Cortez, Damien Hernandez , 469 S.W.3d 593 ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0501-14
DAMIEN HERNANDEZ CORTEZ, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SEVENTH COURT OF APPEALS
POTTER COUNTY
A LCALA, J., delivered the opinion of the Court in which K ELLER, P.J.,
and M EYERS, J OHNSON, H ERVEY, R ICHARDSON, Y EARY and N EWELL, JJ., joined.
R ICHARDSON, J., filed a concurring opinion in which K ELLER, P.J., and J OHNSON
and H ERVEY, JJ., joined. K EASLER, J., concurred.
OPINION
This case addresses whether the application paragraph in jury instructions was
properly phrased. In his petition for discretionary review, Damien Hernandez Cortez,
appellant, contends that the court of appeals erred in its determination that the application
paragraph of the jury instructions for fraudulent use or possession of identifying information
Cortez - 2
properly described the applicable law. See Cortez v. State, 428 S.W.3d 338, 340 (Tex.
App.—Amarillo 2014, pet. granted). In particular, appellant asserts that the instructions were
erroneous because they failed to instruct the jury that the term “item of identifying
information” requires a “grouping of identifying information” such as is represented in a
check, bank statement or credit card. See T EX. P ENAL C ODE A NN. § 32.51(a)(1), (b)(1) (West
2011). Furthermore, appellant contends that he was egregiously harmed by the alleged error
because, had the jury been properly instructed, he would have been subjected to a lower
punishment range that would have permitted the jury to find that he possessed fewer items
of identifying information by deciding, for example, that fraudulent possession of a check
would be counted as one item rather than the identifying information on the check being
considered as multiple items. See id. Although we disagree with its reasoning, we agree
with the ultimate conclusion by the court of appeals that the trial court’s instructions properly
did not limit the jury with respect to the number of separate tangible documents on which the
identifying information appears. We, therefore, affirm the judgment of the court of appeals.
I. Background
In 2010, an Amarillo police officer stopped a truck for a traffic violation, arrested the
driver for driving with a suspended license, and inventoried the contents of the truck, which
included an accordion folder containing various documents. Appellant was a passenger in
the truck. Later, police found appellant’s fingerprints on three of the documents that were
in the folder: (1) a canceled check made out to Wal-Mart belonging to complainant Shook,
Cortez - 3
which bore her name, driver’s license number, mailing address in the form of a post-office
box number, phone number, bank-account number and bank-routing number; (2) a Visa
credit card statement belonging to complainant Archer, which bore her name, address, and
credit-card account number; and (3) a Texas Medicaid form also belonging to complainant
Archer, which bore her name, date of birth, driver’s license number, and Social Security
number. The accordion file contained various other documents constituting identifying
information of several other people, but police did not find appellant’s fingerprints on any
of the other documents.
A grand jury indicted appellant for fraudulent possession of fifty or more items of
identifying information. See id.§ 32.51(b)(1), (c)(4) (West 2011). The indictment identified
seven complainants by name and detailed the identifying information appellant possessed that
belonged to each complainant. Later, by an amended indictment that reduced the number of
complainants to five, including the two complainants whose documents contained appellant’s
fingerprints, the State elected to prosecute appellant for the lesser offense of fraudulently
possessing ten or more, but less than fifty, items of identifying information. See id. §
32.51(c)(3).
In three application paragraphs, the trial court’s instructions permitted the jury to find
appellant guilty of fraudulent possession of identifying information in certain amounts that
would constitute a second-degree felony, a third-degree felony, or a state-jail felony. Each
application paragraph named the five complainants in the amended indictment and delineated
Cortez - 4
the identifying information possessed by appellant. The first application paragraph stated in
relevant part:
Now, if you find . . . that . . . the defendant . . . possess[ed] the identifying
information of [complainant Archer], to wit: name, address, date of birth, [and]
social security number[;] possess[ed] the identifying information of
[complainant Rantala], to wit: name, address, government issued driver license
number, date of birth, routing code, [and] [three] financial institution account
numbers[;] possess[ed] the identifying information of [complainant Redding],
to wit: name, address, government issued driver license number, routing code,
[and] financial institution account number[;] possess[ed] the identifying
information of [complainant Gayle], to wit: name, address, government issued
driver license number, date of birth, social security number, unique electronic
identification number, [and] [five] financial institution account numbers[;]
possess[ed] the identifying information of [complainant Shook], to wit: name,
address, government issued driver license number, routing code, [and]
financial institution account number[;] and the number of items of identifying
information possessed was more than ten but less than fifty, then you will find
the defendant guilty as charged.
