Albert Dotie, Jr. v. State

Opinion

ACCEPTED 06-15-00094-CR SIXTH COURT OF APPEALS TEXARKANA, TEXAS 7/27/2015 2:20:06 PM DEBBIE AUTREY CLERK

NO. 06-15-00094-CR

IN THE COURT OF APPEALS FILED IN 6th COURT OF APPEALS TEXARKANA, TEXAS SIXTH APPELLATE DISTRICT OF TEXAS 7/27/2015 2:46:00 PM DEBBIE AUTREY AT TEXARKANA, TEXAS Clerk

ALBERT DOTIE, JR., Appellant

VS.

THE STATE OF TEXAS, Appellee

Appealed from the 276th Judicial District Court Marion County, Texas Trial Court Cause No. F14540

BRIEF OF APPELLANT

Submitted by:

James P. Finstrom Counsel for Appellant P.O. Box 276 Jefferson, Texas 75657 903-665-7111 Fax: 903-665-7167 State Bar #07038000

APPELLANT DOES REQUEST ORAL ARGUMENT IDENTITY OF PARTIES AND COUNSEL Pursuant to T.R.A.P. 38.1(a)

Appellant: Albert Dotie, Jr. Institutional Division of Texas Department of Criminal Justice Joe F. Gurney Unit 1835 FM 3328 Tennessee Colony, Texas 75803

Appellant’s Counsel for Appellant at trial and on appeal:

Hon. James P. Finstrom P.O. Box 276 Jefferson, Texas 75657

State’s Counsel at trial and on appeal:

Hon. Angela Smoak, County Attorney 102 West Austin Street Jefferson, Texas 75657

Trial Judge:

Hon. Robert Rolston, Judge, 276th Judicial District Court Marion County, Texas

2 TABLE OF CONTENTS Pursuant to T.R.A.P. 38.1(b) Page

IDENTITY OF PARTIES AND COUNSEL 2

TABLE OF CONTENTS 3

INDEX OF AUTHORITIES 4

STATEMENT OF THE CASE 5

ISSUE PRESENTED 5

STATEMENT OF FACTS 5

ISSUE NO. 1: IS THE EVIDENCE SUFFICIENT TO SUSTAIN THE APPELLANT’S CONVICTION?

ISSUE NO. ONE (Restated) 9

IS THE EVIDENCE SUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION?

SUMMARY OF THE ARGUMENT 9

ARGUMENT (Issue No. 1) 11

PRAYER 14

CERTIFICATE OF SERVICE 15

CERTIFICATE OF COMPLIANCE 15

3 INDEX OF AUTHORITIES Pursuant to T.R.A.P. 38.1(c)

Cases: Page

Green v. State, 350 S.W.3d 617 12 (Tex.App. – Houston 14th Dist. 2012, p.d.r. ref.)

Martin v. State, 252 S.W.3d 803 12 (Tex.App. – Texarkana 2008, no pet.)

Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964) 11

Rios v. State, 141 SW3d 750 11 (Tex. App.—Corpus Christi 2004, p.d.r. ref.)

Silber v. State, 371 S.W.3d 605, 613 11 (Tex.App.—Houston 1st Dist. 2012, no pet.)

Simpkins v State, 300 S.W.3d 860, 12 (Tex.App.—Texarkana 2009, no pet.)

Whitney, 472 S.W.2d 524 (Tex.Crim.App. 1971) 11

Statutes:

Article 62.051(a), Code of Criminal Procedure 12

Article 62.102, Code of Criminal Procedure 11

All references to Texas statutes, rules, etc. are to the latest edition published by West Publishing Company, unless otherwise noted.

4 STATEMENT OF THE CASE Pursuant to T.R.A.P. 38.1(d)

Appellant was tried by a jury on May 4, 2015, on his plea of not

guilty to an indictment alleging the third degree felony offense of

failure to timely register a change of address as a sex offender

alleged to have occurred on or about December 21, 2013. (CR 4, 7)

The jury found him guilty and assessed a four (4) year sentence in

the Institutional Division of the Texas Department of Criminal Justice

on May 5, 2015. (CR 27-28) Appellant gave timely notice of appeal

on June 2, 2015. (CR 32) Counsel was appointed to represent

Appellant on January 14, 2014, which appointment has continued

through this appeal. (RR 5-6)

ISSUES PRESENTED Pursuant to T.R.A.P. 38.1(e)

ISSUE NO 1: IS THE EVIDENCE SUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION?

STATEMENT OF FACTS Pursuant to T.R.A.P. 38.1(f)

The State called four witnesses and the Defendant testified and

called one other witness.

