Cortez, Damien Hernandez, 2015 Tex. Crim. App. LEXIS 677

Background

In 2010 police found an accordion folder in a truck; appellant Cortez’s fingerprints were on three documents containing other persons’ identifying information (a canceled check, a credit-card statement, and a Medicaid form). The State charged him under Tex. Penal Code § 32.51 for fraudulent possession of ten or more (but fewer than fifty) items of identifying information; jury convicted of a third-degree felony (five–nine items) and sentenced to 50 years after enhancements.
The jury charge listed each complainant and enumerated discrete pieces of information (name, SSN, DOB, account numbers, routing code, etc.) but did not expressly instruct the jury that an “item of identifying information” must be a grouped document (e.g., a single check) rather than each discrete datum.
On appeal Cortez argued the application paragraph was erroneous because the jury could count each listed datum as a separate “item,” inflating the count and punishment; he urged that an “item” should be a grouping corresponding to a document.
The court of appeals held the statutory phrase was plain and an “item” is any distinct piece of information listed in the definition; it rejected Cortez’s charge-error claim.
The Texas Court of Criminal Appeals granted review, concluded the statutory text was ambiguous as to the meaning of “item,” examined legislative history (2007 amendment), and held the Legislature intended “item of identifying information” to mean any single piece of identifying information that alone or in conjunction with other information identifies a person (e.g., a Social Security number), not necessarily an entire document.
The Court affirmed the court of appeals’ judgment but noted some charge drafting imprecision (concurrence): the charge deviated from statutory list-form and omitted wording in places, which might be harmful under different facts but was not egregiously harmful here.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "item of identifying information" means a grouped document (e.g., check/ID) or each discrete piece of identifying data	Cortez: "Item" should mean a grouped set (document) so the jury must aggregate data on a document as one item	State: "Item" means each discrete piece of identifying information listed in the statute; statute does not reference documents	Court: Statute ambiguous on its face but legislative history resolves ambiguity — "item" means each single piece of identifying information (alone or with other data) rather than necessarily a whole document
Whether the trial court’s application paragraph was erroneous for failing to instruct that items are grouped per document	Cortez: Charge allowed counting each datum separately, inflating offense level	State: Charge tracked common usage and statute as interpreted; no error shown	Court: No reversible error — jury may count discrete pieces as items; ultimate conviction affirmed
Whether extra-textual factors (legislative history, consequences) support Cortez’s interpretation	Cortez: Legislative phrasing (use of "and/or") and analogy to forgery imply document-based unit	State: Legislative policy supports criminalizing isolated data pieces; different punishments acceptable	Court: Legislative history (2007 amendment/bill analysis) indicates intent to criminalize possession of single pieces (e.g., SSN), supporting State’s view
Whether charge defects (omitting exact statutory list-form or phrase "an item of") caused egregious harm	Cortez: omission allowed miscounting and harsher punishment	State: No timely objection; any error not egregiously harmful given evidence	Court/Concurring: Errors noted in charge drafting but did not produce egregious harm under these facts; affirm judgment

Key Cases Cited

Kirsch v. State, 357 S.W.3d 645 (Tex. Crim. App. 2012) (framework for appellate review of jury-charge error)
Vasquez v. State, 389 S.W.3d 361 (Tex. Crim. App. 2012) (purpose of jury charge and application paragraph explained)
Gray v. State, 152 S.W.3d 125 (Tex. Crim. App. 2004) (application paragraph that misapplies penal law is erroneous)
Celis v. State, 416 S.W.3d 419 (Tex. Crim. App. 2013) (determine correct statutory meaning before assessing charge application)
Clinton v. State, 354 S.W.3d 795 (Tex. Crim. App. 2011) (statutory interpretation principles; collective legislative intent)
Boykin v. State, 818 S.W.2d 782 (Tex. Crim. App. 1991) (plain meaning rule and avoiding absurd results)
Bays v. State, 396 S.W.3d 580 (Tex. Crim. App. 2013) (when text ambiguous, consider legislative history and consequences)
Baird v. State, 398 S.W.3d 220 (Tex. Crim. App. 2013) (statute ambiguous if reasonably susceptible to multiple meanings)
Jones v. State, 396 S.W.3d 558 (Tex. Crim. App. 2013) (legislative intent to prevent identity theft informs interpretation)
Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985) (standard for reversible jury-charge error: egregious harm)
Stuhler v. State, 218 S.W.3d 706 (Tex. Crim. App. 2007) (definition of egregious harm in jury-charge error context)