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Ross v. State

Court of Appeals of Texas, Seventh District, Amarillo

September 24, 2019

TONIA ELIZABETH ROSS, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

          On Appeal from the 66th District Court Hill County, Texas Trial Court No. F232-17, Honorable Lee Harris, Presiding

          Before CAMPBELL and PIRTLE and PARKER, JJ.

          OPINION

          James T. Campbell, Justice.

         Bringing two issues for our review, appellant Tonia Elizabeth Ross appeals from her conviction of the state jail felony offense of fraudulent use or possession of identifying information[1] and the resulting sentence of eighteen months of imprisonment in a state jail facility.[2] We will reverse the trial court's judgment and remand the case.

         Background

         Appellant's indictment alleged she "did then and there with intent to harm or defraud another, and without the consent of [T.R.], possess less than five items of identifying information to-wit: a social security card ending with the numbers [xxxx] issued to [T.R.]."[3] Appellant pled not guilty.

         At appellant's jury trial, the State presented the testimony of two witnesses, T.R. and Hillsboro police officer Mark Kellum. Officer Kellum testified that in early June 2017, he checked the license plate of a vehicle he saw at a gas station and found the registered owner, appellant, had active warrants. He initiated a traffic stop, identified appellant as the person with the warrants, and arrested her. Appellant's husband was in the car, but his driver's license was invalid. Kellum conducted an inventory of the vehicle in preparation for its towing. During the inventory, he found in the back seat a "photo book" that contained a social security card, a Texas health benefits card, a Wells Fargo debit card, and a Netspend MasterCard, all bearing the name of T.R. He also found a Wells Fargo card in the name of another person and a Home Depot card bearing the name of a third person. Also in the back seat, Kellum found a check bearing the name of still a fourth individual. In addition, T.R.'s driver's license was found in appellant's purse when appellant was booked into jail.

         T.R. testified she worked as a cashier for a Dollar General Store in Valley Mills, Texas. In late May 2017, she realized her wallet was missing. She testified she last saw her wallet when she put it in her purse before going to work, and that the wallet then contained her driver's license, her social security card, her debit card, her health benefits card, two rings, five dollars, and other items. At work, she left her purse in the employee's break room. Police later returned to T.R. her social security card, driver's license, and other cards. She testified she did not give permission to appellant to possess any of those items. She also told the jury that shortly after her cards were returned to her, appellant came to T.R.'s place of work and told her she did not steal the wallet. Rather, T.R. said, appellant told her she found it in the parking lot. Appellant requested that T.R. not press charges against her.

         At the close of the evidence, the jury was provided a charge by the court. It included a statutory presumption as well as definitions of culpable mental states. Appellant did not object to the charge. On appeal, appellant contends the court made two errors in the charge that egregiously harmed her.

         Analysis

         Standard of Review

         We review alleged jury charge error in two steps. Price v. State, 457 S.W.3d 437, 440 (Tex.Crim.App. 2015); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex.Crim.App. 2005). We first determine whether error exists and if so, we evaluate whether sufficient harm resulted from the error to require reversal. Price, 457 S.W.3d at 440; Ngo, 175 S.W.3d at 743-44. The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985) (op. on reh'g). Where, as here, the charge error was not properly preserved by an objection or request for instruction, the error must be "fundamental" and requires reversal only if it was "so egregious and created such harm that the defendant was deprived of a fair and impartial trial." Villarreal v. State, 453 S.W.3d 429, 433 (Tex.Crim.App. 2015); Almanza, 686 S.W.2d at 171.

         Presumption of Specific Intent

         By her first issue, appellant complains of the trial court's failure to give the instruction required by Penal Code section 2.05(a)(2), regarding the treatment of a ...


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