invalid license on August 18, 2011. 2 Baumgart noted the color,

make, model, and type of Johnson’s vehicle on the ticket (tan 1999 Lexus ES 300),

along with the vehicle identification number (VIN). Although Baumgart submitted

the ticket to the Liberty County Justice of the Peace Court’s clerk for processing,

the ticket was never processed or entered into the court’s system. 3



2
      The citation also included a warning for littering.
3
      After Harris County officials inquired about the ticket and the purpose of
      Baumgart’s visit to Johnson at the jail, the clerk was instructed to disregard the
      ticket.


                                            2
      Baumgart subsequently testified before a grand jury about the incident and a

portion of his testimony was admitted into evidence during his trial. In his grand

jury testimony, Baumgart admitted to “checking in as law enforcement” when he

met with Johnson at the jail on September 28th and writing her a ticket “from [the]

Liberty County Precinct 4 Constable’s Office” during that meeting for driving with

an invalid license on August 18th. Although the traffic violation occurred over

forty days before he wrote the ticket, Baumgart claimed that he had personal

knowledge of the offense because he was riding with Johnson in the Lexus when

the violation occurred.

      Officials from the Liberty County Constable’s Office Precinct 4 testified at

trial that the office routinely provided ticket books for deputy constables to use

during the course of their official duties and the Precinct 4 Constable identified the

ticket Baumgart issued to Johnson as a “Liberty County Constable’s Office

Precinct 4 citation ticket.” Officers issue these tickets in order to inform the driver

of the alleged offense and to notify the driver when to appear in court. The

pre-printed tickets also contain designated places where the officer can list other

information, such as a description of the vehicle, in order to refresh the officer’s

memory in the event the officer needs to testify in court.

      Johnson testified that the Lexus had been purchased for her on September 3,

2011, and that before that time she had been driving “an old, unreliable Ford



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Contour.” The 1999 Lexus purchased on September 3rd matches the vehicle

description Baumgart noted on the ticket, including the VIN.

                                     Discussion

      Baumgart contends that the evidence is insufficient to prove beyond a

reasonable doubt that he tampered with a governmental record because the State

failed to prove that: (1) the ticket was a governmental record, (2) Baumgart knew

the VIN was false, and (3) Johnson suffered expense or delay as a result of the

falsified ticket. Baumgart further contends that the evidence is insufficient to

support the jury’s implicit rejection of his defense that the VIN had no effect on the

government’s purpose for requiring tickets.

A.    Applicable Law and Standard of Review

      A person commits the offense of tampering with a governmental record if he

“knowingly makes a false entry in, or false alteration of, a governmental record.”

TEX. PENAL CODE ANN. § 37.10(a)(1) (West Supp. 2014). A governmental record

is “anything belonging to, received by, or kept by government for

information. . . .” Id. § 37.01(2)(A). It is a defense to prosecution that the false

entry or false information could have no effect on the government’s purpose for

requiring the governmental record. Id. § 37.10(f).

      When reviewing the sufficiency of the evidence to support a conviction, we

view the evidence in the light most favorable to the verdict to determine if any



                                          4
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, 2789

(1979); Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Because

the State bears the burden to disprove a defense to prosecution by establishing its

case beyond a reasonable doubt, we also review sufficiency challenges to a fact

finder’s rejection of such a defense under the Jackson standard. Smith v. State, 355

S.W.3d 138, 145 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d); see also TEX.

PENAL CODE ANN. § 2.03 (governing defenses to prosecution set forth in Penal

Code). In doing so, we examine the record for evidence that supports the negative

finding. See Smith, 355 S.W.3d at 148. If no evidence supports the negative

finding, then we examine the entire record to determine whether it establishes the

contrary proposition as a matter of law. Id.

      Under the Jackson standard, the fact finder is the exclusive judge of the

facts, the credibility of the witnesses, and the weight to be given to the testimony.

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010); see also Jackson,

443 U.S. at 326, 99 S. Ct. at 2793 (stating that it is fact finder’s responsibility “to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable

inferences from basic facts to ultimate facts”). We may not re-evaluate the weight

and credibility of the evidence or substitute our judgment for that of the fact finder.

Williams, 235 S.W.3d at 750. We resolve any inconsistencies in the evidence in



                                          5
favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000);

see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When

the record supports conflicting inferences, we presume that the fact finder resolved

the conflicts in favor of the prosecution and therefore defer to that

determination.”). The sufficiency of the evidence is measured against a

hypothetically correct jury charge. Cada v. State, 334 S.W.3d 766, 773 (Tex. Crim.

App. 2011) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).

B.    Analysis

      Baumgart argues that the State failed to prove that the ticket was a

governmental record because there is no evidence that the ticket was ever received

by a government agency or entered into a government record-keeping system.

