Ashley Danielle James v. The State of Texas--Appeal from 349th District Court of Houston County

  NO. 12-05-00410-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ASHLEY DANIELLE JAMES, APPEAL FROM THE 349TH

APPELLANT

V. JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE HOUSTON COUNTY, TEXAS

MEMORANDUM OPINION

Appellant Ashley Danielle James was convicted by a jury of tampering with a governmental record and forgery. In two issues, Appellant challenges the legal sufficiency of the evidence to support the jury s finding that the document in question was a governmental record and argues that her conviction for forgery was based upon an indictment that did not state a criminal offense. We affirm.

Background

In September of 2003, Appellant, a nurse, met Dr. Rayford Mitchell at a pediatric clinic in Tyler, Texas. At the time, Dr. Mitchell was still in medical school. The two began dating and announced their engagement in October 2003. The following month, Dr. Mitchell broke off the engagement, declaring to Appellant that I don t want to marry you. In response, Appellant returned her engagement ring to Dr. Mitchell. In January 2004, Dr. Mitchell emphatically declared to Appellant that their relationship was over and that Appellant should [g]et out of [his] life.

Not deterred by Dr. Mitchell s wishes, Appellant embarked upon a campaign of harassing phone calls to both Dr. Mitchell and his family. On at least one occasion, in an attempt to talk to Dr. Mitchell, Appellant went to the home of Dr. Mitchell s grandmother. During that incident, Appellant was very irate and rude and threatened to throw a piece of wood through a window.

On February 17, 2004, Appellant called the Houston County Clerk s Office and spoke with Bridget Lamb, County Clerk. Appellant asked Lamb what was necessary to get a marriage license when one of the license applicants was absent and unable to appear before the county clerk. Lamb informed Appellant that one of the applicants could appear by absentee affidavit and that her office had a form affidavit that could be used. Appellant stated to Lamb that her lawyer had previously drawn up a marriage contract. Lamb told Appellant that she would accept this contract in lieu of the form affidavit if the content of the two were basically the same.

On that same day, Appellant traveled to the Houston County Clerk s Office in order to obtain a marriage license. Appellant appeared before Deputy Clerk Tonia Spencer and presented a document labeled Intent for Marriage Agreement as well as a completed absentee affidavit form. Both documents lacked Dr. Mitchell s signature and, instead, stated that his signature could be found on the original contract. Appellant presented these documents in this form despite the fact that Dr. Mitchell had never signed any such contract or agreement. The affidavit contained a notary public s stamp and a completed jurat and stated that Appellant had subscribed and sworn to the affidavit before a notary. Appellant told Spencer that her attorney had the original Intent for Marriage Agreement on file. Based upon Appellant s presented documents and representations, Spencer issued a marriage license and gave it to Appellant.

Appellant returned the license, in completed form, to the county clerk s office by mail. Although no marriage ceremony between Appellant and Dr. Mitchell had occurred, the completed license stated that the two had been married on February 21, 2004 by Reverend Horace Perry, Assistant Pastor of County Line Baptist Church. On April 30, 2004, Appellant, holding herself out as Ashley Danielle James-Mitchell, informed Dr. Mitchell that they were now married, thus alerting Dr. Mitchell to Appellant s efforts to fraudulently document a nonexistent marriage.1

Appellant was indicted on two counts of tampering with a governmental record and one count of forgery by passing. The first tampering count was for making a governmental record (the marriage license application) with knowledge of its falsity and the second was for knowingly making a false entry in a governmental record (placing the name and signature of a person identified as a minister on the marriage license).2 The forgery by passing count was for returning the completed marriage license to the county clerk s office.3 The jury found Appellant guilty of the first count of tampering with a governmental record and of forgery, but found her not guilty of the second count of tampering with a governmental record. The trial court sentenced Appellant to ten years of imprisonment, probated for ten years. This appeal followed.

Legal Sufficiency of the Evidence

In her first issue, Appellant contends that the evidence was legally insufficient to support the jury s finding that the marriage license application in question was a governmental record.

Standard of Review

In reviewing a legal sufficiency question, we must view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The trier of fact, here the jury, is the exclusive judge of the credibility of witnesses and of the weight to be given their testimony. Barnes v. State, 876 S.W.2d 316, 321 (Tex. Crim. App. 1994). The jury is entitled to draw reasonable inferences from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App. Corpus Christi 1988, pet. ref d). Likewise, reconciliation of conflicts in the evidence is within the exclusive province of the jury. Losada v. State, 721 S.W.2d 305, 309 (Tex. Crim. App. 1986).