The second and third application paragraphs, while listing the same complainants and their
corresponding identifying information, alleged the lesser-included offense of fraudulent
possession of identifying information as a third-degree felony for the possession of five or
more, but less than ten items, or, alternatively, as a state-jail felony for the possession of less
than five items. The jury found appellant guilty of the third-degree-felony offense and, after
finding that he had previously been convicted of two prior felony offenses, it determined his
sentence at fifty years’ imprisonment.1
On direct appeal, appellant asserted that “the trial court erred in using the phrase
1
Both on appeal to the court of appeals and to this Court, the State and appellant agree that
the jury appears to have convicted appellant of fraudulently possessing only the identifying
information contained in the three documents belonging to complainants Shook and Archer.
Cortez - 5
‘identifying information’ in place of the phrase ‘item of identifying information’ in the
application paragraph of the jury charge.” See Cortez, 428 S.W.3d at 340. This error, he
contended, permitted the jury to convict him of a higher level of offense by allowing it to
count each piece of information listed in the application paragraph as an “item of identifying
information,” rather than requiring it to determine whether those individual pieces of
information would have to be aggregated in order to form each item or items of identifying
information. See id. In initially evaluating appellant’s argument, the court of appeals stated
that his argument was “a bit confusing since the phrase ‘item of identifying information’
appears in each application paragraph.” Id. at 341. Given this, the court had “difficulty
understanding appellant’s complaint about the trial court omitting ‘item of identifying
information’ from the application paragraphs.” Id. In light of this seeming inconsistency
between the language of the charge and appellant’s argument, the court of appeals looked to
the substance of appellant’s arguments and interpreted his complaint as being that “the jury
should have been told that ‘item of identifying information’ meant the document upon which
the information appeared[,] as opposed to each bit of identifying information appearing in
the document.” Id. In response to appellant’s complaint, the court of appeals examined the
statutory language in order to determine whether the language in the application paragraphs
comported with the statute’s meaning. Id. at 341-42. The court of appeals determined that
the plain meaning of the phrase “item of identifying information” is any piece of information
falling within one of the many categories of material appearing in the definition of
Cortez - 6
“identifying information” in the statute. Id. at 341 (citing M ERRIAM-W EBSTER’S C OLLEGIATE
D ICTIONARY 666 (11th ed. 2003) (“item” means a distinct part in an enumeration, account,
or series)); see also T EX. P ENAL C ODE A NN. § 32.51(a)(1) (West 2011). It explained, “Given
that the legislature provided us with a list or series of things it deemed to be ‘identifying
information,’ an ‘item’ within that series would necessarily be a distinct part of that series.”
Cortez, 428 S.W.3d at 341. The court of appeals additionally observed that the statutory
language does not refer to the physical object or document upon which a group of identifying
information appears. Id. The court explained that the trial court’s instructions “allowed the
jury to tally each bit of identifying information appearing on the particular documents when
deciding the number of ‘items of identifying information’ appellant possessed.” Id. at 341-42.
Concluding that the application paragraphs comported with the statutory language, the court
rejected appellant’s charge-error complaint. See id.
II. Analysis
Appellant’s petition for discretionary review asks, “Is an item of identifying
information, the unit of prosecution in Section 32.51 of the Texas Penal Code, a grouping
of identifying information such as is represented in a check, bank statement or credit card,
or is it each piece of identifying information that meets the statutory term, resulting in
multiple items being present on a single check, bank statement or credit card?” Appellant
asserts that the court of appeals misinterpreted the statute by adopting the latter
interpretation, thereby leading it to the erroneous conclusion that there was no error in the
Cortez - 7
instructions. Appellant contends that the court of appeals instead should have held that the
application paragraph incorrectly applied the law to the facts of his case by listing out each
individual piece of identifying information, rather than each document, and that he was
egregiously harmed by the phrasing of the application paragraph. In particular, in support
of his assertion that his interpretation of the statute is correct, appellant notes that the statute
uses the word “and” to signify that the information should be grouped; that the statute’s
subsections each appear to delineate which information should be grouped; that the unit of
prosecution, like for the offense of forgery, is each writing; and that it would be illogical for
the Legislature to punish this type of preparatory fraud offense more severely than the
similar, completed offense of check forgery.
