                                                                             PD-1501-14
                                                           COURT OF CRIMINAL APPEALS
                                                                            AUSTIN, TEXAS
                                                           Transmitted 6/10/2015 3:01:20 PM
June 15, 2015
                                                             Accepted 6/15/2015 7:47:45 AM
                                                                             ABEL ACOSTA
                               PD-1501-14                                            CLERK

               IN THE TEXAS COURT OF CRIMINAL APPEALS
           _________________________________________________

                ROBERT WILLIAM CORNWELL
                        PETITIONER-APPELLANT

                                  vs.

                     THE STATE OF TEXAS
                         RESPONDENT-APPELLEE
           _________________________________________________

                    ON DISCRETIONARY REVIEW FROM
                     THE NINTH COURT OF APPEALS,
                      CAUSE NO. 09-13-00203-CR

                APPEAL FROM THE 435TH DISTRICT COURT OF
            MONTGOMERY COUNTY, CAUSE NO. 12-08-08579CR
           _________________________________________________

                PETITIONER’S REPLY BRIEF
           _________________________________________________

      BRUCE ANTON                       SORRELS, UDASHEN & ANTON
      State Bar No. 01274700            2311 Cedar Springs, Suite 250
      ba@sualaw.com                     Dallas, Texas 75201
                                        214-468-8100 (office)
      BRETT ORDIWAY                     214-468-8104 (fax)
      State Bar No. 24079086
      bordiway@sualaw.com               Counsel for Petitioner-Appellant
                                         Table of Contents

Index of Authorities .................................................................................... 3

Reply............................................................................................................ 4

      I. Background..................................................................................... 4

      II. The State largely agrees with Cornwell’s argument................... 6

      III. The statute doesn’t criminalize the conduct the State points to 7

      IV. Even if the statute did criminalize reference to a previous
      official act, Cornwell was not charged with that ............................. 10

      V. Conclusion ................................................................................... 12

Certificate of Service ................................................................................ 14

Certificate of Compliance ......................................................................... 14




                                                        2
                                       Index of Authorities

Cases

Boyett v. State, 368 S.W.2d 769, 771 (Tex. Crim. App. 1963)............. 8, 10
Cornwell v. State, 445 S.W.3d 488 (Tex. App.—Beaumont 2014) ............ 5
Curry v. State, 30 S.W.3d 394, 399 (Tex. Crim. App. 2000) ................... 12
Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007) .......................... 8
Ex parte Niswanger, 335 S.W.3d 611, 617 & n. 11, 618 n. 15 (Tex. Crim.
  App. 2011)........................................................................................ 5, 8, 9
Greene v. Massey, 437 U.S. 19 (1978) ...................................................... 12
Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) ................. 12
Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012) ............. 11
Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet.
  ref’d) ..................................................................................................... 8, 9
Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.—Corpus Christi 1989,
  pet. ref’d) .............................................................................................. 8, 9
Upchurch v. State, 703 S.W.2d 638, 641 (Tex. Crim. App. 1985)........... 11


Statutes

TEX. PEN. CODE § 37.11 .......................................................................... 4, 9




                                                        3
                                 Reply

      Cornwell complained to this Court that the court of appeals’s

analysis was incomplete. The State agrees. If nothing else, then, this

Court should remand this case to that court to conduct the appropriate

analysis.

      Cornwell further urged this Court, however, that the result of the

appropriate analysis was so obvious that it should simply enter a judg-

ment of acquittal. The State advanced two arguments in response. Both

are meritless.

 I.   Background

      Robert Cornwell telephoned Montgomery County Assistant Dis-

trict Attorney Kourtney Teaff and asked her to be lenient with a friend

whose probation her office sought to revoke. (SX9). In so doing, Corn-

well falsely averred that he, too, was an assistant district attorney, in

Dallas County, and that they “were on the same team and everything

and that he was just doing a friend a favor.” (RR3: 13).

      Cornwell was charged by indictment with, and found guilty of,

impersonating a public servant. (CR: 19, 79); see TEX. PEN. CODE §

37.11(a)(1). On appeal, he complained that the evidence was legally in-


                                    4
sufficient to support his conviction because there was no evidence that

Cornwell intended to induce Teaff to submit to any pretended official

authority, or to rely on any pretended official acts. See id. (requiring

proof of as much). He simply asked for a favor.

     The court of appeals agreed Cornwell didn’t intend to induce Teaff

to submit to any pretended official authority. Cornwell v. State, 445

S.W.3d 488 (Tex. App.—Beaumont 2014). But, as to whether he intend-

ed to induce her to rely on any pretended official acts, the court affirmed

Cornwell’s conviction merely because there was evidence he intended to

induce Teaff to rely on his false identification when considering his re-

quest for the favor. Id.

     Accordingly, in Cornwell’s brief on discretionary review, he urged

this Court that the court of appeals was wrong—a person commits the

offense of impersonating a public servant only if he impersonates a pub-

lic servant with the intent to induce another to rely on his pretended of-

ficial acts. (Br. at 10) (citing Ex parte Niswanger, 335 S.W.3d 611, 617

& n. 11, 618 n. 15 (Tex. Crim. App. 2011)). Identification isn’t enough.

