Opinion filed October 5, 2023

In The

Eleventh Court of Appeals __________

No. 11-21-00253-CR 

__________

DEMETRIUS SHAUN LEE, Appellant

V.

THE STATE OF TEXAS, Appellee 

On Appeal from the County Court at Law No. 2

Midland County, Texas

Trial Court Cause No. CR165593 

O P I N I O N

A jury found Demetrius Shaun Lee guilty of abuse of official capacity, a Class 

A misdemeanor. See TEX. PENAL CODE 39.02(a)(2), (c)(3) (West 2016). The trial 

court sentenced Appellant to confinement for a term of one year in the Midland 

County jail and assessed a fine of $4,000. However, the trial court suspended the 

confinement portion of the sentence and placed Appellant on community supervision 

for a term of eighteen months. In his sole issue on appeal, Appellant contends that 
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there was insufficient evidence to support his conviction. We reverse and render a 

judgment of acquittal.

Background Facts

Appellant was a police officer serving with the Midland Police Department. 

The Midland Police Department has multiple software programs installed on

department computers that allow police officers to conduct searches for a person’s

driving records and involvements with the Midland Police Department. Police

officers can conduct a search for a person’s information by using the person’s name, 

driver’s license number, and/or license plate number. These searches allow police 

officers to view information such as a person’s address, height, weight, vehicle 

ownership and insurance information, history of driving-related convictions, and 

whether a person has been involved in a locally reported crime as a victim, suspect, 

or witness. 

The software programs are only accessible via department computers and 

cannot be accessed on personal devices. A police officer must use his specific login 

credentials to access the software programs. In turn, each entry a police officer 

makes is recorded in the officer’s “unit” history. Police officers are required to 

receive training on the use of the software programs and are instructed that using the 

software programs for personal reasons is prohibited. 

Around May 22, 2018, Sergeant Brian Taylor began an internal affairs 

investigation of Appellant’s unit history. Sergeant Taylor reviewed Appellant’s unit 

history to determine whether Appellant had accessed anyone’s information for 

personal reasons. Sergeant Taylor’s investigation revealed that, between January 1, 

2017, and April 26, 2018, Appellant ran a total of twenty-five searches for 

information on six individuals, doing so with no legitimate law enforcement 

purpose. Sergeant Taylor determined that Appellant personally knew these six 

individuals through either dating relationships or the police department. 
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Sergeant Patrick Bostick, the Chief Investigator at the District Attorney’s 

Office, conducted a recorded interview with Appellant that was admitted into 

evidence and played for the jury. During the interview, Appellant said that three of 

the six individuals had asked him to access their information and that he thought 

running a search for an individual’s information upon their request was permitted. 

Four of the six individuals whose information was accessed by Appellant 

testified at trial. Only Courtney Cler, Appellant’s wife, confirmed that she asked 

Appellant to access her driving record. Cler testified that she gave Appellant her 

driver’s license number and asked him to see whether a ticket she had received in 

Florida was visible on her driving record. The other three testifying individuals 

stated that they had not given Appellant permission to access their information. 

In an effort to prove value, the State offered a purchase order for eight laptops. 

However, the State did not prove whether Appellant’s in-vehicle laptop was one of 

the computers listed in the purchase order. Jennifer Frescaz, the City of Midland’s 

Chief Information Officer, confirmed that Appellant’s in-vehicle laptop was not 

damaged in any way upon its return and that none of the searches at issue caused the 

laptop to depreciate in value. Officer Jacob Churchwell and Sergeant Taylor 

testified that they were unaware of any charges associated with an officer’s use of 

the software programs. 

