Opinion issued September 24 , 2015

In The 

## Court of Appeals For The 

## First District of Texas

————————————

NO. 01
- 14
- 00320
- CR

——————————— ERIC BAUMGART , Appella nt V. THE STATE OF TEXAS , Appell e e
On Appeal from the 183r d District Court Harris County, Texas Trial Court Ca se No. 1382166



### MEMORANDUM OPINION A jury convicted Eric Baumgart of tampering with a governmental record

. 1
The t rial court assessed Baumgart’s punishment at two years’ incarceration, but

1 See T EX
. P ENAL C ODE A NN
. § 37.10(a)(1) (West Supp. 2014).2 suspended the sentence and placed him on community supervision for five years.
In his sole issue , Baumgart c ontends th at the evidence is insufficient to support his conviction and the ju ry’s implicit rejection of his defense

. We affirm

. Background Baumgart was e mployed as a reserve deputy constable for Liberty County,
Texas , in 2011. During that time, Baumgart learned that his ex

- girlfriend, Ana Johnson, had been involved with oth er men while they were dating, and that
Johnson was wanted for outstanding felony war rants in Travis Co unty, Texas. Baumgart set up a meeting between Johnson and a mutual friend in downtown
Houston o n September 27, 2011, and when she arrived, Baumgart arrested her on the outstanding warrants

. Baumga rt went to the Harris County jail the next day and
met with Johnson

. D uring t hat meeting, Baumgart issued Johnson a ticket for d riving with an invalid license on August 18, 2011

. 2 Baumgart noted the color, make, model , and type of Johnson’s vehicle on the ticket ( tan 1999 Lexus ES 300) , along with the vehicle ide n tification number (VIN). Although Baumgart submitted the ticket to the Liberty County Justice of the Peace Court’s clerk f or processing, the ticket was never processed or entered into the court’s system. 3

2 The citation also included a warning for littering. 3 After Harris County officials inquired about the ticket and the purpose of Baumgart’s visit to Johnson at the jail, the clerk was inst ructed to disregard the ticket.3 Baumgart subsequently testified before a grand jury about the incident and a portion of his testimony was admitted into evidence during his trial. In his grand jury testimony , Baumgart admitted to “ checking in as law enforcement ” when he met with Johnson at the ja il on September 2 8th and writing her a ticket “from [the] Liber ty County Precinct 4 Constable’s Office” during that meeting for driving with an invalid license on August 18th

. Although the traffic violation occurred over forty days before he wrote the tick et, Baumgart claimed that he had personal knowledge of the offense because he was riding with Johnson in the Lexu s when the violation occurred.
O fficials from the Liberty County Constable’s Office Precinct 4 testified at trial that the office routinely pr ovided ticket books for deputy constables to use during the course of their official duties and the Precinct 4 Constable identified the ticket Baumgart issued to Johnson as a “Liberty County Constable’s Office Precinct 4 citation ticket.” Officers issue th ese ticket s in order to inform the driver of the alleged offense and to notify the driver when to appear in court. The
pre - printed tickets also contain designated places where the officer can list other information , such as a description of the vehicle , in order to refresh the officer’s memory in the event the officer needs to testify in court.
Johnson testified that the Lexus had been purchased for her on September 3,
2011 , and that b efore that time she had been driving “ an old, unreliable Ford4 Contou r . ” The 1999 Lexus purchased on September 3rd matches the vehicle description Baumgart noted on the ticket, including the VIN. Discussion Baumgart contends that the evidence i s insufficient to prove beyond a reasonable doubt that he tamp ered with a govern mental record because the State failed to prove that: (1) the ticket was a governmental record, (2) Baumgart knew the VIN was false, and (3) Johnson suffered expense or delay as a result of the
falsified ticket

. Baumgart further contends that the evidence is insufficient to support the jury’s implicit rejection of his defense that the VIN had no effect on the government’s purpose for requiring tickets

