Opinion
NO. 02-16-00432-CR
04-19-2018
JACKIE WADE HERRELL JR APPELLANT v. THE STATE OF TEXAS STATE
FROM THE 213TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1403616D MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
Appellant Jackie Wade Herrell Jr. appeals from his conviction for failure to comply with his sex-offender registration requirements and resulting twelve-year sentence. See Tex. Code Crim. Proc. Ann. arts. 62.055(a), 62.102(a) (West Supp. 2017). In three issues, he argues that his conviction is not supported by legally sufficient evidence, that the trial court reversibly erred by admitting evidence of three extraneous offenses, and that the trial court erred by submitting an "on or about" instruction in the jury charge. Finding no reversible error, we affirm.
I. BACKGROUND
On May 1, 2003, Herrell was convicted of sexual assault of a child under seventeen years of age and sentenced to two years' confinement. See Tex. Penal Code Ann. § 22.011(a)(2)(A) (West Supp. 2017). As a result of that conviction, he was required to register as a sex offender after his release. See Tex. Code Crim. Proc. Ann. arts. 62.001(5)(A), 62.051(a) (West Supp. 2017). Additionally, if at any time Herrell intended to move to a new address, he was required, not later than the seventh day before his move, to report in person to his primary registration authority and to any juvenile probation officer, community supervision and corrections department officer, or parole officer supervising him and provide that authority and officer with his anticipated move date and new address. See id. art. 62.055(a).
In October 2014, Herrell and his girlfriend were living at Rhonda Clark's residence in Azle, Texas, the address at which Herrell had been duly registered and approved to live since the previous July. At the time Herrell moved to Clark's house, Clark's two-year-old granddaughter was living there as well, and Clark was not aware that Herrell was a registered sex offender. In October 2014, Child Protective Services (CPS) opened an investigation of Clark's daughter, and in connection with that investigation, Clark's granddaughter was removed from Clark's home.
A CPS caseworker informed Clark that Herrell was a registered sex offender and that so long as he lived in her home, her granddaughter could not live there. Clark wanted her granddaughter returned to live at her home, so in the afternoon of Friday, October 17, 2014, Clark told Herrell that he had to move out. The next day, Herrell and his girlfriend moved out; Clark drove them to a Dollar General store located in Azle, where they bought a tent with the intent to live not at a physical address but in a field in Azle until they could find other arrangements. At trial, Clark testified that while she was with Herrell after moving him out of her house, she witnessed him call and leave messages for Lynda Steffen, the civilian records clerk in charge of the sex-offender registration at the Azle Police Department, at least five times over the course of the weekend.
Steffen testified that she had not been in the office during the weekend.
On Monday, October 20, 2014, Herrell reached Steffen by phone and informed her that he no longer had a place to live; that his move was unexpected and unintended; and that he did not know where he was going to live. He was still in Azle, however, and Steffen advised him that he needed to report to her in person and sign a paper that he was transient. Herrell told Steffen that he was without transportation. But according to Steffen's testimony, Azle is a small enough city that if a person lives somewhere in Azle, he could walk to the police department. And Clark testified that if Herrell had called her on October 20, 2014, and asked her to give him a ride somewhere, she would have done so. In fact, at some point after he had moved out, Herrell called Clark and asked her to give him a ride to a Waffle House in Lake Worth, and she did so.
In any event, Steffen testified that after her October 20, 2014 conversation with Herrell, she attempted to speak with him several times, but she never heard from him again. She attempted to locate Herrell after her October 20, 2014 phone conversation to no avail, she had someone go to Clark's residence to see if Herrell was there, and she also confirmed that Herrell had not registered in another municipality. Steffen testified that at some point after October 20, 2014, she received a call from Herrell's girlfriend's mother, who stated that Herrell and his girlfriend were residing in Fort Worth. She also testified that after her October 20, 2014 conversation with Herrell, he never reported to her in person to notify her of his new address at any time before she retired from the department on December 18, 2015.
In December 2014, Steffen notified the Azle Police Department's Criminal Investigations Division of Herrell's failure to report, and on December 19, 2014, Detective Mike Winterrowd was assigned the case and subsequently obtained a warrant for Herrell's arrest. Detective Winterrowd testified that according to Herrell's registration, Herrell was supposed to be residing at Clark's address in Azle, but he was ultimately located and arrested approximately forty-five minutes away at a car wash in Mansfield. Detective Winterrowd also testified that after he received the case, he was informed that Herrell was trying to register in Fort Worth.
