Opinion issued April 2, 2019

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-18-00123-CR

———————————

JUSTO ARMANDO JIMINEZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 338th District Court

Harris County, Texas

Trial Court Case No. 1471970

MEMORANDUM OPINION

After appellant, Justo Armando Jiminez, with an agreed punishment 

recommendation from the State, pleaded guilty to the felony offense of theft,1the 

trial court deferred adjudication of his guilt and placed him on community 

 

1 TEX. PENAL CODE ANN. § 31.03.
2

supervision for five years. The State, alleging numerous violations of the 

conditions of appellant’s community supervision, subsequently moved to 

adjudicate his guilt. After a hearing, the trial court found true the State’s allegation 

that appellant violated Texas Penal Code section 32.512in violation of a condition 

of his community supervision prohibiting a “NEW LAW VIOLATION,” found 

appellant guilty, and assessed his punishment at confinement for two years. In two 

issues, appellant contends that the trial court erred in adjudicating his guilt based 

on a new law violation because Texas Penal Code section 32.53 violates his First 

Amendment rights and that the trial court’s judgment should be reformed to 

accurately reflect that appellant pleaded “not true” to the allegations in the State’s 

motion to adjudicate his guilt.

We modify the trial court’s judgment and affirm as modified.

Background

On February 9, 2016, the trial court placed appellant on community 

supervision, subject to certain conditions. On March 27, 2017, the State filed a 

motion to adjudicate guilt, asserting that appellant had violated numerous 

conditions of his community supervision, including the condition that he 

“[c]ommit no offense against the laws of this or any other State of the United 

States.” 

 

2 See TEX. PENAL CODE ANN. § 32.51.

3 See id.
3

At the hearing on the State’s motion to adjudicate guilt, appellant pleaded 

“not true” to the allegations in the State’s motion.

Andrea Cruz, appellant’s ex-girlfriend, testified that, in November 2016, she 

gave appellant permission to use her name and information to obtain a lease for an 

apartment. They were no longer in a romantic relationship at the time. Appellant 

asked Cruz for her help because they had a “close connection,” and he knew that 

she did not “have any broken leases or [a] bad record.” However, according to 

Cruz, she never agreed to assist him financially. Cruz provided appellant with her 

full name, telephone number, date of birth, social security number, home address, 

and driver’s license number (her “identifying information”). She did not have any 

concerns with providing her identifying information to appellant because she 

“trusted him” and viewed him as a “hardworking man,” who had “a good job” and 

was “responsible with his bills.” 

Several weeks after she provided her identifying information to appellant, 

Cruz received a letter in the mail from Speedy Cash regarding an account for a 

direct loan that was opened in her name. The loan was in the amount of $600.

Cruz further testified that she did not open, or authorize anyone to open, the 

account. Upon request, Speedy Cash provided her with information associated 

with the account, which included her name and address, the name of the bank that

received the $600 loan money, and appellant’s cellular telephone number. She 
4

further testified that she did not have an account with the bank to which Speedy 

Cash had transferred the loan money. Upon obtaining this information, Cruz filed 

a report with the Galena Park Police Department (“GPPD”) “about the identity 

fraud” and “loan that was taken out” at Speedy Cash in her name without her 

authorization. 

Cruz later confronted appellant, who denied having any knowledge about the 

account with Speedy Cash. However, he called her the following day and told her 

that he “figured out” who “did the fraud.” Appellant told Cruz that a woman in the 

management office of his apartment complex must have committed the fraud 

because he had given her Cruz’s information when leasing his apartment. He also 

told her that he discovered that this woman had “do[ne] this fraud to several other 

people, including himself.” 

