Opinion
09-24-00098-CR
10-02-2024
ELBERT COX, Appellant v. THE STATE OF TEXAS, Appellee
Do Not Publish
Submitted on September 17, 2024
On Appeal from the Criminal District Court Jefferson County, Texas Trial Cause No. F23-41514
Before Golemon, C.J., Johnson and Chambers, JJ.
MEMORANDUM OPINION
LEANNE JOHNSON Justice
A grand jury indicted Elbert Cox (Appellant) for failure to comply with sex offender registration, a third-degree felony. See Tex. Code Crim. Proc. Ann. § 62.102. The indictment alleged that Appellant
on or about the 6TH day of SEPTEMBER, TWO THOUSAND AND TWENTY-TWO, and anterior to the presentment of this indictment, in the County of Jefferson and State of Texas, did then and there, while knowing that he was required to register under Chapter 62 of the Texas Code of Criminal Procedure because of a reportable conviction based upon Aggravated Sexual Assault, and after having changed his address, fail to comply with a requirement of Chapter 62, by failing to report in
person to the local law enforcement authority in the municipality in which the defendant's new residence was located, namely the Beaumont Police Department, and the defendant failed to provide the law enforcement authority with proof of identity or proof of residence within the later of the seventh day after changing the address, and the defendant was not civilly committed as a sexually violent predator under Chapter 841 of the Texas Health and Safety Code.
The jury found him guilty as charged in the indictment. The trial court sentenced Appellant to eight years of confinement. Appellant timely filed an appeal. In one appellate issue, he challenges the sufficiency of the evidence supporting the jury's finding of guilt. For the reasons explained below, we affirm.
Evidence at Trial
Sergeant Candice Cox (the sergeant) with the Beaumont Police Department (the Department) testified that she is assigned to the special crimes division which is responsible for all the sex offender registration. She testified that she registered Elbert Cox as a sex offender in November of 2022, and she identified him at trial as the defendant. She testified that every month the Texas Department of Criminal Justice sends "information on people who are needing to register, who have not registered, or who need to become compliant with their registration requirements." She recalled that she ran an audit, saw that Appellant was not in compliance, and attempted to personally contact him. She testified that she called the phone number he had listed but no one answered, and she e-mailed him at the e-mail address he had listed. She testified that she also contacted the Beaumont Center, Appellant's last known address, and the staff there informed her that he had not lived there for over a year. The sergeant testified that she normally gives the person two weeks to contact her and after two weeks of not being contacted by Appellant, on November 15,2022, she filed a report with the district attorney's office for pursuit of the case against Appellant for failure to comply with sex offender registration. The sergeant explained that as the registration authority "[i]t is incumbent upon us to know [a registered sex offender's] movements, where they are and what they're doing. And if we haven't seen one for at least a year, we need to try to figure out where they are."
According to the State, Appellant was released from the Texas Department of Criminal Justice in 2017 to the "Beaumont Center," which was described in testimony as "kind of a pre-release parole house[.]"
According to the sergeant, after the Appellant had failed to respond to the sergeant's e-mail and phone calls and after the case against him was filed, Appellant made an appointment with a secretary to visit the Department in Jefferson County. The sergeant testified that on November 29, 2022, Appellant spoke with her about why he had not reported, and Appellant stated he had been living at a motel since January of 2022. The sergeant explained that a sex offender can stay at a hotel out of town or to other places for visits for up to forty-eight hours without notifying the authority in the jurisdiction, but for any period over forty-eight hours it must be reported by the sex offender. She explained that living in a motel may also be another violation of the terms of release for a registered sex offender. More specifically, because a person can change rooms at a hotel at any time, living in a motel requires a registered sex offender to change their status to a "monthly verification" in which the registered sex offender would have to come in each month and verify with the registration authority. And that is why the Texas Department of Corrections does not consider a motel as a permanent residence. According to the sergeant, she filed the case based on Appellant's failure to notify the Department of his change in address within seven days.
