Sandra Romero v. The State of Texas--Appeal from 168th District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

SANDRA ROMERO, )

) No. 08-03-00520-CR

Appellant, )

) Appeal from the

v. )

) 168th District Court

THE STATE OF TEXAS, )

) of El Paso County, Texas

Appellee. )

) (TC# 20030D03195)

)

O P I N I O N

Appellant Sandra Romero appeals her conviction for three counts of tampering with governmental records. The jury found Appellant guilty on all three counts and the trial court assessed punishment at 2 years= confinement in a state jail facility, probated to 4 years= community supervision, and restitution in the amount of $5,555.30. In six issues, Appellant argues that the evidence is legally and factually insufficient and that the trial court erred in denying her request for a lesser-included offense instruction in the jury charge. We affirm.

In July 2000, Appellant applied for government assistance through the Texas Department of Human Services (ATDHS@). Appellant completed a written application form and in response to the following question: AHow much cash money do you and all those who live with you have (in pockets, bank accounts, anywhere else)?,@ Appellant wrote in $20. Appellant applied for governmental assistance again in September 2000 and in January 2001. In the September 2000 application form she reported $0 in response to the same question and in the January 2001 application form she reported $30.

In March 2003, Eric Brown, an investigator with the TDHS, received a referral to investigate Appellant=s case. Mr. Brown reviewed Appellant=s original application and found no indication that a certain alleged bank account had been reported. On April 11, 2003, Mr. Brown went to the Government Employees Credit Union (AGECU@) and reviewed bank records and determined that Appellant had an account with GECU, which had not been reported on the applications nor had it been noted in the case worker=s documentation from Appellant=s

in-person interview. The GECU account was a joint certificate of deposit (ACD@) account held by Appellant and her husband. Mr. Brown contacted Appellant and her husband by telephone and met with them on April 16, 2003. During the meeting Mr. Brown verified Appellant=s signatures on the application forms. As a result of her applications, Appellant qualified for and received government assistance in the amount of $3,753 in food stamps and $1,802.30 in Medicaid benefits. Mr. Brown testified that Appellant would not have been eligible for the food stamps or Medicaid benefits her household received if she had reported the CD account.

Maria Guerrero, a supervisor at GECU testified that Appellant, also known as Sandra Lynn Garcia, and Jose A. Romero opened a joint CD account on June 27, 2000 with a deposit of $3,000. The original term of the account was for a period of 24 months, with a compounded interest rate of 6.35 percent. Ms. Guerrero stated that a CD account is an account in which money is deposited for an extended amount of time with limitations placed on its withdrawal. If money is withdrawn before the maturity date, a penalty is imposed, depending on the terms of the account. If the account is a long-term CD, that is, for more than six months, the penalty for early withdrawal is 180 days= worth of interest. Ms. Guerrero testified that Appellant=s CD account contained an early withdrawal penalty of 180 days= worth of interest on the account.[1] Ms. Guerrero explained that 180 days after opening a CD account with $3,000, if the account holder then withdrew early, that individual would lose 180 days= worth of interest, but would have at least the principal $3,000. There was a withdrawal from Appellant=s CD account (a transfer into a savings account) on June 28, 2002, which was after the maturity date on this particular CD. For a $3,000 CD account, the penalty for early withdrawal would have been approximately $96.

On cross-examination, Ms. Guerrero agreed that GECU invests the money that an individual deposits into a GECU account and that the individual has no say in how the money is invested. She agreed that when an individual opens a certificate of deposit account, that individual is entering into a contract with the bank. However, she stated that the parties= contract sets out a penalty for any withdrawal before the maturity date. Ms. Guerrero conceded that if a penalty is assessed, that would mean that the contract had been violated. However, GECU has never sued a CD account holder for breach of contract for early withdrawal.

Rosa Solano, TDHS Texas works advisor and eligibility specialist on Medicaid and food stamps, testified about the application process for the governmental assistance programs. Ms. Solano explained that prospective clients must complete a written application for assistance, form 1010, followed by an oral interview with an advisor a week or two after the form is submitted. During the interview, the advisor verifies all the information provided to determine eligibility and if found eligibility, the amount of food stamp benefits the individual will receive. According to Ms. Solano, it was TDHS policy that all sources of income and assets must be reported on the application form. The department then determines what will or will not be counted in determining eligibility for assistance.

