Shelton v. State

Full title: JOSEPH DEAN SHELTON, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 14, 2003

No. 05-01-00458-CR (Tex. App. Apr. 14, 2003)

Opinion

No. 05-01-00458-CR.

Opinion Issued April 14, 2003. DO NOT PUBLISH, Tex.R.App.P. 47.

Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause No. F01-00395-QL. Reversed and Rendered.

Before Justices BRIDGES, FRANCIS, and MALONEY.¹

1 The Honorable Frances J. Maloney, Justice, Court of Appeals, Fifth District of Texas at Dallas, Retired, sitting by assignment.

OPINION

Opinion By Justice MALONEY

The trial court found Joseph Dean Shelton guilty of failure to register as a sex offender, found the enhancement paragraph true, and assessed a five-year sentence and a $1500 fine. In five points of error,² appellant contends legally and factually insufficient evidence exists to prove he violated certain registration requirements proscribed in chapter 62 of the code of criminal procedure. We reverse the trial court's judgment and render a judgment of acquittal.

2 We are aware that this Court now resolves issues or points, but because appellant's brief refers to points of error, we use the term "point of error" in this opinion. See Tex. R. App. P. 38.1(e).

BACKGROUND

In 1990, the trial court convicted appellant of attempting to unlawfully obtain vicodin from a pharmacist by using a false and forged prescription, assessed a ten-year sentence, suspended that sentence, and placed him on community supervision for ten years. In 1994, the trial court revoked appellant's community supervision because of a new offense-sexual performance with a child-and found appellant guilty of the new offense and assessed concurrent four-year sentences in both cases. In June 1996, appellant was convicted of indecency with a child and received a two-year sentence. In mid-1998, appellant submitted his "initial registration as a sex offender"³ with Police Investigator David Ward, who was responsible for the registration of all sex offenders in the city. Appellant was arrested for failure to register as a sex offender in October 1998. The trial court did not convict appellant of this offense until March 2000. Appellant's prerelease notification form, dated February 2000, stated that he expected his residence upon release to be 2316 Valley Falls, his parents' home. When the trial court convicted appellant on the 1998 offense, it imposed a two-year sentence, suspended that sentence, and placed him on community supervision for five years. On August 8, 2000, appellant and Ward signed a ninety-day "Update" to his registration information, again stating his address as 2316 Valley Falls. The following month, September, the State moved to revoke appellant's community supervision, alleging that he (1) did not register as a sex offender "for a period greater than seven days," (2) stole bank checks, and (3) did not report to his community supervision officer from April 2000 through August 2000. This motion to revoke community supervision remained pending until the grand jury issued the indictment that forms the basis of this appeal in January 2001. The 2001 indictment alleged that on or about September 8, 2000, appellant did not report to law enforcement authorities to (1) verify the information in the registration form at least once each ninety-day period following the date he first registered (an article 62.06(a) violation), (2) provide his anticipated move date and new address (an article 62.04(a) violation), and (3) report to law enforcement authorities who had jurisdiction over his new address and provide them with proof of his identity and new residence (also an article 62.04(a) violation).⁴ On March 8, 2001, the trial court found appellant guilty of failure to register as a sex offender and assessed a five-year sentence and a $1500 fine. On the pending community supervision revocation motion, the trial court found the allegation true and assessed a two-year sentence in state jail to run concurrently with the five-year term. Appellant appeals the conviction of the September 8 offense.

