Opinion issued September 24, 2015

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-14-00320-CR

———————————

ERIC BAUMGART, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 183rd District Court

Harris County, Texas

Trial Court Case No. 1382166

MEMORANDUM OPINION

A jury convicted Eric Baumgart of tampering with a governmental record.

1

 

The trial court assessed Baumgart’s punishment at two years’ incarceration, but 

 1 See TEX. PENAL CODE ANN. § 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 contends that the evidence is insufficient to support his 

conviction and the jury’s implicit rejection of his defense. We affirm.

Background

Baumgart was employed 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 other men while they were dating, and that 

Johnson was wanted for outstanding felony warrants in Travis County, Texas. 

Baumgart set up a meeting between Johnson and a mutual friend in downtown 

Houston on September 27, 2011, and when she arrived, Baumgart arrested her on 

the outstanding warrants. Baumgart went to the Harris County jail the next day and 

met with Johnson. During that meeting, Baumgart issued Johnson a ticket for 

driving 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 identification number (VIN). Although Baumgart submitted 

the ticket to the Liberty County Justice of the Peace Court’s clerk for 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 instructed 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 jail on September 28th and writing her a ticket “from [the] 

Liberty 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 ticket, Baumgart claimed that he had personal 

knowledge of the offense because he was riding with Johnson in the Lexus when 

the violation occurred.

Officials from the Liberty County Constable’s Office Precinct 4 testified at 

trial that the office routinely provided 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 these tickets 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 before that time she had been driving “an old, unreliable Ford 
4

Contour.” 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 is insufficient to prove beyond a 

reasonable doubt that he tampered with a governmental 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.” 

TEX. PENAL CODE ANN. § 37.10(a)(1) (West Supp. 2014). A governmental record 

is “anything belonging to, received by, or kept by government 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 sufficiency of the evidence to support a conviction, we 

view the evidence in the light most favorable to the verdict to determine if any 
5

rational trier of fact could have found the essential elements of the offense beyond 

a reasonable doubt. Jackson v. Virginia, 443 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.—Houston [1st Dist.] 2011, pet. ref’d); see also TEX.

PENAL CODE ANN. § 2.03 (governing defenses to prosecution set forth in Penal 

Code). In doing so, we 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 credibility 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 in 
6

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 

governmental record because there is no evidence that the ticket was ever received 

by a government agency or entered into a government record-keeping system.

The 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 ticket.” Baumgart also admitted that he “checked in as law 

enforcement” when he met with Johnson at the jail and that the ticket he wrote her 

during that meeting was “from Liberty County Precinct 4 Constable’s Office.” The 

jury could reasonably infer from this evidence that Baumgart was acting in his 

official capacity as a reserve deputy constable for Liberty County when he issued 

the ticket to Johnson with the false vehicle description and VIN and that the ticket 
7

was written from a ticket book provided to him by the Liberty County Constable’s 

Office. See Lewis v. State, 773 S.W.2d 689, 692 (Tex. App.—Corpus Christi 1989, 

pet. ref’d) (holding arrest warrant was governmental 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 from basic facts to 

ultimate facts”); see also TEX. PENAL CODE ANN. § 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 governmental records); 

Constructors Unlimited Inc. v. State, 717 S.W.2d 169, 174 (Tex. App.—Houston 

[1st Dist.] 1986, pet. ref’d) (holding that company’s bid sheets were not 

governmental 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. Evidence 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 28th. 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 suffered expense or delay as a result of the ticket, 

as required by the jury charge. Our review of the sufficiency 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 “undue 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 id. (discussing contents of hypothetically correct jury charge); see

generally TEX. PENAL CODE ANN. § 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, Baumgart 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 government’s purpose for requiring the governmental record.”

TEX. PENAL CODE ANN. § 37.10(f). On the contrary, county 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. From 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. at 2789. Moreover, the State only 

had to demonstrate that the false information could have an effect on the 
10

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

TEX. PENAL CODE ANN. § 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 Justices Keyes, Massengale, and Lloyd.

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