Opinion
NO. 01-11-00469-CR
05-03-2012
L.J. JORDAN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Case No. 1260543
MEMORANDUM OPINION
A jury convicted appellant, L.J. Jordan, of the second degree felony offense of failure to comply with the sex offender registration requirements. The trial court assessed punishment at twenty-five years' confinement. In his sole issue, appellant contends that the State did not present sufficient evidence that he intentionally and knowingly failed to verify his sex offender registration information within the required time period. The State confesses error, conceding that it failed to prove appellant's guilt as indicted. We therefore reverse and render a judgment of acquittal on the charge for which appellant was indicted.
Background
In 1986, appellant was convicted of aggravated sexual assault of a child. As a result, he was required to register as a sex offender with the Houston Police Department ("HPD") and to verify his registration every year for life. See TEX. CODE CRIM. PROC. ANN. art. 62.051(a) (Vernon Supp. 2011) (requiring any person with "reportable conviction" to register with local law enforcement agency of municipality in which person intends to reside for more than seven days).
HPD Sergeant G. Shepherd, who works in the Sex Offender Registration Unit, testified that, on April 7, 2010, federal marshals completing a compliance checklist on appellant went to his last registered address, 8325 La Porte, Apartment No. 14, known as the Ship Channel Motel. Sergeant Shepherd stated that the marshals reported that appellant was possibly noncompliant with the registration requirements because the motel management had forced him to check out approximately a week prior to the investigation. Sergeant Shepherd also testified that each sex offender is informed that he must notify HPD of any intra-state address changes seven days prior to moving.
Harris County Deputy K. Roy, who worked in the HPD Sex Offender Compliance Unit at the time, was assigned to follow up on appellant's compliance status. As part of his investigation, Deputy Roy went to the Ship Channel Motel and discovered that the room registered as appellant's address was a vacant room with no "other signs of occupancy." Deputy Roy spoke with the motel manager, who told him that she had evicted appellant because she had discovered that he was a sex offender.
Leticia Rodriguez, a former employee of the Ship Channel Motel, testified that, after she became aware of "a document that [appellant] received as a sexual offender," she told appellant he had to move and that he did so two days later on March 11, 2010. She stated that appellant had paid his rent for the week of March 4 through March 11 and that she did not give him a specific move-out date, but she intended that he move before the next week's rent was due, which was "soon."
HPD Officer D. Hammons, appellant's assigned registration officer, testified that, according to her call-log notes, appellant called at least eight times between March 17 and April 7, 2010. She further stated that appellant never changed his registration with her in person, and she never had any further contact with him.
Appellant was indicted for failure to comply with sex-offender registration requirements as follows:
while subject to registration under the Texas sex offender registration program, and while intending to change his residential address, intentionally and knowingly failed to timely provide in person the Defendant's anticipated move date and new address to THE LOCAL LAW ENFORCEMENT AUTHORITY DESIGNATED AS THE DEFENDANT'S PRIMARY REGISTRATION AUTHORITY, by failing to provide said information in person to said AUTHORITY at least seven days before the Defendant's change of address.The jury charge tracked the language in the indictment, and the jury found him guilty of failing to comply with the registration requirements for failure to provide his anticipated move date and new address at least seven days before his change of address.
Failure to Comply with Sex-Offender Reporting Requirements
In his sole issue, appellant contends that the evidence is insufficient to show his intentional and knowing failure to comply with the sex offender reporting requirement that he provide his anticipated move date and new address at least seven days before his change of address.
A. Standard of Review
When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Brooks v.State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010). When performing a legal sufficiency review, we may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Rather, we ensure that the jury reached a rational decision. Green v. State, 350 S.W.3d 617, 621 (Tex. App.— Houston [14th Dist.] 2011, pet. ref'd) (citing Muniz v. State, 851 S.W.2d 238, 246 (Tex. Crim. App. 1993)).
"A reviewing court's duty, however, does require it to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged." Williams, 235 S.W.3d at 750; see also Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001) (holding that State must prove allegations set out in charging instrument beyond reasonable doubt) (citing In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073 (1970) ("[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.") (emphasis added)). If we determine, upon reviewing the record under the Jackson standard, that "a rational jury would necessarily entertain a reasonable doubt as to the defendant's guilt, the due process guarantee requires that we reverse and order a judgment of acquittal." Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); see Jackson, 443 U.S. at 317-19, 99 S. Ct. at 2788-89.
