Comment

The thing involved—usually a document—need not at any time actually be a governmental record. But the defendant must act with intent that the document be taken as a genuine governmental record.

Coincidence of Intent and Actus Reus.  Some members of the Committee were concerned that breaking down the elements of this offense into a numbered list might obscure the requirement that all the elements must coincide. They were concerned that in a situation like in Alfaro-Jiminez v. State, 536 S.W.3d 579, 585 (Tex. App.—San Antonio 2017), pet. granted on other grounds), jurors might consider a defendant’s intent on a different occasion as sufficient, even if they believed he lacked that intent at the time of the offense. Alfaro-Jiminez asked police to check his wallet for his driver’s license during a traffic stop, and when they did, they also discovered a fake social security card. He was charged with tampering with a governmental record by “using or presenting” the fake social security card. At trial, the defendant testified that he obtained the fake card to use for work many months earlier. Some members were concerned that when jurors are asked to find whether the defendant had the intent that a document be taken as genuine or the intent to harm or defraud, it is not clear that it is his intent at the time of the offense that matters (although intent from an earlier time could be used as evidence of intent at the time of the offense). These members believed that (particularly in cases like Alfaro-Jiminez) the requirement of intent could be made clearer by setting out the elements as follows:

In appropriate cases, the parties could agree to this formulation of the elements as an aid to the jury.

Understanding “Falsity” and “Genuine.” This manner and means requires knowledge of the document’s or thing’s “falsity.” Tex. Penal Code § 37.10(a)(2). The statute does not define “falsity.” Given the requirement of intent that the document or thing be taken as genuine, the most obvious interpretation of “falsity” is in the sense of being counterfeit, fictitious, or not genuine. It is unclear whether this is the only reasonable interpretation. A document might be counterfeit and be doubly false because it also contains information that is inaccurate or untruthful (i.e., false information in a fake governmental record). But can inaccuracy or untruthfulness be the sole sense in which a document is false and still constitute an offense under section 37.10(a)(2)? To some extent, the harm that this second interpretation of falsity is meant to protect against is already covered by the offenses in sections 37.10(a)(1) and 37.10(a)(5)—although both require that the record be an actual governmental record at the time of the false entries or when the record is used or presented. Section 37.10(a)(2)’s additional mental state of “intent that [the record] be taken as a genuine governmental record” is difficult to square with a fact situation that does not involve a counterfeit record. Can it be said that a governmental record is not “a genuine governmental record” simply because it contains inaccuracies or falsehoods? For some on the Committee, this seemed too strained a reading. For them, section 37.10(a)(2) requires knowledge that the document is a fake governmental record and the intent that others take it as real. Others believed that a jury should not be confined to that understanding of “falsity” and “genuine.” See Kirsch v. State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012) (rejecting definition of “operate” in DWI jury charge for impermissibly guiding jurors’ understanding of the term). A few appellate cases assume that a prosecution under section 37.10(a)(2) could be had even when the record is false only in the sense of being untruthful and no counterfeit record was involved. See Ex parte Graves, 436 S.W.3d 395, 397 n.1 (Tex. App.—Texarkana 2014, pet. ref'd) (acquitting defendant who made false entries on document that was not counterfeit and also not yet a governmental record but noting that defendant was not charged under section 37.10(a)(2)); Milam v. State, No. 01-96-00078-CR, 2001 WL 870030, at *1 (Tex. App.—Houston [1st Dist.] Aug. 2, 2001, pet. ref’d) (constable’s actual affidavit containing falsehoods prosecuted under section 37.10(a)(2)) (not designated for publication).

In a given case, the parties could agree to instruct jurors more explicitly. For example, they might agree to a definition such as this:

In absence of such an agreement, however, the Committee did not believe that the terms “falsity” or “genuine” should be limited.

Disclaimer Defense and Section 37.10(j). Texas Penal Code section 37.10(j) begins with what is not a defense (merely disclaiming on a document that it is not a governmental document) and eventually states what is a defense (including such a statement of the designated size, color, etc.). The portion indicating what is not a defense is in the relevant statutes unit of CPJC 37.17. A separate unit for the defense is also included. Perhaps there could be situations in which the state is entitled to an instruction that a statement of the sort described does not preclude liability but the facts do not justify submission of the defense itself. In that event, the paragraph can be kept in the relevant statutes unit and the defense instruction removed.