Opinion
No. 13-02-384-CR
Opinion delivered and filed May 20, 2004. DO NOT PUBLISH. Tex.R.App P. 47.2(b).
On Appeal from the 36th District Court of San Patricio County, Texas.
Before Justices HINOJOSA, YAÑEZ, and GARZA.
MEMORANDUM OPINION
Following a bench trial, appellant, Timothy Scott Rollings, a/k/a Timothy Scott Rollins, was found guilty of the third-degree felony offense of failure to comply with sex-offender registration requirements. He was sentenced to four years imprisonment and assessed a fine of $1,500. In four issues, he contends: (1) the evidence is legally and factually insufficient to support his conviction; (2) his conviction and punishment constitute cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution; and (3) application of the registration requirements to his 1986 conviction is an ex post facto prosecution in violation of Article I, Section 10 of the United States Constitution. We affirm. The trial court has certified that Rollings has a right to appeal. See TEX. R. APP. P. 25.2(a)(2). As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
See TEX. CODE CRIM. PROC. ANN. arts. 62.04, 62.10 (Vernon Supp. 2004).
I. Sufficiency of the Evidence A. Standard of Review
Claims of legal insufficiency of evidence are reviewed by examining 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 offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003). We measure the legal sufficiency of the evidence in a non-jury trial by the elements of the offense as defined by the hypothetically correct jury charge for the case. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). A hypothetically correct jury charge sets out the law, is authorized by the indictment, does not increase the State's burden of proof or necessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. Id.; see Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App. 2000) ("We believe the `law' as `authorized by the indictment' must be the statutory elements of the offense . . . as modified by the charging instrument."). In Malik, the court of criminal appeals provided that this standard can be applied to all trials, whether to the bench or to the jury. Malik, 953 S.W.2d at 240; see Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App. 2002) (evidentiary sufficiency should be measured against "elements of the offense as defined by the hypothetically correct jury charge for the case" in all sufficiency cases). Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosely v. State, 983 S.W.2d 249, 254 (Tex.Crim. App. 1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App. 1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id. We also measure the factual sufficiency of the evidence in a non-jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex. App.-Corpus Christi 2002, pet. ref'd) (discussing application of "hypothetically correct jury charge" analytical construct in context of factual-sufficiency review in case tried to jury). In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if "proof of guilt is so obviously weak as to undermine confidence in the [fact-finder's] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof." Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App. 2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). We are also required to accord due deference to the fact-finder's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment for that of the fact-finder. Id.; Johnson, 23 S.W.3d at 7; see Mosely, 983 S.W.2d at 254 (questions concerning credibility of witnesses and weight given their testimony are resolved by the trier of fact). Because a bench trial is a unitary proceeding, evidence that is introduced at the punishment phase of a trial, on a plea of not guilty, may be considered in determining the sufficiency of the evidence. Barfield v. State, 63 S.W.3d 446, 450 (Tex.Crim. App. 2001).B. Applicable Law
The Texas Code of Criminal Procedure provides that a person who has a reportable conviction, such as a sex offense against a minor, 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. 62.02(a) (Vernon Supp. 2004). If the person does not reside or intend to reside in a municipality, the person must register in the county where the person resides or intends to reside for more than seven days. Id. Under the penal code, a person does not commit the offense of failure to comply with registration requirements unless he intentionally, knowingly, recklessly, or with criminal negligence engages in the offense. TEX. PEN. CODE Ann. § 6.02(b), (c) (Vernon 2003). A person acts with intent with respect to the nature or result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. Id. § 6.03(a). A person acts knowingly with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist, and he acts knowingly as to the result of his conduct when he is aware that his conduct is reasonably certain to cause the result. Id. § 6.03(b). A person acts recklessly with respect to the circumstances surrounding his conduct or the result of his conduct when he is aware of, but consciously disregards, a substantial and unjustifiable risk that the circumstances exist or the result will occur. Id. § 6.03(c).C. Analysis