. A. Applicable Law and Standard of Review A person commits the offense of tampering with a governmental record if he “knowingly makes a false entry in, or false alteration of, a governmental record.”
T EX
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. § 37.10(a)(1) (West Supp. 2014). A governmental record is “anything belonging to, received by, or kept by gov ernment for
information

. . . .” Id. § 37.01(2)(A). It is a defense to prosecution that the false entry or false information could have no effect on the government’s purpose for requiring the governmental record. Id. § 37.10(f)

. When reviewing the sufficien cy of the evidence to support a conviction , we view the evidence in the light most favorable to the verdict to determine if any5 rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia , 44 3 U.S. 307, 319 , 99 S. Ct. 2781, 2789 (1979); Williams v. State , 235 S.W .3d 742 , 750 (Tex. Crim. App. 2007). Because the State bears the burden to disprove a defense to prosecution by establishing its case beyond a reasonable doubt, we also review sufficiency challenges to a fact
finder’ s rejection of such a defense under the Jackson standard. Smith v. State , 355 S.W.3d 138, 145 (Tex. App.

— Hou ston [1st Dist.] 2011, pet. ref’ d); see also T EX
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. § 2.03 (governing defenses to prosecution set forth in Penal Code)

. In doing so, w e examine the record for evidence that supports the negative finding. See Smith , 355 S.W.3d at 148. If no evidence supports the negative finding, then we examine the entire record to determine whether it establishes the contrary proposition as a matter of law. Id. Under the Jackson standard, the fact finder is the exclusive judge of the facts, the credib ility of the witnesses, and the weight to be given to the testimony. Brooks v. State , 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) ; see also Jackson , 443 U.S. at 326, 99 S. Ct. at 2793 (stating that it is fact finder’s responsibility “to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts ” ). We may not re

- evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams , 235 S.W.3d at 750. We resolve any inconsistencies in the evidence in6 favor of the verdict. Curry v. State , 30 S.W.3d 394, 406 (Tex. Crim. App. 2000) ; see also Clayton v. State , 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (“When the record supports conflicting inferences , we presume that the fact finder resolved the conflicts in favor of the prosecution and therefore defer to that determination. ” ). The sufficiency of the evidence is measured against a hypothetically correct jury charge

. Cada v. State , 334 S.W.3d 766, 773 (Tex. Crim. App. 2011) (citing Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)).
B. Analysis Baumgart argues that the State failed to prove that the ticket was a government al record because there is no evidence that the ticket was ever received by a government agency or entered into a government record

- keeping system.
T he evidence at trial established that the Constable’s Office purchased and provided ticket books for its deputy constables to use and the Constable identified the ticket Baumgart issued to Johnson as a “Liberty County Constable’s Office Precinct 4 citation t icket.” Baumgart also admitted that he “checked in as law

e nforcement” when he met with Johnson at the jail and that t he ticket he wrote her during that meeting was “from Liber ty County Precinct 4 Constable’s Office.” The jury could reasonabl y infer from this evidence that Baumgart was acting in his official capacity as a reserve deput y constable for Libert y County when he issued the ticket to Johnson with the false vehicle description and VIN and that the ticket7 was written from a ticket book provided to him by the Liberty County Constable’s
O ffice. See Lewis v. State , 773 S.W.2d 689, 692 (Tex. App.

— Corpus Christi 1989, pet. ref’d) (holding arrest warrant was government al record, in part, because justice of peace was acting in his official capacity when he made false entry on warrant). The jury could also reasonably infer that the ticket, and the ticket book it came from, belonged to the Constable’s office. Jackson , 443 U.S. at 319, 326, 99 S. Ct. at 2793 (stating fact finders may “ draw reasonable inferences fro m basic facts to ultimate facts”) ; see als o T EX
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. § 37.01(2)(A) (stating governmental record is “anything belonging to , received by, or kept by government for information”) (emphasis added)

. Baumgart relies upon cases that are factually distinguishable because those

cases involve privately owned documents created by non

- governmental actors , as opposed to a ticket from a government

- owned ticket book used by a law enforcement officer acting in his official capacity. See generally Pokladnik v.
State , 876 S.W.2d 525, 527 (Tex. App.

