Opinion
No. 05-10-01561-CR No. 05-10-01562-CR
01-31-2012
CHRISTINA CARLETTA JONES, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM; Opinion issued January 31, 2012
On Appeal from the Criminal District Court No. 7
Dallas County, Texas
Trial Court Cause Nos. F09-11020-Y & F09-11021-Y
MEMORANDUM OPINION
Before Justices Morris, Moseley, and Francis
Opinion By Justice Francis
Christina Carletta Jones appeals her convictions for fraudulent use or possession of identifying information. After accepting appellant's pleas of nolo contendere, the trial court deferred finding appellant guilty and placed her on community supervision for two years in each case. In two issues, appellant claims the trial court lacked jurisdiction to hear her cases under the doctrine of in pari materia and the evidence is legally insufficient to support her convictions. We affirm.
Appellant and Tiffani Collier were former schoolmates who shared the same birthdate. On November 26, 2007, appellant was pulled over by Addison police officer Jeff Sharp for speeding. Appellant said her name was "Tiffani Collier" and gave Collier's birthdate and a fictitious address to the officer. Officer Sharp gave appellant a ticket for speeding in a school zone, failing to display a driver's license, and failing to maintain financial responsibility.
On June 18, 2008, appellant was stopped a second time for speeding in Addison by Officer Andre Cerminara. After she again gave her name as "Tiffani Collier," the officer gave appellant a ticket for speeding and then arrested her on the outstanding warrant for the November 2007 traffic ticket. Appellant posted bond, again signing her name as "Tiffani Collier."
In January 2009, Collier went to the Addison Police Department to complain about letters she was receiving from the Addison Municipal Court regarding a warrant for her arrest. Collier told the Addison police she had not been stopped and had not received any traffic tickets in Addison. She then spoke with Officer Cerminara who showed Collier appellant's book-in photograph. Collier confirmed she had attended elementary school with appellant and that they shared the same birthdate.
Appellant was charged with two counts of fraudulent use or possession of identifying information. She filed a plea to the jurisdiction, claiming she should have been charged with two counts of failure to identify. After a hearing, the trial court denied her plea to the jurisdiction.
At trial, appellant initially pleaded not guilty but changed her pleas to nolo contendere when she learned the trial court could not defer adjudication of guilt on a plea of not guilty. At the conclusion of trial, the trial court accepted appellant's pleas, deferred adjudicating her guilty, and placed appellant on two years probation in each case.
In her first issue, appellant claims the trial court erred in denying her plea to the jurisdiction. She claims she should have been charged with two counts of failure to identify, misdemeanor offenses, instead of two counts of fraudulent use or possession of identifying information, state jail felonies, because the two sections of the penal code dealing with those offenses are in pari materia. We disagree. Pari materia is a settled rule of statutory interpretation: "statutes that deal with the same general subject, have the same general purpose, or relate to the same person or thing or class of persons or things, are considered to be in pari materia though they contain no reference to one another, and though they were passed at different times or at different sessions of the legislature." Azeez v. State, 248 S.W.3d 182, 191 (Tex. Crim. App. 2008); see also Tex. Gov't Code Ann. § 311.026 (West 2005) (codification of doctrine). Two penal provisions are in pari materia
where one provision has broadly defined an offense, and a second has more narrowly hewn another offense, complete within itself, to proscribe conduct that would otherwise meet every element of, and hence be punishable under, the broader provision.Mills v. State, 722 S.W.2d 411, 414 (Tex. Crim. App. 1986).
A list of four non-exclusive factors may be considered in determining whether the statutes are in pari materia, namely, whether the statutes: (1) involve different penalties; (2) are contained in the same legislative act; (3) require the same elements of proof; and (4) were intended to achieve the same purpose or objective. Burke v. State, 28 S.W.3d 545, 547 (Tex. Crim. App. 2000). The two provisions must be "closely enough related to justify interpreting one in the light of the other." Id. "The adventitious occurrence of like or similar phrases, or even of similar subject matter, in laws enacted for wholly different ends will not justify applying the doctrine." Segura v. State, 100 S.W.3d 652, 654 (Tex. App.-Dallas 2003, no pet.) (citing Ex parte Wilkinson, 641 S.W.2d 927, 932 (Tex. Crim. App. 1982)).