Three years ago, Ms. Solano was Appellant=s caseworker. Ms. Solano testified that she met with Appellant in person and received the application forms from Appellant. As a result of submitting the applications, Appellant received benefits. Ms. Solano could not remember Appellant personally, but stated that she took notes on her case in the computer system. She testified that she has never told any prospective client that he or she did not have to report a particular type of income. Ms. Solano emphasized that to her knowledge, all income and assets have to be reported, and as a general policy, they are told to report everything and then the department determines whether it counts or does not count. According to her notes on Appellant=s interview, she and Appellant discussed child support income. Ms. Solano testified that it was normal policy to report child support payments as income on the form.

Appellant testified in her defense. Appellant explained that in June 2000, she received a $3,800 check from the Attorney General=s Office for back pay on child support owed to her from her ex-husband for child support to her oldest son. Appellant went to the bank and opened a CD account with $3,000 and used the remaining $800 to repay a loan to her mother. Appellant stated that she and her current husband decided to open the CD account in order to save the back pay of child support money for her oldest son. It was her understanding that when she deposited the money into the account, it was locked in for 24 months, and was no longer her money. Under the contract with GECU for that account, she was not allowed to withdraw any money prior to the maturity date. They knew that there was a penalty and they had no intention of getting penalized.

Appellant admitted that in July 2000, she filled out the application for food stamps and Medicaid benefits. At the time, her husband was going to school and working part-time and they needed the assistance. With regard to the question: AHow much cash money do you and all those who live with you have (in pockets, bank accounts, anywhere else)?;@ Appellant left that question blank because she wanted to make sure that she answered it correctly. When she met with the case worker, she told the case worker that she had left the question blank because she was not sure how to answer it. After speaking with the case worker, Appellant believed that she did not have to report the $3,000. According to Appellant, she relied on the case worker=s advice and did not think she need to claim the $3,000 because it was back pay for child support owed to her from years ago.

In September 2000 and January 2001, Appellant filled out the application forms again in order to renew her benefits. Based on the prior answer from the case worker during the first interview, it was Appellant=s understanding that the $3,000 was not part of her current income and did not need to be reported because it was money that was back paid. Appellant testified that putting the $3,000 into a CD account had not affected her decision in answering the question. Appellant believed that she had filled out the application forms correctly and truthfully and had not knowingly made a false entry. Appellant denied that her intent was to defraud or harm anyone when she filled out the applications.

In Issue One, Appellant contends that the trial court erred in denying her request for submission of the lesser-included offense of tampering with governmental record without the element of intent to defraud or harm. A person commits the offense of tampering with governmental record if she Aknowingly makes a false entry in, or false alteration of, a governmental record.@ See Tex.Pen.Code Ann. ' 37.10(a)(1)(Vernon Supp. 2004-05). The Texas Penal Code provides for both misdemeanor and felony degrees of tampering with a government record. See id. at ' 37.10(c)(1). Appellant was charged with three counts of the state jail felony, therefore, the State was required to prove her intent to defraud or harm another. See id. The Penal Code defines harm to mean Aanything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.@ Tex.Pen.Code Ann. ' 1.07(a)(25)(Vernon Supp. 2004-05). The jury charge defined Aintent to defraud@ to mean Ato act with the intent to cheat or deceive, ordinarily for the purpose of causing a financial loss to someone else or bring about a financial gain to one=s self.@

We apply a two-prong test to determine whether Appellant was entitled to a charge on a lesser-include offense. See Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.Crim.App. 1993)(en banc); Ramirez v. State, 976 S.W.2d 219, 226-27 (Tex.App.--El Paso 1998, pet. ref=d). First, the lesser-included offense must be included within the proof necessary to establish the offense charged. Bignall, 887 S.W.2d at 23; Rousseau, 855 S.W.2d at 672-73; see also Tex.Code Crim.Proc.Ann. art. 37.09(1)(Vernon 1981). The State concedes that tampering with a governmental record without intent to defraud or harm is a lesser-included offense and agrees that the first prong is satisfied in this case.