On March 2, 2015, a grand jury returned an indictment alleging that on or about October 20, 2014, Herrell intentionally or knowingly failed to report to the local law enforcement authority with whom he was required to register as a sex offender and provide that authority with his anticipated move date and new address not later than seven days before his intended change of address. See Tex. Code Crim. Proc. Ann. arts. 62.055(a), 62.102(a). A jury found him guilty, and the trial court assessed his punishment at twelve years' confinement.
II. LEGAL SUFFICIENCY
In his first issue, Herrell argues the evidence is legally insufficient to support his conviction for the offense alleged in the indictment. The indictment charged Herrell with the offense of failure to comply with sex-offender registration requirements, alleging that on or about October 20, 2014, he intentionally or knowingly failed to report in person to the Azle police department no later than seven days before he intended to change his address and provide the department with his anticipated move date and new address. See id. arts. 62.055(a), 62.102(a).
A. STANDARD OF REVIEW
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).
To determine whether the State has met its burden under Jackson to prove a defendant's guilt beyond a reasonable doubt, we compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial. See Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim. App. 2014). Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id. The "law as authorized by the indictment" consists of the statutory elements of the offense and those elements as modified by the indictment. Id.; see Rabb v. State, 434 S.W.3d 613, 616 (Tex. Crim. App. 2014) ("When the State pleads a specific element of a penal offense that has statutory alternatives for that element, the sufficiency of the evidence will be measured by the element that was actually pleaded, and not any alternative statutory elements.").
B. THE HYPOTHETICALLY CORRECT JURY CHARGE
Code of criminal procedure article 62.102(a) provides that a person commits an offense if he is required to register for the state's sex-offender registry and fails to comply with any requirement of that program. Tex. Code Crim. Proc. Ann. art. 62.102(a). One such requirement is set forth in article 62.055(a). See id. art. 62.055(a); Thomas, 444 S.W.3d at 9. There are two alternative manners and means of violating article 62.055(a). See Tex. Code Crim. Proc. Ann. art. 62.055(a); Thomas, 444 S.W.3d at 9; Gilder v. State, 469 S.W.3d 636, 639 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd). First, a person required to register as a sex offender can violate article 62.055(a) if he intends to change his address and fails to report in person to the applicable authorities not later than the seventh day before his intended address change and provide his anticipated move date and new address. See Tex. Code Crim. Proc. Ann. art. 62.055(a); Thomas, 444 S.W.3d at 9; Gilder, 469 S.W.3d at 639. And second, a person required to register as a sex offender can violate article 62.055(a) by failing to report in person to the applicable authority not later than the later of the seventh day after changing the address or the first date the applicable local law enforcement authority by policy allows the person to report and provide the authority with proof of identity and proof of residence. See Tex. Code Crim. Proc. Ann. art. 62.055(a); Thomas, 444 S.W.3d at 9-10; Gilder, 469 S.W.3d at 639.
In this case, Herrell was charged only with the first manner and means of violating article 62.055(a)—failing to report an intended change of address—and, consequently, the law as authorized by the indictment allowed the jury to convict him only if the State proved this particular manner and means. See Thomas, 444 S.W.3d at 10. Thus, the hypothetically correct jury charge in this case was one that authorized the jury to convict Herrell only if (1) he was required to register as a sex offender and (2) he failed to report an anticipated change of address not later than seven days before the intended change. See id.
C. APPLICATION
Herrell does not dispute that he was required to register as a sex offender. His argument focuses on the date of offense that was alleged in the indictment: on or about October 20, 2014. He maintains that the evidence demonstrates he did not intend to move out of Clark's house seven days before she suddenly kicked him out on October 18, 2014. For that reason, Herrell contends, the evidence shows that he could not have intentionally and knowingly failed to report his anticipated move date and new address in person to the Azle police department no later than seven days before October 20, 2014.