THE EVIDENCE 1. The State's Evidence

George Pell, appellant's parents' next-door neighbor, testified that during July and August 2000, he saw appellant "come and go" from his parents' house. Pell would see appellant outside his parents' home in the mornings when Pell left for work and in the evenings when he returned home. However, Pell would be away on business for two to three nights every month. Although he did not keep a log of appellant's activities, Pell saw appellant at home not more than ten or twelve days in July. Pell could tell when appellant was not home because the vehicles that only he drove were not in the driveway. Pell believed appellant only visited his parents, but did not live with them. Rajesh Patel, the record keeper and cashier who checked appellant out of the Big Town Inn motel, testified. A receipt⁵ from the motel contained appellant's name, the 2316 Valley Falls address, and his payment for the single-occupancy room for seven nights from August 25, 2000 to September 1, 2000. Ward testified that he had first explained appellant's responsibilities as a registrant sometime in the summer of 1998 after he "initially registered" as a sex offender. On February 2, 2000, he explained the prerelease notification form⁶ to appellant after he had been arrested on the 2000 failure to register as a sex offender. Among other things, the form informed appellant of his duties and role in the registration program on release from the penal institution, that his duty to register would expire upon his death, and that he had to meet the verification requirement every ninety days. Ward explained to appellant that should he reside or intend to reside for more than seven days anywhere other than 2316 Valley Falls, the address on his prerelease notification form, he would have to notify Ward seven days⁷ before any such change. If appellant changed his residence for more than seven days, he would have to register with the agency in that new location within seven days after changing residences. According to Ward, appellant never verified any of the information on his prerelease notification form. But, appellant updated his registration form on August 8, 2000. In that update, he did not report that he was changing residences. Sometime after August 8, police told Ward that appellant had been arrested for stealing bank checks and no longer lived at 2316 Valley Falls. Instead, he was living at a Big Town motel. This information prompted Ward to investigate appellant's address status. When Ward checked all the motels in the Big Town area, he eventually talked with Patel and discovered the motel receipt. Ward also spoke to Pell, who told Ward that appellant had not lived at the Valley Falls address for some time and "would come in for a day or two occasionally and then be gone for weeks at a time."⁸

2. The Appellant's Evidence

After the State rested, appellant's mother testified that appellant had been intermittently hospitalized in the summer of 2000. During those nights in the hospital, she called Ward and told him of appellant's location. As for his motel stays, appellant would spend up to three nights in a motel because she would not let him bring women home. Appellant never stayed at the motel longer than five nights. In her opinion, her son never moved out of her house. Appellant testified that he completed the prerelease notification form on February 2, 2000, reported and verified his address on August 8, 2000, and was arrested in September 2000.

SUFFICIENCY OF THE EVIDENCE

In his first point of error, appellant argues legally and factually insufficient evidence exists to prove he did not comply with the ninety-day reporting and verification requirements of article 62.06(a). He contends that he was not required to report and verify again until November 8, 2000. Thus, the State produced no evidence that he failed to report and verify as alleged in the indictment. The State responds that appellant's August 8 verification took place more than ninety days after his February 2 "initial registration." Consequently, he failed to timely report and verify his registration.⁹ In his second and third points of error, appellant contends that legally and factually insufficient evidence exists to prove he did not comply with registration requirements in not reporting his anticipated move date and new address not later than the seventh day before his intended move. He asserts the State presented no legally or factually sufficient evidence that he intended to change his address for more than seven days to trigger the reporting requirement of article 62.04(a). The State responds that it presented sufficient circumstantial evidence to prove appellant intended to move. Specifically, the State relies on Pell's testimony that appellant was not at his parents' home more than ten or twelve days in July and Pell's belief that appellant no longer lived at 2316 Valley Falls. The State also relies on Patel's testimony about appellant's stay at the motel. Additionally, the State argues that appellant misconstrues the "more than seven days" requirement in article 62.02(a) because that section concerns postmove registration, not an eight-day grace period for premove notification. The State argues that such a construction would produce absurd results because it would allow an offender to move and wait for eight days before providing premove notification to law enforcement authorities that he should have provided seven days before moving under article 62.04(a). Additionally, the State contends that because article 62.04(a) requires the offender provide his anticipated move date and new address if he "intends to change address," the State was only required to prove appellant intended to change his address, not that he actually changed it. Therefore, the trial court could infer appellant's intent to move away from his parents' home from Pell's and Patel's testimony, another officer's telling Ward that appellant was living at a motel, and Ward's inability to "keep up with" appellant. In appellant's fourth and fifth points of error, appellant asserts the evidence was not legally and factually sufficient to prove he failed to comply with registration requirements by not reporting his new address, not providing proof of his identity, and not providing proof of residence not later than the seventh day after changing his address. The State responds the trial court could infer from Pell's testimony, Ward's testimony, and appellant's seven-day motel stay that he had permanently left 2136 Valley Falls and did not properly notify local law enforcement authorities in compliance with article 62.02(a). The State relies on article 62.04(a), which provides that any person required to register changes of address shall, not later than the seventh day after changing the address, report in person to the local law enforcement authority in which the person's new residence is located and provide the authority with proof of identity and proof of residence. See Tex. Code Crim. Proc. article 62.04(a).

