MICHAEL TOWERY ROBERTS v. THE STATE OF TEXAS

Reset A A Font size: Print

Court of Appeals of Texas, Dallas.

MICHAEL TOWERY ROBERTS, Appellant v. THE STATE OF TEXAS, Appellee

No. 05–11–00450–CR

Decided: June 22, 2012

Before Justices O'Neill, Richter, and Francis

MEMORANDUM OPINION

Opinion By Justice O'Neill

On June 9, 1997, appellant Michael Towery Roberts pleaded nolo contendere to the offense of indecency with a child, and the trial court probated his sentence for five years.   As part of his probation, he was required to register as a sex offender.   The State later charged him with failing to register as a sex offender in Kaufman County.   A jury found him guilty of the offense, and the trial court sentenced him to two years' imprisonment.

On appeal, he argues (1) the evidence is legally insufficient to support his conviction, (2) a material variance exists between the indictment and the evidence, and (3) the jury was improperly instructed on sex offender registration.   Because we conclude the evidence is legally insufficient to support his conviction, we reverse and render a judgment of acquittal.

Background

It is undisputed appellant first registered as a sex offender in 1997 in Irving, Texas.   While he moved to various locations, appellant registered in Kaufman County in 2005.   The record shows he continued to report annually for his verification appointment in Kaufman County through 2009.   His registered address was 1606 Warrington Way in Forney, Kaufman County, Texas.

His last annual verification occurred on September 16, 2009, and his next scheduled verification was set for September 7, 2010.   However, as provided by statute, appellant had thirty days before or thirty days after his birthday to verify his information.  Tex.Code Crim. Proc. Ann. art. 62.058(a)(West 2006) (a person “shall report to the local law enforcement authority ․ once a year not earlier than the 30th day before and not later than the 30th day after the anniversary of the person's date of birth to verify information in the registration form”).   Appellant's birthday was September 7. Thus, appellant had until October 7, 2010 to verify his information.

Sergeant Joseph Cagle, an investigator for the Kaufman County Sheriff's Department, first became suspicious that appellant may have moved without notifying authorities when he sent a notification letter to appellant's Warrington Way address on May 3, 2010 and it was returned.   At that point, Sergeant Cagle performed a compliance check on appellant's address.   He testified the yard was unkept, a key lock was on the front door, and a for sale sign was in the front yard.  “The house looked like nobody lived there or had been living there.”

Sergeant Cagle did not communicate or contact appellant during May, June, July, or August.   He conducted another compliance check on August 30, 2010 and the yard still looked unkept.

After appellant failed to show up for his September 7, 2010 verification appointment, Sergeant Cagle contacted Coldwell Banker on September 13, 2010.   He was told appellant owned the residence and had it listed for sale.   Sergeant Cagle testified appellant never notified him or anyone else of his intent to move or of a change in address.   On September 14, 2010, a Kaufman County magistrate issued a warrant for appellant's arrest for failing to notify authorities of an address change as required under Texas Code of Criminal Procedure article 62.055.

Shortly thereafter, Sergeant Cagle was contacted by the Alabama Department of Motor Vehicles.   The person said appellant was trying to obtain a driver's license and wanted to know if appellant was wanted in Kaufman County for failure to register as a sex offender.   Authorities confirmed appellant was wanted in Kaufman County.   Appellant was arrested on September 23, 2010.

Appellant testified that prior to his arrest, he was working for a hazardous waste remediation firm and moving around to different locations.   He went to Alabama after the Gulf Coast oil spill.   He testified he tried to register and change his CDL Class A drivers license to Alabama before his birthday;  however, he was informed he had to show proof of residence first.

At that time, he learned a warrant had been issued for his arrest.   He testified he had not moved residences and still had his bed and clothes at his Warrington Way home.   He testified he was not trying to hide by going to Alabama and understood the importance of registering as a sex offender.

The jury convicted appellant for failing to register as a sex offender and this appeal followed.

