Shelley, Tamara Dawn v. The State of Texas--Appeal from County Crim Court No 4 of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

TAMARA DAWN SHELLEY, )

) No. 08-02-00031-CR

Appellant, )

) Appeal from the

v. )

) County Criminal District Court #4

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# MA0125007-E)

)

O P I N I O N

Appellant, Tamara Dawn Shelley, appeals her conviction for tampering with a government record. She was tried before the court, found guilty, and sentenced to 90 days in jail, probated for 6 months. The court also assessed a fine of $500 and ordered her to perform 100 hours of community service. We affirm.

Appellant wanted to be a concealed weapon permit instructor. In order to obtain such a permit, one must complete a course with a certified instructor and submit an application to the Department of Public Safety. See Tex.Gov=t Code Ann. ' 411.174 (Vernon Supp. 2003). The application requires a complete set of an applicant=s fingerprints. See Tex.Gov=t Code Ann. ' 411.174(a)(5). Appellant wanted to be able to take fingerprints of her clients to assist in the application process. Texas law allows private instructors to provide this service to clients if the instructor has been Adesignated by a law enforcement agency as an entity qualified to take fingerprints of an applicant for a license.@ See Tex.Gov=t Code Ann. ' 411.174(a)(5).

According to her statement entered into evidence at trial, Appellant was unable to find an agency willing to send the proper documentation to the Department of Public Safety designating her as qualified to take prints. She claimed a Dallas police officer had given her training, but was unwilling to complete the proper paper work. Appellant decided to create the paper work herself. She had received a letter from the Farmers Branch Police Department on another matter. She scanned the letterhead into her computer and created a letter which purported to be from the Police Department indicating she was qualified to take fingerprints. Appellant sent this letter to the Department of Public Safety as proof of her qualifications and requested the necessary materials to fingerprint her clients.

Upon receipt of the letter, the Department of Public Safety contacted the Farmers Branch Police Department and discovered that the document was fraudulent. The document was turned over to the police department for investigation. The investigator contacted Appellant and Appellant voluntarily gave a written statement confessing what she had done. Appellant was charged by information with tampering with a governmental record.

A bench trial was held. The State called four witnesses and entered four documents into evidence: the document at issue, a handgun permit, Appellant=s voluntary statement, and Appellant=s application to be an instructor. The defense essentially conceded Appellant created the document. No witnesses were called on behalf of the defense.

In closing argument, defense counsel argued that the statutory defense included in Section 37.10 applied to the case. He argued the purpose of requiring the documentation was to ensure those individuals or entities taking fingerprints were competently trained. He maintained Appellant had received proper training and knew how to take good prints. Thus, he reasoned the false document could have no effect on the government=s purpose for requiring the record. In rebuttal, the State noted the defense provided no evidence that Appellant was certified to take fingerprints. Ultimately, the trial court found Appellant guilty.

On appeal, Appellant now challenges the legal sufficiency of evidence supporting the guilty verdict. However, she effectively admits she created and presented a false document with the intent that it be taken as a genuine governmental record. Thus, her challenge is predicated on the contention that her actions fall under the statutory defense.

In reviewing the legal sufficiency of evidence in a criminal case, we view all evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991). We do not look to whether the State presented evidence that refuted an appellant=s defensive evidence. Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App. 1991). Instead, we must determine whether there was legally sufficient evidence to allow the fact finder to find the essential elements of the offense beyond a reasonable doubt and also to find against the appellant on the defensive theories beyond a reasonable doubt. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Saxton, 804 S.W.2d at 914. The trier of fact, not the appellate court, is charged with deciding whether an appellant=s actions are justified under the Penal Code. Adelman, 828 S.W.2d at 421. In so doing, the trier of fact is free to accept or reject all or any portion of any witness=s testimony. Adelman, 828 S.W.2d at 421.

The offense of tampering with a government record is recognized in the Texas Penal Code Section 37.10. In this case, Appellant was convicted under Section 37.10(a)(2) which provides:

(a) A person commits an offense if he:

. . .

(2) makes, presents, or uses any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record;

Tex.Pen.Code Ann. ' 37.10(a)(2)(Vernon Supp. 2003). The Legislature has also provided a statutory defense for this offense under Section 37.10(f). This subsection states:

(f) It is a defense to prosecution under Subsection (a)(1), (a)(2), or (a)(5) that the false entry or false information could have no effect on the government=s purpose for requiring the governmental record.

Tex.Pen.Code Ann. ' 37.10(f). Thus, the elements of the statutory defense are twofold: (1) proof of the government=s purpose for requiring the governmental record; and (2) proof that the false document could have no effect on the purpose. See id.

