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1. Whether the right to a jury trial mandated by U.S. Const. Sixth and Fourteenth Amendments, and U.S. Const. art. III § 2, and the concepts set out by this Court in Apprendi and Blakely, is violated by the procedure utilized by the Court of Appeals, that is, a judicial finding of an element not alleged in the indictment or submitted to the jury, which is an unacceptable departure from the jury tradition, an indispensable part of our criminal justice system, by making appellate courts fact finders as to an element not considered by the jury?”
2. “Whether the right to a jury trial and Due Process required by the Fifth, Sixth, and Fourteenth Amendments, and Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), was violated when the Court of Appeals reformed the Petitioner’s conviction to the conviction of a higher offense, when such higher offense was not determined by the jury, the factfinder resulting in a reformed verdict which was not rendered by the jury or the trial court?”
Police handcuffed Alfaro-Jimenez following an alleged domestic disturbance. When asked for identification, he said it was in his wallet. Police retrieved it and found, amongst valid forms of ID, a questionable social security card that turned out to be fake. Alfaro-Jimenez was charged with one count of tampering with a government record under two theories (two paragraphs): making, presenting, or using a governmental record with knowledge of its falsity, and possessing a governmental record with the intent that it be used unlawfully. See Tex. Penal Code § 37.10(a)(5), (a)(4). The offense level for that count is a Class A misdemeanor, but the State also alleged in a separate count that Alfaro-Jimenez committed the offense with the intent to harm or defraud another. This increased the offense level to a second-degree felony if the governmental record is a “license [or] certificate . . . or similar document issued . . . by the United States.” Tex. Penal Code § 37.10(c)(2)(A). Both counts alleged that the government record was a social security card. The jury found him guilty of the lesser count—rejecting the intent to harm or defraud—and he received a Class A sentence.
The court of appeals initially affirmed Alfaro-Jimenez’s conviction and sentence. On the State’s motion for rehearing, however, it concluded that his sentence was illegally low because a social security card is still a certificate or similar document issued by the United States, which elevates the offense level to a third-degree felony even without the intent to harm or defraud. Tex. Penal Code § 37.10(c)(2). It reformed the judgment and remanded for resentencing.
Alfaro-Jimenez raises two related grounds for review. Although he rehashes aspects of other points raised in the court of appeals, such as challenging the overall sufficiency of the evidence and vagueness of the statute, the questions presented focus on the court of appeals’s decision to utilize the offense-level enhancement under (c)(2). He argues that it is both an element of a greater offense and a punishment issue that must be found by a jury beyond a reasonable doubt. Because it was neither alleged in the indictment nor found by the jury, the court of appeals improperly “reformed” his conviction to a greater offense.