After the State rested its case-in-chief, Appellant filed a motion for directed 

verdict. Appellant argued, among other points, that the State did not introduce 

evidence establishing that (1) Appellant acted with an intent to obtain a benefit, 

harm, or defraud another; or (2) the value of the use of the computer(s) accessed by 

Appellant was between $750 and $2,500. The trial court overruled Appellant’s 

motion for directed verdict. Appellant did not present any witnesses during the 

guilt/innocence phase of trial. 
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Analysis

In his sole issue on appeal, Appellant challenges the sufficiency of the

evidence with respect to multiple elements of the offense for which he was 

convicted. We review a challenge to the sufficiency of the evidence under the 

standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. 

State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 

288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we 

review all of the evidence in the light most favorable to the verdict and determine 

whether any rational trier of fact could have found the essential elements of the 

offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Issasi v. State, 330 

S.W.3d 633, 638 (Tex. Crim. App. 2010). 

When conducting a sufficiency review, we consider all the evidence admitted 

at trial, including pieces of evidence that may have been improperly admitted. 

Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 

S.W.3d 772, 778 (Tex. Crim. App. 2007). We defer to the factfinder’s role as the 

sole judge of the witnesses’ credibility and the weight witness testimony is to be 

afforded. Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s 

duty to resolve conflicts in the testimony, to weigh the evidence, and to draw 

reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; 

Clayton, 235 S.W.3d at 778. When the record supports conflicting inferences, we 

presume that the factfinder resolved the conflicts in favor of the verdict and defer to 

that determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.

It is not necessary that the evidence directly prove the defendant’s guilt; 

circumstantial evidence is as probative as direct evidence in establishing a 

defendant’s guilt, and circumstantial evidence can alone be sufficient to establish 

guilt. Carrizales v. State, 414 S.W.3d 737, 742 (Tex. Crim. App. 2013) (citing 

Hooper v. State ̧ 214 S.W.3d 9, 13 (Tex. Crim. App. 2007)). Each fact need not 
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point directly and independently to guilt if the cumulative force of all incriminating 

circumstances is sufficient to support the conviction. Hooper, 214 S.W.3d at 13. 

Because evidence must be considered cumulatively, appellate courts are not 

permitted to use a “divide and conquer” strategy for evaluating the sufficiency of the 

evidence. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). Instead, 

appellate courts must consider the cumulative force of all the evidence. Villa v. 

State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). 

In its second and final superseding information, the State charged Appellant 

with a violation of Section 39.02(a)(2) of the Texas Penal Code.1

 PENAL

§ 39.02(a)(2). A person commits an offense under this section if:

with intent to obtain a benefit or with intent to harm or defraud another, 

he intentionally or knowingly . . . misuses government property, 

services, personnel, or any other thing of value belonging to the 

government that has come into the public servant’s custody or 

possession by virtue of the public servant’s office or employment. 

Id. The punishment for an offense under subsection (a)(2) ranges from a Class C 

misdemeanor to a first-degree felony, depending upon “the value of the use of the 

thing misused.” Id. § 39.02(c). Here, the State’s information alleged that Appellant 

misused a government-owned computer or computers, and the value of the use of 

the computer or computers was “$750 or more but less than $2,500,” a Class A 

misdemeanor. See id. § 39.02(c)(3). 

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In its information, the State charged Appellant in two paragraphs, one that alleged that Appellant 

committed the offense of abuse of official capacity as described in Section 39.02(a)(1) (violation of law 

relating to the public servant’s office or employment) and one that alleged Appellant committed the offense

as described in Section 39.02(a)(2) (misuse of government property, services, personnel, or thing of value 

belonging to the government). See PENAL § 39.02(a). However, the State acknowledged that it did not 

offer any evidence in support of the paragraph alleging a violation of Section 39.02(a)(1) and withdrew that 

paragraph of its information; therefore, the trial court did not include it in its charge. 
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Value

We note at the outset a concession made at oral argument in this case by the 

State with respect to the evidence on value. At trial, the State took the position that, 

because the computer searches were run on computers only available to a police 

officer, the value of the use of those computers was synonymous with the value of 

the computers. At oral argument, the State conceded that the value of the computers 

did not comport with the value of their use. Accordingly, the State suggested at oral 

argument that Appellant’s conviction should be reformed to a Class C misdemeanor. 