Herrell's attempt to narrow our sufficiency analysis to the date of offense alleged in the indictment is unavailing given the indictment's use of "on or about" language in its date-of-offense allegation. Because the indictment alleged that the offense occurred "on or about" October 20, 2014, the State was not limited to proving the offense occurred on October 20, 2014. See Thomas, 444 S.W.3d at 9, 11 (concluding that the use of "on or about" language in the indictment authorized the jury to convict the appellant for failing to report intended change of address where the date of offense proved at trial, though different from the date alleged in the indictment, nevertheless fell before the presentment of the indictment and within the statute of limitations); see also Tex. Code Crim. Proc. Ann. art. 21.02 (West 2009) (requiring time mentioned in indictment to be "some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation"). So long as the State proved the offense occurred on a day that was prior to the presentment of the indictment—March 2, 2015, here—and within the statute of limitations, the jury was authorized to convict Herrell for the charged offense. See Thomas, 444 S.W.3d at 9, 11.
The evidence adduced at trial shows that once Clark dropped Herrell off at the Dollar General Store on October 18, 2014, he stopped residing at Clark's address as of that day. Additionally, Steffen testified that at some point after October 20, 2014, Herrell's girlfriend's mother told her that Herrell and his girlfriend were residing in Fort Worth. And Detective Winterrowd testified that he became involved in Herrell's case on December 19, 2014, and that he was also informed Herrell was attempting to register in Fort Worth. From all of this evidence, a reasonable jury could have inferred that as of December 19, 2014, the date on which Detective Winterrowd was assigned Herrell's case, Herrell intended to, and did, live at an address other than Clark's address in Azle, which was his registered address. See Burnett v. State, 506 S.W.3d 545, 549 (Tex. App.—Houston [1st. Dist.] 2016, pet. ref'd) (holding that circumstantial evidence showing appellant had stopped living at his registered address as of a certain date "permitted an inference that [he] intended to change his address as of that date"); Gilder, 469 S.W.3d at 641 (holding that evidence showing the appellant had vacated his registered address as of a certain date supported both an inference that he was living at a new address on that date and a conclusion that he intended to change his address on that date); see also Thomas, 444 S.W.3d at 10 (holding that the appellant's statement to a detective on a given date that he lived at an address that was different from his registered address was sufficient, by itself, to support a conclusion the appellant intended to, and did, live at that address on that date); Villanueva v. State, 257 S.W.3d 527, 530 (Tex. App.—Austin 2008, no. pet.) (op. on reh'g) (noting that defendant's failure to arrive at his assigned work-release facility following his release from parole "support[ed] a finding that [he] changed his address from the assigned work-release facility to another unknown address"). And given Steffen's testimony that Herrell never appeared in person to report his move from Clark's address before Steffen retired on December 18, 2015, a reasonable jury could have also concluded that Herrell failed to report the December 19, 2014 address change in person on or before December 12, 2014, the latest date on which he could have done so. See Tex. Code Crim. Proc. Ann. art. 62.055(a); Thomas, 444 S.W.3d at 10-11; Gilder, 469 S.W.3d at 641. We therefore conclude Herrell's conviction is supported by legally sufficient evidence. See Thomas, 444 S.W.3d at 10-11; Gilder, 469 S.W.3d at 641. We overrule his first issue.
III. ADMISSION OF EVIDENCE
In three subparts, Herrell argues in his second issue the trial court erred by admitting evidence of three extraneous offenses. Specifically, Herrell contends the trial court erroneously admitted evidence that he was subject to the following requirements:
• I must personally appear at my primary registration authority and verify my registration information annually. See Tex. Code Crim. Proc. Ann. art. 62.058(a) (West Supp. 2017) (Annual Verification Requirement).And he further contends that the trial court erroneously admitted evidence showing that he failed to comply with these requirements.
• If my new residence is located in this state, not later than the 7th day after changing address, I must report in person and register with the local law enforcement authority in the municipality or county where my residence is located. See Tex. Code Crim. Proc. Ann. art. 62.055(a) (Completed Move Reporting Requirement).
• If I lack a physical address assigned by a governmental entity, I must provide to the local law enforcement authority a detailed description of the geographical location where I reside or intend to reside for more than 7 days. I must report in person to the local law enforcement authority not less than once in each 30 day period to confirm my location until a physical address can be provided. See Tex. Code Crim. Proc. Ann. art. 62.055(i) (West Supp. 2017) (Homelessness Reporting Requirement).
Exhibit 1 shows the date for Herrell's annual verification was his birthday.
A. STANDARD OF REVIEW
A trial court is afforded wide discretion in deciding whether to admit evidence, and we may not disturb such an evidentiary ruling absent an abuse of discretion. Winegarner v. State, 235 S.W.3d 787, 790 (Tex. Crim. App. 2007). Under this standard, we will uphold a trial court's evidentiary ruling as long as it falls within the zone of reasonable disagreement and was correct under any theory of law applicable to the case. Id.