GPPD Detective Monica Rollier testified that she was assigned to 

investigate Cruz’s report of “a fraudulent use” of her “identifying information” in a 

“Speedy Cash loan application” for $600. Rollier reviewed the loan application 

with Cruz, who advised Rollier that the bank account, telephone number, and place 

of employment listed on the application did not belong to her. Further, Cruz was 

able to identify the telephone number and place of employment as being associated 

with appellant—her ex-boyfriend. 
5

Detective Rollier obtained the records of the bank account listed on the 

Speedy Loan application by subpoena through the district attorney’s office and 

ultimately determined that the account belonged to appellant. She further testified 

that she called the number listed on the Speedy Cash loan application, but never 

spoke with anyone. She could not recall if the voicemail greeting associated with 

the telephone number identified it as belonging to appellant. However, Cruz 

identified the telephone number as belonging to appellant. 

Appellant testified that, in November 2016, Cruz was forced to move out of 

her parents’ house. She asked appellant to borrow money to “get her own place.” 

Although he did not loan her money, appellant helped her apply for a loan with 

Speedy Cash. Appellant and Cruz applied for the loan online together, but 

appellant testified that the purpose of the loan was to assist Cruz in paying for “her 

car and her rent.” At the time, Cruz did not have a bank account, so appellant 

agreed to have the loan money sent to his personal bank account. Upon receiving 

the loan money, appellant withdrew the amount in cash and gave the cash to Cruz. 

Appellant testified that he did not “sign onto the loan” with Cruz, but “allow[ed] 

her to use [his] bank to send the money if she was approved for the loan.” 

Appellant testified that he and Cruz were still in a romantic relationship at 

the time that she obtained the loan. However, shortly after that time, appellant 

ended their relationship. He testified that Cruz was very upset about the breakup. 
6

And a week after the breakup, he learned that there was a “a warrant out for [his] 

arrest” relating to alleged identity theft in regard to the loan. 

After the hearing, the trial court found “true” the State’s allegation that 

appellant had violated the condition of his community supervision requiring him to

“NOT COMMIT ANY NEW LAW VIOLATION AGAINST THIS STATE OR 

ANY OTHER STATE,” found him guilty, and assessed his punishment at 

confinement for two years. 

Standard of Review

Appellate review of an order adjudicating guilt is limited to determining 

whether the trial court abused its discretion. TEX. CODE CRIM. PROC. ANN. art. 

42A.108(b) (“The determination [to adjudicate guilt] . . . is reviewable in the same 

manner as a [community-service] revocation hearing . . . in which the adjudication 

of guilt was not deferred.”); Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim. 

App. 2006). The trial court’s decision must be supported by a preponderance of 

the evidence. Rickels, 202 S.W.3d at 763–64. The evidence meets this standard 

when the greater weight of the credible evidence creates a reasonable belief that a 

defendant has violated a condition of his community supervision. Id. at 764. We 

examine the evidence in the light most favorable to the trial court’s order. Garrett 

v. State, 619 S.W.2d 172, 174 (Tex. Crim. App. 1981); Jones v. State, 787 S.W.2d 

96, 97 (Tex. App.—Houston [1st Dist.] 1990, pet. ref’d). As the sole trier of fact, a 
7

trial court determines the credibility of witnesses and the weight to be given to 

their testimony. See Garrett, 619 S.W.2d at 174; Jones, 787 S.W.2d at 97.

Constitutionality of Texas Penal Code Section 32.51

In his first issue, appellant argues that the trial court erred in adjudicating his 

guilt based on a finding that he violated Texas Penal Code section 32.51 of the 

Texas Penal Code, entitled “Fraudulent Use or Possession of Identifying 

Information,” because that statute “[t]rigger[s] First Amendment [p]rotections.” 

See TEX. PENAL CODE ANN. § 32.51. 

We review the constitutionality of a criminal statute de novo as a question of 

law. Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013). When presented 

with a challenge to the constitutionality of a statute, we usually presume that the 

statute is valid and the legislature has not acted unreasonably or arbitrarily. Id. at 

14–15; Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). Therefore, 

the party challenging the statute normally carries the burden to establish its 

unconstitutionality. Ex parte Lo, 424 S.W.3d at 15. However, when a criminal 

law restricts speech based upon content, the usual presumption of validity is 

reversed, and the government must rebut the presumption that a content-based 

restriction is invalid. Id.; Williams v. State, 499 S.W.3d 498, 500 (Tex. App.—

Houston [1st Dist.] 2016, pet. ref’d). A regulation is content-based if one must 
8

consider the content of the speech to determine if the speaker violated the law. 