Id. Cornwell thus requested this Court, at the very least, to vacate the

judgment of the court of appeals and remand this case to that court to


                                    5
determine as much. But for all those reasons urged in Cornwell’s origi-

nal briefing before that court, and then elaborated upon in his briefing

before this Court, Cornwell further urged that, because it is so plain

that he did not act in any pretended official capacity, in the interests of

judicial economy this Court should simply reverse the judgments of the

courts below and enter a verdict of acquittal.

II.   The State largely agrees with Cornwell’s argument

      The State in response agrees that the court of appeals’s opinion in

this case was incomplete:

      The Court of Appeals appears to have focused more on the
      intent-to-induce element than on the pretended official acts
      shown by the evidence…. Because the mere act of claiming
      to be an assistant district attorney (which satisfies only the
      element of impersonating a public servant), even if coupled
      with a request for a personal favor, would not constitute a
      violation of section 37.11, to the extent that the opinion of
      the Court of Appeals could be understood to suggest other-
      wise, it should be clarified by this Court.

(St. Br. at 11-12). Thus, Cornwell again urges this Court that, if nothing

else, it should vacate the judgment of the court of appeals and remand

this case to that court to determine whether Cornwell made an pretend-

ed official acts.




                                    6
        Should this Court perform that analysis itself, however, the State

further does not dispute that Cornwell’s favor request was not a pre-

tended official act. (St. Br. at 1-12). But instead of then conceding that

the evidence was legally insufficient to support Cornwell’s conviction,

the State repeats an argument that the court of appeals saw fit to ig-

nore: that the evidence was sufficient because, in so making that favor

request, Cornwell referred to having previously made an official act—

“he had previously given his nephew ‘ten days in county’”—and he in-

tended for Teaff to rely on that. (St. Br. at 8-10).

        There are two glaring problems with this argument. The first is

that the statute doesn’t criminalize the intent to induce reliance on ref-

erence to previous official acts—it criminalizes the intent to induce reli-

ance on official acts. And the second is that, even if the statute did crim-

inalize what the State suggests, that is not what Cornwell was charged

with.

III.    The statute doesn’t criminalize the conduct the State
        points to

        As to that first problem, this Court and at least two courts of ap-

peals—San Antonio and Corpus Christi—have explicitly stated that, to

be guilty of impersonating a public servant, there must be a false as-

                                      7
sumption or pretension by a person that he is a public servant and

“overt action in an official capacity.” Niswanger, 335 S.W.3d at 617 n.

11, 618 n. 15; Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San An-

tonio 2011, pet. ref’d); Tovar v. State, 777 S.W.2d 481, 489 (Tex. App.—

Corpus Christi 1989, pet. ref’d) (citing Boyett v. State, 368 S.W.2d 769,

771 (Tex. Crim. App. 1963)). Not reference to action in this capacity—

overt action in this capacity.

     The State entirely ignores these opinions, but this Court

shouldn’t. The State has given it no reason to. See Ex parte Lewis, 219

S.W.3d 335 (Tex. Crim. App. 2007) (there is a strong preference for ad-

hering to past decisions; however, precedent can be overruled if the rea-

sons for doing so are weighty enough). Indeed, absent any authority for

the position, the State merely offers up a doomsday hypothetical should

this Court adhere to its precedent:

     Such an argument is plainly flawed, and hypothetical exam-
     ples demonstrating its absurdity readily come to mind. For
     example, if a man went to his friend’s employer, represented
     himself to be a city councilman, and informed the manager
     that the city council recently approved an increase in the
     minimum wage and continuing to pay employees such a pit-
     tance was a violation of city ordinance purportedly voted for
     by that man, that conduct would violate section 37.11 of the
     Texas Penal Code. Likewise, if the same man approached a
     stranger, identified himself as a police officer, asked the

                                      8
      stranger to move the stranger’s unlawfully parked car, and
      supported his request with a representation that he had
      ticketed and towed the vehicle of another from the same spot
      on an earlier day, that conduct would violate section 37.11.

(St. Br. at 9-10).

      As best as Cornwell can tell, the State is arguing that because

these scenarios obviously constitute crimes, so, too, does Cornwell’s.

Though Cornwell is loath to litigate three cases instead of one, he must

note those hypotheticals are not obvious crimes—the State cites to no

cases where such behavior was held to be criminal. (St. Br. at 9-19).

And even if those scenarios are obvious crimes, the State misunder-

stands why. For, if anything, each would seemingly fall under “in-

ten[ding] to induce another to submit to… pretended official authority,”

not intending to induce another to rely on pretended official acts. See

TEX. PEN. CODE § 37.11(a)(1). One way or another, Cornwell urges this

Court that the State’s unsupported hypotheticals are hardly justifica-

tion to overrule precedent.