B. ANNUAL VERIFICATION REQUIREMENT
In the first part of his second issue, Herrell contends the trial court erroneously admitted evidence that he failed to comply with his Annual Verification Requirement in December 2014. Specifically, he points to a portion of Exhibit 1 and a portion of Steffen's testimony, both of which he argues showed that (1) he was required to verify his registration annually on his birthday and (2) his birthday was December 15, 1983. He also points to another portion of Steffen's testimony in which she stated that he never reported to her in person from October 20, 2014, until her retirement on December 18, 2015. Herrell argues that when considered together, all of this evidence demonstrated that he failed to comply with his Annual Verification Requirement in December 2014. He contends that consequently, all of this evidence was inadmissible under Rules 403 and 404 of the Texas Rules of Evidence.
We consider first Herrell's contention that a portion of Exhibit 1 and a portion of Steffen's testimony were inadmissible because they showed that (1) he was subject to the Annual Verification Requirement and (2) his birthday is December 15, 1983. We note that Steffen testified to these facts without any objection from Herrell. And although Herrell did raise an objection to Exhibit 1 when the State offered it, he did not contend that the entire exhibit was inadmissible, and he did not contend that the specific portions of that exhibit showing he was subject to the Annual Verification Requirement and his date of birth were inadmissible. See Whitaker v. State, 286 S.W.3d 355, 369 (Tex. Crim. App. 2009) (citing Hernandez v. State, 599 S.W.2d 614, 617 (Tex. Crim. App. 1980) (op. on reh'g)) (holding appellant's global objections to admission of audiotapes were insufficient to preserve error because they did not specifically point out which portions of the audiotapes were objected to as inadmissible). In order to preserve error in the admission of evidence showing that he was subject to the Annual Verification Requirement and that his date of birth is December 15, 1983, Herrell was required to make a proper objection to that evidence, and he was required to do so every time that evidence was offered or obtain a running objection. See Tex. R. App. P. 33.1(a)(1); Lane v. State, 151 S.W.3d 188, 193 (Tex. Crim. App. 2004). Because he failed to do so, Herrell failed to preserve error as to that evidence.
Herrell also complains of a portion of Steffen's testimony that he argues showed he violated the Annual Verification Requirement. Specifically, Herrell argues that Steffen's testimony that he never reported to her in person from October 20, 2014, through the day she retired (December 18, 2015) revealed that he violated his Annual Verification Requirement in December 2014. The record shows that although Herrell objected to this particular testimony on one occasion, he did not obtain a running objection, and he permitted the same evidence to come in elsewhere without objection. See Lane, 151 S.W.3d at 193.
All without objection, Steffen testified that (1) she was employed at the Azle Police Department from August 2001 to her retirement on December 18, 2015; (2) she began working on Herrell's case when he called her on October 20, 2014; (3) she never heard from Herrell after October 20, 2014; (4) Herrell had shown up in person on previous occasions to update his registered address; (5) Herrell knew he was supposed to show up in person to update his registered address; and (6) she had no memory of Herrell "actually attempting to show up" in person to update his address after he left Clark's residence. Thus, any error in the admission of the objected-to portion of Steffen's testimony concerning Herrell's failure to report to her in person from October 20, 2014, through December 18, 2015, was forfeited by the admission, without objection, of the same evidence elsewhere. See Lane, 151 S.W.3d at 193.
We conclude Herrell failed to preserve his complaint that the trial court erred by admitting the complained-of evidence showing that he was subject to the Annual Verification Requirement; that his date of birth is December 15, 1983; and that he failed to comply with the Annual Verification Requirement. We therefore overrule the first part of Herrell's second issue.