The State responds that the court of appeals’s analysis regarding the meaning of the
phrase “item of identifying information” was correct according to the rules of grammar and
common usage. According to the State, the unit of prosecution for the offense of fraudulent
use or possession of identifying information is not each document containing a group of
identifying information, but rather is each piece of identifying information contained in each
document that identifies a person. The State observes that the statutory text does not
expressly refer to a physical object or document on which the identifying information
appears. Furthermore, the State suggests that the Legislature may exercise its reasoned
normative judgment to punish this type of fraud more severely than similar offenses.
By examining (A) the applicable law, we determine that (B) the meaning of the phrase
Cortez - 8
“item of identifying information” as it is used in Section 32.51 of the Texas Penal Code is
ambiguous as to whether it refers to each document that may contain multiple pieces of
identifying information or, alternatively, to each piece or pieces of identifying information
that alone or in conjunction identifies a person, and that (C) extra-textual analysis of the
statute resolves this ambiguity in favor of the court of appeals’s holding that the trial court
properly did not instruct the jury to limit its consideration to each document possessed by
appellant.
A. Applicable Law
Appellate review of claims of jury-charge error first involves a determination of
whether the charge was erroneous and, if it was, then second, an appellate court conducts a
harm analysis, with the standard of review for harm being dependent on whether error was
preserved for appeal. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). Because
we conclude that the charge was not erroneous in this case, we do not conduct a harm
analysis.
The purpose of the trial court’s jury charge is to instruct the jurors on all of the law
applicable to the case. Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012); T EX.
C ODE C RIM. P ROC. art. 36.14. The application paragraph is the portion of the jury charge that
applies the pertinent penal law, abstract definitions, and general legal principles to the
particular facts and the indictment allegations. Vasquez, 389 S.W.3d at 366. Therefore, a
jury charge with an application paragraph that incorrectly applies the pertinent penal law to
Cortez - 9
the facts of a given case is erroneous. See Gray v. State, 152 S.W.3d 125, 127-28 (Tex. Crim.
App. 2004).
To determine whether the application paragraph of a jury charge accurately applied
the law to the facts of a particular case, we must first determine the correct interpretation of
the law in question. See, e.g., Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013)
(plurality op.) (determining what culpable mental state is required by a statute before
assessing whether the application paragraph properly instructed the jury on the applicable
law). Statutory interpretation is a question of law that we review de novo. Clinton v. State,
354 S.W.3d 795, 799 (Tex. Crim. App. 2011). When interpreting statutory language, we
focus on the “‘collective’ intent or purpose of the legislators who enacted the legislation.”
Id. at 800 (citing Boykin v. State, 818 S.W.2d 782, 785 (Tex. Crim. App. 1991)). To
determine the collective intent of the Legislature, we begin by examining the literal text. Id.
This provides the best means to determine “the fair, objective meaning of that text at the time
of its enactment.” Id. If the meaning of the statutory text, when read using the established
canons of construction relating to such text, should have been plain to the legislators who
voted on it, we ordinarily give effect to that plain meaning unless doing so would cause an
absurd result. Boykin, 818 S.W.2d at 785.
If, on the other hand, the meaning of the literal text of a statute would cause an absurd
result or is ambiguous, we may consider extra-textual factors to discern the Legislature’s
intent in enacting the statute. Bays v. State, 396 S.W.3d 580, 585 (Tex. Crim. App. 2013).
Cortez - 10
Ambiguity exists when a statute may be understood by reasonably well-informed persons to
have two or more different meanings. Id.; see also Baird v. State, 398 S.W.3d 220, 229 (Tex.