1. Standard of Review a. Legal Sufficiency

In evaluating the legal sufficiency of the evidence, we view all 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. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The factfinder is the exclusive judge of the witnesses' credibility and of the testimony's weight. And it is within the factfinder's exclusive province to resolve any evidentiary conflicts. See Wesbrook v. State, 29 S.W.3d 103, 111 (Tex.Crim.App. 2000). A claim of legal insufficiency is, in effect, an argument that the case should never have even been presented. Id.

b. Factual Insufficiency

In evaluating a factual sufficiency challenge, we discard the prism used in a legal sufficiency review and, instead, view all of the evidence in a neutral light, favoring neither side. See id. We set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Id. at 112. We ask "whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the factfinder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." See King, 29 S.W.3d at 563. The factfinder is the sole judge of the witnesses' credibility and the testimony's weight, and we avoid substituting this Court's judgment for that of the factfinder. See Wesbrook, 29 S.W.3d at 111. We reverse the factfinder's determination only if "a manifest injustice has occurred." See King, 29 S.W.3d at 563.

2. Applicable Law

Article 62.06(a) governs registration verification. It provides in part that a person subject to registration who has been convicted two or more times for a sexually violent offense shall report to local law enforcement authorities at least once in each ninety-day period following the date the person first registered to verify the information in the registration form. See Tex. Code Crim. Proc. art. 62.06(a) (Vernon Supp. 2002).¹⁰ Before releasing a person from a penal institution, an official from that institution shall inform the person that he must register or verify registration with the local law enforcement authority in the municipality in which the person intends to reside not later than the seventh day after the person is released. See Tex. Code Crim. Proc. art. 62.03(a)(1)(A)(i) (Vernon Supp. 2002). This requirement to register or verify registration is in addition to the prerelease notification form. See id. at 62.03(a)(3). Within seven days after release from a penal institution a person is required to register or verify registration with the appropriate officer. See Tex. Code Crim. Proc. art. 62.03(a)(1)(A)(i). If a person required to register intends to change his address, that person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority and provide them with their anticipated move date and new address. See Tex. Code Crim. Proc. Ann. art. 62.04(a). To timely satisfy this requirement, the person must report "not later than the seventh day after the person's arrival" in the new municipality. See id.

3. Application of Facts to Law a. Legally Insufficient Evidence of Failing to Timely Report and Verify Registration Form

Both Ward in his testimony and the State in its brief refer to appellant's "initial registration" — Ward in referring to "mid 1998" registration and the State in referring to the "February 2" registration. The February 2 prerelease notification form expressly states it is not the registration form. Because the record does not show the date that appellant registered as a sex offender or was released from either jail or penitentiary, we are unable to determine any time lines in applying the deadlines. To understand the importance of the February 2 prerelease notification form with respect to the timeliness issue before us, we first look to article 62.03(a), which governs prerelease notifications. Here, the parties do not dispute that appellant was subject to the ninety-day requirement under article 62.06. The prerelease notification form he signed complied with article 62.03, and Ward reviewed the form with appellant "line by line . . . to make sure he understood it." Appellant was still incarcerated on the October 1998 failure to register offense when he signed the prerelease notification form on February 2, 2000. The record does not reveal the exact date of appellant's release from the penal institution or the exact date when he was required to register or verify registration with Ward. But, the testimony shows that appellant was at his parents' home in July 2000. According to article 62.03, appellant had seven days after being released from the penal institution to register or verify the address listed on the prerelease notification form. He updated his registration on August 8, 2000, more than seven days after any possible time he could have been released from prison. But, the State indicted appellant for violating article 62.06(a) because he failed to report within ninety days, not for violating article 62.03(a)(1)(A)(i) because he failed to register within seven days. We cannot tell if the August 8, 2000 reporting and verifying of his registration in the update form complied with article 62.06(a) because we cannot tell the date appellant first registered as a sex offender. The record contains the State's motion to revoke, which recites that appellant did not report from April 2000 to August 2000, but motions are not evidence. See George v. State, 20 S.W.3d 130, 135 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd); Gonzales v. State, 977 S.W.2d 189, 190 (Tex.App.-Austin 1998, pet. ref'd); State v. Brunner, 917 S.W.2d 103, 105 (Tex.App.-San Antonio 1996, pet. ref'd); Nelson v. State, 629 S.W.2d 888, 890 (Tex.App.-Fort Worth 1982, no pet.). Without evidence of the triggering date of appellant's prison release, the record is unclear whether the August 8 update form was timely filed within the ninety-day requirement under 62.06(a). However, in viewing the evidence in the light most favorable to the judgment and in determining whether the trial court could have found the elements of the offense beyond a reasonable doubt, we cannot overlook Ward's testimony. Ward testified as follows:

