PD-1501-14

IN THE TEXAS COURT OF CRIMINAL APPEALS

_________________________________________________

ROBERT WILLIAM CORNWELL

PETITIONER-APPELLANT

vs.

THE STATE OF TEXAS

RESPONDENT-APPELLEE

_________________________________________________

ON DISCRETIONARY REVIEW FROM

THE NINTH COURT OF APPEALS,

CAUSE NO. 09-13-00203-CR

APPEAL FROM THE 435TH DISTRICT COURT OF

MONTGOMERY COUNTY, CAUSE NO. 12-08-08579CR

_________________________________________________

PETITIONER’S BRIEF ON THE MERITS

_________________________________________________

BRUCE ANTON

State Bar No. 01274700

ba@sualaw.com

BRETT ORDIWAY

State Bar No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs, Suite 250

Dallas, Texas 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

CLERK
2

Identity of Parties and Counsel

For Appellant Robert William Cornwell:

DAN MADELEY

Trial counsel

208 W. Davis

Conroe, Texas 77301

RICHARD MARTIN P. CANLAS

Trial counsel

300 W. Davis, Suite 560

Conroe, Texas 77301

BRUCE ANTON

BRETT ORDIWAY

Appellate counsel

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Suite 250

Dallas, Texas 75201

For Appellee the State of Texas:

SHANNA REDWINE

Trial counsel of record

MONTGOMERY COUNTY DISTRICT ATTORNEY’S OFFICE

207 W. Phillips 2nd Floor

Conroe, Texas 77301

JASON LARMAN

Appellate counsel

MONTGOMERY COUNTY DISTRICT ATTORNEY’S OFFICE

Trial judge:

THE HONORABLE MICHAEL SEILER

MONTGOMERY COUNTY’S 435TH DISTRICT COURT
3

Table 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 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 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 ignored 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

Certificate of Compliance......................................................................... 18
4

Index 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. Massey, 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

Tiller 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

TEX. PEN. CODE § 37.11 .................................................................... 5, 9, 16

TEX. PEN. CODE §37.11.............................................................................. 13

Other Authorities

BLACK’S LAW DICTIONARY (9th ed. 2009).................................................. 15
5

Statement of the Case

Cornwell pretended to be a Dallas County Assistant District Attorney. But though there was no evidence that, in so doing, Cornwell intended to induce the complainant to submit to his pretended official authority, or to rely on any pretended official acts, Cornwell was nonetheless charged by information on August 13, 2012, with impersonating a 

public servant. (CR: 9); see TEX. PEN. CODE § 37.11(a)(1). And the 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 legally insufficient to support his conviction because it was plain that he 

did not intend to induce the complainant to submit to his pretended official authority or to rely on a pretended official act. Cornwell v. State, 

445 S.W.3d 488 (Tex. App.—Beaumont 2014). The court of appeals affirmed Cornwell’s conviction, though, simply because there was evidence that Cornwell intended to induce the complainant to rely on his 

false identification—not on any pretended official acts—when considering his request for the favor. Id. No motion for rehearing was filed.
6

Issue Presented

Whether, 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 simply any acts.
7

Statement of Facts

Robert Cornwell telephoned Montgomery County Assistant District Attorney Kourtney Teaff and asked her to be lenient with a friend 

whose probation her office sought to revoke. (SX9). In so doing, Cornwell averred 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, speaking with the probation department, investigating the friend’s medical issues, and giving 

his own nephew jail time for possessing marijuana. (SX9). Teaff confirmed at trial, however, that Cornwell “never ordered [her] to do anything” 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 another to 

rely on his pretended official acts. And this Court in Niswanger affirmed as much—a defendant must have pretended to act in that official 

capacity (regardless of whether that act in fact would 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 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 

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 pretended official acts.” TEX. PEN. CODE § 37.11(a). In Cornwell’s case, the 

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 appeals—it couldn’t. (RR3: 65-70, 76-81); see Cornwell v. State, 

445 S.W.3d 488 (Tex. App.—Beaumont 2014). For, as Teaff herself testified, “it would [have been] ridiculous” for Cornwell to behave as if he 

had any authority over her. (RR3: 33). Instead, the State urged, and the 

jury apparently agreed, that Cornwell intended to induce Teaff to rely 

on his pretended 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 impersonated an assistant district attorney with the intent to induce Teaff 

to rely on that identification. (RR3: 70-76). He couldn’t—it’s intrinsic

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

trial, 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 one 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 action in an official capacity that is more than merely showing official 

identification”)).

