Ramirez-Memije, Roman , 444 S.W.3d 624 ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD–0378–13
ROMAN RAMIREZ-MEMIJE, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FOURTEENTH COURT OF APPEALS
HARRIS COUNTY
M EYERS, J., delivered the opinion of the Court in which K EASLER,
H ERVEY, C OCHRAN, and A LCALA, JJ, joined. P RICE, J., filed a dissenting opinion in
which K ELLER, P.J., and W OMACK and J OHNSON, JJ., joined.
OPINION
Appellant, Roman Ramirez-Memije, was charged with fraudulent possession of
identifying information under Texas Penal Code Section 32.51(b).1 A jury found him
guilty and sentenced him to three years’ imprisonment. He appealed, arguing that the trial
1
Unless otherwise specified, all future references to Sections refer to the Texas Penal
Code.
Ramirez-Memije–Page 2
court erred in failing to instruct the jury on voluntary conduct under Section 6.01 and on
presumptions under Section 2.05 of the Penal Code, and erred in admitting testimony that
he was from Mexico and was working illegally in the United States. The court of appeals
reversed the trial court’s judgment and remanded the case for further proceedings.
Ramirez-Memije v. State, 397 S.W.3d 293 (Tex. App.–Houston [14th Dist.] 2013). The
State filed a petition for discretionary review, which we granted to consider the following
question:
Is a defendant entitled to an instruction on voluntary possession when he
claims he did not know the forbidden nature of the thing he possessed, or is
his defense merely a negation of his knowledge of surrounding
circumstances that is required by Section 6.03(b)?
We hold that Appellant was not entitled to the requested instruction, and we reverse the
decision of the court of appeals. We remand the case to the court of appeals for
consideration of Appellant’s remaining issues.
FACTS
Appellant received a credit-card skimming device from Dante Salazar and
delivered it to Antonio Cercen, who worked as a waiter at a restaurant. Cercen used the
skimmer to collect restaurant customers’ identifying information and credit-card numbers
and then returned the skimmer to Appellant. Several customers reported unauthorized
credit-card purchases after dining at the restaurant, and an investigation revealed that all
of the complaining customers had been waited on by Cercen. Cercen agreed to assist in
the investigation, and agents set up a sting operation. The next time Appellant delivered
Ramirez-Memije–Page 3
the skimmer to Cercen, agents found identifying information on the skimmer and arrested
Appellant. Appellant then agreed to help agents and set up delivery of the skimmer to
Salazar.
Appellant was indicted for fraudulent possession of identifying information. At
trial, Appellant claimed that he did not know what the skimming device was and did not
know what information it contained. He said that he did not receive any benefits from
participating in the credit-card skimming operation. Appellant requested a jury charge
regarding the requirement of a voluntary act or omission under Penal Code section 6.01.2
The trial court denied his request. The instructions to the jury included the statutory
language defining intent and knowledge found in Section 6.03.3 The jury found
Appellant guilty and sentenced him to three years’ confinement.
COURT OF APPEALS
Appellant appealed his conviction, claiming that the trial court erred by refusing to
2
Penal Code Section 6.01 states:
(a) A person commits an offense only if he voluntarily engages in conduct, including an act, an
omission, or possession.
(b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing
possessed or is aware of his control of the thing for a sufficient time to permit him to terminate
his control.
3
Penal Code Section 6.03 states:
(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a
result of his conduct when it is his conscious objective or desire to engage in the conduct or
cause the result.
(b) 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. A person acts knowingly, or with knowledge, with respect to a result of his
conduct when he is aware that his conduct is reasonably certain to cause the result.