Williams, 499 S.W.3d at 500 (citing Ex parte Lo, 424 S.W.3d at 15 n.12).

While a general facial challenge requires the challenger to show that the 

statute is unconstitutional in all applications, under the First Amendment’s 

“overbreadth” doctrine, a law may be unconstitutional on its face even if it might 

have some legitimate applications. State v. Johnson, 475 S.W.3d 860, 864–65 

(Tex. Crim. App. 2015); Williams, 499 S.W.3d at 500. However, the overbreadth 

doctrine is used “sparingly and only as a last result.” Johnson, 475 S.W.3d at 865 

(internal quotations omitted). The overbreadth of a statute must prohibit a 

substantial amount of protected expression relative to the statute’s plainly 

legitimate sweep. Ex parte Perry, 483 S.W.3d 884, 902 (Tex. Crim. App. 2016). 

And the danger that the statute will be unconstitutionally applied must be 

“realistic” and “not based on fanciful hypotheticals.” Williams, 499 S.W.3d at 500. 

“Moreover, the overbreadth doctrine is concerned with preventing the chilling of 

protected speech and that concern attenuates as the otherwise unprotected behavior 

that it forbids the State to sanction moves from pure speech toward conduct.” 

Johnson, 475 S.W.3d at 865 (internal quotations omitted). “Rarely, if ever, will an 

overbreadth challenge succeed against a law or regulation that is not specifically 

addressed to speech or to conduct that is necessarily associated with speech (such 

as picketing or demonstrating).” Id. 
9

Appellant argues that Texas Penal Code section 32.51 is an overbroad, 

content-based restriction on speech and, thus, violates the First Amendment. 

Specifically, appellant argues that section 32.51 “explicitly regulates 

non-fraudulent expression based on content because it restricts the ‘obtaining,’ 

‘possession,’ or ‘use,’ i.e., the communication, of ‘identifying information.’” 

However, he concedes that his claim is “foreclosed” by this Court’s precedent and 

acknowledges that he is raising this issue “for purposes of preservation.” Indeed, 

this Court has twice rejected the same arguments concerning Texas Penal Code 

section 32.51. See Williams, 499 S.W.3d at 502; Horhn v. State, 481 S.W.3d 363 

(Tex. App.—Houston [1st Dist.] 2015, pet. ref’d). And the doctrine of stare decisis 

creates a strong presumption that precedents should be followed to foster 

“efficiency, fairness, and legitimacy.” Grapevine Excavation, Inc. v. Md. Lloyds, 

35 S.W.3d 1, 5 (Tex. 2000). It has its greatest force in matters of statutory 

interpretation because the Legislature can rectify a mistaken judicial interpretation, 

and if it does not do so, there is little reason for courts to reconsider a prior 

statutory construction. Sw. Bell Tel. Co. v. Mitchell, 276 S.W.3d 443, 447 (Tex. 

2008). Consequently, we follow Horhn and Williams. 

A. Texas Penal Code section 32.51

The first step in an overbreadth analysis is to construe the challenged statute. 

Johnson, 475 S.W.3d at 871. Section 32.51 provides as follows:
10

(b) A person commits an offense if the person, with the intent to 

harm or defraud another, obtains, possesses, transfers or uses an 

item of:

(1) identifying information of another person without the 

other person’s consent;

(2) information concerning a deceased natural person, 

including a stillborn infant or fetus, that would be 

identifying information of that person were that person 

alive, if the item of information is obtained, possessed, 

transferred, or used without legal authorization; or 

(3) identifying information of a child younger than 18 years 

of age.