C. HOMELESSNESS REPORTING REQUIREMENT
In the second part of his second issue, Herrell contends the trial court erroneously admitted evidence that he failed to comply with his Homelessness Reporting Requirement. As he did with regard to his argument concerning the Annual Reporting Requirement, Herrell argues that a portion of Exhibit 1, as well as a portion of Steffen's testimony, were inadmissible because they showed that he was subject to the Homelessness Reporting Requirement. But Herrell's argument with regard to Exhibit 1 suffers from the same flaw that we identified in our discussion of the Annual Verification Requirement: although Herrell objected to Exhibit 1 when the State offered it, he did not contend the entire exhibit was inadmissible, and he did not contend that the specific portion of the exhibit showing he was subject to the Homelessness Reporting Requirement was inadmissible. Because Herrell did not properly object that the portion of Exhibit 1 showing he was subject to the Homelessness Reporting Requirement was inadmissible, he failed to preserve error in the admission of that portion of Exhibit 1. See Whitaker, 286 S.W.3d at 369 (citing Hernandez, 599 S.W.2d at 617); see also Lane, 151 S.W.3d at 193 (noting that "[t]o preserve error in admitting evidence, a party must make a proper objection and get a ruling on that objection" (quoting Valle v. State, 109 S.W.3d 500, 509 (Tex. Crim. App. 2003)).
Herrell also contends that a portion of a question to Steffen and the corresponding answer that referenced Exhibit 1 was inadmissible because it showed he was subject to the Homelessness Reporting Requirement. He did object to this testimony on the ground that it was contained in his motion in limine and that it was "outside of the Indictment." However, to preserve error in the admission of evidence showing he was subject to the Homelessness Reporting Requirement, Herrell was required to object each time that evidence was offered or obtain a running objection. See Lane, 151 S.W.3d at 193. If evidence that Herrell was subject to the Homelessness Reporting Requirement came in elsewhere without objection, any error in the admission of the objected-to portion of Steffen's testimony was cured. See id; see also Leday v. State, 983 S.W.2d 713, 718 (Tex. Crim. App. 1998) (holding that "overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling"). We already noted that Herrell did not object to the portion of Exhibit 1 showing he was subject to the Homelessness Reporting Requirement. Thus, because evidence of that fact was admitted without objection, any error in the admission of the complained-of portion of Steffen's testimony showing the same was forfeited. See Lane, 151 S.W.3d at 193.
Finally, as he did in his argument concerning the Annual Reporting Requirement, Herrell argues that Steffen's testimony that he never reported to her in person from October 20, 2014, through the day she retired (December 18, 2015) was inadmissible because it revealed that he violated his Homelessness Reporting Requirement. The same analysis we applied to this assertion when discussing Herrell's argument concerning the Annual Verification Requirement applies here. In short, the record shows that although Herrell objected to this particular testimony on one occasion, he did not obtain a running objection, and he permitted the same evidence to come in elsewhere without objection. He therefore failed to preserve any error in the trial court's admission of this portion of Steffen's testimony. See Lane, 151 S.W.3d at 193.
We conclude Herrell failed to preserve his complaint that the trial court erred by admitting the complained-of evidence showing that he was subject to the Homelessness Reporting Requirement and that he violated that requirement. We therefore overrule the second part of Herrell's second issue.
D. COMPLETED MOVE REPORTING REQUIREMENT
In the third part of his second issue, Herrell contends the trial court erroneously admitted evidence that he failed to comply with his Completed Move Reporting Requirement. He again complains that a portion of Exhibit 1, and a portion of Steffen's testimony, were inadmissible because they showed he was subject to the Completed Move Reporting Requirement. We note, however, that Steffen testified, without objection, that Herrell was subject to the Completed Move Reporting Requirement. Since he did not object to this testimony, Herrell failed to preserve any error in its admission. See Tex. R. App. P. 33.1(a)(1); Lane, 151 S.W.3d at 193. Moreover, as we have noted, because evidence that Herrell was subject to the Completed Move Reporting Requirement was admitted without objection, any claim of error in the admission of the portion of Exhibit 1 showing that fact was forfeited. See Lane, 151 S.W.3d 188 at 193.
Finally, Herrell contends that a portion of Steffen's testimony, as well as a portion of Detective Winterrowd's testimony, were inadmissible because they showed he violated his Completed Move Reporting Requirement. Specifically, Herrell contends that because there was evidence that he had moved to a different city, Steffen and Detective Winterrowd's testimony that they would not have filed charges against him if he had registered elsewhere suggested that he failed to comply with his Completed Move Reporting Requirement.
We note that while Herrell objected to questions both before and after Steffen's testimony that she would not have filed charges on him if he had moved to a different city and registered there, he did not object to the following testimony:
[Prosecutor]: If he had just moved away somewhere and registered in that city, would you have filed on him?Further, Herrell did not object when Detective Winterrowd provided the same information when he testified that it was unlikely he would have filed a warrant on Herrell if he had registered in a different city. Since Herrell did not object to the testimony he now complains of, he failed to preserve error in its admission. See Tex. R. App. P. 33.1(a)(1); Lane, 151 S.W.3d at 193.
