MEMORANDUM OPINION ON REMAND Before Chief Justice Contreras and Justices Rodriguez1 and Longoria Memorandum Opinion on Remand by Chief Justice Contreras

This case is on remand from the Texas Court of Criminal Appeals. Appellant John

Chambers, the former police chief of the small community of Indian Lake in Cameron

County, was charged with fourteen counts of tampering with governmental records with appellant’s first and second issues. See 580 S.W.3d at 157–58 (agreeing that the documents were “governmental records” and noting that appellant was not harmed by the lack of a jury instruction on local government code § 341.012). However, the Court reversed as to appellant’s third issue, concluding that the evidence was insufficient to show appellant acted with the “intent to defraud or harm” because “it was legally impossible for TCOLE to be defrauded by Appellant’s deceit and for Appellant to intend to defraud TCOLE through his deceit.” Id. at 157 (“If the government has no authority to

fine the defendant, then it is legally impossible for the defendant to ‘defraud’ the government out of an opportunity to fine him—even if the defendant believes the government has that authority.”).2 Moreover, the Court held that our sufficiency analysis was “incomplete” because we did not address appellant’s argument, made for the first time in his reply brief,3 that the evidence was insufficient to overcome his statutory defense under penal code § 37.10(f). 580 S.W.3d at 156–61. The Court remanded the case to us to consider that argument. Id. at 161–62. Per our request, the parties have filed supplemental briefs addressing that argument. We reverse and remand.

I. STANDARD OF REVIEW AND APPLICABLE LAW

In reviewing sufficiency of the evidence to support a conviction, we consider 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.

Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); see Brooks v. State, 323

S.W.3d 893, 895 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443

U.S. 307, 319 (1979)).

We measure sufficiency 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). Such a charge accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability, and adequately describes the particular offense for which the defendant was tried. Villareal v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

A hypothetically correct charge in this case would instruct the jury to find appellant

In his initial brief on appeal, appellant argued that the evidence was insufficient to support his conviction for two limited and very specific reasons: (1) the false documents were not “governmental records” because they were not “required to be kept by law”; and (2) the State failed to prove that he had the intent to deprive the State of a pecuniary or property interest. See Chambers v. State, 523 S.W.3d 681, 686 (Tex. App.—Corpus Christi–Edinburg 2017), aff’d in part & rev’d in part, 580 S.W.3d at 149. Appellant did not argue in his initial brief, implicitly or explicitly, that the evidence was insufficient to support the jury’s rejection of his § 37.10(f) defense. He did not cite § 37.10(f) or its language anywhere in his brief. He did not cite penal code § 2.03, generally concerning defenses to prosecution, nor did he cite any authority regarding the proper standard for reviewing a verdict that rejects such a defense. Appellant’s initial brief did not “argue[] that the evidence is insufficient to show that the records were kept for a governmental purpose,” 580 S.W.3d at 161—rather, it argued only that the evidence is insufficient to show that the records were “required to be kept by law.” Appellant then raised a completely different sufficiency challenge for the first time in his reply brief.

guilty if, as a principal or a party, he “knowingly ma[de] a false entry in . . . a governmental record.” TEX. PENAL CODE ANN. § 37.10(a)(1). Penal code § 37.10(f) states: “It is a defense to prosecution under [§ 37.10(a)(1)] that the false entry or false information could have no effect on the government’s purpose for requiring the governmental record.” Id.

§ 37.10(f). This is not an affirmative defense but rather a “defense to prosecution” as defined in § 2.03 of the penal code. See id. § 2.03(a). Thus, a hypothetically correct

charge would also instruct the jury to acquit if it had a “reasonable doubt on the issue” of whether the § 37.10(f) defense applies. See id. § 2.03(d).4 For this type of defense, a defendant bears the burden of production, which

requires the production of some evidence that supports the particular defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003) (citing Saxton v. State, 804 S.W.2d

910, 914 (Tex. Crim. App. 1991)). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Id.; see TEX. PENAL

CODE ANN. § 2.03(d). The burden of persuasion is not one that requires the production of evidence; rather, it requires only that the State prove its case beyond a reasonable doubt.

Zuliani, 97 S.W.3d at 594. When a jury finds the defendant guilty, there is an implicit finding against the defensive theory. Id. In reviewing the sufficiency of the evidence when a jury has rejected a defense to prosecution, in addition to considering the essential elements of the offense, we must determine, after viewing all the evidence in the light most favorable to the prosecution, whether any rational trier of fact could have found against the appellant on the defensive issue beyond a reasonable doubt. Saxton, 804

S.W.2d at 914.

II. ANALYSIS

In remanding to us, the court of criminal appeals observed that “[t]he meaning of the phrase ‘government’s purpose for requiring the governmental record’ is unclear in the context of the statute.” 580 S.W.3d at 156–61. In construing a statute, we give effect to the plain meaning of its language unless the language is ambiguous or the plain meaning leads to absurd results that the legislature could not have possibly intended. Ex parte

Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016). In determining plain meaning, we

reasonable doubt language meant that the jury could acquit based on the § 37.10(f) defense only if it “f[ou]nd [the elements of the defense] from the evidence” and not if there was mere reasonable doubt about the defense. See id. Appellant has not argued—either in his initial brief, his reply brief, his motion for rehearing, his brief before the court of criminal appeals, or his supplemental brief—that the jury charge contained reversible error.

consult dictionary definitions, apply rules of grammar, and consider words in context. Id.

