APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE
FOURTH COURT OF APPEALS BEXAR COUNTY
Newell, J., filed an opinion in which Keasler, Hervey,
Richardson, Yeary, Keel, Walker and Slaughter, JJ., joined.
Keller, P.J., dissented.
Pablo Alfaro-Jimenez carried around a fake social security
card in his wallet and admitted that he used it to get work.
But to convict Appellant of tampering with a governmental
record under the theory of liability authorized by the
indictment in this case, the State had to prove that
Appellant had possessed or presented a real social security
card. The State did not prove that in this case.
Consequently, we reverse the court of appeals' holding
that the evidence was sufficient to support Appellant's
10, 2014, San Antonio Police Officer Edward Rodriguez was
dispatched to an apartment after a woman called 911 saying
her ex-boyfriend, who she identified as Juan Alberto Torres
Landa, "was at the location, banging on the door,
kicking on the door, screaming, yelling, making threats to
her." By the time the officer got there, Appellant had
left. After a report had been taken from the woman, Appellant
approached the officer, saying that "he wanted to set
the record straight." Officer Rodriguez handcuffed
Appellant for officer safety and asked Appellant his name.
Appellant said it was "Juan Alberto Torres Landa."
Rodriguez asked for some ID, and Appellant said it was in his
wallet in his back pocket. He then gestured for Officer
Rodriguez to take the wallet from his pocket. Officer
Rodriguez opened the wallet and took out an ID, an alien
card, a Mexican driver's license, and a social security
card. All documents bore the name "Juan Alberto Torres
Landa," but Officer Rodriguez immediately recognized
that the social security card was fake. The paper was too
thin for an authentic social security card issued by the
government. Additionally, the ink on the card had smudged in
a manner inconsistent with a government-issued social
Rodriguez checked the social security number. It matched a
person from Vietnam, but Appellant did not appear to be
Vietnamese. Based upon the information he had gathered about
the social security card, Officer Rodriguez placed Appellant
under arrest for tampering with a governmental record. At
that point Appellant admitted that his real name was Pablo
Alfaro-Jimenez, contrary to the information on his various
forms of identification, including the social security card.
State charged Appellant with tampering with a governmental
record. The indictment contained alternative paragraphs, both
of which alleged that the record at issue was "a
governmental record." The first paragraph alleged that
Appellant had presented a social security card "with
knowledge of its falsity, " and the second paragraph
alleged that Appellant had possessed the social security card
"with the intent that it be used
unlawfully." Both paragraphs alleged that Appellant had
committed the offense with the "intent to defraud or
harm" the Social Security Administration, which elevated
the degree of offense.
trial, Officer Rodriguez testified about Appellant's
arrest. Regarding the card he found in Appellant's
possession, Officer Rodriguez explained that he immediately
recognized that the social security card was a fake:
Q When you got the Social Security card, what did you notice
A Immediately looked at the paper. I noticed it was a little
too flimsy, kind of-edges was kind of tearing off, it was
like a bad kind of paper. And I noticed the ink was not dark,
it was kind of faded. I looked down in the left-hand corner
and you could see where drops of water or something was on
the ink and it started to dry out and blur with a wet mark on
there, which Social Security cards don't do that.
State also called a criminal investigator for the United
States Social Security Administration who testified that the
card seized from Appellant was not an authentic social
security card. The investigator acknowledged that social
security cards are issued by a governmental agency and that
they are governmental records. But the investigator explained
that Appellant had possessed a counterfeit card with a real
social security number printed on it.
Q Okay. As far as this Social Security card is concerned,
then, is there anything you can tell us about the use of this
A All I can say is that this number was miss-the number on
the card was misused because it's actually-it's
printed on a counterfeit card, that's all I can say how
it was used.
testified in his own defense, describing the card at issue
and how he got it. Appellant admitted that the card was a
Q Now, do you admit that that Social Security card-Did you
get that Social Security card from the Social Security
Q Where did you get it?
A A guy sold it to me so I could get a job.
Q How much did you pay for it?
A Sixty dollars.
Q Where did the number on the Social Security card come from?
A They made it up.
jury charge included multiple different definitions of
"governmental record." At the charge conference,
the trial court stated that it would, on the defense's
request, give an instruction on the lesser- included offense
of tampering with a governmental record without the intent to
defraud element. The jury charge mirrored the indictment,
except that it included the lesser-included offense. The jury
convicted Appellant of the lesser-included offense.
trial court reset the case for sentencing. At the sentencing
hearing, the trial court entered a conviction for a Class A
misdemeanor based upon the trial court's reading of the
statute. Neither party objected, and the trial court