ACCEPTED 14-14-00523-CR FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 3/6/2015 3:18:55 PM CHRISTOPHER PRINE
No. 14-14-00523-CR CLERK
In the Court of Appeals FILED IN For the 14th COURT OF APPEALS HOUSTON, TEXAS Fourteenth District of Texas 3/6/2015 3:18:55 PM At Houston CHRISTOPHER A. PRINE ♦ Clerk
No. 1388541 In the 177th District Court Of Harris County, Texas ♦ CRAIG GILDER Appellant v. THE STATE OF TEXAS Appellee ♦ State’s Appellate Brief ♦
DEVON ANDERSON District Attorney Harris County, Texas
NATHAN HENNIGAN Assistant District Attorney Harris County, Texas
CLINTON A. MORGAN Assistant District Attorney Harris County, Texas State Bar No. 24071454 morgan_clinton@dao.hctx.net
1201 Franklin, Suite 600 Houston, Texas 77002 Tel: (713) 755-5826 FAX: (713) 755-5809
Counsel for the Appellee
Oral Argument Not Requested Statement Regarding Oral Argument
The appellant requested oral argument. The State does not.
Identification of the Parties
Counsel for the State:
Devon Anderson District Attorney of Harris County
Nathan Hennigan — Assistant District Attorney at trial
Clinton A. Morgan Assistant District Attorney on appeal
Appellant:
Craig Gilder
Counsel for the Appellant:
Antonio Balderas — Counsel at trial
Alexander Bunin & Melissa Martin — Counsel on appeal
Trial Judge:
Ryan Patrick Presiding judge
i Table of Contents
Page
Statement Regarding Oral Argument .......................................................... i Identification of the Parties ......................................................................... i Table of Contents ........................................................................................... ii Index of Authorities ..................................................................................... iii Statement of the Case ................................................................................... 1 Statement of Facts ......................................................................................... 1 Reply to the Appellant’s Sole Point of Error ............................................ 2 The evidence is sufficient to support the verdict........................................................ 2 I. The appellant’s preferred case, Green, is no longer good law. ................. 3 A. This Court’s Opinion in Green ........................................................................... 3 B. The Court of Criminals Appeals’s Opinion in Thomas ............................ 5 C. Thomas directly contradicts Green.................................................................. 7 D. The Thomas inference does not impose strict liability on evicted sex offenders. Though the seven-day notice requirement is absolute, if such notice is impossible a defendant may raise the defense of necessity........ 8 II. Under Thomas, the evidence is sufficient to show that the appellant intentionally changed his address and failed to provide seven days’ notice prior to doing so. ............................................................................................................... 13 A. The State’s evidence supports an inference that the appellant left 7601 Curry at one of two different time periods, and that he failed to provide seven days’ notice........................................................................................ 13 B. What the State’s evidence did not directly show — that the appellant set up a new address — can be inferred. ....................................... 14 Conclusion .................................................................................................... 18 Certificate of Compliance and Service ..................................................... 19
ii Index of Authorities
Cases Green v. State 350 S.W.3d 617 (Tex. App.— Houston [14th Dist.] 2011, pet. ref’d) ........................................................................ 3, 5 Hooper v. State 214 S.W.3d 9 (Tex. Crim. App. 2007) ............................................................................. 17 Juarez v. State 308 S.W.3d 398 (Tex. Crim. App. 2010) ....................................................................... 13 Thomas v. State 441 S.W.3d 685, 692-93 (Tex. App.— Texarkana 2013) rev’d 444 S.W.3d 4 ................................................................................ 6 Thomas v. State 444 S.W.3d 4 (Tex. Crim. App. 2014) ......................................................................... 5, 14
Statutes TEX. CODE CRIM. PROC. art. 62.001 .......................................................................................... 15 TEX. CODE CRIM. PROC. art. 62.051 .......................................................................................... 15 TEX. CODE CRIM. PROC. art. 62.055 .................................................................................... 3, 4, 9 TEX. CODE CRIM. PROC. art. 62.059 .......................................................................................... 16 TEX. CODE CRIM. PROC. art. 62.102 ............................................................................................. 3 TEX. PENAL CODE § 8.05 .............................................................................................................. 11 TEX. PENAL CODE § 9.21 .............................................................................................................. 12 TEX. PENAL CODE § 9.22 .............................................................................................................. 10
iii Statement of the Case
The appellant was indicted for failing to comply with his sex-offender
registration requirements. (CR 9). The indictment alleged a prior felony
conviction. (CR 9). The appellant pleaded not guilty. (3 RR 7). A jury found him
guilty as charged. (CR 88, 98). The appellant pleaded true to the enhancement
paragraph and the jury assessed punishment at seven years’ confinement. (CR
97, 98). The trial court certified the appellant’s right of appeal and the
appellant filed a timely notice of appeal. (CR 101, 102).
