Opinion
No. 05-05-00476-CR
Opinion Filed June 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the County Court at Law No. 3, Collin County, Texas, Trial Court Cause No. 003-80138-04. Reverse and Acquit.
Before Justices FITZGERALD, FRANCIS, and LANG-MIERS.
MEMORANDUM OPINION
Jesus Alberto Mendoza appeals his conviction for tampering with a governmental record. After finding appellant guilty, the jury assessed his punishment at a $100 fine. Appellant brings four issues on appeal asserting the evidence is legally and factually insufficient and the trial court commented on the weight of the evidence. The State concedes the evidence is legally insufficient. Having reviewed the record, we agree the evidence is legally insufficient, we reverse the trial court's judgment, and we render judgment of acquittal. In determining the legal sufficiency of the evidence, we view all of 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 crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Vodochodsky v. State, 158 S.W.3d 502, 509 (Tex.Crim.App. 2005). Appellant went to a credit union to cash his paycheck. The teller requested appellant present an identification card, and appellant presented what appeared to be a Texas driver's license. After closely inspecting the document, the teller determined it was not a genuine driver's license, and she called the police department. Appellant admitted to the police officer that the document was fake, and the officer arrested appellant. The information alleged appellant did "knowingly make, present, or use a governmental record, to-wit: identification card, with knowledge of its falsity." Tex. Pen. Code Ann. § 37.10(a)(5) (Vernon Supp. 2005). For purposes of chapter 37 of the penal code, "governmental record" is defined as:
(A) anything belonging to, received by, or kept by government for information, including a court record;
(B) anything required by law to be kept by others for information of government;
(C) a license, certificate, permit, seal, title, letter of patent, or similar document issued by government, by another state, or by the United States;
(D) a standard proof of motor vehicle liability insurance form . . .; or
(E) an official ballot or other election record.Id. § 37.01(2) (Vernon 2003). To prove a violation of section 37.10(a)(5), the State had to prove beyond a reasonable doubt that appellant made, presented, or used something meeting the definition of a governmental record and that he knew it was false. In this case, there was no evidence that appellant's fake driver's license fit any of the definitions of governmental record. The evidence demonstrated that appellant made, presented, or used something that was not a governmental record. Accordingly, no reasonable trier of fact could have concluded appellant made, used, or presented a governmental record. We agree with the parties that the evidence is legally insufficient to support appellant's conviction of the offense as charged in the information. We sustain appellant's first issue. Appellant's third and fourth issues concern the trial court's comment to the venire during jury selection "that if one undertakes to make a governmental record, one has committed an offense, even though the record itself may not have been issued by any government pursuant to lawful authority." The State requests that we "still address the trial court's conduct in improperly instructing the jurors on what facts would satisfy proof of the State's case." We decline the State's invitation to do so, not because we approve of the trial court's action, but because doing so would constitute an advisory opinion. This Court may have authority to address issues not necessary to the disposition of the appeal if the issue is likely to arise on retrial. See Ramirez v. State, 815 S.W.2d 636, 640 (Tex.Crim.App. 1991). In this case, however, no retrial for the charged offense can occur, so any discussion would be purely advisory, and we lack authority to issue advisory opinions. Armstrong v. State, 805 S.W.2d 791, 794 (Tex.Crim.App. 1991). We reverse the trial court's judgment, and we render judgment of acquittal.
As the State acknowledges in its brief, section 37.10(a)(2) criminalizes the use of a document or thing with knowledge of its falsity and with the intent that it be taken as a genuine governmental record, but the State did not prosecute appellant under that provision. See Tex. Pen. Code Ann. § 37.10(a)(2) (Vernon Supp. 2005).