Comment

The instructions at CPJC 37.15, CPJC 37.17, and CPJC 37.19 set out the three major ways of committing the offense of tampering with a governmental record under Tex. Penal Code § 37.10: (1) making a false entry or alteration (Tex. Penal Code § 37.10(a)(1)); (2) making, presenting, or using a false document (Tex. Penal Code § 37.10(a)(2)); and (3) making, presenting, or using a false governmental record (Tex. Penal Code § 37.10(a)(5)).

Incongruence between the Title of the Offense and Manner of Committing It. The title of the offense is misleading as applied to some of the ways in which the offense can be committed. Only the first and third methods listed above actually require the thing involved to be a governmental record. Only the first involves what would arguably be tampering as that term is generally understood. Perhaps it is awkward to tell the jury the defendant has been charged with tampering with a governmental record and then set out the definition of a crime that does not meet that description. Some practitioners may find it more accurate to begin the accusation paragraph for an instruction under section 37.10(a)(2) as follows:

Similarly, an instruction under section 37.10(a)(5) might more helpfully begin:

At the same time, if the trial participants have already been referring to the offense by its caption or indeed have explained the discrepancy to jurors, modifying the language may be unnecessary.

Similar Sounding but Legally Distinct Manners and Means. The three major manners and means of committing tampering with a governmental record all involve false records, but there are important differences: the first method (under Tex. Penal Code § 37.10(a)(1)) involves putting false information in what is already a real governmental record, the second (under Tex. Penal Code § 37.10(a)(2)) involves using a fake governmental record, and the third (under Tex. Penal Code § 37.10(a)(5)) involves using a real governmental record that has false information.

The subtlety of these distinctions can sometimes result in prosecutions under the wrong statutory manner and means. False information in a fake governmental record does not constitute an offense under section 37.10(a)(1) or (a)(5) because both subsections require a real governmental record. Thompson v. State, 215 S.W.3d 557, 559 (Tex. App.—Texarkana 2007, no pet.) (rendering acquittal for false data in fake driver’s licenses prosecuted under Tex. Penal Code § 37.10(a)(1) and suggesting same for prosecution under subsection (a)(5)—because both require a real governmental record—but indicating subsection (a)(2) is the proper one). Also, for a prosecution under section 37.10(a)(1), the governmental record at issue must already be a governmental record at the time of the false entry. This can sometimes pose a problem for prosecutions relying on the “received by government” definition of “governmental record” because such documents—for instance, applications, petitions, or court filings—cannot be said to be governmental records until that event occurs. Thus, evidence that the defendant made a false entry in an application that has not yet been submitted to the government at the time of the false entry will not constitute tampering under section 37.10(a)(1). See Ex parte Graves, 436 S.W.3d 395, 399 (Tex. App.—Texarkana 2014, pet. ref’d). But it would meet the requirements of section 37.10(a)(5), which criminalizes the act of using a governmental record containing false information. See State v. Vasilas, 187 S.W.3d 486, 491 (Tex. Crim. App. 2006) (explaining in prosecution under section 37.10(a)(5) that petition for expunction became a governmental record once the court received it—an event that occurred simultaneously with the defendant’s use of the record). No further jury instructions are warranted to explain these differences because they are inherent in the plain language of the statute. That said, practitioners should pay attention to the differences so they may properly guide the jury.

Intent to Defraud or Harm. Generally, the offense is a class A misdemeanor. If intent to defraud or harm another is proved, however, it is a state jail felony. Tex. Penal Code § 37.10(c)(1). Also, if the governmental record is a license, certificate, or similar document issued by government, it is a third-degree felony, but intent to defraud or harm makes it a second-degree felony. Tex. Penal Code § 37.10(c)(2)(A). In the instructions that follow, intent to defraud or harm is an optional element to be included if alleged in the charging instrument and raised by the evidence. The instructions assume that the trial court is not also submitting a lesser-included offense of tampering without intent to defraud or harm. As a result, the state’s failure to prove intent to harm or defraud results in an acquittal. Should the lesser be submitted, failure of proof on the issue of intent to harm or defraud brings the lesser-included offense into play, and the instructions should be modified accordingly. See CPJC 5.2.