Ramirez-Memije–Page 4
include his requested jury instruction on voluntary conduct under Section 6.01 and an
instruction on presumptions under Section 2.05. He also challenged the admission of
testimony that he was from Mexico and was working illegally in the United States. The
court of appeals looked to the plain language of Section 6.01(b) and determined that “the
thing possessed” referred to the item of contraband prohibited by the statute. Memije, 397
S.W.3d at 298. The court reasoned that, because there is no offense for possession of the
skimmer, “the thing possessed” here must mean the identifying information. Id. The
court of appeals stated that, although Section 6.01(b) contains an element of mens rea
because it says “knowingly” and “aware of,” the concepts of actus reus and mens rea are
separate. Id. at 299. The court of appeals concluded that Appellant was entitled to a jury
charge on voluntary act under Section 6.01(b) because there was evidence that he did not
know that the skimmer contained identifying information, thus the evidence raised the
issue of whether his possession was voluntary. Id. at 301. Finding some harm to
Appellant, the court of appeals reversed the trial court’s judgment and declined to address
the remaining issues. Id. at 304.
ARGUMENTS OF THE PARTIES
State’s Argument
The State argues that the court of appeals erred in concluding that Appellant was
entitled to an instruction on voluntary possession. The State contends that, to establish
unlawful possession, the State has always had to show that the accused knew that what he
Ramirez-Memije–Page 5
possessed was contraband. Thus, according to the State, the question here is whether the
requirement that the State prove a defendant’s knowledge of the forbidden nature of the
thing possessed is a function of mens rea or the general requirement of voluntariness.
The State says that knowing you possess something is different from knowing that what
you possess is contraband. The State cites the example that the “intent to harm or
defraud” listed in the possession of identifying information offense is similar to the intent
listed for forgery under Section 32.21, which requires knowledge that the item passed or
possessed is forged. Thus, the State reasons that the fraudulent possession of identifying
information also requires knowledge of the nature of the thing possessed. According to
the State, the Model Penal Code says that the “thing possessed” refers to “the physical
object, not to its specific quality or properties” and that “the extent to which the defendant
must be aware of such specific qualities or properties is a problem of mens rea.”
The State concludes that the knowledge of the nature of the thing possessed is a
required culpable mental state and is different from voluntary conduct. Because it was
undisputed that Appellant knowingly obtained or received the skimmer from Cercen, he
was not entitled to an instruction on voluntariness.
Appellant’s Argument
Appellant states that the court of appeals correctly determined that the requirement
of a voluntary act under Section 6.01 is not subsumed by the mens rea requirement.
Appellant argues that he was entitled to an instruction on voluntary conduct under Section
Ramirez-Memije–Page 6
6.01(b) because the evidence raised the issue of whether his possession was voluntary.
Appellant states that “if evidence raises a fact issue as to an accused’s possession of
contraband, the jury must be instructed on what constitutes possession under the law,
which includes a §6.01(b) instruction, as well as a mens rea instruction.” Appellant
argues that if the issue is raised, both instructions must be given.
Appellant states that the court of appeals correctly interpreted the “thing
possessed” as the contraband alleged in the indictment and notes that the indictment
charged him with possession of identifying information, not with possession of the
skimmer. Appellant concludes that the “trial court did not instruct the jury regarding the
law of possession as enacted by the legislature in Texas Penal Code §6.01, either in its
abstract portion or in the application section of the jury charge. Therefore, the jury was
induced to believe that appellant was guilty, if he possessed the skimmer, whether he
knew that the skimmer contained illegally obtained identifying information.”
CASELAW AND STATUTES
Penal Code Section 32.51(b) states that “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;
. . . (b-1) For the purposes of Subsection (b), the actor is presumed to have the intent to
harm or defraud another if the actor possesses: (1) the identifying information of three or
more other persons.” The jury charge here tracked the language from the statute and said,
Ramirez-Memije–Page 7
“You are instructed that the defendant is presumed to have the intent to harm or defraud
another if the defendant possesses the identifying information of three or more other
persons.”
During the jury charge conference, Appellant cited Evans v. State, 202 S.W.3d 158
(Tex. Crim. App. 2006). Appellant said that the proper law to apply to possession is the
law that has been established in drug cases and wanted the court to add a sentence to the
jury charge stating that Appellant knew that the matter possessed was identifying
information. Appellant focused on the part of Evans that said that the State must prove
“that the accused knew the matter possessed was contraband” and wanted the trial court
to instruct the jury that the State must prove that Appellant knew that the matter possessed
was identifying information. After reviewing Evans, the trial court refused to include
Appellant’s requested instruction.