Here, the indictment alleges that on or about January 12, 2002, Rollings was required to register in the "municipality where [he] resided or intended to reside for more than seven days, to wit: the city of Ingleside, Texas" and that he intentionally, knowingly, or recklessly failed to register. Rollings challenges the legal and factual sufficiency of the evidence to support his conviction. In the sections of his brief addressing his challenges to legal and factual sufficiency, Rollings specifically argues that "the State failed to prove at [his] trial on guilt/innocence that [he] was ever notified that he had to register as a sex offender in Texas. The State only proved at that trial that [he] was not registered in Ingleside, Texas." Rollings testified at the punishment phase of the trial that he was aware that he was required to register as a sex offender. He further testified that he had attempted to register with the county but failed to complete the process. Rollings testified he did not move to Ingleside until January 20, 2002, four days before his arrest. His fiancee, Melissa Garza, also testified that he did not move to Ingleside until January 20, 2002, but that prior to that time, he used the Ingleside address as his mailing address. Evidence presented at trial showed Rollings listed his address as "2781 Beaumont, Ingleside" in an October 2001 loan application that specifically required a residential address. The evidence also included various police reports Rollings submitted dating from October 2001 in which he listed his address as "2781 Beaumont, Ingleside." Viewing the evidence in the light most favorable to the prosecution and measuring it against the elements of the offense as defined by the hypothetically correct jury charge, we hold that a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Sanders, 119 S.W.3d at 820; Malik, 953 S.W.2d at 240. We hold the evidence is legally sufficient to support Rollings's conviction. We presume that the trier of fact resolved any conflicts concerning the credibility of witnesses and the weight given their testimony in favor of the prosecution. See Jackson, 443 U.S. at 326; Swearingen, 101 S.W.3d at 97. We defer to the fact finder's resolution of conflicting evidence. Swearingen, 101 S.W.3d at 97. We do not find the verdict so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. See Johnson, 23 S.W.3d at 7. We hold the evidence is factually sufficient to support Rollings's conviction. We overrule Rollings's first and second issues.II. Cruel and Unusual Punishment
In his third issue, Rollings contends his four-year sentence for "a mere administrative violation" is unconstitutionally disproportionate to the severity of the offense and thus constitutes cruel and unusual punishment in violation of the Eighth Amendment. The Eighth Amendment provides that no cruel and unusual punishment shall be inflicted on individuals. U.S. CONST. amend. VIII. It is applicable to the states by and through the Fourteenth Amendment. See Robinson v. California, 370 U.S. 660, 667 (1962). The State argues Rollings failed to object at trial regarding cruel and unusual punishment, and thus failed to preserve the issue on appeal. The record reflects that after assessing punishment at four years, the following exchange occurred at the close of the punishment hearing:[Court]: Do you have anything to say legally why that sentence [four years and $1500 fine] should not be pronounced at this time?
[Rollings]: Yes, sir.
[Court]: All right.
[Rollings]: I think that's a little excessive, Your Honor. I know I messed up, I know I should be punished for it, but that's a little excessive. I tried to take care of it, I was working 108 hours a week, Judge. I was planning a wedding. I'm trying to get myself back together. I'm not out there robbing nobody, I'm not hurting nobody, I was trying to do the right thing.In order to preserve a complaint for appellate review, a party must have presented a timely request, objection, or motion to the trial court stating the specific grounds for the objection and have obtained a ruling. TEX. R. APP. P. 33.1. It is well-settled that even constitutional rights may be waived by a failure to object. Id.; Wright v. State, 28 S.W.3d 526, 536 (Tex.Crim. App. 2000); Luna v. State, 70 S.W.3d 354, 359 (Tex. App.-Corpus Christi 2002, pet. ref'd). We conclude it is unnecessary for us to decide whether Rollings preserved his complaint because even if preserved, his claim is without merit. It is also well established that a sentence that falls within the range of punishment prescribed by the legislature is not excessive, cruel, or unusual. Samuel v. State, 477 S.W.2d 611, 614 (Tex.Crim.App. 1972); Morales v. State, 897 S.W.2d 424, 427 (Tex. App.-Corpus Christi 1995, pet. ref'd). Here, Rollings was sentenced to four years imprisonment, which is within the prescribed range for the offense. We overrule appellant's third issue.