Chapter 32
Fraud
(Last Updated January 2025)
32.7 Instruction—Fraudulent Destruction, Removal, or Concealment of a Writing
LAW SPECIFIC TO THIS CASE
The state accuses the defendant of having committed the offense of fraudulent destruction, removal, or concealment of a writing.
Relevant Statutes
A person commits the offense of fraudulent destruction, removal, or concealment of a writing when the person, with the intent to defraud or harm another, destroys, removes, conceals, alters, substitutes, or otherwise impairs the verity, legibility, or availability of a writing, other than a governmental record.
Definitions
Writing
[Include one or more of the items in the following definition as dictated by the charging instrument.]
“Writing” includes (1) a printing or any other method of recording information; (2) money, coins, tokens, stamps, seals, credit cards, badges, and trademarks; (3) symbols of value, right, privilege, or identification; or (4) universal product codes, labels, price tags, or markings on goods.
Harm
“Harm” means anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested.
Intending to Defraud or Harm Another
A person intends to defraud or harm another if it is the person’s conscious objective or desire to defraud or harm another.
Application of Law to Facts
You must determine whether the state has proved, beyond a reasonable doubt, three elements. The elements are that—
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the defendant in [county] County, Texas, on or about [date] [insert manner and means from indictment, e.g., destroyed] a [describe writing], a writing;
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this writing was not a governmental record; and
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the defendant did this with intent to defraud or harm another.
You must all agree on elements 1, 2, and 3 listed above.
If you all agree the state has failed to prove, beyond a reasonable doubt, one or more of elements 1, 2, and 3 above, you must find the defendant “not guilty.”
If you all agree the state has proved, beyond a reasonable doubt, elements 1, 2, and 3 listed above, you must find the defendant “guilty.”
[Insert any other instructions raised by the evidence. Then continue with the verdict form found in CPJC CPJC2.1, the general charge.]
Comment
The fraudulent destruction, removal, or concealment of a writing is prohibited by and defined in Tex. Penal Code § 32.47. The definition of “writing” is based on Tex. Penal Code § 32.47(b). The definition of “harm” is based on Tex. Penal Code § 1.07(25).
“Governmental record” is not defined anywhere in chapter 32. It is defined in Texas Penal Code section 37.01 for use in that chapter, “Perjury and Other Falsification.” The Committee decided not to apply it here. There is precedent for applying definitions from other offenses to the same term. SeeEx parte Nuncio, 662 S.W.3d 903, 923 (Tex. Crim. App. 2022) (applying the definition of “patently offensive” in section 43.21(a)(4), defining terms for the “Obscenity” subchapter of chapter 43, to that term in the definition of “obscene” under section 42.07(b)(3), part of the harassment statute). In that case, the court of criminal appeals observed that both statutes were drafted with an eye toward the constitutional definition of obscenity and so considered them in pari materia. Ex parte Nuncio, 662 S.W.3d at 23. Both of those statutes are in title 9, “Offenses Against Public Order and Decency.” In this case, the two statutes are in separate titles. Fraudulent destruction, removal, or concealment of a writing is an “Offense[] Against Property,” title 7, and chapter 37, “Perjury and Other Falsification,” are “Offenses Against Public Administration,” title 8. These two offenses have different punishment schemes, too. Notwithstanding this, there is a strong argument that section 37.10, “Tampering with Governmental Record,” covers the same conduct prohibited by section 32.47(a) and as such is the more specific—or perhaps complementary—application. It would thus make sense to use the same definition of “governmental record” in section 32.47(a) so that “other than a governmental record” ensures the proper offense is charged.