Evans discussed the necessity of linking the contraband to the accused to protect
innocent bystanders, relatives, roommates, or friends from being convicted for possession
due merely to their proximity to another’s contraband. Evans analyzed the sufficiency of
the evidence linking the defendant to drugs found during a police search of a house. We
did not discuss Section 6.01(b) in that case because the issue in Evans was whether the
defendant exercised care, custody, control, or management of the substance. Thus, the
question in Evans was whether he actually possessed the contraband, not whether his
possession of the contraband was a voluntary act.
Ramirez-Memije–Page 8
We did discuss Section 6.01 in Farmer v. State, 411 S.W.3d 901 (Tex. Crim. App.
2013), in which we considered whether the trial court erred in failing to give an
instruction on voluntary act. Farmer was convicted of driving while intoxicated. He
argued that the jury should have been instructed on voluntary act under Section 6.01(a)
because he presented evidence at trial that he believed that he was taking a different
medication when he mistakenly took a sleeping pill. We concluded that Farmer was not
entitled to an instruction on voluntary act because he voluntarily took a pill. We reasoned
that the proper inquiry was whether Farmer voluntarily picked up and ingested
prescription medication prior to driving. The consequences of Farmer’s voluntary act of
taking a pill may have been unintended because he accidently took the wrong pill, but the
ingestion of a pill was a voluntary act.
ANALYSIS
The general requirements for an offense to have been committed are an actus reus
and a mens rea. Penal Code Section 6.01 covers actus reus and requires that a person
voluntarily engage in an act, omission, or possession. Criminal responsibility is
established if the person voluntarily engaged in the act, omission, or possession with the
mental state required for the specific offense. T EXAS P ENAL C ODE § 6.02(a). While a
voluntary act is usually some sort of bodily movement, possession is shown by care,
custody, control, or management. Id. at §1.07(a)(39). Thus, knowingly receiving an
object is a voluntary act under Section 6.01(b); knowing the forbidden nature of the
Ramirez-Memije–Page 9
object that is knowingly possessed is the culpable mental state under Section 6.03.
Appellant’s argument is that the possession was not a voluntary act because he did
not know that the skimmer contained identifying information. We disagree. If there was
evidence that the skimmer had been slipped into Appellant’s bag without his knowledge,
then there may be a question of voluntary possession and Appellant may have been
entitled to an instruction regarding the requirement of a voluntary act. But here it is
undisputed that Appellant knowingly had the skimming device, which contained the
identifying information, in his possession. Appellant knowingly received the skimming
device and knew that he was transferring the device. This satisfies the requirement of a
voluntary act under Section 6.01.
Appellant said that he did not know that his conduct was illegal or that the device
was contraband because he did not know what the device was or what was on the device.
He said he did not receive anything in return for transferring the device between Cercen
and Dante Salazar. The jury heard this testimony and the testimony of agents who said
that Appellant told them that he was given cash and electronics for transferring the
device. This evidence goes to the mens rea of intent to harm or defraud, upon which the
jury was properly instructed.
For example, if a defendant were arrested while transporting a package for a friend
and police determined that the package contained marijuana, the defendant could claim at
trial that he did not know what the package contained, that he did not know the package
Ramirez-Memije–Page 10
contained marijuana, or that he thought the package contained oregano, and that he did
not knowingly or intentionally possess marijuana. The jury would then have to decide
whether to believe his claim that he did not have the requisite mens rea for the possession
of marijuana offense. See H EALTH AND S AFETY C ODE §481.121(a). The defendant could
not, however, claim that his possession of the package filled with marijuana was an
involuntary act because he knowingly accepted the package from his friend.
CONCLUSION
Appellant was not entitled to an instruction on voluntary conduct and the trial court
did not err in denying Appellant’s motion to include a 6.01 instruction. The judgment of
the court of appeals is reversed, and the case is remanded for consideration of Appellant’s
remaining issues.
Delivered: September 17, 2014
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