After Vincent John Zahorik was convicted of “making a false report to a police officer or law enforcement agency,” he appealed. Zahorik v State, 2015 WL 5042105 (Fourteenth Court of Appeals of Texas 2015). As the opinion notes, he “challeng[ed] the legal sufficiency of the evidence to support his conviction.” Zahorik v. State, supra.
As courts usually do, the Court of Appeals began its opinion by explaining that Zahorik
testified at trial. According to [his] testimony, on December 16, 2011, he received a notice from Equifax informing him that his credit report was checked for employment purposes by a department of the State of Tennessee. [Zahorik] had not applied for employment in Tennessee, and he became concerned because he had filed complaints against some officers in that state in connection with a prior arrest that led to a criminal prosecution of [Zahorik] in Tennessee for a traffic offense. [Zahorik] contacted Equifax and was told he needed to file a report with the Federal Trade Commission (FTC). The FTC told [him] that in order to conduct an investigation, he needed to provide a police report establishing that someone had unlawfully accessed his credit report without his permission. [Zahorik] subsequently contacted the Tennessee Highway Patrol and the Galveston Police Department. [His] report to the Galveston Police Department led to his conviction for making a false report, but his contacts with the Tennessee Highway Patrol are important in analyzing the sufficiency of the evidence to support that conviction.
[Zahorik] sent a letter to Captain Victor Donoho of the Tennessee Highway Patrol on December 27, 2011. The letter informed Donoho of the Equifax notice and that [Zahorik] had filed a complaint with the FTC regarding the improper credit check. [Zahorik]'s letter further states: `The FTC has also instructed me to file this complaint with your office as well as the Attorney General's office for Identity Theft/Fraud as well as violating my right to privacy.’
[Zahorik] spoke with Donoho on December 29 and followed up with another letter that same day. In the December 29 letter, [Zahorik] writes that he feels `somewhat better knowing that my credit report was accessed by your investigator, per the [prosecuting attorney's] request, as opposed to thinking a rogue agent was accessing this information for other more severe retaliatory efforts.’ The letter indicates that [Zahorik] expected more information to be forthcoming:
`After your investigator returns from vacation, and you are in a better position to understand all the circumstances surrounding this special request, please provide me with this information. It just seems to me, all this confusion could have been alleviated, had the usual protocol been followed in obtaining such information through the courts as opposed to requesting this information under the guise of “employment purposes” as stated in the correspondence from Equifax. The timing of this breach of privacy as well as the illegal and/or unorthodox means of procurement is what I find the most disturbing. Please feel free to give me a call anytime to discuss this matter. . . .’
Zahorik v. State, supra.
The opinion then explains that Zahorik
later contacted the Galveston Police Department. He spoke with an operator and told her he needed to report a possible identity theft or fraud. On January 5, 2012, Officer Brandon Kiamar came to [Zahorik]'s residence. According to [Zahorik], he provided Kiamar with the Equifax notice and the December 27 and December 29 letters addressed to Donoho. [Zahorik] testified that he told Kiamar he was concerned about retaliation, and he needed a police report so that the FTC and Equifax would conduct their investigations. [Zahorik] stated that he informed Kiamar that it was possible someone with the Tennessee Department of Safety or the Tennessee Highway Patrol was involved in checking his credit report. [Zahorik] said he also told Kiamar that he knew which agency obtained his credit report but did not know the identity of the individual who obtained it.
After meeting with Kiamar, [Zahorik] wrote another letter to Captain Donoho. In the letter, dated January 5, 2012, [Zahorik] informed Donoho that he filed an `Identity Theft/Fraud complaint’ with his local police department due to the recommendation of the FTC. The letter concludes:
Until I hear differently from you, and you have completed your investigation into the matter, I will continue with the fear and belief this breach of privacy was done for some type of retaliatory or malicious efforts. Please let me know if the appropriate Request for Record was completed prior to initiating this invasive action. After you have had time to meet with your investigator, and have a better understanding of what was involved, please give me a call. . . .
[At his trial, Zahorik] testified that he sent the letter the same day of Kiamar's visit.
Zahorik v. State, supra.
The Court of Appeals went on to summarize the other testimony presented at trial:
Captain Donoho and Officer Kiamar both testified. . . .Captain Donoho testified that he first learned [Zahorik]'s credit report was improperly obtained when he received the December 27 letter via fax. Donoho stated that as a result of [Zahorik]'s letter, he contacted the lead investigator in [Zahorik]'s criminal case and was informed [Zahorik]'s credit was checked at the request of the prosecuting attorney. The lead investigator did not know why the credit check was run for employment purposes rather than criminal purposes.