According to the sergeant, State's Exhibit 1 is the Department's annual verification form dated November 24, 2020, and it is signed by Appellant, and it is recognized as the Department's annual "appointment sheet." The exhibit was admitted into evidence. The form signed by Appellant states, in relevant part, the following:
I acknowledge that all my sex offender information reported to and required by the state is up to date, it is my responsibility to notify registration authority of all changes and all the changes required by law were reported on this visit.The form also states in relevant part that Appellant has a duty to register annually on his birthday; that he has thirty days prior to his birthday or thirty days following his birthday to report to the Department as his registration authority; that if he has a change of status he must report that change in person within seven days to the Department; that his failure to comply with any requirement imposed on him by Chapter 62 of the Code of Criminal Procedure is a felony charge; and that his next verification date was November 22, 2021. A photocopy of Appellant's driver's license and his signature appears at the bottom of the form and Appellant was directed to call a number provided one month prior to his birthday to make an appointment. The sergeant testified that Detective Campbell most likely was the person who had Appellant sign the form because Detective Campbell was the sex offender registrar at the time Cox would have last signed the verification form in November of 2020. According to the sergeant, Appellant's signature on State's Exhibit 1 matched his signature on the form that he signed for her at the appointment in November of 2022.
State's Exhibit 2, a Form CR-32 "Pre-Release Notification Form Texas Sex Offender Registration Program" was also admitted into evidence. The sergeant testified that most of the form is filled out prior to a sex offender registrant's appointment with the Department and "every time they come in, they basically get a new one with the next date with the appointment sheet that you just showed; but they have to . . . read the rules, initial by each one of the rules, and then . . . sign the document as well with a fingerprint." According to the sergeant, the form indicates it was signed by Appellant on November 24, 2020. The sergeant testified that the form indicates that Appellant's length of duty to register is for his lifetime, indicates he is required to verify registration annually on his birthday, and provides a Beaumont Police Department contact phone number for him to contact the Department with any questions. One of the Chapter 62 requirements that is stated on the form that Appellant initialed states as follows:
Change of Address: No later than the 7th day before I move to a new residence in this state or another state, I must report in person to the law enforcement authority designated as my primary registration authority and to any community supervision and corrections department officer, juvenile probation officer, or parole officer supervising me and inform that authority and officer of my intended move. If my new residence is located in this state, no later than the 7th day after changing my address, I must report in person and register with the local law enforcement authority in the municipality or county where my new residence is located. If my new residence is located in another state, no later tha the 10th day after the date I arrive in the other state, I must register with the law enforcement agency that is identified by the Texas Department of Public Safety as the agency designated by that state to receive registration information. If I do not move to an intended address by the end of the 7th day after my anticipated move date, I shall report to my primary registration authority and any supervising officer weekly, and provide an explanation regarding changes in my anticipated move date and intended address.The form also instructs the Appellant that his failure to comply with any Chapter 62 requirement is a felony offense.
State's Exhibit 3, a USB flash drive containing a video of the sergeant's interview with Appellant in November of 2022, was admitted into evidence and the video was played for the jury. The sergeant testified that in the video Appellant stated his reason for coming in was to "deregister[.]" The sergeant explained that
[w]hen a sex offender needs to deregister, they have to come into the agency in person and they can change jurisdictions and they can move if they so choose. But more than likely, they have a place as to where
they're going to; and that gives us the ability to contact the next agency of where they will be arriving.
According to the sergeant, Appellant told her that he did not have the address of the place where he would be going to and it concerned her that he wanted to deregister after the case had already been filed against him because "he hadn't been on the radar in over a year" and the Department would be unable to "keep track of where he was" if he could not provide an address. At trial, while the video of the interview was played for the jury, the sergeant testified about what Appellant said on the video and also about what she told him. She told Cox that he had failed to register and that not complying is a felony, and she confirmed that he stated on the video that he understood that he had failed to register, and he had no excuse for not registering. She testified that he gave her a phone number and obviously had a phone. He had several ways in which he could have contacted the Department and that he could have come into the Department to do his annual verification or check in with the Department about his duty to register in 2021, but he did not. According to the sergeant, Appellant showed up at the Department after the case was filed against him and asked to deregister and had no excuse for failing to report in 2021.