See id. at 39.02(c)(1). 

Intent to Obtain a Benefit

Appellant asserts there was insufficient evidence that he intended to obtain a 

benefit when conducting the searches at issue. The Texas Penal Code defines the 

term “benefit” as “anything reasonably regarded as economic gain or advantage, 

including benefit to any other person in whose welfare the beneficiary is interested.” 

PENAL § 1.07(a)(7) (West 2021).

Sergeant Bostick testified that he did not receive any information indicating 

that Appellant had accessed any information to gain an economic benefit for himself. 

Notwithstanding this testimony, the State’s contention in its closing argument was 

that Cler received a benefit when Appellant ran a search for her driver’s license

information. The State argued that outstanding tickets are “very expensive” and that 

Cler would have been “worried about how much it’s going to cost” to pay her 

outstanding ticket. Thus, the State contended, the benefit conferred on Cler when 

Appellant accessed her information was that Cler “[got] to know whether or not she 

ha[d] to spend money on these things.” The State elaborates on this point on appeal, 

arguing that “[f]inding out about the ticket would have conferred Ms. Cler an 

economic benefit because it would have saved her time from having to use other 
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means to find out about the status of the ticket. This is time that she could have used 

to work to make money.” 

The State’s “time is money” argument is unpersuasive. The only evidence 

regarding Cler’s employment was Cler’s testimony that she did not know whether 

she was at work when she asked Appellant to run the search. The State did not 

establish where Cler was employed, how many hours she worked per week, or 

whether she was a salaried employee or paid hourly. No evidence was presented 

regarding Cler’s intentions when she asked Appellant to conduct the search, how she 

could have alternatively accessed her information, or whether she expected to save 

time in having Appellant access her information for her. 

Further, cases prosecuted under Section 39.02(a) tend to have clear, readily 

ascertainable economic gains at issue. See, e.g., Becker-Ross v. State, 595 S.W.3d 

261, 268–69 (Tex. App.—Texarkana 2020, no pet.) (holding that a rational jury 

could have found beyond a reasonable doubt that the highest-paid city official was 

pressuring the city marshal to enforce an illegal traffic ticket quota in order to protect 

her salary, which was paid for using city revenue); Megason v. State, 19 S.W.3d 883, 

886 (Tex. App.—Texarkana 2000, pet. ref’d) (county clerk wrote her children’s

moving company two checks for a total of $4,300 for work that they did not do and 

subsequently deposited funds from the checks into her personal bank account); 

Talamantez v. State, 829 S.W.2d 174, 177 (Tex. Crim. App. 1992) (county 

commissioner used county equipment to improve realty belonging to his children “at 

county expense”); State ex rel. Hightower v. Smith, 671 S.W.2d 32 (Tex. 1984)

(sheriff used county vehicles and fuel to monitor an apartment complex and received 

a rent-free apartment within the complex in return). 

As a result of Appellant’s conduct, Cler gained knowledge that an outstanding 

ticket in Florida was not visible on her Texas driving record. This might have 

provided Cler some sort of benefit within the plain meaning of the word, but the 
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State did not establish a nexus between the knowledge Cler gained and any

corresponding economic gain or advantage to Appellant as required by the Penal 

Code. See PENAL §§ 1.07(a)(7), 39.02(a). As such, no rational jury could have 

found beyond a reasonable doubt that Appellant intended to obtain a benefit or 

confer a benefit upon Cler within the meaning of the statute. See id.; Jackson, 443 

U.S. at 319; Issasi, 330 S.W.3d a 638. 

Intent to Harm

Appellant also asserts that there is no evidence that he intended to harm any 

of the six individuals when conducting searches for their information. The Texas 

Penal Code defines “harm” as “anything reasonably regarded as a loss, disadvantage, 

or injury, including harm to another person in whose welfare the person affected is 

interested.” PENAL § 1.07(a)(25). 