Donoho stated that he relayed this information to [Zahorik] during the telephone call on December 29. Donoho advised [Zahorik] that the Department of Safety checked his credit, not a `rogue trooper’ or `anyone other than a criminal investigator pursuant to his pending criminal charges.’ Donoho claimed that he `thoroughly explained on the 29th to the defendant that a member of the Department of Safety’ checked his credit history `as part of the criminal investigation.’ Donoho admitted he did not know the identity of the individual that improperly obtained the credit report during his initial conversation with [Zahorik], and that when [Zahorik] filed the identity theft report, [Zahorik] likewise did not know the identity of the person responsible. Donoho also admitted that [Zahorik] kept requesting information after they spoke, and that he told [Zahorik] months later that disciplinary action had been taken against those who obtained the credit report.
Zahorik v. State, supra. The court goes on to outline the testimony given by Officer Kiamar, who testified that he visited Zahorik’s residence on January 5, 2012, and
Kiamar said [Zahorik] sought to report the crime of identity theft and provided him with three letters: (1) the notice from Equifax; (2) a letter [Zahorik] sent to Equifax stating that he never applied for employment in Tennessee and requesting more information; and (3) the December 27 letter in which [Zahorik] informed Captain Donoho that his credit had been checked for employment purposes by someone from the Tennessee Highway Patrol. Kiamar denied receiving the December 29 letter, in which [Zahorik] acknowledges speaking with Donoho and being told that his credit report was accessed by an investigator at the request of the prosecuting attorney.
During the State's direct examination, Kiamar stated that [Zahorik] did not inform him that the Tennessee Department of Safety or the Tennessee Attorney General checked his credit. Kiamar asserted that this information would have been important to his investigation, as he would not have filed a report. According to Kiamar, this would not have been a case of identity theft.
Zahorik v. State, supra. The court’s opinion then explains that on cross-examination,
however, Kiamar testified that [Zahorik] did make him aware of his suspicion that someone with the Tennessee Highway Patrol or Tennessee Department of Safety had been involved in improperly obtaining his credit report. Kiamar also admitted that the December 27 letter contained information demonstrating that [Zahorik] knew that someone from the Tennessee Highway Patrol accessed his credit report.
Kiamar testified that Galveston Police Department policy instructs officers to direct identity theft victims to contact the FTC, and that [Zahorik] indicated he had already spoken with the FTC. Kiamar conceded that officers do not expect people who call them for assistance to have studied the law, and that ordinarily if an individual believes the law has been violated and files a report, officers do not file a false police report claim against them if it turns out that belief is mistaken. In addition, Kiamar testified that police officers do not typically hold it against a person because they used the wrong term to describe a crime.
Zahorik v. State, supra.
The Court of Appeals went on to point out that during the testimony of
[both] Captain Donoho and Officer Kiamar, [Zahorik]'s trial counsel attempted to introduce the Fair Credit Reporting Act into evidence to show that the Tennessee investigator violated the Act by obtaining [Zahorik]'s credit report under false pretenses. The State objected on relevance grounds in both instances, and the trial court sustained both objections. [Zahorik]'s counsel also requested that the trial court include a portion of the Act in the jury charge, but the court denied the request. The trial court did take judicial notice of the Act during the charge conference.
Zahorik v. State, supra.
Finally, in “early February 2012”, Zahorik spoke to
Sergeant Jeremy Kylen of the Galveston Police Department. According to [Zahorik], Kylen told him a warrant would be issued for his arrest for making a false police report. Sergeant Kylen testified that he was assigned to [Zahorik’s] identity theft case. He contacted Donoho and learned [Zahorik’s] credit history was checked as a result of a criminal investigation. Donoho sent Kylen an email containing a scanned copy of the December 29 letter from [Zahorik].
After receipt of the email, Kylen terminated his investigation into [Zahorik's] report, concluding there was no identity theft. Instead he sought charges against [Zahorik] for making a false report to a police officer. [He] was charged, tried, and convicted. This appeal followed.
Zahorik v. State, supra.
On appeal, Zahorik argued the evidence presented at trial was not “legally sufficient” to “sustain his conviction.” Zahorik v. State, supra. The Court of Appeals began its analysis of his argument by explaining that it reviews
evidentiary sufficiency challenges under the standard set forth in Jackson v. Virginia, 443 U.S.307 (1979). See Brooks v. State, 323 S.W.3d 893 (Texas Court of Criminal Appeals 2010). The reviewing court must consider the evidence in the light most favorable to the verdict and determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, supra; Anderson v. State, 416 S.W.3d 884 (Texas Court of Criminal Appeals 2013).