(b-1) For the purposes of Subsection (b), the actor is presumed to 

have the intent to harm or defraud another if the actor 

possesses:

(1) the identifying information of three or more other 

persons;

(2) information described by Subsection (b)(2) concerning 

three or more deceased persons; or

(3) information described by Subdivision (1) or (2) 

concerning three or more persons or deceased persons.

TEX. PENAL CODE ANN. § 32.51(b), (b-1). “Identifying information” is defined as 

“information that alone or in conjunction with other information” that identifies a 

person, including “name and date of birth,” “unique biometric data, including the 

person’s fingerprint, voice print, or retina or iris image,” “unique electronic 

identification number, address, routing code, or financial institution account 

number,” “telecommunication identifying information or access device,” and 
11

“social security number or other government-issued identification number.” Id. at 

§ 32.51(a)(1). And the Texas Penal Code defines “harm” as “anything reasonably 

regarded as loss, disadvantage, or injury, including harm to another person in 

whose welfare the person affected is interested.” Id. at § 1.07(a)(25).

B. Section 32.51(b) does not implicate the First Amendment and is not 

unconstitutional as decided in Horhn and Williams

In Horhn, this Court held that Texas Penal Code section 32.51(b) does not 

implicate the free speech guarantees of the First Amendment.4 Horhn, 481 S.W.3d 

at 376. We explored the difference between expressive conduct and 

non-communicative conduct. Id. While expressive conduct implicates the First 

Amendment, non-communicative conduct does not. Id. at 373. Here, we are 

concerned with how the conduct prohibited in section 32.51(b) fits into this 

framework.

The prohibited conduct can be divided into conduct intended to 

communicate and conduct intended to harm or harass. Conduct intended to 

communicate implicates the First Amendment protections if it is: (1) “inherently 

expressive,” such as parades and works of visual or literary art or (2) it is not 

 

4 The First Amendment to the United States Constitution provides that “Congress 

shall make no law . . . abridging the freedom of speech.” U.S. CONST., amend. I. 

It “generally protects the free communication and receipt of ideas, opinions, and 

information.” Scott v. State, 322 S.W.3d 662, 668 (Tex. Crim. App. 2010), 

abrogated on other grounds by Wilson v. State, 448 S.W.3d 418 (Tex. Crim. App. 

2014). 
12

inherently expressive, but is intended to convey a “particularized message” and the 

message would likely be understood by those who viewed it. Horhn, 481 S.W.3d 

at 373 (citing Ex parte Thompson, 442 S.W.3d 325, 334 (Tex. Crim. App. 2014)). 

“In other words, prohibited conduct implicates the First Amendment if the statute 

proscribes conduct intended to communicate an understandable message.” 

Williams, 499 S.W.3d at 501. Conversely, if conduct is intended to “harm or 

harass, then the statute focuses on the non-communicative part of the interaction, 

or the manner of communication, even if the conduct includes spoken words.” Id. 

In Hornh, this Court held that section 32.51 criminalized conduct that was 

“essentially non-communicative” and, therefore, did not criminalize protected 

speech on its face. 481 S.W.3d at 375–76. Further, to the extent that section 32.51 

could be applied to communicative conduct, we determined that “it is susceptible 

of such application only when that communicative conduct . . . invades the 

substantial privacy interest of another . . . in an essentially intolerable manner by 

using his identifying information without his permission and with the intent to 

defraud or harm him.” Id. (citing Scott, 322 S.W.3d at 669–70). This Court again 

affirmed this holding in Williams. See 499 S.W.3d at 501–02. And it has been 

followed by our sister court in Ex parte Harrington, 499 S.W.3d 142, 147 (Tex. 

App.—Houston [14th Dist.] 2016, pet. ref’d). 
13

Appellant argues that we should overrule this Court’s precedent because the 

statute is “clearly so broad, it criminalizes legitimate communication under the 

guise of preventing fraud.” He asserts that the statute criminalizes obtaining, 

possessing, transferring, or using information “that is not especially private, 

including ‘name and date of birth.’” But the statute’s reach cannot be considered 

without the limitations imposed by the requisite intent to “harm or defraud 

another.” See TEX. PENAL CODE ANN. § 32.51(b). And the Court of Criminal 

Appeals has explained that the statute’s “plain language . . . demonstrates” that its 

purpose is to “prevent identity theft.” Jones v. State, 396 S.W.3d 558, 562 (Tex. 

