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My AccountChapter 37
- 37.1 Perjury and Aggravated Perjury Generally
- 37.2 Instruction—Perjury by Making a False Statement under Oath
- 37.3 Instruction—Perjury by Inconsistent Statements
- 37.4 Instruction—Aggravated Perjury by Making a False Statement under Oath
- 37.5 Instruction—Aggravated Perjury by Inconsistent Statements
- 37.6 General Comments on False Report
- 37.7 Instruction—False Report to Peace Officer
- 37.8 General Comments on Tampering with or Fabricating Physical Evidence
- 37.9 Instruction—Tampering with Physical Evidence Knowing of Pending or Ongoing Investigation or Official Proceeding
- 37.10 Instruction—Tampering with Physical Evidence with Intent to Affect Pending or Ongoing Investigation or Official Proceeding
- 37.11 Instruction—Knowingly Tampering with Physical Evidence with Intent to Affect Any Subsequent Investigation or Official Proceeding
- 37.12 Instruction—Tampering with Physical Evidence by Failing to Report a Corpse
- 37.13 General Comments on Tampering with a Governmental Record
- 37.14 Making a False Entry or False Alteration
- 37.15 Instruction—Tampering with a Governmental Record—Making a False Entry or Alteration
- 37.16 Making or Using a False Thing with the Intent It Be Taken as Genuine
- 37.17 Instruction—Tampering with a Governmental Record—Making, Presenting, or Using a False Thing with the Intent It Be Taken as Genuine
- 37.18 Making, Presenting, or Using a False Governmental Record
- 37.19 Instruction—Tampering with a Governmental Record—Making, Presenting, or Using a False Governmental Record
- 37.20 Instruction—Tampering with a Governmental Record—Presumption of Intent to Harm or Defraud Another
- 37.21 Instruction—Tampering with a Governmental Record—Defense of No Effect on Government Purpose
Comment
This manner of tampering with a governmental record requires that something meeting the definition of a governmental record was made, presented, or used that the defendant knew was false. Mendoza v. State, No. 05-05-00476-CR, 2006 WL 1629762, at *1 (Tex. App.—Dallas June 14, 2006, no pet.) (not designated for publication) (presenting fake driver’s license did not constitute use of a governmental record with knowledge of its falsity under Texas Penal Code section 37.10(a)(5) because the fake driver’s license met none of the definitions of “governmental record”).
But unlike section 37.10(a)(1), this manner does not require that the document or thing be a governmental record at the moment the defendant puts false information into the document. In State v. Vasilas, 187 S.W.3d 486, 491 (Tex. Crim. App. 2006), the defendant presented or used a petition containing false statements by filing it at the clerk’s office. Vasilas argued that the petition did not qualify as a governmental record because it had not yet been received by the government when the false entries in the petition were made. The court of criminal appeals rejected this, distinguishing Vasilas’s case from those prosecuted under section 37.10(a)(1). Vasilas, 187 S.W.3d at 491 (citing Morales v. State, 11 S.W.3d 460 (Tex. App.—El Paso 2000, pet. ref’d)).
Defining “Falsity.” As with Penal Code section 37.10(a)(2), this manner and means requires knowledge of the document or thing’s “falsity.” But because section 37.10(a)(5) requires that the defendant makes or uses an actual governmental record, “knowledge of its falsity” cannot mean the same thing it usually does in section 37.10(a)(2)—i.e., knowledge of its being counterfeit. Nevertheless, “falsity” is not defined by statute, and the Committee believed that fashioning a definition for a pattern jury instruction risked intruding on the jury’s role in applying the ordinary definition. That said, the parties in any case could expressly agree (on the record) to submit a definition that would provide jurors more guidance, such as specifying in the list of elements that “the governmental record was false in that it contained one or more false entries or false information” or providing definitions like the following:
False Governmental Record
“False governmental record” means a governmental record that contains one or more false entries or false information.
Knowledge that the Governmental Record Is False
“Knowledge that the governmental record is false” means the person is aware that the governmental record contains the false entries or false information.