Crim. App. 2013) (statute is ambiguous when the language it employs is “reasonably
susceptible to more than one understanding”). In construing ambiguous statutes, relevant
factors that we may consider include the legislative history behind the statute and the
consequences of a particular construction. See Bays, 396 S.W.3d at 585; T EX. G OV’T C ODE
§ 311.023(3), (5).
B. The Statute is Ambiguous
We determine that the statutory language is ambiguous because the word “item” is
statutorily undefined and it is reasonably susceptible to more than one understanding in this
context. See Baird, 398 S.W.3d at 229. As we explain below, on the one hand, the word
“item” could be understood as referring to each piece of information that identifies a person,
but, on the other hand, it could be understood as a thing that contains a group of information
that identifies a person, such as a single driver’s license.
Although it enhances the punishment range based on the number of “items,” the
statutory language does not plainly define what constitutes “an item of identifying
information.” The relevant statutory language states, “A person commits an offense if the
person, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an
item of: (1) identifying information of another person without the other person’s consent[.]”
T EX. P ENAL C ODE A NN. § 32.51(b)(1) (West 2011). The penal code defines the term
Cortez - 11
“identifying information” as follows:
(1)“Identifying information” means information that alone or in conjunction with
other information identifies a person, including a person’s:
(A) name and social security number, date of birth, or
government-issued identification number;
(B) unique biometric data, including the person’s fingerprint,
voice print, or retina or iris image;
(C) unique electronic identification number, address, routing
code, or financial institution account number; and
(D) telecommunication identifying information or access device.
Id. § 32.51(a)(1).2 The statute elevates the range of punishment depending on “the number
of items” of identifying information fraudulently used or possessed, making the use or
possession of one to four items a state-jail felony, the use or possession of five to nine items
a third-degree felony, the use or possession of ten to forty-nine items a second-degree felony,
or, alternatively, the use or possession of fifty or more items a first-degree felony. Id. §
32.51(c).
Because the statute uses the undefined word “item,” the court of appeals purported
to examine the term as it is commonly understood, but its definition of that term, unlike ours,
was limited to a distinct part in an enumeration, account, or series. See Cortez, 428 S.W.3d
at 341 (citing M ERRIAM-W EBSTER’S C OLLEGIATE D ICTIONARY 666 (11 th ed. 2003) (“item”
means a distinct part in an enumeration, account, or series)). In contrast, we conclude that
2
This is the definition the Texas Penal Code provided for “identifying information” in 2010
when appellant committed the offense. Since then, the statute has been amended to move Social
Security number and government-issued identification number into a separate, fifth category, leaving
“name and date of birth” alone in the first category. See TEX . PENAL CODE ANN . § 32.51(a)(1) (West
2014).
Cortez - 12
the word “item” can be commonly understood in the context of this statute as referring to
either “an individual thing” or to “a distinct part in an enumeration, account, or series.” See
W EBSTER’S T HIRD N EW INTERNATIONAL D ICTIONARY 1203 (3d ed. 2002). Here, in light of
the definition for the term “identifying information” as including information that “alone or
in conjunction with other information” identifies a person, the word “item” rationally could
refer either to (1) each particular single piece of information, or combination of information,
that identifies a person, such as a name and Social Security number, date of birth, or
government-issued identification number, or another piece or pieces of information that
identify a person, or (2) each tangible object that contains a group of the person’s identifying
information, such as a credit card or driver’s license. We note the lack of clarity with respect
to the word “item” in that the term “identifying information” includes either singular
information by its use of the word “alone” or plural information by its use of the phrase “in
conjunction with other information [that] identifies a person.” T EX. P ENAL C ODE A NN. §
32.51(a)(1) (West 2011).
Further exacerbating the ambiguity, as appellant notes, is the fact that the grouping
of identifying information in the list provided in the definition of “identifying information”
appears to correspond to tangible documents. For instance, subsection (1)(C) in the statute
lists “unique electronic identification number, address, routing code, or financial institution
account number.” All four types of information listed in that subsection could be found on
Cortez - 13
a single financial instrument, such as a check.3 On the other hand, had the Legislature
wanted to refer specifically to tangible documents when using the phrase “item of identifying
information,” it could easily have listed those specific documents, but it did not do so.
