IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD–0378–13

ROMAN RAMIREZ-MEMIJE, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW

FROM THE FOURTEENTH COURT OF APPEALS

HARRIS COUNTY

MEYERS, J., delivered the opinion of the Court in which KEASLER,

HERVEY, COCHRAN, and ALCALA, JJ, joined. PRICE, J., filed a dissenting opinion in

which KELLER, P.J., and WOMACK and JOHNSON, JJ., joined.

O P I N I O N

Appellant, Roman Ramirez-Memije, was charged with fraudulent possession of

identifying information under Texas Penal Code Section 32.51(b). A jury found him

1

guilty and sentenced him to three years’ imprisonment. He appealed, arguing that the trial

Unless otherwise specified, all future references to Sections refer to the Texas Penal 1

Code.
Ramirez-Memije–Page 2

court erred in failing to instruct the jury on voluntary conduct under Section 6.01 and on

presumptions under Section 2.05 of the Penal Code, and erred in admitting testimony that

he was from Mexico and was working illegally in the United States. The court of appeals

reversed the trial court’s judgment and remanded the case for further proceedings.

Ramirez-Memije v. State, 397 S.W.3d 293 (Tex. App.–Houston [14th Dist.] 2013). The

State filed a petition for discretionary review, which we granted to consider the following

question:

Is a defendant entitled to an instruction on voluntary possession when he

claims he did not know the forbidden nature of the thing he possessed, or is

his defense merely a negation of his knowledge of surrounding

circumstances that is required by Section 6.03(b)?

We hold that Appellant was not entitled to the requested instruction, and we reverse the

decision of the court of appeals. We remand the case to the court of appeals for

consideration of Appellant’s remaining issues.

FACTS

Appellant received a credit-card skimming device from Dante Salazar and

delivered it to Antonio Cercen, who worked as a waiter at a restaurant. Cercen used the

skimmer to collect restaurant customers’ identifying information and credit-card numbers

and then returned the skimmer to Appellant. Several customers reported unauthorized

credit-card purchases after dining at the restaurant, and an investigation revealed that all

of the complaining customers had been waited on by Cercen. Cercen agreed to assist in

the investigation, and agents set up a sting operation. The next time Appellant delivered
Ramirez-Memije–Page 3

the skimmer to Cercen, agents found identifying information on the skimmer and arrested

Appellant. Appellant then agreed to help agents and set up delivery of the skimmer to

Salazar.

Appellant was indicted for fraudulent possession of identifying information. At

trial, Appellant claimed that he did not know what the skimming device was and did not

know what information it contained. He said that he did not receive any benefits from

participating in the credit-card skimming operation. Appellant requested a jury charge

regarding the requirement of a voluntary act or omission under Penal Code section 6.01.

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The trial court denied his request. The instructions to the jury included the statutory

language defining intent and knowledge found in Section 6.03. The jury found

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Appellant guilty and sentenced him to three years’ confinement.

COURT OF APPEALS

Appellant appealed his conviction, claiming that the trial court erred by refusing to

Penal Code Section 6.01 states: 2

(a) A person commits an offense only if he voluntarily engages in conduct, including an act, an

omission, or possession.

(b) Possession is a voluntary act if the possessor knowingly obtains or receives the thing

possessed or is aware of his control of the thing for a sufficient time to permit him to terminate

his control.

Penal Code Section 6.03 states: 3

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a

result of his conduct when it is his conscious objective or desire to engage in the conduct or

cause the result.