The jury is the sole judge of the credibility of witnesses and the weight to afford their testimony. Montgomery v. State, 369 S.W.3d 188 (Texas Court of Criminal Appeals 2012). The jury may reasonably infer facts from the evidence presented, credit the witnesses it chooses, disbelieve any or all of the evidence or testimony proffered, and weigh the evidence as it sees fit. See Canfield v. State, 429 S.W.3d 54 (Texas Court of Appeals – First District 2014). When the record supports conflicting inferences, the reviewing court presumes the trier of fact resolved the conflicts in favor of the State and defers to that determination. Clayton v. State, 235 S.W.3d 772 (Texas Court of Criminal Appeals 2007).
Sufficiency of the evidence should be measured not by the instructions given to the jury, but by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234 (Texas Court of Criminal Appeals 1997). Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.
Zahorik v. State, supra.
The Court of Appeals then outlined the applicable law, noting that under
section 37.08 of the Texas Penal Code, a person commits the offense of False Report to a Peace Officer, Federal Special Investigator, or Law Enforcement Employee if, with intent to deceive, he knowingly makes a false statement that is material to a criminal investigation and makes the statement to any employee of a law enforcement agency that is authorized by the agency to conduct the investigation and that the actor knows is conducting the investigation. Texas Penal Code § 37.08(a)(2).
In Wood v. State, 577 S.W.2d 477 (1978), the Court of Criminal Appeals held that when a person is reporting police or other official misconduct, the State must additionally prove that the defendant's representations were made in bad faith and for reasons other than to obtain action on a valid grievance. . . . The court concluded that these additional proof requirements were necessary to safeguard the defendant's constitutional right to petition the government for redress of grievances. Wood v. State, supra (citing Texas Constitution article I, § 27). [Zahorik] argues—and the State concedes—that the Wood elements should be part of the hypothetically correct jury charge used to measure the sufficiency of the evidence in this case because [Zahorik’s] report concerned possible misconduct by law enforcement officers in Tennessee. We agree. . . .
Zahorik v. State, supra.
The Court of Appeals then analyzed whether, under the principles outlined above, the evidence presented at Zahorik’s trial was sufficient to justify the guilty verdict. Zahorik v. State, supra. It began by explaining that at the trial, the prosecution (the “State”) had
the burden to produce evidence from which a rational juror could conclude beyond a reasonable doubt that [Zahorik]'s representations were made in bad faith and for reasons other than to obtain action on a valid grievance. It failed to do so. [Zahorik] offered evidence that his representations to Officer Kiamar were made in good faith to obtain action on the grievance that his credit was run improperly. According to [Zahorik], the FTC told him that for it to conduct an investigation, [Zahorik] needed to provide a police report establishing that someone had unlawfully accessed his credit report without his permission. [Zahorik] spoke with Officer Kiamar on January 5 to obtain that report.
Even crediting Officer Kiamar's testimony that [Zahorik] did not provide a copy of the December 29 letter, Kiamar acknowledged that [Zahorik] gave him (1) Equifax's notice to [Zahorik]; (2) [Zahorik]'s letter to Equifax stating that he never applied for employment in Tennessee and requesting more information; and (3) [Zahorik]'s December 27 letter to Captain Donoho in Tennessee. The December 27 letter states:
`I recently received the following notice from Equifax. As you can see, it appears someone from the T[ennessee] Highway Patrol has accessed my credit report, Dec. 16, 2011, stating that I was applying for employment with your agency. I've called Equifax and they will be providing me, via mail, with a detailed report showing who specifically requested this information.’
All parties agree that [Zahorik] never applied for employment in Tennessee. In the December 27 letter, [Zahorik] goes on to say that `I've filed a complaint with the FTC who is looking into the matter. . . .The FTC has also instructed me to file this complaint with your office as well as the Attorney General's office for Identity Theft/Fraud as well as violating my right to privacy.’
Zahorik v. State, supra.
The court went on to explain that on March 12, 2012, Captain Donoho sent Zahorik
a letter stating the result of the investigation concerning his credit report. The letter states that [Zahorik]'s complaint was `sustained’ and that appropriate disciplinary action was taken against the officers involved. Donoho confirmed at trial that [Zahorik]'s `credit history was not r[u]n properly’ and the officer who requested it had `circumvented the rules.’
The trial record thus shows uncontroverted evidence that [Zahorik]'s credit report was improperly obtained by employees of the Tennessee Department of Safety who were later disciplined for their actions. No witness testified otherwise. The State failed to produce any evidence that [Zahorik]'s report was nevertheless invalid. We therefore conclude the State failed to meet its burden to prove that [Zahorik]'s representations were made in bad faith and for reasons other than to obtain action on a valid grievance.