Crim. App. 2013). 

Appellant asserts that his argument is not foreclosed by the intent 

requirement of “harm or defraud” because this Court has not specifically addressed 

that the “sweeping breadth” of the term “harm” reaches “well beyond any 

conceivable criminal act predicated on a falsehood.” The definition of “harm” in 

the Texas Penal Code is “anything reasonably regarded as loss, disadvantage, or 

injury, including harm to another person in whose welfare the person affected is 

interested.” See TEX. PENAL CODE ANN. § 1.07(a)(25). Taken out of context, the 

word “disadvantage” could be susceptible to multiple and wide-ranging meanings. 

But section 32.51 criminalizes actions taken with intent to harm or defraud. And 

the statute, entitled “Fraudulent Use or Possession of Identifying Information,” is 
14

located in the Texas Penal Code’s chapter addressing fraud. Therefore, taken in 

context, the meaning of the word “harm” is “narrowed by the commonsense canon 

of noscitur a scociis—which counsels that a word is given more precise content by 

the neighboring words with which it is associated.” U.S. v. Williams, 553 U.S. 

285, 294 (2008) (explaining that use of the term “promotes” in “a list that includes 

‘solicits,’ ‘distributes,’ and ‘advertises,’ is most sensibly read to mean the act of 

recommending purported child pornography to another person for his 

acquisition”). The term “harm,” thus, is most sensibly read to prevent criminal 

acts predicated on falsehood or fraud and does not embrace situations well beyond 

that scope, as suggested by appellant.5 See TEX. PENAL CODE ANN.

§ 32.51(b); SMI Realty Mgmt. Corp. v. Underwriters at Lloyd’s London, 179 

S.W.3d 619, 625 n.2 (Tex. App.—Houston [1st Dist.] 2005, pet. 

denied) (observing under maxim of noscitur a sociis, meaning of word may be 

determined by reference to meaning of words associated with it). 

Appellant’s position is not strengthened by the fact that “the intent to harm 

or defraud another” is presumed if the defendant merely possesses “the identifying 

information of three or more persons.” See TEX. PENAL CODE ANN. § 32.51(b-1). 

The Penal Code defines “possession” as “actual care, custody, or management.”

TEX. PEN. CODE ANN. § 1.07(a)(39). Black’s Law Dictionary similarly defines 

 

5 For the same reasons, appellant’s argument that “this Court has elevated the stated 

purpose of the statute over its operation” is without merit.
15

possession in terms that suggest control of physical items, referring to it as “the 

exercise of dominion over property.” Possession, BLACK’S LAW 

DICTIONARY (10th ed. 2014). Because the usual definition of the term assumes 

actual control or exercise of dominion over property, we construe possession in 

this context to require physical control of, or exercise of dominion over, 

identifying information in written or recorded form. See TEX. PENAL CODE 

ANN. §§ 1.07(a)(39), 32.51; Maloney v. State, 294 S.W.3d 613, 626 (Tex. App.—

Houston [1st Dist.] 2009, pet. ref’d) (“If a statute can be construed in two different 

ways, one of which sustains its validity, we apply the interpretation that sustains its 

validity.”); Goldberg v. State, 95 S.W.3d 345, 373 (Tex. App.—Houston [1st Dist.] 

2002, pet. ref’d) (explaining State cannot criminalize thoughts). This construction 

comports with the general purpose of the Texas Penal Code, which is to deal with 

actually or potentially harmful conduct. See TEX. PENAL CODE ANN. § 1.02. 