      It remains that this Court, and at least two courts of appeals, have

concluded that to be guilty of impersonating a public servant, one must

pretend to make “overt action in an official capacity.” Niswanger, 335

S.W.3d at 617 n. 11, 618 n. 15; Tiller, 362 S.W.3d at 128; Tovar, 777

                                    9
S.W.2d at 489; Boyett, 368 S.W.2d at 771. And here, as the State doesn’t

dispute, Cornwell didn’t. He impersonated a public servant and asked

for a favor, making reference to a previous pretended official act. While

such conduct is obviously not desirable, the legislature did not criminal-

ize it. And, as such, on this basis, alone, this Court should reverse the

judgments of the courts below and enter a verdict of acquittal.

IV.   Even if the statute did criminalize reference to a previous
      official act, Cornwell was not charged with that

      Even if the statute did criminalize reference to a previous official

act, though, Cornwell wasn’t charged with that (itself an indication that

that’s not what the statute allows for). Cornwell’s indictment alleges

that Cornwell, while impersonating an assistant district attorney, in-

tended to induce the Montgomery County assistant district attorney to

“rely on the pretended official[] act[ ] of [Cornwell] by trying to resolve a

pending criminal case[.]” (CR: 19).

      By Cornwell’s reading, this plainly identifies the pretended official

act the State sought to prove: “trying to resolve a pending criminal

case.” (CR: 19). Just looking at the Merriam-Webster dictionary, the se-

cond (but first relevant) definition of “by” is “through or through the

medium of.”

                                      10
     The State urges, however, that the “by” phrase is more accurately

understood to be “the manner in which [Cornwell] sought to induce

Teaff.” (St. Br. at 3-4). It provides no argument as for why, though, in-

stead immediately proceeding to argue that it doesn’t matter, regard-

less. (St. Br. at 4). Cornwell urges this Court to recognize this as indica-

tive of the merits of the State’s preliminary assertion.

     As to the State’s primary assertion—that it doesn’t matter what

was charged in the indictment—the State contends that, because a var-

iance between the pretended official act alleged and the pretended offi-

cial act proven at trial does not result in a completely different offense,

any variance from the indictment immaterial. (St. Br. at 4-7). But that

is only a consideration if the variance regards “non-statutory allega-

tions.” Johnson v. State, 364 S.W.3d 292, 295 (Tex. Crim. App. 2012).

And here, as just explained, the allegation—“by trying to resolve a

pending criminal case”—is descriptive of “to rely on the pretended offi-

cial[ ] act,” which is legally essential to charge a crime. See Upchurch v.

State, 703 S.W.2d 638, 641 (Tex. Crim. App. 1985) (language is “descrip-

tive” of an element of the offense if it “define[s] the offense more nar-

rowly, place[s] it in a specific setting, or describe[s] the method by


                                    11
which it was committed.”). Such language “must be proven as alleged,

even though needlessly stated.” Curry v. State, 30 S.W.3d 394, 399 (Tex.

Crim. App. 2000). Accordingly, even if the penal code criminalized im-

personating a public servant and merely making reference to overt ac-

tion in an official capacity, the evidence was legally insufficient to sup-

port the allegation otherwise in the indictment.

V.   Conclusion

     Put simply, to be guilty of impersonating a public servant, the

statute requires proof that a defendant pretended to act in that official

capacity (regardless of whether that act in fact would be in his official

capacity). Here, Cornwell purported to act in his personal capacity in

asking Teaff this favor. That, in so doing, he lied about other official

acts does not make his purported personal act an official one. According-

ly, should this Court conduct this analysis itself rather than remanding

to the court of appeals, Cornwell again respectfully requests this Court

to reverse the judgments of the courts below and enter a verdict of ac-

quittal. See Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004);

Greene v. Massey, 437 U.S. 19 (1978) (re-trial not permissible after re-

viewing court has determined evidence is insufficient).


                                    12
Respectfully submitted,


     /s/ Bruce Anton
BRUCE ANTON
Bar Card No. 01274700
ba@sualaw.com

     /s/ Brett Ordiway
BRETT ORDIWAY
Bar Card No. 24079086
bordiway@sualaw.com

SORRELS, UDASHEN & ANTON
2311 Cedar Springs Road Suite 250
Dallas, Texas 75201
(214)-468-8100 (office)
(214)-468-8104 (fax)

Attorneys for Petitioner-Appellant




 13
                        Certificate of Service

      I, the undersigned, hereby certify that a true and correct copy of
the foregoing Petitioner’s Reply Brief was electronically served to the
Montgomery County District Attorney’s Office and the State Prosecut-
ing Attorney on June 10, 2015.


                                      /s/ Bruce Anton
                                  BRUCE ANTON




                      Certificate of Compliance

      Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies
that this brief complies with:

  1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(C) because
     this petition contains 1,904 words, excluding the parts of the brief
     exempted by TEX. R. APP. P. 9.4(i)(1).

  2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type
     style requirements of TEX. R. APP. P. 9.4(e) because this brief has
     been prepared in a proportionally spaced typeface using Microsoft
     Word 2011 in 14-point Century Schoolbook.

                                      /s/ Bruce Anton
                                  BRUCE ANTON




                                   14