Investigator Matt Turner with the Jefferson County District Attorney's office testified at trial as a fingerprint comparison expert. Turner testified that he obtained Appellant's fingerprints on a "ten-print card[]" the morning of trial, and the card was admitted into evidence as State's Exhibit 4. State's Exhibit 5, a judgment against "Elbert Cox" in Cause No. 97-F-163-5 in the 5th Judicial District Court of Bowie County for aggravated sexual assault on December 11,1996, was also admitted into evidence. According to Investigator Turner, the judgment indicated that there was a plea bargain, Appellant pleaded "true" to the enhancement, and Appellant was sentenced on July 14,1997, to twenty-five years of confinement. Investigator Turner testified that the fingerprint on State's Exhibit 5 matched the fingerprints on State's Exhibit 4 and belonged to Appellant.
Sufficiency of the Evidence Challenge
On appeal, Appellant challenges the sufficiency of the evidence supporting the jury's finding of guilt arguing the State failed to prove beyond a reasonable doubt that he changed his address. Appellant does not dispute that he is required to register annually as a sex offender, nor does he argue that he did not have notice of the reporting requirements or that he did not understand them. Appellant contends that the testimony from the sergeant that the staff at the Beaumont Center told the sergeant that Appellant had not lived at the Beaumont Center "in over a year" was hearsay and the State's contention that Appellant confessed to the offense in the video interview by mumbling that he had no excuse for not reporting his change of address constituted insufficient evidence to support the conviction. According to Appellant, the sergeant did not identify the person who told the sergeant that the Appellant had not lived at the Beaumont Center in over a year, and even if he did tell the sergeant in his interview that he had no excuse for failing to report he had a change of address, it is not the same as confessing to the commission of a felony offense. Appellant argues that the sergeant agreed that she did not consider the motel where Appellant was living to be a residence. Appellant contends that although the State may have proven that Appellant failed to report that he was temporarily elsewhere, the State failed to establish the allegation in the indictment that he had "changed his address" and that he failed to report any intended change of address. The State disagrees with Appellant's characterization of the sergeant's testimony and with the arguments made by Appellant on appeal.
On appeal, Appellant asserts this testimony was hearsay, however he did not make this objection at trial and therefore the objection is waived. See Tex. R. App. P. 33.1.
In reviewing the legal sufficiency of the evidence, we review all the evidence in the light most favorable to the verdict to determine whether a rational factfinder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). We give deference to the factfinder's responsibility to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Hooper, 214 S.W.3d at 13. If the record contains conflicting inferences, we must presume that the factfinder resolved such facts in favor of the verdict and defer to that resolution. Brooks v. State, 323 S.W.3d 893, 899 n.13 (Tex. Crim. App. 2010) (citing Jackson, 443 U.S. at 326); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). The jury as factfinder is the sole judge of the weight of the evidence and credibility of the witnesses, and it may believe all, some, or none of the testimony presented by the parties. See Febus v. State, 542 S.W.3d 568, 572 (Tex. Crim. App. 2018); Margraves v. State, 34 S.W.3d 912, 919 (Tex. Crim. App. 2000); Heiselbetz v. State, 906 S.W.2d 500, 504 (Tex. Crim. App. 1995). The appellate court does not reweigh the evidence nor determine the credibility of the evidence, nor does it substitute its own judgment for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The standard of review is the same for direct and circumstantial evidence cases; circumstantial evidence is as probative as direct evidence in establishing guilt. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Intent may be inferred from circumstantial evidence such as acts, words, and the conduct of the appellant. Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004). In determining the sufficiency of the evidence to show an appellant's intent, and faced with a record that supports conflicting inferences, we "must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflict in favor of the prosecution[] and must defer to that resolution." Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App. 1991).
