Patricia Christmann v. The State of Texas--Appeal from 243rd District Court of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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PATRICIA CHRISTMANN, ) No. 08-04-00103-CR

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Appellant, ) Appeal from

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v. ) 243rd District Court

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THE STATE OF TEXAS, ) of El Paso County, Texas

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Appellee. ) (TC# 20020D05036)

O P I N I O N

Patricia Christmann appeals her conviction of two counts of tampering with a governmental record. A jury found Appellant guilty of each count and assessed her punishment at confinement for two years in a state jail, probated for five years. We affirm.

FACTUAL SUMMARY

On January 22, 2002, Appellant filed an application for Medicaid and food stamps for herself, her husband, and her three children. One of the questions on the application asked Appellant to list all household income. The instructions informed the applicant to include money from training or work; money you collect from charging room and board; cash gifts, loans, or contributions from parents, relatives, friends, and others; school grants or loans; child support; and unemployment or government checks. The application also asked the applicant to indicate the name of the person working or receiving money, the name of the employer, person, or agency providing the money, how often the money is received (once? weekly? monthly?), the amount received, and if social security, the claim number.

Appellant listed her husband, Marco Christmann, as a person working or receiving money and indicated that he was self-employed and receiving income from Select. She indicated that her husband s total income was $120. Another question asked, Have you--or has anyone living with you--worked in the past three months? Appellant answered yes. Appellant signed the application and swore under penalty of perjury that the information on the application was true and correct to the best of her knowledge.

Appellant filed a second application for food stamps on April 25, 2002 for herself, Marco, and the children. On this application, Appellant again listed her husband as a person working or receiving money and listed his employer as Auto Fresh self but she did not write anything in the boxes which asked how often he received income or the amount. As was the case with the first application, Appellant answered affirmatively the question asking whether anyone living with her had worked in the past three months, but she did not identify any employers or the income received. She answered no in response to another question, Have you--or anyone living with you--quit a job in the last 60 days?

David Huerta, a caseworker who determines a person s eligibility for government assistance programs, interviewed Appellant in January and April in connection with each of the applications. During those interviews, Huerta went over the applications, including these sections, and specifically questioned Appellant regarding the need to make any changes. Appellant did not make any changes to either application.

In September of 2002, Eric Brown, an investigator with the Office of the Inspector General, was assigned to investigate whether Appellant had improperly received food stamps after the Income Eligibility Verification System indicated that her household was receiving income not reported on her application for benefits. The Texas Workforce Commission had reported that Marco was receiving income from Ranstad Temporary Services between October 1, 2001 through April 28, 2002. Through his investigation and examination of Ranstad s payroll records, Brown verified that Marco had worked full-time for West Texas Container (WTC) from January 2002 through April 2002. On April 29, 2002, Marco became a permanent employee of WTC and he was still employed there at the time Brown conducted his investigation. Appellant did not disclose the income Marco received on either application and Brown did not find any evidence that Appellant had attempted to change the information she provided in both applications. Because Appellant did not list Marco s income on the applications, she received $1,760 in food stamps and $2,224.56 in Medicaid benefits to which she was not entitled. // Brown interviewed Appellant on September 18, 2002 and she verified that she had filled out the applications and had signed them.

At trial, Marco testified that he had been living with Appellant off and on for over fifteen years due to marital problems brought on in part by his problem with alcohol. He was living with Appellant during the relevant time period--January through April of 2002. Marco began temporary assignments through Ranstad in October of 2001, and he was assigned to work at WTC beginning in December of 2001. In April or May of 2002, he began working full-time for WTC. Marco ordinarily set aside money from his paycheck for bills, groceries, and gas, and spent the remainder on beer and to party. He did not let Appellant know how much he made because she would not let him keep any of it to go blow on anything. However, Appellant knew that Marco was working full-time and he was paying the household bills and buying groceries for the family.

Appellant testified at trial that she was aware of Marco s employment at Ranstad and WTC but she did not include it in the applications because she had called in the information to DHS in December of 2001 when Marco began working at WTC. Since DHS had made a number of other errors in her file, she believed it had simply failed to note the change she had called in regarding Marco s employment. She also claimed that she had spoken with Huerta about Marco s employment at Ranstad and WTC in April of 2002. Appellant denied having any intent to defraud the government. The jury rejected Appellant s testimony and defense and found her guilty of two counts of tampering with a governmental record.

SUFFICIENCY OF THE EVIDENCE

By six issues, Appellant challenges the legal and factual sufficiency of the evidence to support her convictions.

Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, 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, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. 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, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. 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, 820 S.W.2d at 158.

In reviewing factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). In Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App. 2004), the Court of Criminal Appeals clarified the factual sufficiency standard and linked the appellate standard of review to the beyond a reasonable doubt burden of proof. There is only one question to be answered in a factual sufficiency review:

Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? Zuniga, 144 S.W.3d at 484. However, there are two ways in which the evidence may be insufficient. Id. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Id. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Id. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand. Id. at 485. This standard acknowledges that evidence of guilt can preponderate in favor of conviction but still be insufficient to prove the elements of the crime beyond a reasonable doubt. Id. Stated another way, evidence supporting guilt can outweigh the contrary proof and still be factually insufficient under a beyond-a-reasonable-doubt standard. Id. In performing this review, we are to give due deference to the jury verdict, as well as to determinations involving the credibility and demeanor of witnesses. Zuniga, 144 S.W.3d at 481.