Under the second prong, some evidence must exist in the record that would permit a rational jury to find that if the defendant is guilty, she is guilty only of the lesser offense. Rousseau, 855 S.W.2d 672-73; Licon v. State, 99 S.W.3d 918, 927 (Tex.App.--El Paso 2003, no pet.). A defendant is guilty only of a lesser-included offense if there is evidence that affirmatively rebuts or negates an element of the greater offense, or if the evidence is subject to different interpretations, one of which rebuts or negates a crucial element. See Ramirez, 976 S.W.2d at 227. It is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense. See Skinner v. State, 956 S.W.2d 532, 543 (Tex.Crim.App. 1997). There must be some evidence directly germane to the lesser-included for the jury to consider before the instruction on the lesser-included offense is warranted. See Bignall, 887 S.W.2d at 24; Ramirez, 976 S.W.2d at 227. A defendant=s denial of committing any offense does not automatically foreclose an instruction to the jury on a lesser-included offense. See Bignall, 887 S.W.2d at 24.

Here, Appellant testified that she did not claim the $3,000 because she was led to believe that she did not need to report the money because it was back pay for child support. In her second and third applications, she did not report the $3,000 as part of her current income or assets because she had previously received an answer from the case worker on the matter. Appellant testified that she completed the application forms correctly and truthfully and did not knowingly make a false entry on the forms. Appellant denied that she had the intent to defraud or harm anyone by filling out the application forms. By her testimony, Appellant refuted both the lesser and greater offenses in that her defense was that no offense had been committed at all.

If the defendant either presents evidence that she committed no offense or presents no evidence, and there is no evidence otherwise showing she is guilty only of a lesser-included offense, then a charge on a lesser-included offense is not required. Bignall, 887 S.W.2d at 24, citing Aguilar v. State, 682 S.W.2d 556, 588 (Tex.Crim.App. 1985). Ms. Solano testified that in conducting the application process for the governmental assistance programs to which Appellant had applied, she has never advised a client not to report certain sources of income and assets. Rather, she stated it was TDHS policy that all sources of funds be reported so that the department can then determine whether it will count or not count in determining program eligibility. While Ms. Solano could not remember her client, Appellant personally, she testified to the general TDHS policy which if followed, contradicted Appellant=s recollection of events. Moreover, Ms. Solano stated that she has never told any client not to report certain kinds of income. Appellant received food stamps and Medicaid benefits as a result of her applications for governmental assistance. Mr. Brown testified that if she had reported the CD account money, she would not have been eligible for the assistance she received.

After reviewing all the evidence presented at trial, along with evidence that Appellant committed no offense, we conclude there was no evidence otherwise showing Appellant was guilty of only the lesser-included offense. Therefore, the trial court did not err in refusing to charge the jury on the lesser-included offense because such an instruction was not required. See Aguilar, 682 S.W.2d at 558. Issue One is overruled.

In Issues Two through Six, Appellant challenges the legal and factual sufficiency of the evidence to support her conviction. Specifically, Appellant contends the evidence was legally and factually insufficient to establish the elements of the offense, namely that she knowingly made a false entry and that she had the intent to defraud or harm. In addition, Appellant argues that her motions for directed verdict should have been granted as a matter of law because she answered the question on the government applications correctly.[2]

Standards of Review

In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Burden v. State, 55 S.W.3d 608, 612 (Tex.Crim.App. 2001). We do not resolve any conflict of fact, weigh any evidence, or evaluate the credibility of any witnesses, as this was the function of the trier of fact. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, duty is to determine whether both the explicit and implicit findings of the trier of fact are rational by viewing all the evidence admitted at trial in the light most favorable to the verdict. See Adelman, 828 S.W.2d at 421-22. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa v. State, 820 S.W.2d 154, 158 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000).