Chapter 62 of the Texas Code of Criminal Procedure "defines the scope of Texas's sex offender registration program and delineates the legal duties of those who administer it and those subject to its requirements." Crabtree v. State, 389 S.W.3d 820, 825 (Tex. Crim. App. 2012). A person commits the offense of failure to comply with registration requirements if the person is required to register and fails to comply with any requirement of Chapter 62. Tex Code Crim. Proc. Ann. art. 62.102(a); Crabtree, 389 S.W.3d at 825; see also Young v. State, 341 S.W.3d 417, 425 (Tex. Crim. App. 2011) ("Article 62.102 is a generalized 'umbrella' statute that criminalizes the failure to comply with any of the registration requirements set out in Chapter 62."). A person with a "reportable conviction" must register with "the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days." Tex. Code Crim. Proc. Ann. art. 62.051(a). Additionally, if a person who is required to register under the sex offender registration program intends to change addresses, he must report the change in person to the local law enforcement authority designated as his primary registration authority not later than the seventh day before the intended change. Id. art. 62.055(a). If the person moves to a new residence, he must report to the local law enforcement authority where the new residence is located, not later than the seventh day after the move. Id.
Article 62.001(5)(A) defines "reportable conviction" to include aggravated sexual assault, the offense for which Appellant was convicted. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A).
Under Chapter 62, "[t]he forbidden act is failing to inform law enforcement about an impending or completed change of residence." Young, 341 S.W.3d at 426.
The primary purpose of creating and maintaining a sex-offender registry is to "give local law enforcement officers a means of monitoring sex offenders who are living within their jurisdiction in order better to thwart repeat offenses." Knowing where a sex offender lives is arguably the simplest and best way to monitor him. By failing to report where he is residing, the sex offender is subverting the objective of the registry. The community and law enforcement want to know where the sex offender lives so they may take proper precautions.Id. (footnotes omitted).
Appellant cites to Jordan, Green, and Shelton in support of his argument that the State failed to establish that Appellant failed to report any intended change of his address. See Jordan v. State, No. 01-11-00469-CR, 2012 Tex.App. LEXIS 3493, at *10 (Tex. App.-Houston [1st Dist] May 3, 2012, no pet.) (mem. op., not designated for publication); Green v. State, 350 S.W.3d 617, 623-24 (Tex. App.- Houston [14th Dist.] 2011, pet. ref d) (plurality op.); Shelton v. State, No. 05-01- 00458-CR, 2003 Tex.App. LEXIS 3202, at ** 19-21 (Tex. App.-Dallas Apr. 14, 2003, no pet.) (not designated for publication). Jordan, Green, and Shelton relate to a different reporting requirement than the one at issue here. In each of the foregoing cases, the alleged violation pertained to the requirement that an offender intending to change his address must report in person and provide the person's anticipated move date and new address not later than the seventh day before the intended change. See Jordan, 2012 Tex.App. LEXIS 3493, at **3-4; Green, 350 S.W.3d at 621; Shelton, 2003 Tex.App. LEXIS 3202, at ** 19-21. Appellant was not charged with violating that reporting requirement. Appellant was indicted for not complying with the requirement within article 62.055(a) that required that after he moves to a new residence, he must report to the local law enforcement authority where the new residence is located, not later than the seventh day after the move. The Texas Court of Criminal Appeals has explained that
. . . Article 62.055(a) creates a duty to notify law enforcement when a relevant circumstance is present-a sex offender changes addresses- but can be violated in either of two ways. The focus of the statute is on giving notification to law enforcement and not the means by which a sex offender failed to do so. Reporting a change of address "not later than the seventh day before the intended change" and "not later than the ... seventh day after changing the address" are therefore alternative manners and means of committing a single offense.Young, 341 S.W.3d at 427 (footnotes omitted).
