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Alfaro-Jimenez v. State

Court of Criminal Appeals of Texas

July 3, 2019

PABLO ALFARO-JIMENEZ, Appellant
v.
THE STATE OF TEXAS

          ON 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.

          Newell, J.

         Appellant 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 conviction.

         Facts

         On July 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."

         Officer 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 security card.

         Officer 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.

         The 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, "[1] and the second paragraph alleged that Appellant had possessed the social security card "with the intent that it be used unlawfully."[2] 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.[3]

         Trial

         At 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 about it?
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.

         The 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 card number?
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.

         Appellant testified in his own defense, describing the card at issue and how he got it. Appellant admitted that the card was a fake.

Q Now, do you admit that that Social Security card-Did you get that Social Security card from the Social Security Office?
A No.
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.

         The 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.

         The 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 sentenced ...


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