[Steffen]: No, ma'am.
[Prosecutor]: Even though he has to tell you seven days prior before he moves?
[Steffen]: Correct.
We conclude Herrell failed to preserve his complaint that the trial court erred by admitting the complained-of evidence showing that he was subject to the Completed Move Reporting Requirement and that he violated that requirement. We therefore overrule the third part of Herrell's second issue.
IV. ON-OR-ABOUT JURY-CHARGE INSTRUCTION
The jury charge in this case instructed the jury as follows:
the State is not required to prove the exact date alleged in the indictment but may prove the offense, if any, to have been committed at any time prior to the presentment of the indictment so long as said offense, if any, is within the statute of limitations for the offense charged.In his third issue, Herrell contends these instructions were erroneous because they "presented the jury with a much broader chronological perimeter than is permitted by law."
The jury is instructed that the Court has taken judicial notice that the date the indictment in this case was presented was March 2, 2015.
A. STANDARD OF REVIEW
"[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court." Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Id.
B. ANALYSIS
For his argument that the challenged jury instructions were erroneous because they presented the jury with a much broader "chronological perimeter" than was permitted by law, Herrell relies on the Fourteenth Court of Appeals' decision in Kelley v. State, 429 S.W.3d 865, 878-82 (Tex. App.—Houston [14th Dist.] 2014, pet. ref'd). In Kelley, the appellant, William Kelley, was subject to a requirement that he verify his sex-offender registration not less than once every ninety days. Kelley, 429 S.W.3d at 870; see Tex. Code Crim. Proc. Ann. art. 62.058(a). Under the facts of that case, Kelley was required to verify his registration at least once during the ninety-day period beginning May 26, 2011, and ending August 24, 2011. See Kelley, 429 S.W.3d at 870. To comply with art. 62.058(a) during this particular ninety-day period, Kelley was required to verify his registration no earlier than August 17, 2011, and no later than August 31, 2011. See id. at 869-70; see also Tex. Code Crim. Proc. Ann. art. 62.058(a) (providing that "a person complies with a requirement that the person register within a 90-day period following a date if the person registers at any time on or after the 83rd day following that date but before the 98th day after that date"). He failed to do so, and charges were filed. See Kelley, 429 S.W.3d at 870, 872.
The indictment charged Kelley with failing to comply with article 62.058(a) during only one ninety-day period: the period beginning May 26, 2011, and ending August 24, 2011. See id. at 869-70. But in its charge, the trial court sua sponte included an "on or about" instruction that authorized the jury to convict Kelley for the charged offense if it found he committed it at any time prior to the presentment of the indictment and within the statute of limitations. Id. at 878. This instruction encompassed two subsequent ninety-day periods "during which [Kelley] continued to be subject to verification requirements and thus potential additional offenses for lack of compliance." Id. at 880. Additionally, during trial, the evidence had not been limited to Kelley's failure to comply with article 62.058(a) during the sole ninety-day period alleged in the indictment; rather, there was also evidence of his potential failure to comply with that requirement during the two subsequent ninety-day periods. See id.
Because Kelley had been charged with failing to comply with article 62.058(a) for one specific ninety-day period (the ninety-day period beginning May 26, 2011, and ending August 24, 2011), there was evidence of Kelley's failure to comply with article 62.058(a) for the two subsequent ninety-day periods, and the trial court's "on or about" instruction authorized the jury to convict Kelley for violating article 62.058(a) for the two subsequent ninety-day periods, the court of appeals concluded that the trial court's charge presented "the jury with a much broader chronological perimeter than is permitted by law," resulting in an inaccurate and erroneous charge. See id. at 880 (citing Taylor v. State, 332 S.W.3d 483, 488-89 (Tex. Crim. App. 2011)).
Herrell contends the reasoning in Kelley applies here. He argues that because the indictment in this case alleged that he failed to report his intended address change not later than seven days before the intended change on or about October 20, 2014, the indictment alleged he committed the charged offense within a "very specific" timeframe—the seven days leading up to his move on or about October 20, 2014. Herrell contends the challenged jury instructions allowed the jury to convict him for an offense that may have occurred outside that seven-day timeframe and that consequently, the trial court's charge therefore presented the jury with a much broader "chronological perimeter" than was permitted by law. We conclude, however, that Kelley is distinguishable.
