Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 103rd District Court of Cameron County,
Justices Rodriguez, Contreras, and Longoria
John Chambers was convicted on fourteen counts of tampering
with governmental records with intent to defraud or harm,
each a state jail felony. See Tex. Penal Code Ann.
§ 37.10(c)(1) (West, Westlaw through 2015 R.S.). He was
sentenced to two years in state jail and a $2, 800 fine, with
the jail sentence suspended and community supervision imposed
for five years. On appeal, Chambers argues that the evidence
was insufficient to support the conviction, that the trial
court lacked jurisdiction, and that the trial court erred in
denying a requested jury instruction. We affirm.
served as the chief of police for the small community of
Indian Lake in Cameron County. He was the sole paid employee of
Indian Lake's police department for most of the year,
though during the winter months the department would
sometimes employ one other full-time officer. The department
also included some twenty to thirty reserve officers
appointed by Chambers who were not paid by the department but
rather worked other full-time jobs mostly outside of law
enforcement. See Tex. Loc. Gov't Code Ann.
§ 341.012 (West, Westlaw through 2015 R.S.) (authorizing
the establishment of a police reserve force by the governing
body of a municipality).
January 2015, the Texas Commission on Law Enforcement (TCOLE)
conducted an audit of Indian Lake's police department.
Derry Minor, a TCOLE field agent, administered the audit by
examining the department's paperwork regarding, among
other things, criminal background checks, firearms
qualifications, and medical and psychological testing of the
officers. Minor reviewed records for fifteen of the reserve
officers and he determined that firearms qualifications
records for eight of the reserve officers were missing.
Believing that the department was required by law to keep
such records, Minor notified Chambers of the deficiency via a
preliminary audit report dated January 13, 2015. Chambers
signed the report, which stated that he had until January 23,
2015 to correct the deficiency.
to trial testimony, Chambers then instructed Alfredo Avalos,
the only other full-time officer with the department at the
time, to fill out firearms qualifications forms for fourteen
different Indian Lake reserve police officers. The forms
indicated that each reserve officer had passed a
"firearms qualification practical pistol course" on
September 20, 2014 using a. 40-caliber Smith & Wesson
pistol with a serial number registered as belonging to
Chambers. Each of the fourteen named reserve
officers testified at trial that they did not, in fact, pass
a firearms course on September 20, 2014 using a .40-caliber
Smith & Wesson pistol.
was charged by indictment with fourteen counts of knowingly
making false entries in governmental records with the intent
to defraud or harm the State of Texas. See Tex.
Penal Code Ann. § 37.10(c)(1). The jury, having been
instructed on the law of parties, see id. §
7.02 (West, Westlaw through 2015 R.S.), found Chambers guilty
on all fourteen counts. This appeal followed.
first issue, Chambers argues that the evidence was
insufficient to support the jury's verdicts because the
falsified documents in this case were not "governmental
records." See id. § 37.10(a)(1).
reviewing sufficiency of the evidence, we consider the
evidence in the light most favorable to the verdict to
determine whether any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt. Hacker v. State, 389 S.W.3d 860, 865 (Tex.
Crim. App. 2013); see Brooks v. State, 323 S.W.3d
893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A
sufficiency review sometimes "involves simply construing
the reach of the applicable penal provision in order to
decide whether the evidence, even when viewed in the light
most favorable to conviction, actually establishes a
violation of the law." DeLay v. State, 443
S.W.3d 909, 912 (Tex. Crim. App. 2014). "If the evidence
establishes precisely what the State has alleged, but the
acts that the State has alleged do not constitute a criminal
offense under the totality of the circumstances, then that
evidence, as a matter of law, cannot support a
conviction." Id. (citing Williams v.
State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007)).
measure sufficiency by the elements of the offense as defined
by a hypothetically correct jury charge. Malik v.
State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such
a charge would instruct the jury in this case that Chambers
is guilty of tampering with governmental records as alleged
in the indictment if, as a principal or as a party, he
"knowingly ma[de] a false entry in . . . a governmental
record." Tex. Penal Code Ann. § 37.10(a)(1);
see id. § 7.02. In accordance with the
definition provided in the penal code, the jury was
instructed that "governmental record" means
"anything belonging to, received by, or kept by
government for information" or "anything required
by law to be kept by others for information of
government." See id. § 37.01(2)(A), (B)
(West, Westlaw through 2015 R.S.).
contends specifically that the firearms qualifications forms
at issue here are not "governmental records"
because they are not legally required to be kept. He notes
that, according to regulations promulgated by TCOLE, a police
agency is required to keep firearms qualifications records
only for each "peace officer" that it
"employs, " and he argues that this excludes
reserve officers. See 37 Tex. Admin. Code §
218.9(a) (West, Westlaw through 42 Tex. Reg. No. 1288)
("Each agency or entity that employs at least one peace
officer shall: (1) require each peace officer that it employs
to successfully complete the current firearms proficiency
requirements at least once each calendar year for each type
of firearm carried . . . [and] (3) keep on file and in a
format readily accessible to the commission a copy of all
records of this proficiency."); see also Tex.
Occ. Code Ann. § 1701.001(3), (4), (6) (West, Westlaw
through 2015 R.S.) (defining "officer" as "a
peace officer or reserve law enforcement officer" and
defining the two types of officers differently). Chambers
further argues that, under the Texas Local Government Code,
the appointment and qualifications of reserve municipal
police officers are not governed by TCOLE but instead are
under the sole purview of the municipality's police
chief. See Tex. Loc. Gov't Code Ann. §
341.012(g) (stating that a reserve municipal police officer
who is not a "peace officer" as defined in code of
criminal procedure article 2.12 may carry a weapon "only
when authorized to do so by the chief of ...