To that end, Teaff specifically testified “[Cornwell] 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 didn’t pretend to write from an office e-mail account. Cf. Rice 
11

v. State, 195 S.W.3d 876, 878 (Tex. App.—Dallas 2006, pet. ref’d) (evidence 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 where defendant represented 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 officers). 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 influence a case in another county.” (St. Br. at 6) (citing RR3: 8-11). In fact, 

Teaff explicitly testified that Cornwell made clear he was acting “in his 

personal capacity.”(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 unambiguous testimony, the State on appeal 

did not dispute that Cornwell did not pretend his favor request was an
12

official act. (St. Br. at 4-5). Instead, the State argued that, in so making 

that request, Cornwell referred to having previously made official acts, 

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 rely must be that act for which he was 

charged—here, “trying to resolve a pending criminal case.” (CR: 9); Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2002) (holding that sufficiency of evidence must be weighed against “manner and means of abduction” alleged in indictment). And that he was charged as such was 

no error; the Corpus Christi Court of Appeals has specifically 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. Tovar 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 action in that capacity, then any impersonation of a public servant would 

be a crime, as inherent in such a pretension is the representation to 
13

have previously made official acts. See TEX. PEN. CODE § 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 evidence 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 Code. 

Id. at 491. Believing that it was following San Antonio Court of Appeals’s lead in Tiller v. State, 362 S.W.3d 125, 128 (Tex. App.—San Antonio 2011, pet. ref’d), the court in its opinion made clear that its suffi-
14

ciency review instead solely “focused upon” Cornwell’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 statute, the 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 intended it to induce reliance. Tiller, 362 S.W.3d at 128.

That is the analysis the court in this case entirely failed to perform, and which this Court should instruct it to do on remand. Cornwell 

cannot be guilty of a crime unless he purported to act officially. And upon recognizing the Beaumont court’s misreading of Tiller to stand for 

otherwise—for the proposition that the defendant’s intent to induce satisfies all—other errors in the court’s opinion are at once explained. For, 

though the court avoided one analysis, it became forced to confront another: in addition to flagrantly ignoring the language of the statute, it

also had to discard this Court’s opinion in Niswanger, which explained 

(and as Cornwell urged) that to allege a crime, the charging instrument

“must provide that the defendant had been engaged in some overt ac-
15

tion in an official capacity that is more than merely showing official 

identification.” Niswanger, 335 S.W.3d at 617 n. 11.

The court of appeals waved that off by dismissing it as “dicta”

[sic], and by noting that, in that case, unlike this one, “the circumstances did not show that Niswanger identified himself as a public official to 

induce others to engage in conduct that involved a governmental function.” Cornwell, 445 S.W.3d at 491. Considering it was certainly a correct statement of law, though, both justifications are predictably unsound. 

That dictum which the court 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.” BLACK’S LAW DICTIONARY (9th ed. 2009). 

Moreover, as to the identified distinction between Niswanger and this 

case, the court of appeals in no way explained why that distinction mattered; why the action which the 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 at 
16

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). TEX. PEN. CODE § 37.11(a)(1). And this Court in 

Niswanger affirmed as much. See Niswanger, 335 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 conviction cannot stand until the court properly considers whether he purported 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 remand this case to that court to 

determine as much. But for all those reasons urged in Cornwell’s original briefing before that court, and now summarized in this brief, Corn-
17

well urges this Court that, because it is so plain that he did not act in 

any pretended official capacity, in the interests of judicial economy this 

Court should simply reverse the judgments of the courts below and enter 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 

permissible after reviewing court has determined evidence is insufficient).

Respectfully submitted,

/s/ Bruce Anton

BRUCE ANTON

Bar Card No. 01274700

ba@sualaw.com

/s/ Brett Ordiway

BRETT ORDIWAY

Bar Card No. 24079086

bordiway@sualaw.com

SORRELS, UDASHEN & ANTON

2311 Cedar Springs Road Suite 250

Dallas, Texas 75201

(214)-468-8100 (office)

(214)-468-8104 (fax)

Attorneys for Petitioner-Appellant
18

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 Attorney on March 24, 2015.

/s/ Bruce Anton

BRUCE ANTON

Certificate of Compliance

Pursuant to TEX. R. APP. P. 9.4(i)(3), undersigned counsel certifies 

that this brief complies with:

1. the type-volume limitation of TEX. R. APP. P. 9.4(i)(2)(B) because 

this petition contains 2,017 words, excluding the parts of the brief 

exempted by TEX. R. APP. P. 9.4(i)(1).

2. the typeface requirements of TEX. R. APP. P. 9.4(e) and the type 

style requirements of TEX. R. APP. 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

BRUCE ANTON