Appellant provides the following examples of conduct that would be 

unconstitutionally prohibited: a journalist possessing a politician’s name and 

birthdate “while researching and writing a column exposing that the politician had 

violated the law and criticizing that politician for their illegal actions” or a 

“voter . . . forward[ing] [a] candidate’s name and date of birth with a message 

suggesting the recipient not vote for the candidate.” But the statute does not 

criminalize the use of identifying information in political news articles or 
16

possession of identifying information of a politician by a voter in researching 

political candidates. Jones, 396 S.W.3d at 562 (explaining statute’s “plain 

language . . . demonstrates” its purpose is to “prevent identity theft”). As 

explained above, these examples do not meet the intent requirement of the statute, 

which is to harm or defraud another. See id; see also Williams, 499 S.W.3d at 

501–02; Horhn, 481 S.W.3d at 375–76.

This Court previously rejected essentially the same hypotheticals in 

Williams, where the defendant argued that the statute “unconstitutionally 

criminalizes the use of identifying information in political attacks and for leverage 

in negotiation.” 499 S.W.3d at 501 (rejecting following examples provided by 

defendant to argue section 32.51 criminalizes protected conduct: “releasing a birth 

certificate to prove a candidate’s ineligibility for office; using voter registration 

records to prove an opponent voted in the other party’s primary; providing criminal 

or bankruptcy records to the news media; and using a person’s criminal record for 

concessions in a divorce proceeding”). Similarly, in Horhn, this Court rejected the 

defendant’s argument that the statute criminalized “‘routine and innocuous 

activities’ such as employers[] performing background checks on potential 

employees or journalists[] investigating corrupt practices that affect the public at 

large” because “these types of actions do not fall within the purview” of the 

requisite intent to harm or defraud in section 32.51(b). 481 S.W.3d at 375. 
17

Appellant has presented no compelling reason to overrule our prior 

precedent on this issue. Since Texas Penal Code section 32.51(b) does not 

implicate the First Amendment, the statute is also not overly broad because it does 

not reach a substantial amount of constitutionally protected speech. Horhn, 481 

S.W.3d at 376. Accordingly, we hold that the trial court did not err in adjudicating 

appellant’s guilt on this ground. 

We overrule appellant’s first issue.

Modification of Judgment

In his second issue, appellant argues that the trial court’s judgment should be 

reformed to reflect that appellant pleaded “NOT TRUE” instead of “TRUE” to the 

allegations in the State’s motion to adjudicate. The State concedes that the trial 

court’s judgment does not accurately comport with the record in regard to 

appellant’s plea. 

“An appellate court has the power to correct and reform a trial court 

judgment ‘to make the record speak the truth when it has the necessary data and 

information to do so, or make any appropriate order as the law and nature of the 

case may require.’” Nolan v. State, 39 S.W.3d 697, 698 (Tex. App.—Houston [1st 

Dist.] 2001, no pet.) (quoting Asberry v. State, 813 S.W.2d 526, 529 (Tex. App.—

Dallas 1991, pet ref’d)). It is clear from the record that appellant pleaded “not 

true” to all of the alleged community-supervision violations asserted in the State’s 
18

motion to adjudicate his guilt. We conclude that the portion of the judgment 

reflecting that appellant pleaded “true” to these allegations does not accurately 

comport with the record and should be corrected. See, e.g., id.

Accordingly, we modify the trial court’s judgment to state that appellant 

pleaded “NOT TRUE” to the alleged violations of his community supervision 

asserted in the State’s motion to adjudicate his guilt. TEX. R. APP. P. 43.2(b); see, 

e.g., Rodriguez-Sanchez v. State, 01-17-00344-CR, 2018 WL 1189106, at *6 (Tex. 

App.—Houston [1st Dist.] Mar. 8, 2018, no pet.) (mem. op., not designated for 

publication) (reforming judgment to reflect defendant pleaded not true to 

allegations in State’s motion to adjudicate).

We sustain appellant’s second issue.

Conclusion

We affirm the judgment of the trial court as modified.

Julie Countiss

Justice

Panel consists of Chief Justice Radack and Justices Goodman and Countiss.

Do not publish. TEX. R. APP. P. 47.2(b).