— Dallas 1994, no pet .) (holding that wrecker company’s mechanic’s

- lien affidavits were not government al records ); Constructors Unlimited Inc. v. State , 717 S.W.2d 169, 174 (Tex. App.

— Houston [1st Dist.] 1986, pe t. ref’d) (ho lding that c ompany’s bid sheets were not government al records ).8 Baumgart also contends there was insufficient evidence to show that he knowingly entered a false VIN on the ticket

. In the portions of his grand jury testimony admitted at trial, Baumgart repeatedly claimed that he had personal knowledge of the traffic violation because he was in the car when the violation occurred . E vidence admitted at trial, however, demonstrates that the 1999 Lexus was not purchased until September 3, 2011

— more than two weeks after Johnson was allegedly driving around with Baumgart

. Before that time, Johnson had been driving “ an old, unreliable Ford Contour

. ” The 1999 Lexus purchased on September 3rd matches the vehicle description Baumgart noted on the ticket, including the VIN. Based on this evidence , a jury could reasonably infer that Baumgart , who insisted that he was with Johnson when the traffic violation allegedly occurred on August 18th , knew that Johnson was not driving the 1999
Lexus at that time , and that the make, model , and VIN he noted on the ticket was incorrect when he wrote the ticket on September 28 th

. See Jackson , 443 U.S. at 319, 326, 99 S. Ct. at 2793 (stating fact finders may “ draw reasonable inferences
from basic facts to ultimate facts ” and courts defer to fact finder’s judgment on conflicts of testimony ). Baumgart further contends that the evidence is insufficient because the State failed to establish that Johnson suffer ed expense or delay as a result of the ticket , as required by the jury charge. Our review of the suffici ency of the evidence,9 however, is measured by the elements of the offense as set forth in a hypothetically correct jury charge, not the charge that was actually submitted. Cada , 334 S.W.3d
at 773 (citing Malik , 953 S.W.2d at 240). Baumgart’s argument is unavailing because “u ndue expense and delay” is not an element of the charged offense and would not have been included in the hypothetically correct jury charge for this

case. See i d. (discussing contents of hypothetically correct ju ry charge ) ; see generally T EX
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. § 37.10(a)(1). Accordingly, whether the State provided sufficient evidence that the ticket caused Johnson to incur any undue expense or delay is immaterial for purposes of our sufficiency review

. Finally, Baum gart contends that the State failed to provide sufficient evidence for the jury to reject his defense that the vehicle information “ could have no effect on the gov ernm ent’s purpose for requiring the governmental record

. ”
T EX
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. § 37.10(f)

. On the contrary, c ounty officials testified that such tickets are intended not only to inform the driver of the violation and to give the driver a court date, but to refresh the officer’s memory in the event he testifies at trial regarding the offense. Fr om this evidence , a jury could reasonably infer that providing a space on the ticket form for additional information could serve the government’s purpose by making an officer’s testimony more detailed and
credible

. See Jackson , 443 U.S. at 319 , 99 S. Ct. a t 2789

. Moreover, the State only had to demonstrate that the false information could have an effect on the10 government’s purpose, and , therefore, the fact that the ticket was never processed and Baumgart would not be required to testify about the ticket is immaterial

. See
T EX
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. § 37.10(f). After reviewing the evidence in the light most favorable to the verdict and deferring to the fact finder’s responsibility to draw reasonable inferences from the evidence, we conclude that a rational fact finder could have found the essential elements of the offense beyond a reasonable doubt and that there is some evidence to support the jury’s negative finding on Baumgart’s defense

. See Jackson , 443
U.S. at 319, 99 S. Ct. at 2789; Smith , 355 S.W.3d at 148.
We overrule Baumgart ’s sole issue

. Conclusion We affirm the trial court’s judgment

.

Russell Lloyd Justice

Panel consists of Justice s Keyes, Massengale , and Lloyd. Do not publish. T EX
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. P. 47.2( b).