(b) A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to

circumstances surrounding his conduct when he is aware of the nature of his conduct or that the

circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his

conduct when he is aware that his conduct is reasonably certain to cause the result.
Ramirez-Memije–Page 4

include his requested jury instruction on voluntary conduct under Section 6.01 and an

instruction on presumptions under Section 2.05. He also challenged the admission of

testimony that he was from Mexico and was working illegally in the United States. The

court of appeals looked to the plain language of Section 6.01(b) and determined that “the

thing possessed” referred to the item of contraband prohibited by the statute. Memije, 397

S.W.3d at 298. The court reasoned that, because there is no offense for possession of the

skimmer, “the thing possessed” here must mean the identifying information. Id. The

court of appeals stated that, although Section 6.01(b) contains an element of mens rea

because it says “knowingly” and “aware of,” the concepts of actus reus and mens rea are

separate. Id. at 299. The court of appeals concluded that Appellant was entitled to a jury

charge on voluntary act under Section 6.01(b) because there was evidence that he did not

know that the skimmer contained identifying information, thus the evidence raised the

issue of whether his possession was voluntary. Id. at 301. Finding some harm to

Appellant, the court of appeals reversed the trial court’s judgment and declined to address

the remaining issues. Id. at 304.

ARGUMENTS OF THE PARTIES

State’s Argument

The State argues that the court of appeals erred in concluding that Appellant was

entitled to an instruction on voluntary possession. The State contends that, to establish

unlawful possession, the State has always had to show that the accused knew that what he
Ramirez-Memije–Page 5

possessed was contraband. Thus, according to the State, the question here is whether the

requirement that the State prove a defendant’s knowledge of the forbidden nature of the

thing possessed is a function of mens rea or the general requirement of voluntariness.

The State says that knowing you possess something is different from knowing that what

you possess is contraband. The State cites the example that the “intent to harm or

defraud” listed in the possession of identifying information offense is similar to the intent

listed for forgery under Section 32.21, which requires knowledge that the item passed or

possessed is forged. Thus, the State reasons that the fraudulent possession of identifying

information also requires knowledge of the nature of the thing possessed. According to

the State, the Model Penal Code says that the “thing possessed” refers to “the physical

object, not to its specific quality or properties” and that “the extent to which the defendant

must be aware of such specific qualities or properties is a problem of mens rea.”

The State concludes that the knowledge of the nature of the thing possessed is a

required culpable mental state and is different from voluntary conduct. Because it was

undisputed that Appellant knowingly obtained or received the skimmer from Cercen, he

was not entitled to an instruction on voluntariness.

Appellant’s Argument

Appellant states that the court of appeals correctly determined that the requirement

of a voluntary act under Section 6.01 is not subsumed by the mens rea requirement.

Appellant argues that he was entitled to an instruction on voluntary conduct under Section
Ramirez-Memije–Page 6

6.01(b) because the evidence raised the issue of whether his possession was voluntary.

Appellant states that “if evidence raises a fact issue as to an accused’s possession of

contraband, the jury must be instructed on what constitutes possession under the law,

which includes a §6.01(b) instruction, as well as a mens rea instruction.” Appellant

argues that if the issue is raised, both instructions must be given.

Appellant states that the court of appeals correctly interpreted the “thing

possessed” as the contraband alleged in the indictment and notes that the indictment

charged him with possession of identifying information, not with possession of the

skimmer. Appellant concludes that the “trial court did not instruct the jury regarding the

law of possession as enacted by the legislature in Texas Penal Code §6.01, either in its

abstract portion or in the application section of the jury charge. Therefore, the jury was

induced to believe that appellant was guilty, if he possessed the skimmer, whether he

knew that the skimmer contained illegally obtained identifying information.”

CASELAW AND STATUTES

Penal Code Section 32.51(b) states that “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;

. . . (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.” The jury charge here tracked the language from the statute and said,
Ramirez-Memije–Page 7

“You are instructed that the defendant is presumed to have the intent to harm or defraud

another if the defendant possesses the identifying information of three or more other

persons.”

During the jury charge conference, Appellant cited Evans v. State, 202 S.W.3d 158

(Tex. Crim. App. 2006). Appellant said that the proper law to apply to possession is the

law that has been established in drug cases and wanted the court to add a sentence to the

jury charge stating that Appellant knew that the matter possessed was identifying

information. Appellant focused on the part of Evans that said that the State must prove

“that the accused knew the matter possessed was contraband” and wanted the trial court

to instruct the jury that the State must prove that Appellant knew that the matter possessed

was identifying information. After reviewing Evans, the trial court refused to include

Appellant’s requested instruction.