Examining the statutory language, appellant argues that the words “and” and “or” in
the statutory definition of “identifying information” suggest that the Legislature intended to
require that certain information be grouped together in order to form an “item of identifying
information.” In the first subsection defining “identifying information,” for example, the
words “and” and “or” appear in the definition permitting a conviction for the fraudulent
possession of another person’s “name and social security number, date of birth, or
government-issued identification number.” Id. § 32.51(a)(1). Based on this phrasing, we
agree with appellant’s contention that a person’s name alone is inadequate to constitute an
item of identifying information. But the phrasing lacks clarity as to whether the statute
would permit a defendant in possession of a single document containing a person’s “name
and social security number, date of birth, or government-issued identification number” to be
convicted for possessing a single item of identifying information or three items of identifying
information for having a person’s (1) name and social security number, (2) name and date
3
We note that the current version of the statute no longer groups the information into
subsections in a way that so clearly corresponds to tangible documents. See id. The current wording
of the statute is consistent with our statutory interpretation that “item” refers to each piece of
information. For example, subsection (1)(A) states, “name and date of birth,” but it does not further
associate that information with any particular type of document, as compared to the earlier version
of the statute applicable to appellant’s case, which stated, “name and social security number, date
of birth, or government-issued identification number.”
Cortez - 14
of birth, and (3) name and government-issued identification number. Id. Appellant’s focus
on the conjunctions used in the statutory definition of “identifying information” fails to
provide guidance as to the legislative intent with respect to what constitutes an “item” of
identifying information.
Because plausible arguments can be made by reasonably well-informed parties for
either definition of the phrase “item of identifying information,” we conclude that the
meaning of the literal text, absent extra-textual considerations, is ambiguous. See Bays, 396
S.W.3d at 585; Baird, 398 S.W.3d at 229. We, therefore, disagree with the court of appeals
that the statutory language unambiguously expresses the Legislature’s intent.
C. Extra-Textual Analysis
Having determined that the statutory language is ambiguous, we may consider extra-
textual factors, including the legislative history and the consequences of a particular
construction, to determine the Legislature’s intent in enacting the statute. See Chase v. State,
448 S.W.3d 6, 11 (Tex. Crim. App. 2014); T EX. G OV’T C ODE § 311.023(3), (5). We begin
with the statute’s legislative history because it provides the clearest indication of the
Legislature’s intent in this case. See Bays, 396 S.W.3d at 585.
The legislative history of Section 32.51 of the Texas Penal Code illustrates the
Legislature’s intent to treat each distinct part of the list it provided in the statute as an
individual “item of identifying information.” The original Fraudulent Use or Possession of
Identifying Information statute was passed in 1999. See Act of June 18, 1999, 76th Leg.,
Cortez - 15
R.S., ch. 1159, § 1, 1999 Tex. Gen. Laws 1159. The original statute made it a state-jail
felony to obtain, possess, transfer, or use the identifying information of another person
without the person’s consent and with the intent to harm or defraud another. T EX. P ENAL
C ODE A NN. § 32.51(b), (c) (West 2000). And it did not contain the word “item” or, by
extension, the phrase “item of identifying information.” See id. Regardless of the type or
quantity of identifying information that a defendant possessed, the original statute for
fraudulent use or possession of identifying information punished the offense as a state-jail
felony. Id. Although the original version of the statute did not contain the phrase “item of
identifying information,” the legislative history at the time of enactment suggests that the
statute’s purpose was to facilitate prosecutions of identity theft even in situations not
involving the use or possession of any tangible documents containing identifying
information. Supporters of the legislation expressed that
[t]he fraudulent use of identifying information is becoming more prevalent as
our society becomes more reliant on computers and identification numbers to
conduct business transactions. . . . In most cases, the theft of identity, without
the possession of something physical like a driver’s license or credit card, is
not illegal. The use of a credit card number often is seen as a crime against the
credit card company and not against the individual whose card number was
used. . . . This legislation is needed to fill a gap in current state law that is not
covered by traditional theft or fraud law.