Elements of the Offense

A person commits tampering with a governmental record if he knowingly makes a false entry in, or false alteration of, a governmental record. Tex.Penal Code Ann. 37.10(a)(1)(Vernon Supp. 2005). This offense is a Class A misdemeanor unless the actor s intent is to defraud or harm another, in which event the offense is a state jail felony. Tex.Penal Code Ann. 37.10(c)(1). // A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Tex.Penal Code Ann. 6.03(b)(Vernon 2003). Conduct includes an act or omission and its accompanying mental state. Tex.Penal Code Ann. 1.07(a)(10)(Vernon Supp. 2005).

Count II of the indictment // alleged that on January 22, 2002, Appellant knowingly made a false entry in the application for assistance kept by the Texas Department of Human Services, by failing to list household income received by Marco Christmann in the section of the application which instructs the applicant to List all of your household s income below. Count III of the indictment made the same allegation for the application signed by Appellant on April 25, 2002. Both counts alleged that Appellant acted with intent to defraud and harm David Huerta, an employee of the Texas Department of Human Services.

False Entry

The first four issues relate to Appellant s argument that the evidence is legally and factually insufficient to prove that she made a false entry on a governmental record. In Issues One and Two, she contends that because she did not make any entry at all, she could not have made a false entry. She additionally claims that making a false entry necessarily requires an affirmative act and does not include a failure to act or omission.

Both applications asked Appellant to list all household income. With respect to Count II, the evidence, when considered in the light most favorable to the verdict, shows that Appellant failed to disclose on the January 2002 application that Marco received income from Ranstad and instead restricted her answer to Marco s $120 income from self-employment. // Thus, Appellant s assertion that she made no entry is inaccurate. A rational trier of fact could have found beyond a reasonable doubt that Appellant, by failing to list all of Marco s income, knowingly made a false entry on the portion of the form asking her to list all household income. After considering all of the evidence in a neutral light, we also conclude that the jury was rationally justified in finding guilt on Count II beyond a reasonable doubt.

Regarding Count III, Appellant indicated that Marco s self-employment with Auto Fresh was a source of household income but she did not specify the amount. She did not disclose Marco s employment with Ranstad and West Texas Container or his income. Rather than making no entry as Appellant claims, Appellant represented that the total household income was limited to Marco s self-employment. A rational trier of fact could have found beyond a reasonable doubt that by failing to list all of Marco s income, Appellant knowingly made a false entry on the portion of the form asking her to list all household income. After considering all of the evidence in a neutral light, we also conclude that the jury was rationally justified in finding guilt on Counts II and III beyond a reasonable doubt. We overrule Issues One and Two.

In Issues Three and Four, Appellant complains that the evidence is legally and factually insufficient because she accurately reported a portion of her husband s income, and therefore, did not make a false entry. Viewing the evidence in the light most favorable to the verdict, it shows that the January application asked Appellant to list all of the household income, but she listed only a portion of the household income. Appellant s representation on the application that the entire household income consisted of $120 is false because the household also received income through Marco s employment with Ranstad. Likewise, Appellant represented on the April application that Marco was not receiving any income and she failed to report his income from Ranstad and West Texas Container. We conclude that a rational trier of fact could have found beyond a reasonable doubt that Appellant knowingly made a false entry regarding the total household income on both the January and April applications for assistance. After considering all of the evidence in a neutral light, we also conclude that the jury was rationally justified in finding this element was established beyond a reasonable doubt in connection with both Counts II and III. Issues Three and Four are overruled.

Intent to Defraud

In Issues Five and Six, Appellant challenges the legal and factual sufficiency of the evidence to prove that she had an intent to defraud or harm. The jury charge did not define intent to defraud but we measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). In the context of tampering with a governmental record, intent to defraud another is sometimes defined as a conscious objective or desire to cause another to rely upon the falsity of a representation, such that the other person is induced to act or to refrain from acting. Wingo v. State, 143 S.W.3d 178, 187 (Tex.App.--San Antonio 2004, pet. granted), citing 41 Tex.Jur.3d Fraud and Deceit 9 (1998); Martinez v. State, 6 S.W.3d 674, 678 (Tex.App.--Corpus Christi 1999, no pet.). The Texas Penal Code defines harm as anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. Tex.Penal Code Ann. 1.07(a)(25). The State can establish intent to defraud or harm by circumstantial evidence as well as by direct evidence. Burks v. State, 693 S.W.2d 932, 936-37 (Tex.Crim.App. 1985).

When taken in the light most favorable to the verdict, the evidence established that Appellant, who had filed for assistance in the past, had knowledge of her husband s employment and income with Ranstad and West Texas Container but she did not list the employment or income on either application for assistance. If Appellant had disclosed these facts, she would have been ineligible for Medicaid and would have received a substantially reduced amount of food stamps. From this evidence, we conclude that a rational trier of fact could have concluded beyond a reasonable doubt that Appellant acted with intent to defraud or harm another.

Appellant argues that the evidence is factually insufficient given her testimony that she had previously informed DHS by telephone of Marco s employment through Ranstad. DHS s records did not confirm that Appellant had reported Marco s employment. Further, the applications asked Appellant to report all household income, and not merely report changes to the household income. It was the jury s task to assess Appellant s credibility and determine whether to accept or reject her explanation regarding her conduct and intent. See Goodman v. State, 66 S.W.3d 283, 287 (Tex.Crim.App. 2001)(it is for jury, not reviewing court, to choose between competing theories). We conclude that the jury was rationally justified in finding beyond a reasonable doubt that Appellant acted with intent to defraud or harm another. We overrule Issues Five and Six and affirm the judgment of the trial court.

November 30, 2005

ANN CRAWFORD McCLURE, Justice

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

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