Evans discussed the necessity of linking the contraband to the accused to protect

innocent bystanders, relatives, roommates, or friends from being convicted for possession

due merely to their proximity to another’s contraband. Evans analyzed the sufficiency of

the evidence linking the defendant to drugs found during a police search of a house. We

did not discuss Section 6.01(b) in that case because the issue in Evans was whether the

defendant exercised care, custody, control, or management of the substance. Thus, the

question in Evans was whether he actually possessed the contraband, not whether his

possession of the contraband was a voluntary act.
Ramirez-Memije–Page 8

We did discuss Section 6.01 in Farmer v. State, 411 S.W.3d 901 (Tex. Crim. App.

2013), in which we considered whether the trial court erred in failing to give an

instruction on voluntary act. Farmer was convicted of driving while intoxicated. He

argued that the jury should have been instructed on voluntary act under Section 6.01(a)

because he presented evidence at trial that he believed that he was taking a different

medication when he mistakenly took a sleeping pill. We concluded that Farmer was not

entitled to an instruction on voluntary act because he voluntarily took a pill. We reasoned

that the proper inquiry was whether Farmer voluntarily picked up and ingested

prescription medication prior to driving. The consequences of Farmer’s voluntary act of

taking a pill may have been unintended because he accidently took the wrong pill, but the

ingestion of a pill was a voluntary act.

ANALYSIS

The general requirements for an offense to have been committed are an actus reus

and a mens rea. Penal Code Section 6.01 covers actus reus and requires that a person

voluntarily engage in an act, omission, or possession. Criminal responsibility is

established if the person voluntarily engaged in the act, omission, or possession with the

mental state required for the specific offense. TEXAS PENAL CODE § 6.02(a). While a

voluntary act is usually some sort of bodily movement, possession is shown by care,

custody, control, or management. Id. at §1.07(a)(39). Thus, knowingly receiving an

object is a voluntary act under Section 6.01(b); knowing the forbidden nature of the
Ramirez-Memije–Page 9

object that is knowingly possessed is the culpable mental state under Section 6.03.

Appellant’s argument is that the possession was not a voluntary act because he did

not know that the skimmer contained identifying information. We disagree. If there was

evidence that the skimmer had been slipped into Appellant’s bag without his knowledge,

then there may be a question of voluntary possession and Appellant may have been

entitled to an instruction regarding the requirement of a voluntary act. But here it is

undisputed that Appellant knowingly had the skimming device, which contained the

identifying information, in his possession. Appellant knowingly received the skimming

device and knew that he was transferring the device. This satisfies the requirement of a

voluntary act under Section 6.01.

Appellant said that he did not know that his conduct was illegal or that the device

was contraband because he did not know what the device was or what was on the device.

He said he did not receive anything in return for transferring the device between Cercen

and Dante Salazar. The jury heard this testimony and the testimony of agents who said

that Appellant told them that he was given cash and electronics for transferring the

device. This evidence goes to the mens rea of intent to harm or defraud, upon which the

jury was properly instructed.

For example, if a defendant were arrested while transporting a package for a friend

and police determined that the package contained marijuana, the defendant could claim at

trial that he did not know what the package contained, that he did not know the package
Ramirez-Memije–Page 10

contained marijuana, or that he thought the package contained oregano, and that he did

not knowingly or intentionally possess marijuana. The jury would then have to decide

whether to believe his claim that he did not have the requisite mens rea for the possession

of marijuana offense. See HEALTH AND SAFETY CODE §481.121(a). The defendant could

not, however, claim that his possession of the package filled with marijuana was an

involuntary act because he knowingly accepted the package from his friend.

CONCLUSION

Appellant was not entitled to an instruction on voluntary conduct and the trial court

did not err in denying Appellant’s motion to include a 6.01 instruction. The judgment of

the court of appeals is reversed, and the case is remanded for consideration of Appellant’s

remaining issues.

Delivered: September 17, 2014

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