PD

- 1501

- 14
I N THE T EXAS C OURT OF C RIMINAL A PPEALS

_________________________________________________ 

## R OBERT 

## W ILLIAM 

## C ORNWELL P

ETITIONER

- A PPELLANT

vs. 

## T HE 

## S TATE OF 

## T EXAS R ESPONDENT

- A PPELLEE

_________________________________________________ O N D I SCRETIONARY R EVIEW FROM

THE N INTH C OURT OF A PPEALS , C A U SE N O

. 09

- 13

- 00203

- CR
A PPEAL FROM THE 435 TH D ISTRICT C OURT OF M ONTGOMERY C OUNTY , C AUSE N O

. 12

- 08

- 08579 CR

_________________________________________________ 

## P ETITIONER 

## ’ S 

## B RIEF ON THE 

## M ERITS

___________ ______________________________________ B RUCE A NTON State Bar No . 01274700 ba @sualaw.com
B RETT O RDIWAY State Bar No. 24079086 bordiway@sualaw.com S ORRELS , U DASHEN & A NTON 2311 Cedar Springs, Suite 250 Dallas, Texa s 75201 214

- 468

- 8100 (office) 214

- 468

- 8104 (fax) Counsel for Petitioner

- Appellant PD-1501-14 COURT OF CRIMINAL APPEALS

AUSTIN, TEXAS Transmitted 3/25/2015 9:08:05 AM Accepted 3/25/2015 9:49:13 AM

ABEL ACOSTA CLERK2 Identity of Parties and Counsel For Appellant Robert William Cornwell:
D AN M ADELEY Trial counsel 208 W. Davis Conroe, Texas 77301
R ICHARD M ARTIN P. C ANLAS Trial counsel 300 W. Davis, Suite 560 Conroe, Texas 77301
B RUCE A NTON B RETT O RDIWAY Appellate counsel S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Suite 250 Dallas, Texas 75201 For Appellee the State of Texas:
S HANNA R EDWINE Trial counsel of record M ONTGOMERY C OUNTY D ISTRICT A TTORNEY ’ S O FFICE 2 07 W. Phillips 2 nd Floor Conroe, Texas 77301
J ASON L ARMAN Appellate counsel M ONTGOMERY C OUNTY D ISTRICT A TTORNEY ’ S O FFICE Trial judge :
T HE H ONORABLE M ICHAEL S EILER M ONTGOMERY C OUNTY ’ S 435 TH D ISTRICT C OURT3 T able of Contents Identity of Parties and Counsel

................................ ................................ . 2
Index of Authorities

................................ ................................ .................... 4
Statement of the Case

................................ ................................ ................ 5
Issue Presented

................................ ................................ ........................... 6 Whether, to secure a conviction for impers onating a public servant on the theory that the defendant intended to induce another to rely on his acts, the State must prove that the defendant intended to induce another to rely on pretended official acts, not simply any acts.

........... 6
Statement of Facts

................................ ................................ ...................... 7 Summary of the Argument

................................ ................................ ........ 8 Argument

................................ ................................ ................................ .... 9
I. Appellant’s unwavering argument

................................ ................ 9
II. The court of appeals ignor ed the statute’s requirement that the State prove the defendant pretended to act in an official capacity 11
III. Conclusion

................................ ................................ ................... 16
Certificate of Service

................................ ................................ ................ 18
Certificat e of Compliance

................................ ................................ ......... 184 I ndex of Authorities

Cases Boyett v. State , 368 S.W.2d 769, 771 (Tex. Crim. App. 1963)

................. 15 Cornwell v. State , 445 S.W.3d 488 (Tex. App.

— Beaumont 2014)

.. passim Curry v. State , 30 S.W.3d 394, 404 (Tex. Crim. App. 2002)

................... 12 Dietz v. State , 62 S.W.3d 335, 337 (Tex. App.