We presume that every word in a statute has been used for a purpose and each word, clause, and sentence should be given effect if reasonably possible. Id. at 902–03.

Again, the § 37.10(f) defense applies if “the false entry or false information could have no effect on the government’s purpose for requiring the governmental record.” TEX.

PENAL CODE ANN. § 37.10(f). The plain language of § 37.10(f) seems to assume the existence of two facts: (1) that the government “requir[ed]” the record at issue; and (2) that the government had a “purpose” for requiring the record. See id. These facts are not essential elements of the offense which the State must allege or prove. See id. § 37.10(a);

Chambers, 580 S.W.3d at 156 (“Under the plain text of the statute, the purpose is relevant to the defense to prosecution, not an element of the offense.”). But if appellant met his

burden to produce evidence supporting these facts and the other elements of the § 37.10(f) defense, then he would be entitled to an instruction on the defense, and the State’s burden would include proving beyond a reasonable doubt that the defense is untrue. See Zuliani, 97 S.W.3d at 594.

We assume but do not decide that appellant met his initial burden to produce evidence supporting the § 37.10(f) defense and warranting an instruction thereon.

Nevertheless, we conclude the State also met its burden to overcome the defense beyond a reasonable doubt.

“Require” is defined in part as “to demand as necessary or essential; have a compelling need for.” MERRIAM-WEBSTER ONLINE DICTIONARY, https://www.merriam- webster.com/dictionary/require (last visited Apr. 6, 2020). “Purpose” means “something set up as an object or end to be attained.” Id., https://www.merriam-webster.com/ dictionary/purpose (last visited Apr. 6, 2020).

The Texas Court of Criminal Appeals held that TCOLE did not have the legal “right or duty” to “require” the firearms qualifications records at issue here. Chambers, 580

S.W.3d at 158–60. But Chambers acknowledged receiving a report from TCOLE stating that his reserve officers’ firearms qualification records were deficient; giving him ten days to correct the deficiency; and threatening to impose disciplinary action or a $1,000 daily fine if he did not timely correct the deficiency. See Chambers, 523 S.W.3d at 685 n.2.

Chambers then corrected the supposed deficiency by directing the submission of falsified

records. Based upon this evidence, which we view in the light most favorable to the prosecution, a rational juror could have concluded beyond a reasonable doubt that

TCOLE, through its agent, actually “required” the records, even though it technically lacked legal authority to do so. See Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim.

App. 2008) (“Because the jury is the sole judge of a witness’s credibility, and the weight to be given the testimony, it may choose to believe some testimony and disbelieve other testimony.”). A rational juror could have also concluded beyond a reasonable doubt that the TCOLE agent required the documents for the specific “purpose” of causing the Indian

Lake Police Department to satisfy documentation requirements which he (incorrectly) believed were legally applicable to reserve police officers.

As noted, the court of criminal appeals held that, because TCOLE had no legal

authority to require the documents at issue, it could not have possibly been defrauded or harmed by Chambers’ falsification of those documents. Chambers, 580 S.W.3d at 149.

Thus, pursuant to the legal impossibility doctrine, appellant could not have formed the “intent to defraud or harm.” See id. But the legal impossibility doctrine has been traditionally applied only in the context of attempt crimes and to evaluate intent. See id. at 158 n.43; Lawhorn v. State, 898 S.W.2d 886, 892 (Tex. Crim. App. 1995) (“Although impossibility is generally applied in the context of attempt crimes, it has also been raised and considered in the context of ‘intent’ crimes.”). The issue discussed here concerns

neither attempt nor intent. Thus, the legal impossibility doctrine does not apply, and the fact that TCOLE did not have the legal authority to “require” the documents at issue does not mean that the State could not have disproved the § 37.10(f) defense beyond a reasonable doubt.

Finally, a rational juror could have concluded beyond a reasonable doubt that the false records “could have” had an effect on the agent’s “purpose” for “requiring” those records. In particular, the jury could have concluded that submission of the false records induced the agent to refrain from taking disciplinary action or imposing fines against appellant and his police department. A rational juror could have made this finding even if it was aware that TCOLE had no legal authority to take such action.

Accordingly, the evidence was sufficient to support the jury’s implicit rejection of appellant’s § 37.10(f) defense. We overrule the issue presented on remand.

III. CONCLUSION

The Texas Court of Criminal Appeals has concluded that the evidence was legally insufficient to support a finding that appellant acted with the “intent to defraud or harm.”

Chambers, 580 S.W.3d at 160. The other elements of the charged offense are supported by sufficient evidence or are not challenged on appeal. Accordingly, the trial court’s judgment should be reformed to reflect a conviction on fourteen counts of Class A misdemeanor tampering with governmental records. See TEX. PENAL CODE ANN.

§ 37.10(c)(1); Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014) (stating that an appellate court is “required” to reform a judgment to reflect conviction on a lesser- included offense if: (1) in the course of convicting appellant of the greater offense, the jury must have necessarily found every element necessary to convict appellant on the lesser- included offense; and (2) there is sufficient evidence to support conviction on the lesser- included offense).

We reverse the trial court’s judgment and remand for a new punishment hearing, for entry of judgment as set forth above, and for further proceedings consistent with this opinion.

DORI CONTRERAS Chief Justice

Do not publish. TEX. R. APP. P. 47.2(b).

Delivered and filed the 9th day of April, 2020.