Statement of Facts
The appellant is a sex-offender who was living with his mother at 7601
Curry Street, #2, in Houston. (3 RR 48). At the time, the appellant had used the
7601 Curry address when he filled out his sex-offender registration forms.
(State’s Ex. 4). However, the appellant was not listed as a resident on the lease
for that apartment, so, after receiving reports that the appellant was
assaulting his mother, the apartment complex manager called authorities and
had a trespass warning issued to the appellant on August 13, 2012, effectively
barring him from the premises. (3 RR 48-51).
In April 2013, a Houston police officer checked in on the appellant and
discovered that 7601 Curry #2 was vacant. (State’s Ex. 4). Indeed, the
1 apartment had been vacated on January 3, and the complex was undergoing
extensive remodeling. (State’s Ex. 4). C.R. Black, a Houston police officer who
does compliance checks on registered sex offenders, went to 7601 Curry on
May 14 and confirmed that the apartment was vacant and the building was
undergoing renovation. (3 RR 23; see 3 RR 44 (apartment manager: “All of the
apartments [in the building] were gutted to the studs, sheetrock, everything,
totally cut out. The only thing that was standing was the foundation, which
are, you know, the brick.”).
Reply to the Appellant’s Sole Point of Error
The evidence is sufficient to support the verdict.
The indictment alleged that the appellant failed to provide seven days’
notice prior to an intended change of address:
[The appellant], while [a sex offender subject to registration requirements], and while intending to change his residential address, intentionally and knowingly fail[ed] to timely provide in person [his] anticipated move date and new address to the local law enforcement authority designated as [his] primary registration authority, by failing to provide said information in person to said authority at least seven days before [his] change of address.
2 (CR 9). This charge is based on Code of Criminal Procecure Article 62.055(a),
which contains, inter alia, a requirement that sex offenders provide seven-
days’ notice prior to changing their residential address:
If a person required to register under this chapter intends to change address … the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority designated as the person’s primary registration authority … and provide the authority … with the person’s anticipated move date and new address.
TEX. CODE CRIM. PROC. art. 62.055(a); see TEX. CODE CRIM. PROC. art. 62.102(a) (“A
person commits an offense if the person is required to register and fails to
comply with any requirement of [Chapter 62].”).
The appellant’s claim on appeal is that the evidence is insufficient to
show that he ever intended to leave 7601 Curry, thus the State’s evidence did
not show that the appellant failed to notify the reporting authority of his
address change “while intending to change his residential address.”
I. The appellant’s preferred case, Green, is no longer good law.
A. This Court’s Opinion in Green
The appellant relies mainly on an opinion from this Court, Green v. State,
350 S.W.3d 617 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d). On its face,
Green seems to be a fractured opinion, with a “plurality opinion” by Justice
Anderson, and two opinions from Justice Seymore and then-Justice Frost, who
3 were referred to as “concurring.” However, on the deciding issue of the case,
Justice Seymore joined then-Justice Frost’s opinion, thus, that portion of her
opinion is the opinion of the Court. See Green, 350 S.W.3d at 630 n.7 (op. of
Frost, J).
Green was a sex offender who was required to register. Id. at 619. On his
registration, Green listed his address as being on Highland Avenue in
Waxahachie, but he spent lengthy portions of time in Arizona, where he was
also registered. Id. at 619-20. The evidence seems to have shown that Green
left for Arizona on April 11, and while he was away his wife, without
consulting with him, moved the family out of the Highland Avenue address and
into a house on Holder Road. Green returned from Arizona on April 20, went
back to Arizona on April 24, and returned to the Holder Road address on April
30. The evidence showed that another tenant moved into the Highland Avenue
address on April 20. When, on May 3, Green went to change his registration to
show that he lived on Holder Road, he was arrested for failing to provide
notice of an intended address change at least seven days in advance.