House Research Organization, Bill Analysis, H.B. 25, 76th Leg., R.S., May 7, 1999.4
Although this particular legislative history does not resolve our present inquiry regarding the
4
This legislative history is drawn from House Bill 25, the companion bill to Senate Bill
46, which ultimately enacted Section 32.51.
Cortez - 16
meaning of the phrase “item of identifying information,” it is relevant in the sense that it
demonstrates the Legislature’s awareness of the distinction between fraudulent use or
possession of another person’s identification documents and fraudulent use or possession of
another person’s identifying information, which may or may not be contained in a document.
See id. Given the elusive nature of identity theft in the digital age, which is not always tied
to the possession of any tangible document, the statute’s legislative focus at the time of
enactment appears to have been on preventing identity theft through targeting fraudulent use
or possession of the identifying information itself, rather than basing criminal liability on the
use or possession of particular documents.
Introducing the phrase “item of identifying information” in 2007, the Legislature
amended the statute to create different offense levels depending on the number of items of
identifying information a defendant fraudulently used or possessed. See Act of June 15, 2007,
80th Leg., R.S., ch. 1173, §§ 1, 2, 2007 Tex. Gen. Laws 1173. The bill analysis
accompanying this amendment provides the clearest indication of the Legislature’s intent
regarding the meaning of the phrase “item of identifying information.” See House Research
Organization, Bill Analysis, Tex. C.S.H.B. 460, 80th Leg. R.S. (2007). The bill analysis
makes clear that the Legislature’s intent was for the phrase “item of identifying information”
to refer to any single piece of personal, identifying information enumerated in the definition
of “identifying information,” such as a Social Security number. Id. The bill analysis for the
2007 amendment states,
Cortez - 17
Additionally, [the] current code requires that certain combinations of personal,
identifying information must be collected before it is considered a crime. [This
bill] amends the current code to make it a crime to hold any single piece of
personal, identifying information (i.e. a social security number) with the intent
to harm or defraud a person. . . .
Id. Based on the legislative history, which evinces a clear legislative intent to criminalize
the fraudulent use or possession of individual pieces of identifying information, we conclude
that the phrase “item of identifying information” refers to any single piece of personal,
identifying information enumerated in the definition of “identifying information” that alone
or in conjunction with other information identifies a person, as opposed to a thing that may
contain a group of pieces of information identifying a person, such as a license, credit card,
or document.
We also note that the legislative history is consistent with an interpretation that
renders the entire statute effective and that makes the statute feasible of execution, as
compared to appellant’s interpretation, which does not. See T EX. G OV’T C ODE § 311.021(2),
(4). Appellant contends that this offense is analogous to the offense of forgery, for which
the applicable unit of prosecution is each writing. His theory of the statute appears to suggest
that an individual who possessed a single document with a person’s name and (1) Social
Security number, (2) driver’s license number, (3) bank account number, (4) tax identification
number, and (5) date of birth would be guilty of a state-jail felony merely because the
numbers were grouped into a single piece of paper, but a person in possession of five pieces
of paper, each containing this information listed separately would be guilty of a third-degree
Cortez - 18
felony. See T EX. P ENAL C ODE A NN. § 32.51(b)(1), (c) (West 2011). This proposed
interpretation would allow a defendant to possess multiple pieces of identifying information,
each of which could be fraudulently used for various purposes, while subjecting him to only
minimal criminal liability under the statute. Moreover, appellant’s interpretation would read
additional terms into the statute by requiring proof of more than that the information
“identifies a person” in order to constitute an “item.” Instead, under our interpretation of the
statute, each Social Security number would constitute an “item” of identifying information,
regardless of the physical form in which that information is possessed. Appellant’s
suggested interpretation would render parts of the statute ineffective by disallowing
prosecution for the offense in the absence of a tangible object, thereby generally reducing a
defendant’s criminal responsibility under the statute. Likewise, it would increase the State’s
burden of proof by requiring evidence that a defendant possessed at least one tangible
document containing a group of identifying information before being able to pursue a
prosecution under the statute. Such an interpretation would thwart the Legislature’s intent
in enacting the statute, which, as this Court has observed, was the prevention of identity theft.
See Jones v. State, 396 S.W.3d 558, 562 (Tex. Crim. App. 2013).
