Opinion
No. 05-09-00705-CR
Opinion Filed August 9, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 196th Judicial District Court, Hunt County, Texas, Trial Court Cause No. 25031.
Before Justices RICHTER, LANG-MIERS, and MYERS.
OPINION
Appellant, Lonnie Cleo York, is required to register for life as a sex offender. In 2008, the State indicted appellant on two charges of failure to verify registration. See Tex. Code Crim. Proc. Ann. arts. 62.051, .058 (Vernon 2006 Supp. 2009). The first offense was alleged to have occurred on or about November 5, 2007, and the second on or about February 13, 2008. A jury acquitted appellant of the first charge and convicted him of the second. On appeal, appellant contends that the evidence is legally and factually insufficient to support the conviction. We agree and reverse the trial court's judgment and render a judgment of acquittal.
Standard of Review
In reviewing a challenge to the legal sufficiency of the evidence, we examine the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Laster v State, 275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We do not re-weigh the evidence or substitute our judgment for that of the jury. King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). The jury is the exclusive judge of the witnesses' credibility and the weight to be given to their testimony. Harvey v. State, 135 S.W.3d 712, 717 (Tex. App.-Dallas 2003, no pet.). We measure the sufficiency of the evidence by the elements of the offense as defined by a hypothetically correct jury charge. 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 unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.Sex Offender Registration Program
The Sex Offender Registration Program is found in Chapter 62 of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. Ann. arts. 62.001-.408 (Vernon 2006 Supp. 2009).Initial Registration Requirement
The general registration requirement states that a person with a reportable conviction is required to register with the local law enforcement authority where the person resides or intends to reside for more than seven days. Id. art. 62.051(a). If the person does not reside or intend to reside in a municipality, then the person must register in the county where the person resides or intends to reside for more than seven days. Id. The registration form requires a substantial amount of personal information about the offender: name, alias(es), date of birth, sex, race, height, weight, eye color, hair color, social security number, driver's license number, shoe size, and home address. Id. art. 62.051(c)(1). The registration form also requires a recent color photograph or digital image of the offender and a complete set of fingerprints; the type of offense the offender was convicted of, the age of the victim, the date of conviction, and the punishment the offender received; whether the offender was discharged, paroled, or released on juvenile probation, community supervision, or mandatory supervision; a list of each license the offender holds to practice or engage in a particular business, occupation, or profession; whether the person is employed or is a student and the name of each employer or institution of higher learning; and any other information required by the Department of Public Safety. Id. art. 62.051(c)(2)-(7).Verification Requirement
Once the initial registration is complete, the offender is required to report in person periodically to verify that the information contained in the registration form is complete and accurate. Id. art. 62.058(a). The frequency of this in-person reporting requirement is determined by statute. See id. When the person reports, the local law enforcement authority must require the person to produce proof of his identity and residence before the authority gives the registration form to the person for verification. Id. art. 62.058(c). If the information on the registration form is complete and accurate, the person must verify the registration by signing the form. Id. art. 62.058(c). If the information is not complete or accurate, the person must make the necessary changes before signing the form. Id. Unless an offender is not in compliance with the reporting requirement, the local law enforcement authority cannot order the offender to report in person more frequently than as permitted by statute. Id. art. 62.058(b). However, the authority may at any time mail a nonforwardable verification form to the person's last reported address. Id. art. 62.058(d). The person must indicate on the verification form whether he still lives at the last reported address and, if not, provide the new address, provide any other information required by the form, sign the form, and return it to the authority within 21 days from his receipt of the form. Id.Reporting Change of Address
Article 62.055 explains an offender's obligations when the offender intends to change or changes address. If the person intends to change address, the offender is required to report in person to the local law enforcement authority designated as the person's primary registration authority not later than the seventh day before the intended change. Id. art. 62.055(a). If the person has already moved, he must report in person to the local law enforcement authority in the municipality or county where the new residence is located not later than the seventh day after changing address. Id. There are other requirements if the intended move is to another state or if the move does not occur as planned. See id. art. 62.055(c), (e). To summarize, Chapter 62 has many requirements. After the initial registration and verification process, an offender must, among other things, (1) report in person periodically to verify the registration information, (2) report in person a change of address or lack of address, and (3) complete, sign, and return any nonforwardable verification form sent to the offender's last reported address. If an offender fails to comply with any requirement of Chapter 62, the person can be charged with a felony. Id. art. 62.102.Factual Background
In this case, it is undisputed that appellant was required to and did register with Theresa Duckworth, the verification employee for the Hunt County Sheriff's Office. It is also undisputed that appellant was required to report on an annual basis to the Hunt County Sheriff's Office to verify the information contained in his registration form. The evidence showed that appellant moved to Ladonia, Texas, in rural Hunt County, in 2006. He moved to his daughter's mobile home on 11 acres in Ladonia because his wife cosigned on their daughter's mortgage and their daughter fell behind on her payments. Appellant and his wife moved into the mobile home to try to save the property and their credit. Appellant and his wife owned 11 acres adjacent to their daughter's 11 acres, and the properties were separated by a gravel driveway. Both properties used the same address when appellant moved there-4111 County Road 4805. The evidence showed that the address was changed from 4111 to 4023 in 2005 for 911 purposes, but it also showed that Duckworth and appellant continued to use the 4111 address until 2008. Appellant used the 4111 address when he registered in 2006 and when he verified his registration in 2007. And Duckworth mailed a nonforwardable verification letter to appellant at the 4111 address in September 2006. Appellant timely responded to the letter. After appellant reported in September 2007 to verify his registration, he received a notice from the bank that it was