Sufficiency of the Evidence

Appellant argues the evidence is legally insufficient to support his conviction because (1) the State never proved he knowingly or intentionally failed to register as a sex offender because on the date of his indictment, he was in fact still registered in Kaufman County;  (2) the State failed to prove that if appellant failed to register, registration was required in Kaufman County;  and (3) even if the State argues appellant failed to notify authorities of his intent to move to another state, the State never established his residency elsewhere.   The State responds the evidence is sufficient regardless of appellant's challenges to the evidence.

While appellant briefly mentions the trial court erred by denying his motion for instructed verdict, he frames his complaint as challenging the sufficiency of the evidence.   Regardless, our review is the same.   See Lewis v. State, 193 S.W.3d 137, 139–40 (Tex.App.—Houston [1st Dist.] 2006, no pet.)  (“We treat a complaint to a denial of a motion for directed verdict as a challenge to the legal sufficiency of the evidence to support a conviction.”).

In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and reasonable inferences, a rational factfinder could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);  Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App.2010).   This standard gives full play to the responsibility of the factfinder to fairly resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.  Id. at 319.   When the record supports conflicting inferences, we presume the jury resolved the conflicts in favor of the verdict and defer to that determination.  Id. at 326.   An appellate court will not reassess credibility because the factfinder is the sole judge of witness's credibility and the weight to be given the testimony.  Id. at 319.

In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge.   Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997).   The court of criminal appeals has made clear that under Malik, “the indictment [is] the basis for the allegations which must be proved” and that the hypothetically correct jury charge for the case must be “authorized by the indictment.”   Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App.2001).

Further, when a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged.   See Fuller v. State, 73 S.W.3d 250, 255 (Tex.Crim.App.2002) (Keller, P.J., concurring);  Rios v. State, 141 S.W.3d 750, 752 (Tex.App.—Corpus Christi 2004, pet. ref'd).

A person commits the offense of failure to comply with the sex offender registration requirements if he “is required to register and fails to comply with any requirement of” chapter 62 of the Texas Code of Criminal Procedure.   Tex.Code Crim. Proc. Ann. art. 62.102(a) (West 2006).   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) (West Supp.2011).   It further provides that if a person does not reside in a municipality, then he shall register or verify registration in any county where he intends to reside for more than seven days.  Id.

The State indicted appellant as follows:

[W]hile being a person required to register with the local law enforcement authority in the county where the defendant resided or intended to reside for more than seven days, to-wit:  Kaufman County, because of a reportable conviction for Indecency with a Child, intentionally or knowingly fail[ed] to register with the local law enforcement authority in said county.

Thus, the State had to prove (1) appellant's status as a person with a reportable offense;  (2) Kaufman County is where he resided or intended to reside for more than seven days;  and (3) he intentionally or knowingly failed to register with local law enforcement in Kaufman County.

During trial, appellant twice urged a motion for instructed verdict in which he argued the gravaman of the offense against him was failing to notify Kaufman County authorities of a change in address.   He argued there was no evidence he failed to register because he was in fact registered at the time of the arrest warrant and indictment.   In response to appellant's motions for instructed verdict, the State argued the failure to change addresses was a registration violation, “and that's what he's being prosecuted on is a registration violation.”

We disagree with the State.   The State specifically indicted appellant for intentionally and knowingly failing to register as a sex offender in Kaufman County, which is a violation under article 62.051 of the code of criminal procedure.   See Tex.Code Crim. Proc. Ann. art. 62.051.   It did not allege appellant failed to notify authorities of a change in address, which is a separate violation under article 62.055.   See Tex.Code Crim. Proc. Ann. art. 62.055 (West Supp.2011).   While we agree the arrest warrant issued for appellant was for failing to notify authorities of a change in address, that is not the offense specified in the indictment.   The State was limited to, and required to prove, the method of violating article 62 as alleged in the indictment.   See Fuller, 73 S.W.3d at 255;  Rios, 141 S.W.3d at 752.   This it failed to do.

