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Hernandez v. State

Court of Criminal Appeals of Texas

November 20, 2019

OMAR HERNANDEZ, Appellant
v.
THE STATE OF TEXAS

          DISSENT TO REFUSAL TO GRANT APPELLANT'S PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTEENTH COURT OF APPEALS HARRIS COUNTY

         DISSENTING OPINION

          Slaughter, J., filed a dissenting opinion.

         In a prosecution for tampering with a governmental record, [1] do all documents generated by government employees and stored on a government computer automatically meet the applicable statutory definition of "governmental record" under Penal Code Section 37.01(2)(A)? Or must the State instead put forth evidence specifically showing that such records are "belonging to, received by, or kept by government for information," as required by that statutory definition? I would grant the instant petition for discretionary review and hold that the answer to the first question is no, and the answer to the second question is yes. The statutory requirements may not be watered down simply because the defendant is a government employee working on a government computer.

         The facts in this case show that Omar Hernandez, Appellant, a former constable's deputy, was convicted of state-jail felony tampering with a governmental record after he entered false information into an electronically-stored offense report. The report was marked "DRAFT" at the top of each page. At trial, the State failed to introduce evidence to establish that this document was a final document versus a draft. It further failed to prove the process by which this report was generated, the process for converting the "draft" report into a final report, or the informational purpose served by the draft report. By rejecting Appellant's sufficiency complaint, the court of appeals' decision appears to create a per se rule that all electronic documents created by government employees and stored on government computers constitute "governmental records" for purposes of the tampering statute, regardless of whether such documents are shown to be "belonging to, received by, or kept by [the] government for information." Tex. Penal Code § 37.01(2)(A). I disagree with this approach not only because it fails to strictly adhere to the statutory requirements for establishing that something is a governmental record, but also because upholding a state-jail felony conviction for what could be an unfinalized draft may be a very dangerous precedent to set. Accordingly, I respectfully dissent from the Court's refusal of Appellant's petition for discretionary review.

         Background

         Appellant served as a constable's deputy for Harris County Precinct 6. While on duty, he and his trainee, Deputy Viet Tran, were called to the scene of a hit-and-run traffic accident. The complainant gave Appellant and Tran the license plate number of the vehicle that had backed into her vehicle before fleeing. When entering his report of the incident into the constable's computer system, Appellant indicated that he had used the license plate information to locate the suspected offender's address. He also represented that he had gone to the suspect's address to investigate, but was unable to locate the suspect or the suspect's vehicle at that address. A subsequent investigation by Internal Affairs revealed that the latter statements were false-Appellant had not actually visited the suspect's address. Based on Appellant's false assertion, he was ultimately charged with and convicted of tampering with a governmental record by entering false information in the offense report with the intent to defraud or harm another. See Tex. Penal Code § 37.10(a)(1), (c)(1).[2]Following his conviction, the trial court sentenced him to two years in state jail, probated for two years.

         On direct appeal to the Fourteenth Court of Appeals, Appellant argued, among other things, that the evidence was insufficient to prove that the document at issue-the electronic offense report-was a governmental record at the time he made the false entry.[3] Appellant asserted that the offense report, "a draft document in electronic form on the criminal justice system database," did not meet the statutory definition of governmental record because there was no evidence "showing that the record had been filed or 'received by' the government" at the time that he entered false information. See Hernandez v. State, 577 S.W.3d 361, 367 (Tex. App.-Houston [14th Dist.] 2019).

         In rejecting Appellant's sufficiency argument, the court of appeals determined there was enough evidence on the face of the offense report from which the jury could "discern identifying information showing that appellant created the report on the Constable's criminal justice database from which the printout came." Id. at 368. The court noted that the document "bore the indicia that appellant had written the report on the precinct's computer system, property which the jury reasonably could have inferred belonged to and was kept by appellant's government employer for information." Id. Thus, the court of appeals determined that this document was a governmental record solely because it was created on a law enforcement database by a government official. The court of appeals conducted no analysis of how or whether an electronic document marked "DRAFT" was "belonging to, received by, or kept by" the government "for information." See Tex. Penal Code § 37.01(2)(A).

         The evidence at trial failed to establish that the draft offense report was a "governmental record."

         At trial, the State focused almost exclusively on proving the falsity of the information contained in the police report, that Appellant created the police report, and that Appellant's intent was to harm or defraud another. The State never sufficiently addressed whether any offense report met the definition of "governmental record," much less how or why the document at issue could satisfy that definition. Remarkably, no one at trial even addressed the fact that the report, on each of its four pages, was labeled "DRAFT."

         Rather than satisfying its burden to prove beyond a reasonable doubt that the document at issue was a governmental record, the State merely elicited conclusory testimony from witnesses to establish this requirement. For example, the State asked two witnesses, a former Harris County prosecutor and the former head of internal affairs for Precinct 6, whether "an offense report is a governmental record," to which both witnesses during their respective testimony replied "yes."[4] The State failed to have either witness explain how or why the police report was a governmental record under the definition provided to the jury. ("Governmental record" means "anything belonging to, received by, or kept by government for information, including a court record.") 1 CR 263; see Tex. Penal Code § 37.01(2)(A).

         As part of its burden to prove that the "draft" police report was a governmental record, the State needed to prove that the document belonged to, was received by, or was kept by the government "for information." Yet the testimony at trial did not prove this. While there was some minimal testimony regarding the importance of truthfulness and integrity when writing an offense report, [5] no testimony adequately explained the purpose of such a report generally (i.e. that a police report is needed to provide accurate information to document or investigate a criminal incident), let alone whether a draft report would be used for such purposes.

         The offense report contains an entry indicating that the report was approved by an "approving officer" four days after its creation, but there was no testimony as to who the "approving officer" was, the process by which the report was "approv[ed]," or the meaning of "approv[ed]."[6] Without more, these entries referring to an approving officer do not resolve the uncertainty stemming from the presence of the word "DRAFT" on each page. The State needed to explain how or why the government would use or rely on a document "for information" that, without evidence to the contrary, appears to be preliminary and incomplete. Yet, the testimony wholly failed to address this matter. There was no real explanation of: (1) the process by which an offense report is made and stored; (2) how the computer system at the constable's office works for creating offense reports; (3) how or if a police report goes from a draft to a final version; (4) whether a police report is reviewed by a supervisor for accuracy (other than through the internal affairs investigation); or (5) whether the constable's office ever relies on draft police reports "for information" in conducting its investigations.

         The court of appeals pointed to Deputy Tran's testimony as supporting the reasonable inference that Appellant had authored the report on the precinct's computer system, which was property that "belonged to and was kept by appellant's government employer for information." Hernandez, 577 S.W.3d at 368. However, Deputy Tran's testimony on this topic was too vague and ...


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