Deronda Riley, the administrative assistant court clerk and, as

such, the sex offender registrar for the City of Jefferson, testified that

5 Appellant had a reportable conviction for indecency with a child and

had been reporting to her as a resident of Jefferson, Texas, for at

least fourteen years. (RR 12-14) At the time of this case, Appellant

was reporting to Ms. Riley annually. (RR 15) Ms. Riley met with

Appellant on December 10, 2013, when he reported a change of

primary address to 408 Saint John, Jefferson, Texas, and a

supplemental address of 305 West Watson, Jefferson, Texas. (RR

14-15) On December 22, 2013, she received information that

Appellant had used the address of 1406 FM 2208, Jefferson, Texas,

but did not remember Appellant reporting that address to her seven

days prior to using it and did not remember if he had any explanation.

(RR 16-21) Appellant returned to her office on January 8, 2014 and

again on January 10, 2014, when he reported a new change of

address to her. (RR 17) She believed that Appellant had moved less

than seven days before he reported his change of address and

violated his registration requirements and she reported this to Deputy

Quada at the Marion County Sheriff’s Department. (RR 17) Ms.

Riley did not remember if Appellant offered her any explanation for

the change of address to 1406 FM 2208. (RR 21) And she did not

know if any officer had gone to 305 West Watson or 408 Saint John

6 to see whether or not Appellant had moved. (RR 21) When

Appellant returned to Ms. Riley’s office on January 13, 2014, he was

arrested for the offense alleged in this case. (RR 24)

Deputy Marion County Sheriff David Quada testified that he

received a telephone call from Appellant on January 3, 2014, to

report a change of address outside the city limits of Jefferson and he

told Defendant to report the change first to Deronda Riley within ten

days. (RR 42, 45-46) He did not ever verify the change of address

by going to the new address or the old address but believed that a

Deputy Riehl had. (RR 48-49) However, Deputy Riehl never

testified.

Paula Bradshaw, who was Appellant’s girl friend’s mother,

testified that she did not see Appellant after he moved from her house

at 808 Canal Street until January 30, 2014, and she did not know

where he was living. (RR 51) She did not know for certain where he

lived and did not know that he had reported a change of address to

305 W. Watson on December 10, 2013. (RR 55)

Joyce Guess, rented a mobile home to Jennifer Smith, who was

Appellant’s girlfriend, on December 18, 2013. (RR 58-59, State’s

Exhibit 3). Appellant signed the lease later a few days after Jennifer

7 Smith signed it. (RR 59) She had a conversation with Appellant

when he told her that he was a sex offender and had a duty to

register a change of address if he moved. (RR 63-64) Guess never

actually confirmed that Appellant was living there at her mobile home

and she never saw him very often. (RR 65-66, 68)

Appellant’s employer, Charles McCoy, testified that he was

picking Appellant up from his home when Appellant was arrested in

January, 2014, and that he may have picked him up at the address

on FM 2208 twice prior to his arrest in this case. (RR 73-74) The

rest of the time, McCoy picked Appellant up at the bar-b-que place

downtown and assumed he was living near there. (RR 74-75)

Appellant testified that the bar-b-que place was about 50 feet from his

residence. (RR 82-83)

Appellant testified that he and Jennifer Smith went to

Shreveport to his brother’s funeral and he was arrested there on

December 18, 2013, after his brother’s funeral. (RR 81) At the jail in

Shreveport, he was putting his address on the jail records and told

the officer he was moving to another place, but had not moved yet

and the officer told him to use the new address where he was going

to be living so that they could get in contact with him. (RR 81-82) He

8 further testified that until he moved, he would be living near the bar-b-

que place. (RR 82) At the time he got arrested in this case, he had

spent about three separate nights with Jennifer at the address on FM

2208. (RR 84-85) Appellant testified that he went to report the

change of address to the FM 2208 address before he moved and was

told he would have to come back later. (RR 88-90) He got arrested

when he came back to change his address and said that he did not

move into the FM 2208 address until he got out of jail and after he

reported the change of address. (RR 91-92, 108) He also testified

that he had tried to report the change of address earlier but was told

that he had to get papers from Deronda Riley, and that there was no

reason he would not have reported the change of address before he

moved in. (RR 108)

ISSUE NO. ONE

(Restated)

IS THE EVIDENCE SUFFICIENT TO SUSTAIN APPELLANT’S CONVICTION?

SUMMARY OF THE ARGUMENT Pursuant to T.R.A.P. 38.1(g)

Appellant had been timely reporting changes of address for at

least fourteen years before this case allegedly occurred and

9 recounted many of these changes to the jury. (RR 18-21, 79-80) He

testified that he did not move in this case before he changed his

registration and that any nights he stayed away from his residence

were temporary and less than seven days. (RR 84-85) His

employer, who picked him up to go to work, confirmed this. (RR 72-

77) The State relied upon an address given by Appellant when he

was placed in jail in Lousiana but wholly failed to rebut Appellant’s

testimony that they wanted a good mailing address rather than his

actual address if he was going to move to the new address in the

near future. (RR 81-82) All of the State’s evidence is equivocal and

no witness ever went to Defendant’s registered address to verify that

he had moved from it or to his new address to verify when he in fact

moved in there and stayed for more than seven days. Appellant was

trying to register his new change of address when he was arrested.