Appellant was charged under section 32.51 of the penal code which states a person commits an offense if she, with the intent to harm or defraud another, obtains, possesses, transfers, or uses an item of identifying information of another person without the other person's consent. Tex. Penal Code Ann. § 32.51(b) (West Supp. 2012). Identifying information includes information that alone or in conjunction with other information identifies a person, including a person's name and date of birth. Id. § 32.51(a)(1)(A). The purpose of this section is to protect "another living human being" from identity theft. See Ford v. State, 282 S.W.3d 256, 264-65 (Tex. App.-Austin 2009, no pet.). This statute does not require the offending party give the identifying information to a peace officer. See Tex. Penal Code Ann. § 32.51(b). Under the facts of appellant's cases, violations of section 32.51 are state jail felonies with punishment by confinement in a state jail facility for no more than two years or less than 180 days and a fine not to exceed $10,000 in each case. Id. §§ 32.51(c), 12.35(a) (West 2011). Section 32.51 is contained in Chapter 32 of the penal code, entitled "Fraud;" offenses in this section are considered crimes against property. See id. §§ 32.01-32.54.
In contrast, section 38.02 is found in Chapter 38 of the penal code entitled "Obstructing Governmental Operation"; offenses in this chapter are offenses against public administration. See Tex. Penal Code Ann. §§ 38.01-38.19 (West 2011 & Supp. 2012). Under section 38.02, a person commits an offense if she intentionally gives a false or fictitious name, residence address, or date of birth to a peace officer who has lawfully detained or arrested her. Tex. Penal Code Ann. § 38.02 (West 2011). To support a conviction under this section, the evidence must show a peace officer requested the information during a detention or arrest and the defendant knew the person requesting the information was a peace officer. Ledesma v. State, 677 S.W.2d 529, 532 (Tex. Crim. App. 1984). An offense under this section is a Class B misdemeanor and may be punished by a fine not to exceed $2000, commitment in jail for a term not to exceed 180 days, or both. Tex. Penal Code Ann. § 38.02(d)(2).
Although both sections concern the general act of falsely identifying oneself, the two sections have markedly different purposes; section 32.51 protects living human beings from harm, specifically identity theft, while section 38.02 seeks to prevent individuals from obstructing a peace officer's ability to carry out his duties. The sections were not contained in the same legislative act, section 32.51 having been enacted twenty five years after section 38.02. The two sections do not require the same elements of proof. In fact, a defendant could not be prosecuted under section 32.51 if she gave a fictitious name, birthdate, or residence. Finally, the two sections involve different penalties. Because the two sections are not in pari materia, one statute could not be controlling as to the other. See Segura, 100 S.W.3d at 657. The trial court did not err in denying appellant's plea to the jurisdiction. We overrule appellant's first issue.
In her second issue, appellant claims the evidence is legally insufficient to support her convictions. Although the State indicted appellant for use or possession of identifying information with intent to harm and defraud "another," appellant argues no evidence shows she intended to harm and defraud Collier.
When an individual enters a plea of nolo contendere, we do not apply the Jackson v. Virginia standard of review. Rather, we determine whether the State introduced evidence embracing every essential element of the charged offenses and is sufficient to establish the defendant's guilt. See ex parte Martin, 747 S.W.2d 789, 791 (Tex. Crim. App. 1988). Appellant testified at trial, stating she used Collier's name and date of birth to avoid getting the tickets and because she had warrants out for her arrest. She used Collier's name later to bond out of jail. Appellant said did not have any intention of going to court and taking care of the tickets nor did she care what the consequences of her actions were for Collier, the police officers, or the surety on her bond. She also said she was worried only about herself, and while she may not have known what the possible consequences were, she did not care about them. We conclude this is evidence embracing the element of intent to harm and defraud another. We overrule appellant's second issue.
We affirm the trial court's judgments.
OLLY FRANCIS
JUSTICE
Do Not Publish
Tex. R. App. P. 47
101561F.U05