STATE: So did [appellant] verify any of the information than what's on the [prerelease notification] form that's been admitted into evidence?

WARD: No.

STATE: Did you write a [failure to] report in this case?

WARD: Yes, sir.

* * *

STATE: So was Mr. Shelton doing what he was supposed to be doing?

WARD: No, sir.

STATE: Were you able to keep up with him?

WARD: No, sir. (Emphasis added.) As factfinder, the trial court could have found Ward credible and accepted as true his testimony that appellant did not verify the information on the prerelease notification form. See Perez v. State, 41 S.W.3d 712, 716-17 (Tex.App.-Corpus Christi 2001, no pet.); Garza v. State, 937 S.W.2d 569, 570 (Tex.App.-San Antonio 1996, pet. ref'd). But, Ward also testified that appellant "updated his registration in August . . . August 8th." Although conflicting, Ward's testimony still did not prove that appellant did not report and verify the registration information within the ninety-day requirement. The absence of a time reference, either in Ward's testimony above or of appellant's release from prison in the documentary evidence, leads us to conclude that the State's evidence was not legally sufficient to prove that appellant failed to report and verify within ninety days as mandated by article 62.06.

We sustain appellant's first point of error.

b. Legally and Factually Insufficient Evidence of Failure to Timely Report Move Date and New Address

The evidence showed that Pell told Ward that, during the summer, he saw appellant "come in for a day or two occasionally and then be gone for weeks at a time." However, Pell admitted he did not keep a log of appellant's comings and goings. Also Pell traveled out of town on business two or three days a month. The motel receipt showed appellant reserved the room for only seven days. Also, appellant's mother provided a reason why appellant was away from home-he was often "in and out" of the hospital. And, during those times he was in the hospital, she reported his hospitalization to Ward on her son's behalf. Her evidence showed that appellant could have resided only two places other than his parents' house-the hospital and the motel. The State neither challenged appellant's mother's testimony that she reported to Ward about appellant's hospital stays nor presented any evidence that Pell's account of appellant's absence from his parents' home "for weeks at a time" was other than his time spent in the hospital. Nor did the State present any evidence that appellant stayed or intended to stay at the motel more than seven days. On these facts, even when viewing the light most favorable to the judgment, the trial court could not have found beyond a reasonable doubt that appellant violated the "more than seven day" requirement of 62.04(a). We conclude the State's evidence was legally insufficient to support this allegation in the indictment. To the extent the trial court rendered its judgment on this allegation in the indictment, it erred. Having found the evidence legally insufficient, we need not address appellant's factually insufficient complaint. We sustain appellant's second and third points of error. c. Legally and Factually Insufficient Evidence of Failure to Timely Report Proof of Identity and Residence to Law Enforcement Authorities After Obtaining New Address Because of our resolution of points of error two and three above, we conclude the State presented legally insufficient evidence to prove appellant did not report his new address, provide proof of his identity, or provide proof of residence pursuant to article 62.02(a). Because the State produced no evidence proving he moved or intended to move, no new law enforcement authority in a new jurisdiction existed where appellant was required to report. Having found the evidence legally insufficient, we need not address appellant's factually insufficient complaint. We sustain appellant's fourth and fifth points of error. Because the State did not present legally sufficient evidence to prove any of the three allegations stated in the indictment, we reverse the trial court's judgment and render a judgment of acquittal for appellant.