(RR 91-92, 10-8) Careful analysis of the testimony shows that the

evidence is insufficient to sustain Appellant’s conviction because it

does not rebut his testimony that he tried to report his change of

address as required before he moved and was told to go to see

Deronda Riley first and that he actually had reported his change of

address before he moved.

10 ARGUMENT

Pursuant to T.R.A.P. 38.1(h) Issue No. 1

In Silber v. State, 371 S.W.3d 605, 613 (Tex.App.—Houston 1st

Dist. 2012), the court held that “a registered sex offender is not

required to spend every spare moment and every night at their

registered address. See Whitney, 472 S.W.2d 524 at 525

(Tex.Crim.App. 1971), where the Court of Criminal Appeals held that

residence is an elastic term and the meaning that must be given to it

depends upon the circumstances surrounding the person involved

and largely depends upon the present intention of the individual.

And, see Mills v. Bartlett, 377 S.W.2d 636 (Tex. 1964), which held

that neither bodily presence alone nor intention alone will suffice to

create the residence, but when the two coincide, at that moment the

residence is fixed and determined. In Mills, as in the case at bar, the

evidence is not clear that Appellant made the FM 2208 address his

residence less than seven days before he was arrested.

There must be a determination based on the particular facts

and circumstances of the case that Appellant failed to register within

the requirements of Art. 62.102, Code of Criminal Procedure. As in

Rios v. State, 141 SW3d 750 (Tex. App.—Corpus Christi 2004), there

11 was conflicting testimony as to where the defendant was living and

his actual residence was not verified if it was different from his

registered address, and thus the evidence was insufficient to sustain

the conviction in that case. And, as in Green v. State, 350 S.W.3d

617 at 630-635 (Tex.App. – Houston 14th Dist. 2012), the court made

a careful analysis of the evidence as to an address change found that

no rational fact finder could have found beyond a reasonable doubt

that appellant ever had an intent to change his address that he failed

to report not later than the seventh day before the date of the

intended address change. See also Simpkins v State, 300 S.W.3d

860, 862-65 (Tex.App.—Texarkana 2009, no pet.) and Martin v.

State, 252 S.W.3d 750, 753-54 (Tex.App. – Texarkana 2008, no pet.)

In Simpkins, at page 862, this Court noted that Article

62.051(a), of the Texas Code of Criminal Procedure defines the

location of registration:

A person who has a reportable conviction or adjudication or who is required to register as a condition of parole, release to mandatory supervision, or community supervision shall register or, if the person is a person for whom registration is completed under this chapter, verify registration as provided by Subsection (f), with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days. If the person does not reside in a municipality, the person shall register or verify registration in any county where the person resides or intends to reside for more than seven days.

12 Appellant had been living in the municipality of Jefferson, Texas, but

intended to move to an address outside the city but in Marion County.

He went to the deputy sheriff who handled registration in the county

and was told that he had to first report the change to Deronda Riley at

the city police department. He went to Deronda Riley who was out

when he called there and he was told to return later. He did return

later to register the new address and was arrested, although he

testified that he had not moved into the new address yet at that time.

This testimony was not rebutted by anyone who checked to see that

he had moved out from his old address or had in fact moved into his

new address. The burden of proof is on the State and never switches

to the Appellant, as is required by the court’s charge to the jury in this

case. (RR 18) No witness for the State was able to testify

unequivocally that Appellant was not staying at the residence for

which he was registered or that he had been staying at the new

address for more than seven days or that it was more than a mailing

address for him. No city police officer or sheriff’s deputy or civilian

witness could testify of their own personal knowledge or as a result of

their own personal investigation that Appellant violated the statutory

registration requirements. Appellant’s testimony that he had not yet

13 moved as of date of his arrest in this case was simply not rebutted so

as to sustain the jury’s verdict. His conviction must be reversed and

judgment of acquittal entered.

PRAYER

Upon the issue presented, Appellant, Albert Dotie, Jr., prays

that this Court reverse the judgment of the trial court and render a

verdict of not guilty, and for such other and further relief to which he

may be entitled.

Respectfully submitted,

_/s/James P. Finstrom____ James P. Finstrom Counsel for Appellant 202 S. Marshall, P.O. Box 276 Jefferson, Texas 75657 903-665-7111 Fax: 903-665-7167 Texas Bar #07038000

14 CERTIFICATE OF SERVICE

I certify that I have delivered a true copy of this brief to Hon. Angela Smoak, counsel for the State, and to Appellant by United States mail, first class postage prepaid, at the Joe F. Gurney Unit, 1385 FM 3328, Tennessee Colony, Texas 75803, on this 27th day of July, 2015.

__/s/James P. Finstrom___ James P. Finstrom

CERTIFICATE OF COMPLIANCE

I certify that Appellant’s Brief filed electronically on this 27th day of July, 2015 complies with Tex. R. App. P. 9.4(i)(2)(B). This Brief contains 2,556 words.

/s/ James P. Finstrom James P. Finstrom