The problem with the charge in Kelley was that the "on or about" instruction authorized the jury to convict Kelley for offenses with which he had not been charged. See 429 S.W.3d at 880 (noting that the "on or about" instruction "included two additional 90-day periods falling after September 1, 2011, during which [Kelley] continued to be subject to verification requirements and thus potential additional offenses for lack of compliance"); see also 429 S.W.3d at 883 (Christopher, J., dissenting) (agreeing with majority's conclusion that the charge was erroneous "because it include[d] a much broader 'chronological perimeter' than was permitted under the indictment" inasmuch as it "allowed the jury to convict [Kelley] for two later 90-day periods[] rather than for the period ending September 1, 2011" (footnote omitted)). Specifically, Kelley had been charged with only one violation of article art. 62.058(a): failing to verify his registration for the ninety-day period beginning May 26, 2011, and ending August 24, 2011. See Kelley, 429 S.W.3d at 870. Failure to verify his registration during that particular ninety-day period constituted a single offense.
The trial court's "on or about" instruction, however, allowed the jury to convict Kelley for two additional violations of article art. 62.058(a): failing to verify his registration for the ninety-day period beginning September 1, 2011, through January 1, 2012, and for the ninety-day period beginning January 1, 2012, through April 1, 2012. See id. at 880; see also id. at 883 & n.1 (Christopher, J., dissenting). Kelley's failure to verify his registration during either of these two ninety-day periods would have constituted additional offenses. See id. at 880 (noting trial court's instruction "included two additional 90-day periods falling after September 1, 2011, during which [Kelley] continued to be subject to verification requirements and thus potential additional offenses for lack of compliance" (emphasis added)); see also id. at 883 (Christopher, J., dissenting) (noting the "on or about" instruction allowed the jury to convict Kelley for two additional ninety-day periods rather than solely for the particular period with which he had been charged). By including an "on or about" instruction, therefore, the court's charge allowed the jury to convict Kelley for two potential violations of article 62.058(a) that occurred after the sole violation alleged in the indictment. See id. at 880; id. at 883 (Christopher, J., dissenting). For that reason, the court of appeals concluded that the "on or about" instruction presented the jury "with a much broader chronological perimeter than is permitted by law," resulting in an erroneous jury charge. See id. at 880; see also id. at 883 (Christopher, J., dissenting).
In contrast to the "on or about" instruction in Kelley, the "on or about" instruction here did not authorize the jury to convict Herrell for an offense other than the one alleged in the indictment. The sole requirement with which the indictment alleged Herrell failed to comply was article 62.055(a)'s requirement that he report an intended change of address. See Tex. Code Crim. Proc. Ann. art. 62.055(a). The unit of prosecution for the failure to comply with that requirement is "one offense for each change of address." Young v. State, 341 S.W.3d 417, 426-27 (Tex. Crim. App. 2011); see Villanueva, 257 S.W.3d at 530. The indictment alleged only one change of address, and the evidence showed only one change of address: Herrell's move from his registered address (Clark's residence) to an unknown address on or about October 20, 2014. Compare Villanueva, 257 S.W.3d at 530 (noting that defendant's failure to arrive at his assigned work-release facility following his release from parole "support[ed] a finding that [he] changed his address from the assigned work-release facility to another unknown address"), with Lara v. State, No. 07-13-00240-CR, 2014 WL 2466139, at *3 (Tex. App.—Amarillo May 30, 2014, no pet.) (mem. op., not designated for publication) (indictment that included paragraphs alleging that defendant failed to report his move to a halfway house and that he failed to report his intended move from that halfway house involved two changes of address and, thus, the indictment alleged two separate offenses).
Because Herrell was charged only with failing to report an intended change of address under article 62.055(a) and the indictment alleged, and the evidence showed, only one change of address, the trial court's "on or about" instruction did not authorize the jury to convict Herrell for an offense other than the one charged in the indictment. We thus conclude our sister court's reasoning in Kelley is inapplicable here. We therefore overrule Herrell's third issue.
V. CONCLUSION
Having overruled all of Herrell's issues, we affirm the trial court's judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE PANEL: WALKER, MEIER, and GABRIEL, JJ. DO NOT PUBLISH
Tex. R. App. P. 47.2(b) DELIVERED: April 19, 2018