IN THE TENTH COURT OF APPEALS
No. 10-12-00089-CR
BOBBY JOE WALLER, Appellant v.
THE STATE OF TEXAS, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. 20,825
MEMORANDUM OPINION
In one issue, appellant, Bobby Joe Waller, contends that the trial court’s
judgment erroneously indicates that he was convicted of a second-degree felony when,
in fact, the charged offense constituted a third-degree felony. We affirm as modified.
I. BACKGROUND
On June 11, 1982, appellant was convicted of aggravated sexual abuse in trial
court cause number 9987 in the 52nd Judicial District Court of Coryell County, Texas. The trial court sentenced appellant to “not less than five years, no more than ten years
in the Texas Department of Corrections.”
As he states in his brief, appellant was not required to register as a sex offender
until September 1, 2005. However, on or about June 18, 2010, appellant violated the sex
offender registration statutes by failing to report a change of address. Appellant was
subsequently indicted for failing to register as a sex offender under article 62.102 of the
Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 62.102(a) (West
2006).
Appellant challenged the applicability of the sex offender registration statutes by
filing a motion to quash and an exception to the substance of the indictment. After a
hearing, appellant’s motion and exception were denied. Thereafter, pursuant to a plea
bargain with the State, appellant pleaded guilty to the charged offense. The trial court
sentenced appellant in accordance with the plea bargain. Appellant received a five-year
prison sentence in the Institutional Division of the Texas Department of Criminal
Justice. The trial court also certified appellant’s right to appeal, and this appeal
followed.1
II. THE TRIAL COURT’S JUDGMENT
In his sole issue on appeal, appellant requests this Court to reform the trial
court’s judgment to reflect that he was convicted of a third-degree felony rather than a
Specifically, the trial court certified that this is a plea-bargain case, but matters were raised by 1
written motion filed and ruled on before trial.
Waller v. State Page 2 second-degree felony. Despite being prompted to do so, the State has not filed an
appellee’s brief in this matter.
A. The State’s Failure to File an Appellee’s Brief
This Court has noted that there is no rule specifically addressing the effect of
the appellee’s failure to file a brief in response to an appellant’s brief in a criminal
appeal; cf. TEX. R. APP. P. 38.8 (addressing the failure of appellant to file a brief in an
appeal). See State v. Javari Edward Police, 377 S.W.3d 33, 35 (Tex. App.—Waco 2012, no
pet.). In State v. Fiedler, this Court determined that the appellee’s failure to file a brief
constitutes a confession of error. 376 S.W.3d 784, 785 (Tex. App.—Waco 2011, no pet.)
(citing Hawkins v. State, 278 S.W.3d 396, 399 (Tex. App.—Eastland 2008, no pet.);
Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.—Corpus Christi 2002, no pet.)). This
confession of error, however, is not conclusive. Saldano v. State, 70 S.W.3d 873, 884 (Tex.
Crim. App. 2002); see Siverand, 89 S.W.3d at 220. We must make an independent
examination of the merits of the issues presented for review. Javari Edward Police, 377
S.W.3d at 35 (citing Fielder, 376 S.W.3d at 785; Siverand, 89 S.W.3d at 220). In that
review, we are limited to the arguments advanced by appellee in the trial court so that
we do not advance new arguments on behalf of appellee. Id. (citing Saldano, 70 S.W.3d
at 884; Hawkins, 278 S.W.3d at 399; Siverand, 89 S.W.3d at 220).
B. The Sex Offender Registration Statutes
Article 62.002(a) of the Texas Code of Criminal Procedure provides that the sex
offender registration statutes apply only to a reportable conviction or adjudication
occurring on or after September 1, 1970. TEX. CODE CRIM. PROC. ANN. art. 62.002(a)
Waller v. State Page 3 (West 2006). A “reportable conviction or adjudication” means a conviction or
adjudication that is a conviction or an adjudication for, among other things, aggravated
sexual assault of a child. Id. art. 62.001(5)(A) (West Supp. 2012). Appellant does not
dispute on appeal that his 1982 conviction for aggravated sexual abuse constitutes a
reportable conviction within the context of article 62.001(5)(A) and that he was required
to register as a sex offender for life. See id.
Appellant was indicted for failing to report a change in address in accordance
with article 62.055(a). See id. art. 62.055(a) (West Supp. 2012). A person commits the
offense of failure to comply with the registration requirements of Chapter 62 if the
person is required to register and fails to comply with any requirement of the Chapter.