— Austin 2001, pet. ref’d) 11 Ex parte Niswanger , 335 S.W.3d 611, 617 & n. 11, 618 n. 15 (Tex. Crim. App. 2011)

................................ ................................ .................. 10, 15, 16 Greene v. Masse y , 437 U.S. 19 (1978)

................................ ...................... 17 Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)

................. 17 Rice v. State , 195 S.W.3d 876, 878 (Tex. App.

— Dallas 2006, pet. ref’d) 11 Studevant v. State , 833 S.W.2d 712, 712

- 14 (Tex. App.

— Houston [14th Dist.] 1992, no pet.)

................................ ................................ ............... 11 Ti ller v. State , 362 S.W.3d 125, 128 (Tex. App.

— San Antonio 2011, pet. ref’d)

................................ ................................ ................................ . 13, 14 Tovar v. State , 777 S.W.2d 481, 489 (Tex. App.

— Corpus Christi 1989, pet. ref’d)

................................ ................................ .......................... 12, 15

Statutes
T EX

. P EN

. C ODE § 37.11

................................ ................................ .... 5, 9, 16 T EX

. P EN

. C ODE §37.11

................................ ................................ .............. 13

Other Authorities
B LACK ’ S L AW D ICTIONARY (9th ed. 2009)

................................ .................. 155 Statement of the Case Cornwell pretended to be a Dallas County Assistant District A ttorney. But though t here was no evidence that , in so doing, Cornwell i ntended to induce the complainant to submit to his pretended official a uthority, or to rely on any pretended official acts, Cornwell was noneth eless charged by information on August 13, 2012, with impersonating a public servant. (C R: 9); s ee T EX

. P EN

. C ODE § 37.11 (a)(1). And t he jury nonetheless found Cornwell guilty, and the court then sentenced him to
two years ’ confinement. (RR3: 83, 188; CR: 79). Accordingly, on appeal Cornwell argued that the evidence was l egally insufficient to support his conviction because it was plain that he
did not intend to induce the complainant to submit to his pretended o fficial authority or to rely on a pretended official act. Cornwel l v. State , 445 S.W.3d 488 (Tex. App.

— Beaumont 2014)

. The court of appeals a ffirmed Corn well ’ s conviction, though , simply because there was ev idence that Cornwell intended to induce the complainant to rely on his
false identification

— not on any pretended official acts

— when conside ring his request for the f a vor
. Id. No motion for rehearing was filed.6 Issue Presented
Wh ether, to secure a conviction for impersonating a public servant on the theory that the defendant intended to induce another to rely on his acts, the State must prove that the defendant intended to induce another to rely on pretended official acts, not sim ply any acts.7 Statement of Facts Robert Cornwell telephoned Montgomery County Assistant Di strict Attorney Kourtney Teaff and asked her to be lenient with a friend whose probation her office sought to revoke. (SX9). In so doing, Cor nwell av erred that he, too, was an assistant district attorney, in Dallas County, and that they “were on the same team and everything and that he was just doing a friend a favor.” (RR3: 13). Furthermore, Cornwell lied about running the friend’s criminal history, s peaking with the pr obation department, investigating the friend’s medical issues, and giving his own nephew jail time for possessing marijuana. (SX9). Teaff co nfirmed at trial , however, that Cornwell “never ordered [her] to do an ything” or “pretend[ed] he [had] any authority over [her],” and that he acted “in his personal capacity.” (RR3: 30, 33, 41).8 Summary of the Argument A person commits the offense of impersonating a public servant if he impersonates a public servant with the intent to induce a nother to rely on his pretended official acts. And this Court in Niswanger a ffirmed as much

— a defendant must have pretended to act in that official capacity (regardless of whether that act in fact wou ld be in his official capacity) . The court of appeals in this case discarded this requirement, though, because it misunderstood a sister court of appeals’s opinion to
read that the defendant’s intent to induce was all that mattered. This was plainly incorrect.9 Argument To secure a conviction for impe rsonating a public servant on the theory that the defendant inten ded to induce another to rely on his acts, the State must prove that the defendant intended to induce another to rely on pretended official acts, not simply any acts.