Discussion

Section 37.10 of the Texas Penal Code prohibits tampering with a governmental record. Section 37.10(a)(5) defines tampering with a governmental record to include instances where a person makes, presents, or uses a governmental record with knowledge of its falsity. Tex. Penal Code Ann. 37.10(a)(5).

According to Appellant, because there was no evidence that the marriage license application had been filed with the Texas Bureau of Vital Statistics ( TBVS ), the evidence was legally insufficient to support a finding that the application was a governmental record. To support her position, Appellant points out that Texas law mandates that such applications must be filed with TBVS by the county clerk receiving the application.4 Appellant contends that until an application has been filed with TBVS, it is not a governmental record as defined by section 37.01(2) of the Texas Penal Code. We disagree.

Section 37.01(2) sets forth the definition of a governmental record, which includes anything belonging to, received by, or kept by government for information, including a court record. Tex. Penal Code Ann. 37.01(2)(A) (Vernon Supp. 2006). Government is defined under the Code as the state; . . . a county, municipality, or political subdivision of the state; or . . . any branch or agency of the state, a county, municipality, or political subdivision. Id. 1.07(a)(24) (Vernon Supp. 2006).

The Houston County Clerk s Office falls within the definition of government. See id. A marriage license application that is physically handed to an employee of a county clerk s office for the purpose of procuring a marriage license becomes a record received by government for information and, thus, a governmental record. See id. 37.01(2)(A). The fact that the county clerk was required to forward the application to the TBVS for record keeping is irrelevant to the question of whether an application was received by government.

The evidence was undisputed that this marriage license application was physically handed over by Appellant to Spencer, a deputy clerk, in an attempt to obtain a marriage license. After reviewing the evidence in the light most favorable to the verdict, we hold that a rational trier of fact could have found beyond a reasonable doubt that the marriage license application was a governmental record. Therefore, the evidence was legally sufficient to support the jury s governmental record finding. See King, 29 S.W.3d at 562. We overrule Appellant s first issue.

Sufficiency of Indictment

In her second issue, Appellant argues that her conviction for forgery was based upon an indictment that did not state a criminal offense.

The sufficiency of an indictment is a question of law. State v. Moff, 154 S.W.3d 599, 601 (Tex. Crim. App. 2004). The trial court is not in an appreciably better position to make this determination than is an appellate court. Id. Therefore, we review the sufficiency of an indictment de novo. Id.

A person commits the criminal offense of forgery by passing when she, with the intent to defraud or harm another, passes a writing that purports to have been executed at a time or place other than was in fact the case. Tex. Penal Code Ann. 32.21. The indictment in question read as follows:

[Appellant] on or about the 21st day of February, 2004, . . . did then and there with intent to defraud or harm another, pass to Houston County Deputy Clerk Tonia Spencer, a forged writing, knowing such writing to be forged, and such writing had been so made, completed, executed, or authenticated that it purported to have been executed at a time or place other than was in fact the case, and said writing was a Marriage License . . .

This indictment tracked the statutory language of the Texas Penal Code and clearly alleged that Appellant committed the criminal offense of forgery by passing. See id. Nonetheless, Appellant argues that the indictment failed to state a criminal offense because the Texas Family Code mandates that every marriage entered into in the State of Texas is presumed to be valid unless expressly made void by statute or unless the marriage has been annulled. See Tex. Fam. Code Ann. 1.101 (Vernon 2002). By this argument, Appellant implicitly contends that the marriage license was valid and that she and Dr. Mitchell were parties to a valid marriage. Appellant s argument relates to the legal sufficiency of the evidence supporting her conviction, not to an assessment of the sufficiency of the indictment. Because Appellant s second issue pertains only to the sufficiency of the indictment, this argument is inapposite. We overrule Appellant s second issue.

Disposition

We affirm the trial court s judgment.

BRIAN HOYLE

Justice

Opinion delivered March 30, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

1 Dr. Mitchell subsequently filed a civil lawsuit against Appellant seeking that the alleged marriage be declared void because no marriage ceremony had actually occurred. The marriage was annulled following a bench trial.

2 See Tex. Penal Code Ann. 37.10(a)(5), 37.10(a)(1) (Vernon Supp. 2006).

3 See id. 32.21 (Vernon Supp. 2006).

4 See Tex. Health & Safety Code Ann. 194.001(a) (Vernon 2001).