The evidence shows appellant registered in Kaufman County in 2005 and continued to report annually for his verification appointment through 2009.   Although appellant's next scheduled verification was on September 7, 2010, he had until October 7, 2010 to meet his requirement.   See Tex.Code Crim. Proc. Ann. art. 62.058(a).   However, Kaufman County authorities issued an arrest warrant and arrested appellant before this date.   Thus, when authorities arrested appellant on September 23, he was in fact still registered as a sex offender in Kaufman County.   The State presented no evidence to the contrary.   Accordingly, a rational jury could not have found the essential elements of the crime beyond a reasonable doubt.

The State's entire case focused on evidence that appellant had abandoned his residence and moved to Alabama without notifying the proper authorities.   Even Sergeant Cagle admitted that “this whole case was about” appellant's failure to notify Kaufman County authorities of his move or intent to move.   However, The State cannot essentially bootstrap a conviction based on evidence of a potential violation of article 62 that it failed to allege in the indictment.   See Gollihar, 46 S.W.3d at 254.

In reaching this conclusion, we reject the State's reliance on Robertson v. State, 11–07–00098–CR, 2008 WL 4684680 (Tex.App.—Eastland Oct. 23, 2008, pet. ref'd) (mem. op., not designated for publication).   In that case, the appellant argued he was charged with failure to comply with a reporting requirement, but the State's proof went solely to proving he failed to comply with a registration requirement, a totally separate violation.  Id. at *2. The court did not discern such a distinction and stated, “If a person is required to register but fails to comply with any one of the registration requirements of Chapter 62, the person commits an offense pursuant to Article 62.102.”   Id. [Emphasis added.]

While the State has latched onto the court's statement to support its argument that so long as it establishes a violation of a registration requirement under Chapter 62, regardless of the violation alleged in the indictment, a jury may find a person guilty of an offense under chapter 62, we cannot agree with its argument.   To agree with this reasoning flies in the face of well-established law that “the indictment is the basis for the allegations which must be proved.”  Gollihar, 46 S.W.3d at 254;  Rios, 141 S.W.3d at 752.

Moreover, while not cited by either party, we are persuaded instead by the court's conclusion in Green v. State, 350 S.W.3d 617 (Tex.App.—Houston [14th Dist.] 2011, pet. ref'd).   In that case, the appellant was charged with failing to notify authorities seven days before he intended to change addresses under article 62.055(a).  Id. at 621.   The court noted that under 62.055(a), he was also required to provide proof of his new address to the applicable law enforcement authority within seven days after changing addresses, but he “was not charged with violating this registration requirement.”  Id. The court analyzed the evidence to determine whether the State established that the appellant had intentionally, knowingly, or recklessly failed to notify authorities of his intended address change.  Id. at 621.   The court concluded no rational jury could have determined the evidence was sufficient to support a conviction.   Thus, the court analyzed the evidence according to the registration violation under article 62.055 as charged in the indictment.   It did not consider other possible violations of registration requirements under 62.055, or any other article within chapter 62, that may have been supported by the evidence.

As in this case, we will not indulge the State's argument to consider evidence that may support a registration violation not included in the indictment.   See, e.g., Fuller, 73 S.W.3d at 255 (stating that when a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged).

Accordingly, having determined the evidence is legally insufficient to support the trial court's judgment, we sustain appellant's first issue.   We need not address appellant's remaining issues.   See Tex.R.App. P. 47.1;  Green, 350 S.W.3d at 624.   The judgment of the trial court is reversed, and we render a judgment of acquittal.

S

Court of AppealsFifth District of Texas at DallasJUDGMENT

MICHAEL TOWERY ROBERTS, Appellant

No. 05–11–00450–CR V.

THE STATE OF TEXAS, AppelleeAppeal from the 422nd District Court of Kaufman County, Texas.  (Tr.Ct.No.29191–422).

Opinion delivered by Justice O'Neill, Justices Richter and Francis, participating.

Based on the Court's opinion of this date, the judgment of the trial court is REVERSED and the appellant is hereby ACQUITTED.

Judgment entered June 22, 2012.

/Michael J. O'Neill/

MICHAEL J. O'NEILL

JUSTICE

MICHAEL J. O'NEILL JUSTICE

Copied to clipboard