Id. art. 62.102(a). Appellant pleaded guilty to the charged offense, and the trial court
proceeded to sentencing. In its judgment, the trial court noted that appellant was
convicted of a second-degree felony.
Article 62.102 provides that a failure to comply with the sex offender registration
requirements is a second-degree felony “if the actor is a person whose duty to register
expires under Article 62.101(a) and who is required to verify registration once each 90-
day period under Article 62.058.” Id. art. 62.102(b)(3). To be subject to the ninety-day
reporting requirement under article 62.058, a person must have been convicted two or
more times for a sexually violent offense, received an order of deferred adjudication
two or more times, or been convicted and received an order of deferred adjudication.
Id. art. 62.058(a) (West 2006). On the other hand, a person who does not meet the
aforementioned requirements of article 62.058 “shall report to the local law enforcement
Waller v. State Page 4 authority designated as the person’s primary registration authority by the department
once each year . . . .” Id.
Here, there is no evidence that appellant meets the requirements for the ninety-
day reporting requirement. See id. In fact, the State proffered only appellant’s 1982
conviction in support of the sex offender registration requirement. As such, the
evidence established that appellant was only required to report once a year. See id.
And because he was only required to report once a year, appellant’s conviction for
failure to register as a sex offender could not have been a second-degree felony under
article 62.102(b)(3). See id. art. 62.102(b)(3). Instead, appellant’s offense constitutes a
third-degree felony under article 62.102(b)(2). See id. art. 62.102(b)(2) (stating that a
failure to comply with the sex offender registration requirements is a third-degree
felony “if the actor is a person whose duty to register expires under Article 62.101(a)
and who is required to verify registration once each year under Article 62.058”).
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IN THE TENTH COURT OF APPEALS
No. 10-12-00089-CR
BOBBY JOE WALLER, Appellant v.
THE STATE OF TEXAS, Appellee
From the 52nd District Court Coryell County, Texas Trial Court No. 20,825
MEMORANDUM OPINION
In one issue, appellant, Bobby Joe Waller, contends that the trial court’s
judgment erroneously indicates that he was convicted of a second-degree felony when,
in fact, the charged offense constituted a third-degree felony. We affirm as modified.
I. BACKGROUND
On June 11, 1982, appellant was convicted of aggravated sexual abuse in trial
court cause number 9987 in the 52nd Judicial District Court of Coryell County, Texas. The trial court sentenced appellant to “not less than five years, no more than ten years
in the Texas Department of Corrections.”
As he states in his brief, appellant was not required to register as a sex offender
until September 1, 2005. However, on or about June 18, 2010, appellant violated the sex
offender registration statutes by failing to report a change of address. Appellant was
subsequently indicted for failing to register as a sex offender under article 62.102 of the
Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 62.102(a) (West
2006).
Appellant challenged the applicability of the sex offender registration statutes by
filing a motion to quash and an exception to the substance of the indictment. After a
hearing, appellant’s motion and exception were denied. Thereafter, pursuant to a plea
bargain with the State, appellant pleaded guilty to the charged offense. The trial court
sentenced appellant in accordance with the plea bargain. Appellant received a five-year
prison sentence in the Institutional Division of the Texas Department of Criminal
Justice. The trial court also certified appellant’s right to appeal, and this appeal
followed.1
II. THE TRIAL COURT’S JUDGMENT
In his sole issue on appeal, appellant requests this Court to reform the trial
court’s judgment to reflect that he was convicted of a third-degree felony rather than a
Specifically, the trial court certified that this is a plea-bargain case, but matters were raised by 1
written motion filed and ruled on before trial.
Waller v. State Page 2 second-degree felony. Despite being prompted to do so, the State has not filed an
appellee’s brief in this matter.
A. The State’s Failure to File an Appellee’s Brief
This Court has noted that there is no rule specifically addressing the effect of
the appellee’s failure to file a brief in response to an appellant’s brief in a criminal
appeal; cf. TEX. R. APP. P. 38.8 (addressing the failure of appellant to file a brief in an
appeal). See State v. Javari Edward Police, 377 S.W.3d 33, 35 (Tex. App.—Waco 2012, no
pet.). In State v. Fiedler, this Court determined that the appellee’s failure to file a brief
constitutes a confession of error. 376 S.W.3d 784, 785 (Tex. App.—Waco 2011, no pet.)