      The evidence at trial established that the Constable’s Office purchased and

provided ticket books for its deputy constables to use and the Constable identified

the ticket Baumgart issued to Johnson as a “Liberty County Constable’s Office

Precinct 4 citation ticket.” Baumgart also admitted that he “checked in as law

enforcement” when he met with Johnson at the jail and that the ticket he wrote her

during that meeting was “from Liberty County Precinct 4 Constable’s Office.” The

jury could reasonably infer from this evidence that Baumgart was acting in his

official capacity as a reserve deputy constable for Liberty County when he issued

the ticket to Johnson with the false vehicle description and VIN and that the ticket



                                         6
was written from a ticket book provided to him by the Liberty County Constable’s

Office. See Lewis v. State, 773 S.W.2d 689, 692 (Tex. App.—Corpus Christi 1989,

pet. ref’d) (holding arrest warrant was governmental record, in part, because justice

of peace was acting in his official capacity when he made false entry on warrant).

The jury could also reasonably infer that the ticket, and the ticket book it came

from, belonged to the Constable’s office. Jackson, 443 U.S. at 319, 326, 99 S. Ct.

at 2793 (stating fact finders may “draw reasonable inferences from basic facts to

ultimate facts”); see also TEX. PENAL CODE ANN. § 37.01(2)(A) (stating

governmental record is “anything belonging to, received by, or kept by government

for information”) (emphasis added).

      Baumgart relies upon cases that are factually distinguishable because those

cases involve privately owned documents created by non-governmental actors, as

opposed to a ticket from a government-owned ticket book used by a law

enforcement officer acting in his official capacity. See generally Pokladnik v.

State, 876 S.W.2d 525, 527 (Tex. App.—Dallas 1994, no pet.) (holding that

wrecker company’s mechanic’s-lien affidavits were not governmental records);

Constructors Unlimited Inc. v. State, 717 S.W.2d 169, 174 (Tex. App.—Houston

[1st Dist.] 1986, pet. ref’d) (holding that company’s bid sheets were not

governmental records).




                                         7
      Baumgart also contends there was insufficient evidence to show that he

knowingly entered a false VIN on the ticket. In the portions of his grand jury

testimony admitted at trial, Baumgart repeatedly claimed that he had personal

knowledge of the traffic violation because he was in the car when the violation

occurred. Evidence admitted at trial, however, demonstrates that the 1999 Lexus

was not purchased until September 3, 2011—more than two weeks after Johnson

was allegedly driving around with Baumgart. Before that time, Johnson had been

driving “an old, unreliable Ford Contour.” The 1999 Lexus purchased on

September 3rd matches the vehicle description Baumgart noted on the ticket,

including the VIN. Based on this evidence, a jury could reasonably infer that

Baumgart, who insisted that he was with Johnson when the traffic violation

allegedly occurred on August 18th, knew that Johnson was not driving the 1999

Lexus at that time, and that the make, model, and VIN he noted on the ticket was

incorrect when he wrote the ticket on September 28th. See Jackson, 443 U.S. at

319, 326, 99 S. Ct. at 2793 (stating fact finders may “draw reasonable inferences

from basic facts to ultimate facts” and courts defer to fact finder’s judgment on

conflicts of testimony).

      Baumgart further contends that the evidence is insufficient because the State

failed to establish that Johnson suffered expense or delay as a result of the ticket,

as required by the jury charge. Our review of the sufficiency of the evidence,



                                         8
however, is measured by the elements of the offense as set forth in a hypothetically

correct jury charge, not the charge that was actually submitted. Cada, 334 S.W.3d

at 773 (citing Malik, 953 S.W.2d at 240). Baumgart’s argument is unavailing

because “undue expense and delay” is not an element of the charged offense and

would not have been included in the hypothetically correct jury charge for this

case. See id. (discussing contents of hypothetically correct jury charge); see

generally TEX. PENAL CODE ANN. § 37.10(a)(1). Accordingly, whether the State

provided sufficient evidence that the ticket caused Johnson to incur any undue

expense or delay is immaterial for purposes of our sufficiency review.

      Finally, Baumgart contends that the State failed to provide sufficient

evidence for the jury to reject his defense that the vehicle information “could have

no effect on the government’s purpose for requiring the governmental record.”

TEX. PENAL CODE ANN. § 37.10(f). On the contrary, county officials testified that

such tickets are intended not only to inform the driver of the violation and to give

the driver a court date, but to refresh the officer’s memory in the event he testifies

at trial regarding the offense. From this evidence, a jury could reasonably infer that

providing a space on the ticket form for additional information could serve the

government’s purpose by making an officer’s testimony more detailed and

credible. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. Moreover, the State only

had to demonstrate that the false information could have an effect on the



                                          9
government’s purpose, and, therefore, the fact that the ticket was never processed

and Baumgart would not be required to testify about the ticket is immaterial. See

TEX. PENAL CODE ANN. § 37.10(f).

      After reviewing the evidence in the light most favorable to the verdict and

deferring to the fact finder’s responsibility to draw reasonable inferences from the

evidence, we conclude that a rational fact finder could have found the essential

elements of the offense beyond a reasonable doubt and that there is some evidence

to support the jury’s negative finding on Baumgart’s defense. See Jackson, 443

U.S. at 319, 99 S. Ct. at 2789; Smith, 355 S.W.3d at 148.

      We overrule Baumgart’s sole issue.

                                   Conclusion

      We affirm the trial court’s judgment.



                                              Russell Lloyd
                                              Justice


Panel consists of Justices Keyes, Massengale, and Lloyd.

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




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