w w w
I. Appellant ’ s unwavering argument A person commits the offense of impersonating a public servant if he impersonates a public servant with the intent to induce another (1)

“ to submit to his pretended official authority ” or (2) “ to rely on his pr etende d official acts. ” T EX

. P EN

. C ODE § 37.11 (a). In Cornwell’s case, t he
State has never contended that Cornwell intended to induce Teaff to submit to any pretended official authority. Not at trial, or before the court of appe als

— it couldn ’ t. (RR3: 65

- 70, 76

- 81); see Cornwell v. State , 445 S.W.3d 488 (Te x. App.

— Beaumont 2014) . For, a s Teaff herself test ified, “it would [have been] ridiculous” for Cornwell to behave as if he had any author i ty over her. (RR3: 33). Instead, the State urged, and the jury apparently agreed, that Cornwell intended to induce Teaff to rely

on his pre tended official act of “trying to resolve a pending criminal case.” (CR: 9); (RR3: 67 ); Cornwell , 445 S.W.3d at 490

.10 As to that contention , Cornwell has never contested that he i mpersonated an assistant district attorney with the intent to induce Teaf f to rely on that i dentification

. (RR3 : 70

- 76). H e couldn ’ t

— it ’ s intrinsic
that that ’ s why he identified himself as such . Rather, Cornwell urged at

tr i al, and then before the court of appeals, that not an ounce of evidence supported that he intended to induce her to rely on any pretended official acts. Simply identifying himself as an assistant district attorney doesn’t qualify as such, and he never pretended that asking for a favor
“from on e DA to another” was an official act. (RR3: 70

- 76); (App. Br. at
5

- 6) (citing Ex parte Niswanger , 335 S.W.3d 611, 617 & n. 11, 618 n. 15 (Tex. Crim. App. 2011) (stating that to allege a crime, the indictment “must provide that the defendant had been engaged in some overt a ction in an official capacity that is more than merely showing official identification”) ).
To that end , Teaff specifically testif ied “ [Corn well] was doing a friend a favor.” (RR3: 38). In no way did Cornwell hold himself out to be acting in his official capacity ; he didn ’ t pretend to call from an office phone, instead specifically requesting she call him on his “[p]ersonal cell phone”; he did n ’ t pretend to write from an office e

- mail account

. Cf. Rice11 v. State , 195 S.W.3d 876, 878 (Tex. App.

— Dallas 2006, pet. ref ’ d) (ev idence legally sufficient where defendant told officer that initiated traffic stop that he was a Louisiana corrections officer picking up a prisoner);
Studevant v. State , 833 S.W.2d 712, 712

- 14 (Tex. App.

— Houston [14th Dist.] 1992, no pet.) (evidence legally sufficient wher e defendant repr esented herself as assistant attorney general and sought information from witness as part of her “investigati[on]”); Dietz v. State , 62 S.W.3d 335, 337 (Tex. App.

— Austin 2001, pet. ref ’ d) (legally sufficient evidence where bail bondsman pretended to be a sheriff ’ s deputy so as to request assistance serving warrant from police offic ers). As acknowledged in the State’s brief on appeal, Teaff recorded Cornwell’s calls precisely because

“ it was unusual for a prosecutor to attempt to use their office to infl uence a case in another county .” (St. Br. at 6) (citing RR3: 8

- 11). In fact,
Teaf f explicitly testified that Corn well made clear he was act ing “in his personal capaci ty.”(RR3: 41).
II. The court of appeals ignored the statute ’ s requirement that the State prove the defendant pretended to act in an official capacity
Faced with Teaff ’ s unamb iguous testimony, t he State on appeal did not dispute that Cornwell did not pretend his favor request was an12 official act. (St. Br. at 4