Sergeant Taylor testified that he spoke with the six individuals and that there 

was no indication that Appellant accessed their information to “harm or blackmail”

them. Sergeant Bostick testified that he did not receive information indicating that 

Appellant was intending to “hurt” the individuals by accessing their information. 

None of the four individuals who testified at trial stated that Appellant intended to 

cause them a loss, disadvantage, or injury when he accessed their information. 

Rather, they testified about how they knew Appellant, whether they had asked 

Appellant to access their information, and whether Appellant informed them that he 

had accessed their information. 

None of the four individuals that testified said that they actually experienced

a loss, disadvantage, or injury. See PENAL § 1.07(a)(25). Another individual who 

did not testify at trial previously told an investigator that Appellant told her that he 

had accessed her information because she was going to be watching his child, but 

her statement did not indicate that she experienced a loss, disadvantage, or injury 
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because of the search. Rather, the individual stated that she thought Appellant was 

joking with her. 

During Sergeant Bostick’s interview with Appellant, Appellant provided 

explanations as to why he ran some of the searches at issue. Specifically, Appellant 

told Sergeant Bostick that he searched for Sergeant Georvarsey Mitchell’s 

information to find his address. Appellant stated that he wanted to stop by Sergeant 

Mitchell’s home to speak with him about “something going on at the P.D.” 

Appellant asserted that he searched for Sabrina Sanchez, Stephanie Reyes, and 

Cler’s information because they had asked him to access their driving records. 

Appellant did not provide an explanation as to why he searched for information for

Loralea Ray and Bernice Rodriguez. In summary, the evidence at trial did not 

demonstrate that Appellant had a malicious intent behind any of the searches. 

Rather, the evidence that the State presented only demonstrated that Appellant’s 

intentions were unclear.

The State contends on appeal that “the mere act” of accessing these 

individuals’ private information demonstrates an intent to harm because the 

information “is intended to be confidential unless voluntarily disclosed.” However, 

the State fails to define whether a privacy violation is a loss, disadvantage, or injury. 

See id. At trial, the State asserted in its closing argument that the individuals who 

did not give Appellant permission to access their information were harmed because

“now [Appellant] gets to know things about them that puts them at a disadvantage.” 

Yet the State did not explain how Appellant’s knowledge of this information would 

put any of those individuals at a disadvantage. Further, the issue before us is not 

whether Appellant had permission to access this information, but whether there was

sufficient evidence that Appellant intended to harm at least one person in doing so. 

Whether the jury chose to believe that Appellant had permission to access this
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information or not, there was no evidence connecting Appellant’s conduct to an 

intent to harm any of these individuals. 

As such, no rational juror could have found beyond a reasonable doubt that 

Appellant intended to harm any of the six individuals when he conducted searches

for their information. See Brooks, 323 S.W.3d at 899; Jackson, 443 U.S. at 319; 

Clayton, 235 S.W.3d at 778. 

Intent to Defraud

Appellant also contends there was no evidence that he intended to defraud 

anyone. During closing arguments, the State told the jury to “focus on the first two 

[elements]” because it did not present any evidence of Appellant’s intent to defraud. 

The State again concedes on appeal that no evidence regarding an intent to defraud 

was presented at trial. We also find no evidence in the record that Appellant intended 

to defraud anyone. 

In summary, there was no evidence to support Appellant’s conviction under 

Section 39.02(a)(2) of the Texas Penal Code. Accordingly, we sustain Appellant’s 

sole issue on appeal.

This Court’s Ruling

We reverse the judgment of the trial court and render a judgment of acquittal.

JOHN M. BAILEY

CHIEF JUSTICE

October 5, 2023

Publish. See TEX. R. APP. P. 47.2(b). 

Panel consists of: Bailey, C.J., 

Trotter, J., and Williams, J.