Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 66th District Court Hill County, Texas Trial
Court No. F232-17, Honorable Lee Harris, Presiding
CAMPBELL and PIRTLE and PARKER, JJ.
T. Campbell, Justice.
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 and the resulting sentence of eighteen
months of imprisonment in a state jail
facility. We will reverse the trial court's
judgment and remand the case.
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.]." Appellant pled
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.
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.
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.
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
of Specific Intent
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 ...