- 5). Instead, the State argued that, in so making that request, Cornwell referred to having previously made official act s, and that he intended for Teaff to rely on those. (St. Br. at 4

- 5). But even assuming that Cornwell in fact represented to having previously made official acts, to be guilty of the offense the “pretended official act” on
which he intended for Teaff to re ly must be that act for which he was charged

— here, “ trying to resolve a pending criminal case. ” (CR: 9) ; Cu rry v. State , 30 S.W.3d 394, 404 (Tex. Crim. App. 2002) (holding that su fficiency of evidence must be weighed against “manner and means of a bduction” alleged in indictment)

. And that he was charged as such was no error; the Corpus Christi Court of Appeals has specific ally held that, to be guilty of impersonating a public servant, there must be a false “pretension by a person that he is a public servant and overt action in this capacity”

— not reference to action in this capacity, or overt action outside this capacity. To var v. State , 777 S.W.2d 481, 489 (Tex. App.

— Corpus Christi 1989, pet. ref ’ d) . Indeed, if, instead, the statute required only a false pretension and reference to previously making an overt a ction in that capacity, then any impersonation of a public servant would be a crime, as inherent in such a pretension is the representation t o13 have previously made official acts. See T EX

. P EN

. C ODE § 37.11 (simply pretending to be a public official is not a crime). Considering, then, that the State essentially urged the court of appeals to ignore the charging instrument , or enlarge the statute to cover any impersonation of a public official, it is understandable that
the court declined to follow its lead. Cornwell , 445 S.W.3d 488

. The

court ’ s alternative reasoning, though , was just as strained. For, instead of evaluating whether Cornwell ’ s request for a favor was a “pretended official act,” the court simply announced that because it was “ an act , ” at all, the evi dence was sufficient : While the term “official act” is not defined in the Penal Code, the Penal Code defines “[a]ct” as “a bodily movement ... and includes speech.”

... Given that an act under the Penal Code involves speech, and that the Montgomery County assistant district attorney had the ability to use her prosecutorial discretion with respect to Cornwell ’ s friend ’ s case, we hold the evidence supports Cornwell ’ s conviction under the “pretended official acts” prong of section 37.11(a)(1) of the Penal Cod e.
Id

. at 491. B elieving that it was following San Antonio Court of A ppeal s’s lead in Tiller v. State , 362 S.W.3d 125, 128 (Tex. App.

— San A ntonio 2011, pet. ref’d) , the court in its opinion made clear that its suff i-14 ciency review instead solely “focused upon” Cor nwell’s intent to induce
Teaff. Cornwell , 445 S.W.3d at 491

. Even forgetting, for a moment, that a sister court of appeals would have no authority to dispense of an element of the stat ute, t he Tiller court, of course, did no such thing . Instead, it properly evaluated whether Tiller purported his act to be in his pretended official capacity, and because it held it was, it affirmed his conviction because he also i ntended it to induce reli ance. Tiller , 362 S.W.3d at 128.
That is the analysis the court in this case entirely failed to pe rform, and which this Court should instruct it to do on remand. Corn well cannot be guilty of a crime unless he purported to act officially. And u pon recognizing the Beaumont court’s misreading of Tiller to stand for
otherwise

— for the proposition that the defendant’s intent to induce sa tisfies all

— o ther errors in the court’ s opinion are at once explained

. For, though the court avoided one analysis, it became forced to confront a nother: in addition to fla grantly ignoring the language of the statute , i t
also had to discard this Court ’ s opinion in Niswanger , which explained ( an d as Cornwell urged ) t hat to allege a crime , the charging instrument “must provide that the defendant had been engaged in some overt a c-15 tion in an official capacity that is more than merely showing official
identification.” Niswanger , 335 S.W.3d at 617 n. 11.
T he court of appeals waved that off by dismissing it as “dicta ” [ sic ], and by noting that, in that case, unlike this one, “the circumstan ces did not show that Niswanger identified himself as a public official to induce others to engage in conduct that involved a governmental fun ction.” Cornwell , 445 S.W.3d at 491

