Cortez, Damien Hernandez
469 S.W.3d 593, 2015 Tex. Crim. App. LEXIS 677 (2015)
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Rule of Law:
Under Texas Penal Code § 32.51, an 'item of identifying information' refers to each individual piece of information that, alone or in conjunction with other information, identifies a person. Consequently, multiple 'items' can be possessed from a single tangible document, and the unit of prosecution is each piece of information, not the document itself.
Facts:
- During a traffic stop, police arrested the driver of a truck in which Damien Hernandez Cortez was a passenger.
- An inventory of the truck revealed an accordion folder containing various documents with personal information of several people.
- Cortez's fingerprints were found on three of these documents.
- The first document was a canceled check belonging to complainant Shook, which contained her name, driver's license number, address, phone number, bank-account number, and bank-routing number.
- The second document was a Visa credit card statement for complainant Archer, bearing her name, address, and credit-card account number.
- The third document was a Texas Medicaid form, also for Archer, which bore her name, date of birth, driver's license number, and Social Security number.
Procedural Posture:
- A grand jury indicted Damien Hernandez Cortez for fraudulent possession of fifty or more items of identifying information.
- The indictment was later amended, charging Cortez with the lesser offense of possessing ten or more but less than fifty items.
- At trial in a Texas trial court, a jury found Cortez guilty of the third-degree felony offense of possessing five or more but less than ten items.
- Cortez (appellant) appealed to the Texas Court of Appeals, Amarillo, arguing the jury instructions improperly defined 'item of identifying information.'
- The Court of Appeals affirmed the trial court's judgment, finding no error in the instructions.
- Cortez (appellant) then petitioned the Texas Court of Criminal Appeals for discretionary review.
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Issue:
Does an 'item of identifying information' under Texas Penal Code § 32.51 refer to each individual piece of data that identifies a person, thereby allowing a court to count multiple items from a single document for punishment purposes?
Opinions:
Majority - Alcala, J.
Yes. An 'item of identifying information' refers to any single piece of personal information enumerated in the statute that, alone or in conjunction with other information, identifies a person. The court determined the statutory language was ambiguous because the term 'item' was undefined and could reasonably refer to either a single piece of data or the tangible object containing the data. Turning to legislative history, the court found a clear intent to criminalize the fraudulent possession of individual pieces of identifying information to combat modern, data-centric identity theft not necessarily tied to physical documents. This interpretation prevents defendants from possessing numerous data points on a single document while facing minimal liability, thereby effectuating the statute's purpose of preventing identity theft.
Concurring - Richardson, J.
Yes. While I concur with the majority's conclusion regarding the meaning of 'item of identifying information,' I write to highlight other errors in the trial court's jury charge that were not egregiously harmful here but could be in other circumstances. Specifically, the charge omitted the key statutory phrase 'an item of' from the offense definition and inaccurately defined 'identifying information' in a sentence format rather than the list format provided in the statute. Although these errors did not affect the outcome in this case, it is critical for jury charges to track the statutory language precisely to avoid potential misinterpretation and improper convictions in the future.
Analysis:
This decision significantly clarifies the unit of prosecution for fraudulent possession of identifying information in Texas, increasing a defendant's potential criminal liability. By defining 'item' as each piece of data rather than the physical document, the ruling allows prosecutors to aggregate charges from a single source, such as a check or data file. This interpretation aligns the statute with the realities of digital-age identity theft, where vast amounts of data can be stolen without possessing physical cards or documents. The case establishes a clear precedent for how to instruct juries on calculating the number of items, which directly impacts the felony degree and punishment range.
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