In Jordan, Jordan was required to register as a sex offender, and his last registered address was at a motel. See 2012 Tex.App. LEXIS 3493, at **l-2. On April 7, 2010, law enforcement investigating his compliance learned from the motel that Jordan had been evicted because motel staff learned Jordan was a sex offender. A former employee of the motel testified that Jordan had prepaid for the week of March 4 through March 11 of 2010, the employee told Jordan on March 9,2010 that he had to move out, and Jordan moved out of the motel on March 11, 2010. Id. at **l-3. Jordan's assigned registration officer testified that Jordan never changed his registration with her in person. Id. at *3. Jordan appealed his conviction, arguing that the State did not present sufficient evidence that he failed to provide his anticipated moving date and new address at least seven days before his change of address because he did not have any intent to move at least seven days prior to this change of address. Id. at *9. Testimony at trial indicated that registration staff believed that registered sex offenders must give at least seven days advance notice before any address change, but the statutory deadline for reporting is seven days '"before the intended change.'"M at **9-10 (citing Tex. Code Crim. Proc. Ann. art. 62.055(a); Green, 350 S.W.3d at 623). In finding the evidence insufficient to support Jordan's conviction for failure to comply with article 62.055(a), the First Court of Appeals concluded:
[Jordan] was evicted from his current residence with two days' notice. The State presented no evidence that [Jordan] intended to change his address at least seven days before he was required to leave the motel; in fact, it was undisputed at trial that [Jordan] could have formed an intent at most two days before his change of address, because it was then that he was notified that he would be evicted. He had prepaid his rent at that location before that point. . . . [t]here is no evidence that [Jordan] intended to move and failed to report it within the required time period.Id. at ** 10-11. Not only was the Appellant in the present case not charged for violating the same requirement of article 62.055 in the same manner that Jordan was charged, but also there is no evidence here that Appellant was evicted from the Beaumont Center, nor is there any evidence that he unintentionally left after only two days' notice. In fact, Appellant acknowledged in the video interview which was admitted at trial that he had no excuse for not reporting his address change from the Beaumont Center to the motel, he agreed that he had been living at the motel for months, and that he knew he was not in compliance.
In Green, Green was a registered sex-offender who was charged with violating the same reporting requirement as in Jordan. See 350 S.W.3d at 621 (citing Tex. Code Crim. Proc. Ann. art. 62.055(a)). Green lived in Texas but worked in Arizona for extended periods of time. Id. at 619. Green's wife testified that while Green was working in Arizona, she moved to another address in Texas without telling Green, and she took his possessions with her. Id. at 619-20. The Fourteenth Court of Appeals explained that the requirement to report an intended move is triggered only if a person required to register intends to change his address, and the deadline for reporting the intended address change is not seven days before the date on which the move actually occurs; rather, the deadline is seven days "before the intended change." Id. at 623 (citing Tex. Code Crim. Proc. Ann. art. 62.055(a)). The Court reasoned that "[t]here are various situations in which a registered sex offender['s] address may change without the offender having any intent to change [his] address prior to the actual change of address[,]" such as when an offender "may be barred from his current residence without warning or someone else may move the offender's property out of the residence and to another address without the offender's knowledge." Id. The court concluded that the evidence was legally insufficient because "there was no evidence [he] ever had an intent to change his address in November 2006 that he failed to report not later than the seventh day before the date of the intended address change." Id. at 624. The present case is distinguishable from Green because not only was Appellant charged with violating a different part of the reporting requirement, but also because there was no evidence that Appellant was barred from the Beaumont Center or that his property was moved from there without his knowledge.