(citing Hawkins v. State, 278 S.W.3d 396, 399 (Tex. App.—Eastland 2008, no pet.);
Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.—Corpus Christi 2002, no pet.)). This
confession of error, however, is not conclusive. Saldano v. State, 70 S.W.3d 873, 884 (Tex.
Crim. App. 2002); see Siverand, 89 S.W.3d at 220. We must make an independent
examination of the merits of the issues presented for review. Javari Edward Police, 377
S.W.3d at 35 (citing Fielder, 376 S.W.3d at 785; Siverand, 89 S.W.3d at 220). In that
review, we are limited to the arguments advanced by appellee in the trial court so that
we do not advance new arguments on behalf of appellee. Id. (citing Saldano, 70 S.W.3d
at 884; Hawkins, 278 S.W.3d at 399; Siverand, 89 S.W.3d at 220).
B. The Sex Offender Registration Statutes
Article 62.002(a) of the Texas Code of Criminal Procedure provides that the sex
offender registration statutes apply only to a reportable conviction or adjudication
occurring on or after September 1, 1970. TEX. CODE CRIM. PROC. ANN. art. 62.002(a)
Waller v. State Page 3 (West 2006). A “reportable conviction or adjudication” means a conviction or
adjudication that is a conviction or an adjudication for, among other things, aggravated
sexual assault of a child. Id. art. 62.001(5)(A) (West Supp. 2012). Appellant does not
dispute on appeal that his 1982 conviction for aggravated sexual abuse constitutes a
reportable conviction within the context of article 62.001(5)(A) and that he was required
to register as a sex offender for life. See id.
Appellant was indicted for failing to report a change in address in accordance
with article 62.055(a). See id. art. 62.055(a) (West Supp. 2012). A person commits the
offense of failure to comply with the registration requirements of Chapter 62 if the
person is required to register and fails to comply with any requirement of the Chapter.
Id. art. 62.102(a). Appellant pleaded guilty to the charged offense, and the trial court
proceeded to sentencing. In its judgment, the trial court noted that appellant was
convicted of a second-degree felony.
Article 62.102 provides that a failure to comply with the sex offender registration
requirements is a second-degree felony “if the actor is a person whose duty to register
expires under Article 62.101(a) and who is required to verify registration once each 90-
day period under Article 62.058.” Id. art. 62.102(b)(3). To be subject to the ninety-day
reporting requirement under article 62.058, a person must have been convicted two or
more times for a sexually violent offense, received an order of deferred adjudication
two or more times, or been convicted and received an order of deferred adjudication.
Id. art. 62.058(a) (West 2006). On the other hand, a person who does not meet the
aforementioned requirements of article 62.058 “shall report to the local law enforcement
Waller v. State Page 4 authority designated as the person’s primary registration authority by the department
once each year . . . .” Id.
Here, there is no evidence that appellant meets the requirements for the ninety-
day reporting requirement. See id. In fact, the State proffered only appellant’s 1982
conviction in support of the sex offender registration requirement. As such, the
evidence established that appellant was only required to report once a year. See id.
And because he was only required to report once a year, appellant’s conviction for
failure to register as a sex offender could not have been a second-degree felony under
article 62.102(b)(3). See id. art. 62.102(b)(3). Instead, appellant’s offense constitutes a
third-degree felony under article 62.102(b)(2). See id. art. 62.102(b)(2) (stating that a
failure to comply with the sex offender registration requirements is a third-degree
felony “if the actor is a person whose duty to register expires under Article 62.101(a)
and who is required to verify registration once each year under Article 62.058”).
In light of the foregoing and after reviewing the trial court’s judgment, we find
the judgment to erroneously state that appellant’s conviction was a second-degree
felony rather than a third-degree felony. See id. Appellant requests that we modify the
judgment to correct this error. An appellate court has authority to reform a judgment to
include an affirmative finding to make the record speak the truth when the matter has
been called to its attention by any source. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865
S.W.2d 26, 27-28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim.
App. 1992). Accordingly, we reform the trial court’s judgment to reflect that appellant
was convicted of a third-degree felony—failing to register as a sex offender. See TEX. R.
Waller v. State Page 5 APP. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; French, 830 S.W.2d at 609. Accordingly, we
sustain appellant’s sole issue.
III. CONCLUSION
We modify the trial court’s judgment to reflect that appellant was convicted of a
third-degree felony—failing to register as a sex offender—and affirm the judgment as
modified.
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed as modified Opinion delivered and filed July 18, 2013 Do not publish [CR25]
Waller v. State Page 6