This failure is not surprising given that, under federal law, the State of Tennessee did not have the authority to obtain [Zahorik]'s credit report. Nothing in the Fair Credit Reporting Act, of which the trial court took judicial notice, permitted the Tennessee prosecutors to access [Zahorik]'s credit report. In particular, 15 U.S. Code §1681b(a) contains an exclusive list of the circumstances under which a consumer reporting agency may furnish a report. The only portion of the section potentially applicable on these facts provides that a consumer reporting agency may furnish a report in `response to the order of a court having jurisdiction to issue such an order, or a subpoena issued in connection with proceedings before a Federal grand jury.” 15 U.S. Code § 1681b(a)(1). . . . No court order or subpoena authorizing Tennessee law enforcement officials to obtain [Zahorik]'s report was presented at trial, and none appears in our record.
Zahorik v. State, supra.
The court then explained that the State, i.e., the prosecution, argued that when
[Zahorik] made his report to Officer Kiamar on January 5, he knew his credit had been checked by someone in the Tennessee Department of Safety due to a request from the attorney prosecuting his criminal case. The State asserts the December 29 letter establishes that [Zahorik] knew who ran his credit a few days before he reported identity theft or fraud. The State further directs us to Kiamar's testimony (which [Zahorik] disputed) that [Zahorik] did not provide him with the December 29 letter when they met on January 5 and that had this letter been provided, Kiamar would not have filed a report of identity theft.
Yet nothing in the December 29 letter shows [Zahorik]'s grievance was invalid. The letter merely provides more context for [his] complaint. It contains additional evidence about who requested the credit report and why, but it does not show that [Zahorik]'s credit information was obtained properly. Although the letter shows [Zahorik] knew his credit report was obtained by someone in a government department in Tennessee, he also knew his credit report had been obtained for employment purposes and that he had not applied for employment in Tennessee. And as indicated above, Captain Donoho's investigation concluded—with the benefit of the information in the December 29 letter—that [Zahorik]'s grievance should be sustained. Any failure by [Zahorik] to provide the December 29 letter to Officer Kiamar therefore does not demonstrate that [Zahorik] acted in bad faith or that his grievance was invalid.
Zahorik v. State, supra. And, finally, the Court of Appeals pointed out that it was
undisputed that [Zahorik] did not know the identity of the person who had improperly checked his credit report at the time he filed his report with Kiamar. [Zahorik] testified—and the December 29 letter reiterated—that he sought to file a report with the police because he was instructed to do so by the FTC. The State needed to prove beyond a reasonable doubt that [Zahorik] nevertheless filed a report in bad faith and for reasons other than to obtain action on a valid grievance, but it did not present any evidence on this point. That [Zahorik] knew the department for which the person who checked his credit worked is not evidence that [Zahorik] filed a report in bad faith and for reasons other than to obtain action on a valid grievance in light of the unchallenged evidence that his credit report was improperly obtained.
We also note that Kiamar testified that law enforcement officers normally do not prosecute individuals for filing a false report if they are mistaken about whether a crime has been committed or if they use incorrect terminology to describe a crime. If [Zahorik] used an improper term to describe the wrongdoing of the Tennessee personnel who improperly obtained his credit report, that is not evidence that [he] made his representations in bad faith or for reasons other than to obtain action on a valid grievance. To protect the right to petition for redress of grievances, courts should not apply a standard that would subject individuals to prosecution if they fail to correctly identify an offense, if any, during their initial conversation with law enforcement officers.
The State also argues that the jury could have concluded [Zahorik] made his police report not to obtain action on a valid grievance, but solely to further previous complaints he had filed against the Tennessee troopers who arrested him following the traffic stop nine months earlier. . . . It is undisputed, however, that [Zahorik]'s credit was checked improperly and that Captain Donoho's investigation sustained [Zahorik]'s complaint regarding the check. Furthermore, there is no evidence that the troopers who arrested [Zahorik] were involved in improperly checking his credit, and thus no evidence that [Zahorik]'s report of the check would further unrelated complaints against those troopers or otherwise provide [Zahorik] with leverage in his Tennessee criminal case. We therefore conclude that the State failed to offer evidence that [Zahorik]'s grievance was not a reason for his report to Officer Kiamar.
Zahorik v. State, supra.
The court therefore held that
because the State failed to introduce any evidence—let alone sufficient evidence from which a rational juror could conclude beyond a reasonable doubt—that [Zahorik] made his report in bad faith and for reasons other than to obtain action on a valid grievance, we conclude the evidence is legally insufficient to support his conviction.
Zahorik v. State, supra. Given this holding, the court “reverse[d] the judgment of the trial court and render[ed] a judgment of acquittal.” Zahorik v. State, supra.