In Shelton, Shelton was also charged with not complying with sex-offender registration requirements in not reporting his anticipated move date and new address not later than the seventh day before his intended move, the same reporting requirements as in Jordan and Green, but under a prior version of the statute. 2003 Tex.App. LEXIS 3202, at **8-9 (citing Tex. Code Crim. Proc. Ann. art. 62.04(a)). On August 8, 2000, Shelton updated his registration form but did not report he was changing his address. Id. at *7. After August 8, 2000, police informed Shelton's registration officer that Shelton was arrested for stealing bank checks and that he was no longer living at his registered address at his parents' house, and the officer learned that Shelton was instead living at a local motel. Id. Shelton's parents' next-door neighbor testified that he saw Shelton "come and go" from the parents' address and did not believe that Shelton lived with his parents. Id. at *5. The motel record keeper and cashier who checked Shelton out of the motel testified. A receipt from the motel with Shelton's name, his parents' address, and his payment for a motel room for seven nights from August 25,2000 to September 1,2000 was admitted into evidence. Id. Shelton's mother testified that Shelton had been intermittently hospitalized in the summer of 2000, and she notified the officer of Shelton's location when he was hospitalized. Id. at *8. She also testified that Shelton would spend up to three nights at a motel because she would not let him bring women home, but that he never stayed at the motel longer than five nights. Id. Shelton's mother testified that in her opinion he had never moved out of her home. Id. In finding the evidence legally insufficient to support a finding that Shelton failed to timely report his move date, the trial court noted that the State did not challenge Shelton's mother's testimony about his hospital stays, did not present any evidence that the neighbor's account of Shelton's absence from his parents' home was anything other than time spent at the hospital, and did not present any evidence that Shelton stayed or intended to stay at the motel more than seven days. Id. at ** 19-20. In the present case, Appellant acknowledged in the November 2020 video interview that he had been living at the motel since January of 2020, and he admitted he knew he had not complied with his reporting requirements. There was no evidence indicating that Appellant was only intermittently away from the Beaumont Center.
The jury heard the sergeant testify that the Beaumont Center informed her that Appellant had not lived there in over a year. The jury heard the sergeant testify that Appellant informed her that he had been living at the motel since January of 2022. The jury viewed the sergeant's recorded interview with Appellant and heard the sergeant testify. Appellant said he had failed to update his registration, and he knew that not complying is a felony. The jury heard the sergeant testify that Cox state he had no excuse for not registering. To the extent that Appellant contends there was no direct evidence of his intent to move and change his address to the motel, a reasonable jury could have concluded, based on the November 2022 video interview where Appellant acknowledged that he had lived at the motel since January 2022 and that he knew he was out of compliance, coupled with the testimony that the staff at his prior address had reported that he had not lived at the prior address in over a year, that Appellant voluntarily moved from the Beaumont Center and intended to and did reside at the motel, but he failed to register in violation of Chapter 62. See Henderson v. State, No. 02-17-00127-CR, 2018 Tex.App. LEXIS 3745, at **13-19 (Tex. App.-Fort Worth May 24, 2018, no pet.) (mem. op., not designated for publication) (Based on testimony from trailer park tenant that the defendant moved his clothes there and stayed with the tenant for three and a half weeks, testimony that the house at the defendant's registered address was vacant, and testimony that the defendant lived at the motel for two or three months, the Court of Appeals determined that evidence of defendant's acts and conduct taken together were sufficient for a reasonable jury to conclude the defendant no longer resided at his prior address and intended to and did live at the trailer park and motel at different times but failed to register the change of address within seven days of the move and in violation of chapter 62).
Having viewed the evidence in the light most favorable to the verdict, we conclude that a rational factfinder could have found beyond a reasonable doubt that Appellant was guilty of the offense of failure to comply with sex offender registration as alleged in the indictment. See Jackson, 443 U.S. at 319; Hooper, 214 S.W.3d at 13; see also Tex. Code Crim. Proc. Ann. arts. 62.055(a), 62.102. The jury was able to assess the credibility and demeanor of the witnesses who testified at trial, and we presume that the jury resolved all conflicts in the testimony, weighed the evidence, and drew reasonable inferences from the evidence in a manner that supports the verdict. See Hooper, 214 S.W.3d at 13; Brooks, 323 S.W.3d at 899 n. 13; Clayton, 235 S.W.3d at 778. The jury could have reasonably inferred from the evidence presented that Appellant knew that he had a duty to register, that he failed to register a change of address once he left the Beaumont Center in the time required by the statute, that he failed to report and provide proof of his new residence to the Department not later than the seventh day after changing his address, that he intended to change his residence, and that he moved from the Beaumont Center voluntarily and had been residing at a motel for approximately ten months as of the time of the recorded interview with the sergeant. "This was not a determination so outrageous that no rational trier of fact could agree." Wirth v. State, 361 S.W.3d 694, 698 (Tex. Crim. App. 2012). We overrule the issue and affirm the trial court's judgment.
AFFIRMED.