We also disagree with appellant’s suggestion that permitting prosecution for the
fraudulent use or possession of each piece of information that alone or in conjunction with
other information identifies a person would be illogical because it would result in greater
punishment for the fraudulent possession of a check than for passing a forged check. In
Cortez - 19
response to this suggestion, we observe that the check possessed by appellant in this case
contained complainant Shook’s name, driver’s license number, address, phone number, bank-
account number and bank-routing number. Applying the relevant statutory definition of
“identifying information,” we observe that Shook’s name and driver’s license number
together would form a single “item” of identifying information. See T EX. P ENAL C ODE
A NN.§ 32.51(a)(1)(A) (West 2011). Shook’s financial-account information, comprising her
bank-account number and bank-routing number, would also count as a single “item” because
it is only by combining those two numbers that they become information that “in
conjunction” identifies her. See id. § 32.51(a)(1), (a)(1)(C). Contrary to appellant’s
suggestion, the possession of this single check would count as only two “items” and would
result in punishment as a state-jail felony. This is the same offense level that applies to
forgery of a check, which is also a state-jail felony. Compare id. § 32.51(c), with T EX.
P ENAL C ODE § 32.21(d). Thus, to the extent that appellant suggests that the Legislature
would not have set forth disparate punishments for similar offenses, we disagree that the
facts would support that characterization.
The court of appeals observed that appellant’s complaint challenging the absence of
the word “item” from the application paragraphs was puzzling because the word appears in
the application paragraphs. See Cortez, 428 S.W.3d at 341. Although the court of appeals
accurately observed that the word “item” is in the application paragraphs, it appears that
appellant was complaining to the court of appeals not about its absence, but instead about its
Cortez - 20
placement in the paragraphs. The word “item” appears towards the bottom of each of the
application paragraphs where the jury was instructed to find appellant guilty if “the number
of items of identifying information possessed” was more than a certain number but less than
another number, which tracked the statutory penalty ranges, rather than where the statute
places the word in providing that a person commits an offense if he, with the requisite
criminal intent, obtains, possesses, transfers, or uses “an item of: (1) identifying
information.” See T EX. P ENAL C ODE A NN.§ 32.51(b)(1) (West 2011). Appellant’s ground
in his petition for discretionary review does not complain about the court of appeals’s
treatment of his complaint in this particular respect, and he appears to have limited his
challenge on discretionary review to the complaint as it was construed by the court of
appeals. Although we do not address appellant’s original complaint to the court of appeals
because it appears to have been abandoned at this juncture, we note that the trial court’s
instructions to the jury did depart from the statutory language in at least two ways. First, the
trial court’s definition for the term “identifying information,” which it described as
“[i]nformation that alone or in conjunction with other information identifies a person,
including a person’s name, address, date of birth, . . .,” does not precisely track the statutory
definition of that term, which instead provides that identifying information is “information
that alone or in conjunction with other information identifies a person, including a person’s:
(A) name and social security number, date of birth, or government-issued identification
number; . . . .” See id. § 32.51(a)(1)(A). The trial court apparently interpreted the word
Cortez - 21
“including” following the phrase “information that alone or in conjunction with other
information identifies a person” as setting forth a non-exclusive list of things that could,
alone or in conjunction, identify a person. See id. Second, we note that the trial court’s
instructions did not place the phrase “an item of identifying information” in the description
of the statutory elements giving rise to an offense, but instead placed that phrase only where
the jury was asked to determine the offense level based on the number of items possessed.
We need not decide here whether these apparent departures from the statutory language
constituted error because the court of appeals’s opinion never analyzed those matters, and
appellant has not complained about that portion of the court’s analysis.
Because the phrase “item of identifying information” means any piece of identifying
information enumerated in the statute that alone or in conjunction with other information
identifies a person, and does not mean each document containing a group of identifying
information, the court of appeals was correct in its ultimate determination that a trial court
must not limit the jury’s consideration to each tangible document bearing multiple pieces of
an individual’s identifying information. And because appellant has limited his complaint to
the meaning of the phrase “item of identifying information,” we limit our review to that
ground.
III. Conclusion
We affirm the judgment of the court of appeals.
Cortez - 22
Delivered: June 17, 2015
Publish