. Considering it was certainly a co rrect statement of law, though, both justification s are predictably u nsound.
T hat dictum which the cour t so readily disregarded is the holding
of the cases to which it cites. See Niswanger , 335 S.W.3d at 617 n. 11 (citing Tovar , 777 S.W.2d at 489; Boyett v. State , 368 S.W.2d 769, 771 (Tex. Crim. App. 1963) ). And even if it weren ’ t , dictum is “ frequently, and indeed usually, correct.” B LACK ’ S L AW D ICTIONARY (9th ed. 2009)

. Moreover, as to the identified distinction between Niswanger and this

case , the court of appeals in no way ex plained why that distinction ma ttered ; why the action which t he defendant sought to induce

— addressed
nowhere in the statute

— at all permitted the court to dispense with an
element of the crime very definitely required. Cornwell , 445 S.W.3d at16 491

. Certainly, Niswanger does not assert as much. See Niswanger , 335
S.W.3d at 617 n. 11 . And a distinction without meaning is meaningless. All of this is to say, in short, that the court of appeals’s holding was plainly incorrect. The statute very clearly states that, to be guilty of impersonating a public servant, a defendant must have pretended to act in that official capacity (regardless of whether that act in fact would be in his official capacity). T EX

. P EN

. C ODE § 37.11 (a)(1). And this Court in Niswanger affirmed as much. See Niswanger , 3 35 S.W.3d at 617 n. 11. The court of appeals in this case discarded this requirement, though,
because it misunderstood Tiller to read that the defendant’s intent to
induce was all that mattered. This was wrong, and Cornwell’s convi ction cannot stand until the court properly considers whether he pu rported to act officially.
III. Conclusion Because the court of appeals ignored this analysis in affirming
Cornwell ’ s conviction, at the very least this Court should vacate the judgment of the court of appeals and rem and this case to that court to determine as much. But for all those reasons urged in Cornwell ’ s orig inal briefing before that court, and now summarized in this brief , Cor n-17 well urges this Court that, because it is so plain that he did not act in any pretend ed official capacity, in the interests of judicial economy this Court should simply reverse the judgments of the courts below and e nter a verdict of acquittal. See Guevara v. State , 152 S.W.3d 45, 49 (Tex. Crim. App. 2004) ; Greene v. Massey , 437 U.S. 19 (1978) (re

- trial not

per missible after reviewing court has determined evidence is insufficient). Respectfully submitted,

/s/ Bruce Anton B RUCE A NTON Bar Card No. 01274700 ba@sualaw.com
/s/ Brett Ordiway B RETT O RDIWAY Bar Card No. 24079086 bordiway@sualaw.com
S ORRELS , U DASHEN & A NTON 2311 Cedar Springs Road Suite 250 Dallas, Texas 75201 (214)

- 468

- 8100 (office) (214)

- 468

- 8104 ( fax )
At torneys for Petitioner

- Appellant18 Certificate of Service I, the undersigned, hereby certify that a true and correct copy of the foregoing Petitioner’s Brief on the Merits was electronically served to the Montgomery County District Attorney ’ s Office and the State Prosecuting Attorn ey on March 24 , 2015

.

/s/ Bruce Anton B RUCE A NTON

Certificate of Compliance
Pursuant to T EX

. R. A PP

. P . 9.4(i)(3) , undersigned counsel certifies that this brief complies with :
1. the type

- volume limitation of T EX

. R. A PP

. P. 9.4 (i)(2 ) ( B ) because this petition contains 2,017 words, excluding the parts of the brief exempted by T EX

. R. A PP

. P. 9.4(i)(1 ).
2. the typeface requirements of T EX

. R. A PP

. P. 9.4(e) and the type style requirements of T EX

. R. A PP

. P . 9.4(e) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2011 in 14

- point Century Schoolbook

. /s/ Bruce Anton B RUCE A NTON