foreclosing on the mobile home. In October 2007, he moved his family to a house in Greenville, Texas that he and his wife had owned for several years. He testified that he continued to live in rural Hunt County and just moved "across the driveway" from the mobile home to two semi-trailers that he had placed on his and his wife's 11 acres. He said the house in Greenville was too close to a school and he could not live there, and he and his wife had plans to build a house on their 11 acres. In November 2007, Duckworth received information that appellant was living at the house in Greenville. She made visits to the rural property and to the house in Greenville. Based on her investigation, she concluded that appellant had moved to Greenville. She obtained a warrant for appellant's arrest in November 2007 for "failure to change address." Appellant was arrested on December 20, 2007 and released the next day. Duckworth testified that she left appellant two voicemail messages on his cell phone after he was released from jail asking him to call her about his registration. He never returned the calls. In January 2008, appellant called the 911 coordinator to ask for a new address for the 11 acres across the driveway from the mobile home, where he said he was living in the semi-trailers. The coordinator assigned the address of 4021 County Road 4805 to that property, but also told appellant she would have to drive to the property to physically confirm the address. The 911 coordinator sent a letter to Duckworth telling her that appellant had called for a new address and explaining the change in appellant's address. Duckworth continued her investigation. She made several more visits to the house in Greenville and the rural Hunt County property. She took pictures at both locations. She testified that she never knocked on the door of the Greenville house and never saw appellant there. However, she continued to believe that appellant had moved to Greenville. As a result, on February 13, 2008, Duckworth got a second warrant for appellant's arrest for "failure to change address." Appellant was arrested in March 2008 and released soon thereafter. In April 2008, appellant reported to Duckworth that he had changed his address from 4111 County Road 4805 to 4021 County Road 4805.Discussion
The indictment alleged that appellant, on or about February 13, 2008,having a reportable conviction for the offense of aggravated sexual assault of a child, did then and there intentionally and knowingly fail to verify registration with Teresa Duckworth, the local verification officer of the Hunt County Sheriff's Office, Hunt County, Texas where the defendant had resided for more than seven days;. . . .The hypothetically correct jury charge required the State to prove that (1) appellant (2) intentionally or knowingly (3) failed to verify registration (4) with the Hunt County Sheriff's Office (5) where he had resided for more than seven days, and (6) he had a reportable conviction for aggravated sexual assault of a child. According to the verification provision of the Sex Offender Registration Program, a sex offender fails to verify registration if he (1) fails to report as required to verify the registration information, (2) signs a verification form indicating that the information is complete and accurate when it is not, or (3) fails to respond timely to a nonforwardable verification form. See id. art. 62.058(b)-(d). The State did not allege in which of these ways appellant specifically failed to verify registration. As we explained, the Sex Offender Registration Program has many requirements that apply in this case, one of which is to report annually to verify registration. As we interpret the statute, a failure to verify registration is a separate offense from a failure to report a change of address. Compare id. art. 62.055 with id. art. 62.058; see Martin v. State, 252 S.W.3d 809, 816 n. 8, 818 (Tex. App.-Texarkana 2008, pet. dism'd) (failure to report change in employment is separate offense from failure to verify registration). The focus of the State's case throughout voir dire, opening statement, presentation of evidence, and closing argument was that appellant had changed address without reporting the change to Duckworth within seven days, not that appellant failed to verify registration. The charge even included an instruction about change of address. Duckworth testified that she believed appellant had moved to Greenville and that the basis for the two warrants for appellant's arrest was his "failure to change his address." Investigator Tommy Grandfield and the other officers who testified echoed Duckworth's testimony. In closing argument, the State argued,
It's all about address. . . . This case is all about change of address. . . . The law says that as a sex offender, you have to notify your person that's in charge of your sex offender registration that you've changed your address and you have to do it within 7 days. . . . He didn't do it. He flat out didn't do it.
. . .
I don't have the burden of proof to show he lived in Greenville. Did I give you overwhelming evidence that he's at Greenville . . .? Yes.
. . .
Now . . . here's the issue. If you believe he's just living across the driveway, in the trailers . . . [i]f you follow the law you have to find him guilty. . . . There's plenty of evidence that he moved 20 miles into the City, where it makes more sense. . . .The State told the jury that even if it believed appellant had only moved across the driveway into the semi-trailers, and not to Greenville, it should still find him guilty because "he's still not living at 4111 County Road 4805," and he did not notify Duckworth of the change of address. Appellant is obligated to ensure that his registration information is complete and accurate. And he is required to report in person if he intends to change address or has moved. See Tex. Code Crim. Proc. Ann. art. 62.055. He is not required to "verify" the information in his registration form, however, except according to the statutory scheme for verification. See id. art. 62.058. While the State presented evidence from which a reasonable jury could conclude that appellant moved to Greenville, the State did not charge him with failure to report a change of address. See id. art. 62.055. Instead, it charged him with a different offense: failure to verify registration. See id. art. 62.058; Martin, 252 S.W.3d at 816 n. 8. The evidence showed that appellant complied with his annual verification requirements and that he responded to a nonforwardable verification letter sent to him by Duckworth in September 2006. A failure to correct a wrong address on a verification form may constitute an offense for failure to verify registration, but the jury acquitted appellant of any failure to verify registration prior to November 7, 2007, the date of the first allegation. And the State presented no evidence that appellant was presented with a verification form after that date or that he failed to respond timely. Although there was testimony that appellant received a second nonforwardable verification form from Duckworth, the letter was not introduced into evidence, and there was no testimony about when the letter was sent, the deadline for a response, or whether appellant "verified" information that was not true. See Tex. Code Crim. Proc. Ann. art. 62.058. We conclude that the evidence is legally insufficient to support the conviction for failure to verify registration. We reverse the judgment of the trial court and render a judgment of acquittal.