In this case, the governmental record at issue is the false letter created by Appellant and presented to the Department of Public Safety. Appellant used the record to falsely assert that she had been designated by the Farmers Branch Police Department as qualified to take fingerprints of concealed handgun license applicants. Appellant contends the statutory defense applies in this instance. In reaching this conclusion she relies on two assertions. First, she asserts the purpose of the record at issue is to insure the fingerprints of an applicant are taken by a trained individual so that they can be used reliably for identification. Second, she asserts she actually received the necessary training and is qualified to take the fingerprints. Based on these two assertions, Appellant argues the false letter had no effect on the government=s purpose for requiring the record.

Very little evidence supports Appellant=s defensive theory and the assertions upon which it is based. There was some testimonial evidence regarding the purpose of the required documentation that was falsified by Appellant. On cross-examination, defense counsel questioned Carolyn Roepke, an employee with the Texas Department of Public Safety, about the Department=s policy requiring a letter to be sent by a law enforcement agency before allowing a private instructor or entity to record an applicant=s fingerprints for a concealed handgun license. The following exchange took place between Ms. Roepke and defense counsel:

Defense: But the statute does not explain the designation, does it?

Witness: (No response indicated.)

Defense: I mean it does not say that they have to have a document in writing from the law enforcement agency?

Witness: That=s the only way we would know that they have been through a law enforcement entity, because the information has to come to us on a law enforcement agency letterhead signed by the designated person.

Defense: But I want to be clear about this; I think that that=s a policy that the Texas Department of Public Safety B you work for the Texas Department of Public Safety?

Witness: Yes.

Defense: That the Texas Department of Public Safety has imposed as a way of applying this rule?

Witness: Right.

Defense: The rule does not specifically say that they have to have a letter from a law enforcement agency on that law enforcement agency=s letterhead?

Witness: But they have to be designated by --

Defense: It does say they have to be designated, I just want to make it clear that that is all the rule says?

Witness: Right. But in order for us to know that, it has to come on law enforcement agency letterhead.

Defense: Theoretically, you could have somebody from law enforcement stand up and say under oath >I designate this individual as somebody who has received training from me and is qualified to take fingerprints.=

State: Pardon me. I object to the relevancy at this point.

Court: Overruled.

Defense: I mean that would constitute a designation. But that=s not the policy of the Texas Department of Public Safety, correct?

Witness: It is a policy that we have to have something on the law enforcement agency=s letterhead, signed by an officer or chief of police from that police department, saying that that person has gone through their training or them showing how they can do fingerprints. That they can do readable, classifiable fingerprints. That is our way of knowing that they have gone through a law enforcement agency.

Defense: Okay. And, obviously, the purpose of this requirement of the Texas Concealed Handgun Law is that you have readable, accurate fingerprints, correct?

Witness: Yes.

Defense: And that the people who are taking these fingerprints have, in fact, received training to take the fingerprints?

Witness: Yes.

Defense: That=s all I have. [Emphasis added].

This was the only evidence related to the government=s purpose for requiring the governmental record that had been falsely created and presented by Appellant.

Even assuming this testimony constitutes adequate proof of the government=s purpose for requiring the governmental record, there must also be proof that the false document could have no effect on this purpose. Appellant asserts she was trained and qualified to take fingerprints, and merely lacked the required documentation so attesting. The only evidence supporting this assertion was Appellant=s own statement given to the police and admitted into evidence at trial. In the statement, she asserts she received training to take fingerprints. The statement does not specifically identify who gave her the training. Nothing else in the record corroborates the training occurred. Moreover, nothing in the record establishes her ability to take readable, accurate fingerprints. Appellant=s written statement only provides an unsupported assertion of her qualification. It is unclear that this evidence even raises the defensive issue, but even assuming the statutory defense is raised, a rational trier of fact could have found against the defendant on the defensive issue beyond a reasonable doubt. Saxton, 804 S.W.2d at 914.

The trial judge, as trier of fact in this case, implicitly rejected Appellant=s defense by finding Appellant guilty. Adelman, 828 S.W.2d at 422; Jenkins v. State, 740 S.W.2d 435, 438 (Tex.Crim.App. 1983). It is now our duty to determine if the explicit and implicit findings of the trial judge are rational under legal standards to support the conviction. Adelman, 828 S.W.2d at 422. After reviewing all of the evidence in the light most favorable to the implicit rejection of Appellant=s defense, we find the evidence to be legally sufficient to allow the trier of fact to find the essential elements of the offense beyond a reasonable doubt and also to find against Appellant on the statutory defense beyond a reasonable doubt. Id.

Appellant=s issue on appeal is overruled. The judgment of the trial court is affirmed.

December 12, 2002

DAVID WELLINGTON CHEW, Justice

Before Panel No. 5

McClure, J., Chew, J., and Hill, C.J. (Ret.)

Hill, C.J. (Ret.)(Sitting by Assignment)

(Do Not Publish)