In reviewing the factual sufficiency of the evidence, we must determine whether considering all the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004); see also Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). There are two ways in which we may find the evidence to be factually insufficient. Zuniga, 144 S.W.3d at 484. Evidence is factually insufficient when the evidence supporting the verdict, considered alone, is too weak to support the finding of guilt beyond a reasonable doubt. Id. Evidence is also insufficient when contrary evidence is so strong that guilt cannot be proven beyond a reasonable doubt. See id. at 485. However, in our factual sufficiency review, we must give appropriate deference to the jury and should not intrude upon its role as the sole judge of the weight and credibility given to evidence presented at trial. See Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis, 922 S.W.2d at 133. Accordingly, we are authorized to set aside the jury=s finding of facts only in instances where it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. Clewis, 922 S.W.2d at 135.

Tampering with Governmental Records

In this case, the State was required to prove beyond a reasonable doubt that on three separate occasions, Appellant knowingly made a false entry in a governmental record, namely the Texas Department of Human Services governmental assistance application, with the intent to defraud or harm that agency. See Tex.Pen.Code Ann. ' 37.10 (a)(1), (c)(1).

Knowingly Make a False Entry

In Issues Two, Five and Six, Appellant challenges the legal and factual sufficiency of the evidence to support her conviction, arguing that the State failed to establish that she knowingly made a false entry on the assistance applications. Specifically, Appellant argues that the evidence at trial established that Appellant, in fact, answered the questions correctly and furthermore, the evidence to support the guilty finding is so weak as to be manifestly unjust.

It is undisputed that on three separate occasions, Appellant filled out applications for governmental assistance through the TDHS. It is also undisputed that on each occasion, she did not report the $3,000 that she had placed in the GECU CD account on June 27, 2000 when answering the following question on the forms: AHow much cash money do you and all those who live with you have (in pockets, bank accounts, anywhere else)?@ TDHS investigator Eric Brown verified that Appellant held a CD account with GECU and Appellant had failed to report the money in the account. As a result of her applications, Appellant qualified for and received $3,753 in food stamps and $1,802.30 in Medicaid benefits. If she had reported the $3,000, she would not have received the assistance. Ms. Solano testified that it was TDHS policy that all sources of income and assets be reported in the application form. She explained that the department later determines what will or will not be counted in determining an individual=s eligibility for assistance. She testified that she has never told anyone not to report certain types of income and that it was normal policy to report child support payments on the forms. From this testimony, the jury could have reasonably inferred that Ms. Solano did not tell Appellant not to report the back pay child support money on the forms.

Appellant argues that she, in fact, answered the question correctly because the money that was deposited in the CD account was back pay for child support and therefore, she should not have had to claim that money on the applications. Specifically, she asserts that the question was designed to determine the applicant=s present income, not reimbursement for money that Appellant has already spent. The jury, however, could have also reasonably concluded that the question asked the applicant to report all Acash money@ held within the household--inclusive of that held on one=s person, in bank accounts, and anywhere else and under this interpretation, her income and assets would have included the money held in the CD account. Moreover, Ms. Solano testified that the question required applicants to report different sources of income and assets, including cash in hand or bank accounts.

Appellant also argues that she answered the question correctly because the money was deposited in a CD account and therefore, belonged to GECU at the time she filled out the applications. However, the jury could have reasonably concluded that the required reporting of money held in Abank accounts@ included certificate of deposit accounts. While Appellant testified that it was her understanding that once the money was deposited in the CD account it no longer belonged to her, Ms. Guerrero testified that the account holder maintains access to the account and, in the event of early withdrawal, the bank would merely impose the designated penalty. From this evidence, the jury could have determined that Appellant had access to the money in the account at all times and after the 180-day period could withdraw the principal balance.

Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence was legally sufficient to establish beyond a reasonable doubt the element of knowingly making a false entry on a governmental record. Moreover, after viewing all the evidence in a neutral light, we conclude that the evidence supporting the verdict was not so weak as to be manifestly unjust. Even though Appellant offered what she considers to be a reasonable explanation for not reporting the $3,000, and despite the fact that Ms. Solano had no personal recollection of her meeting with Appellant, the jury could have chosen to believe Ms. Solano=s testimony over Appellant=s. The jury, as fact finder and judge of the credibility of the witnesses, may believe all, some or none of the testimony offered at trial. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Therefore, the evidence was both legally and factually sufficient to establish beyond a reasonable doubt the element of knowingly making a false entry on a governmental record. Issues Two, Five, and Six are overruled.

Intent to Defraud or Harm

In Issues Three and Four, Appellant challenges the legal and factual sufficiency to support her conviction, arguing that the State failed to present evidence on the element of intent to defraud or harm. In the jury charge, Aintent to defraud@ was defined as Ato act with the intent to cheat or deceive, ordinarily for the purpose of causing a financial loss to someone else or bring about a financial gain to one=s self.@ AHarm@ was defined as Aanything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.@ See Tex.Pen.Code Ann. ' 1.07(a)(25).

Appellant contends the State presented no evidence on the element of intent to defraud or harm. The State can establish intent to defraud or harm by circumstantial evidence. Burks v. State, 693 S.W.2d 932, 936-37 (Tex.Crim.App. 1985). Here, the State presented evidence that Appellant failed to report the money held in the CD account on her applications for governmental assistance. As a result of her applications, Appellant received $5,555.30 in benefits from the TDHS. Based on her notes from Appellant=s interview, Ms. Solano explained that she and Appellant discussed child support income. Ms. Solano testified that she would never have told anyone not to report back pay for child support on the application form. Mr. Brown testified that had Appellant reported the CD account money, she would not have been eligible for the governmental assistance she received. From this evidence, the jury could have reasonably inferred that Appellant knew that reporting the CD account money would negatively affect her eligibility for governmental assistance and, in addition, was never told by Ms. Solano not to report it. Therefore, the jury could have reasonably concluded that Appellant made the decision not to report the CD account money of her own accord and did so with the knowledge that her deception would cause some financial loss to the TDHS. Further, there was evidence that TDHS was harmed due to its loss of $5,555.30. Viewing the evidence in the light most favorable to the verdict, we conclude that the evidence was legally sufficient to establish beyond a reasonable doubt the element of intent to defraud or harm.

After considering all the evidence in a neutral light and giving appropriate deference to the jury=s role as sole judge of the weight and credibility of the witnesses= testimony, we conclude that the evidence was not too weak to support the jury=s finding beyond a reasonable doubt nor was the contrary proof so strong that Appellant=s guilt could not be proven beyond a reasonable doubt. See Zuniga, 144 S.W.3d at 484-85. Therefore, we conclude the evidence was legally and factually sufficiency to establish the element of intent to defraud or harm beyond a reasonable doubt. Issues Three and Four are overruled.

We affirm the trial court=s judgment.

July 15, 2005

DAVID WELLINGTON CHEW, Justice

Before Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

[1] The terms and conditions for the GECU Smart Step Variable Rate Certificate of Deposit account were admitted into evidence at trial. In relevant part, the contract provides:

Early Withdrawal and Penalty:

If Certificate Account principal is withdrawn before any maturity date, a SUBSTANTIAL PENALTY IS IMPOSED as follows:

There will be a forfeiture of 180 days interest (whether earned or not) which will be calculated at the interest rate in effect for this Certificate on the date of withdrawal. Interest paid during the term of the Certificate, but prior to maturity, will not be subject to early withdrawal penalty.

To comply with these provisions, the principal balance will be reduced by the amount of the penalty plus the amount withdrawn from the account. Interest will continue to accrue on any balance left on deposit in the account.

[2] A challenge to the trial court=s ruling on a motion for a directed verdict is a challenge to the legal sufficiency of the evidence that supports the judgment. Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996); Barron v. State, 43 S.W.3d 719, 722 (Tex.App. -El Paso 2001, no pet.); Valdez v. State, 993 S.W.2d 346, 353 (Tex.App. -El Paso 1999, pet. ref=d). Therefore, we review Appellant=s points of error on the denial of her motions for directed verdict under the traditional legal sufficiency standard.