B. Law Regarding Registration Requirements
A person commits the offense of failure to comply with sex offender registration requirements if he "is required to register and fails to comply with any requirement of" Chapter 62 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 62.102(a) (Vernon 2006); Green, 350 S.W.3d at 621; see also Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.—Houston [14th Dist.] 2001, no pet.) ("If a convicted sex offender fails to meet any of his or her requirements under the statute, the statute imposes criminal liability upon him or her for that failure."). Article 62.051(a) requires a person with a "reportable conviction" to 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) (Vernon Supp. 2011). Under article 62.055(a),
[i]f a person required to register under this chapter intends to change address, . . . the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority designated as the person's primary registration authority by the department and to the . . . officer supervising the person and provide the authority and the officer with the person's anticipated move date and new address.Id. art. 62.055(a) (Vernon Supp. 2011).
Generally, because no state of mind is specified for article 62 offenses, proof that the defendant acted intentionally, knowingly, or recklessly is sufficient. Harris v. State, No. 01-10-00376-CR, 2012 WL 243331, at *6 (Tex. App.— Houston [1st Dist.] Jan. 5. 2012, no pet.) (citing Ford v. State, 313 S.W.3d 434, 438 (Tex. App.—Waco 2010), rev'd on other grounds, 334 S.W.3d 230 (Tex. Crim. App. 2011)); see also TEX. PENAL CODE ANN. § 6.02(c) (Vernon 2011) (providing that, if definition of offense does not prescribe culpable mental state and one is required, "intent, knowledge, or recklessness suffices to establish criminal responsibility"). When the indictment alleges that a defendant intentionally or knowingly failed to register as a sex offender, we review the record to determine if the State presented sufficient evidence of the defendant's intentional or knowing failure. Harris, 2012 WL 243331, at *6; see also Ballard v. State, 149 S.W.3d 693, 694 & n.1 (Tex. App.—Austin 2004, pet. ref'd) (conducting factual sufficiency review of whether defendant intentionally or knowingly failed to register when indictment alleged these culpable mental states); Varnes, 63 S.W.3d at 832 ("Although the sex offender registration statute does not expressly require proof of a mental state for prosecution of a failure to register, the indictment in this case alleged that Varnes 'intentionally and knowingly' failed to register.").
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE ANN. § 6.03(a) (Vernon 2011). A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to the circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. Id. § 6.03(b). A person acts knowingly, or with knowledge, with respect to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id.
C. Analysis
Appellant was indicted for failing to comply with the registration requirement to provide his anticipated move date and new address seven days prior to changing his address. Appellant contends 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 his change of address.
The testimony at trial showed that registration staff believed that registered sex offenders have to give at least seven days advance notice before any address change. Sergeant Shepherd testified that a sex offender is informed that he must notify HPD of an intra-state address change seven days prior to moving. Officer Hammonds testified that appellant was required to register the new address in person, which he failed to do. However, the registration requirement that appellant was charged with violating is triggered only "[i]f a person required to register under this chapter intends to change address." TEX. CRIM. PROC. CODE ANN. art. 62.055(a); Green, 350 S.W.3d at 623. "In addition, the deadline for reporting this 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.'" Green, 350 S.W.3d at 623 (quoting TEX. CRIM. PROC. CODE ANN. art. 62.055(a)). The Green 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." Id. It concluded that the evidence to support Green's conviction for failure to provide at least seven days' notice of an intended move 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.
Here, appellant was evicted from his current residence with two days' notice. The State presented no evidence that appellant 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 appellant could have formed such 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. As in Green, there is no evidence that appellant intended to move and failed to report it within the required time period. See id.
We conclude that the State's evidence was legally insufficient to support appellant's conviction for the crime for which he was indicted, and, thus, we must render a judgment of acquittal. See Swearingen, 101 S.W.3d at 95. In its brief, the State agrees and confesses error.
We sustain appellant's sole issue.
Conclusion
The State confesses reversible error in the trial court's judgment. We reverse the judgment of the trial court and render a judgment of acquittal on the charge for which appellant was indicted.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Sharp. Do not publish. TEX. R. APP. P. 47.2(b).
See TEX. CODE CRIM. PROC. ANN. art. 62.102(b)(3) (Vernon 2006).