On appeal, this Court held that there was insufficient evidence to
support the conviction. This Court began by noting that “the [article 62.055(a)
intended-change-of-address reporting] Requirement is triggered only ‘if a
person required to registered under this chapter intends to change address.’” 4 Green, 350 S.W.3d at 633 (op. of Frost, J.). This Court believed that not all
changes of address are intentional:
There are various situations in which a registered sex offender’s address may change without the offender having any intent to change address prior to the actual change of address. The offender may be barred from his current residence without warning or someone else may move the offender’s property out of the residence and to another address without the offender’s knowledge.
Ibid. This Court concluded that none of the evidence in the case showed that
Green had an intent to change his address, thus he did not trigger this
particular reporting requirement and the evidence was insufficient to support
the conviction. Ibid.
B. The Court of Criminals Appeals’s Opinion in Thomas
Though the Court of Criminal Appeals denied the State’s petition for
discretionary review in Green, in 2014 that court overturned a case from the
Sixth Court that had relied on Green. In light of the factual similarities in these
cases, and the Court of Criminal Appeals’s rejection of the Sixth Court’s use of
Green’s holding, the State believes that Green can no longer be considered
good law.
Thomas v. State, 444 S.W.3d 4 (Tex. Crim. App. 2014) involved the same
seven-day-notice requirement at issue in Green and this case. Thomas was a
5 sex offender who registered his address as being an apartment on South Green
Street. Thomas, 444 S.W.3d at 6. However, as he was not on the lease, he was
given a trespass warning by the apartment manager on April 3, 2012. Ibid.
When, on that day, Thomas was booked into the jail on unrelated warrants, he
gave his address as being on Houston Street. Ibid. Two months later, on June
25, the police put two and two together and went to see if Thomas was still
living in his registered address on Green Street; instead, they found him on
Houston Street, and he advised the officers that he lived on Houston Street.
Ibid. Thomas was then charged and convicted of failing to give seven days’
notice of an intended change of address. Id. at 6-7.
On direct appeal, the Sixth Court relied heavily on Green in overturning
Thomas’s conviction. See Thomas v. State, 441 S.W.3d 685, 692-93 (Tex. App.—
Texarkana 2013) rev’d 444 S.W.3d 4. The Sixth Court quoted Green’s language
regarding the various ways in which a sex offender might have to move
unexpectedly, and then concluded that, because the State had not shown that
Thomas had an intention to move seven days prior to when he was given the
trespass warning, the evidence was insufficient to support the conviction. Id.
at 693.
On discretionary review, the Court of Criminal Appeals did not look at
the date when Thomas left the Green Street house, but instead looked at the 6 date when Thomas told the officers that he lived on Houston Street, June 25.
Thomas, 444 S.W.3d at 10. Because he was living on Houston Street, the jury
could have inferred that he intended to move to Houston Street, and thus he
should have provided notice at least seven days before he moved. Ibid.
Therefore, because the evidence showed that Thomas had not provided notice
of this change of address by, at the latest, June 18, the evidence was sufficient.
Id. at 10-11.
C. Thomas directly contradicts Green.
While Thomas is not completely clear about its rationale, it is clear
enough that it directly contradicts this Court’s holding in Green. Green and
Thomas were charged with the exact same offense, and the facts of the cases
were nearly identical: a sex-offender, through no action of his own, was forced
to move suddenly from the address at which he was registered. In neither case
did the State’s evidence show any intent to leave the prior address, much less
an intent seven days before the move. In both cases, the State proved that the
defendant had moved and had not given notice prior to moving. In Green, this
Court held that the evidence was not sufficient; in Thomas, the Court of
Criminal Appeals held that it was. The State believes that there is no way to
reconcile this Court’s opinion in Green with Thomas. At this point, this Court
7 should consider Green effectively overruled and should analyze the sufficiency
of the evidence in this case by looking at Thomas instead.
D. The Thomas inference does not impose strict liability on evicted sex offenders. Though the seven-day notice requirement is absolute, if such notice is impossible a defendant may raise the defense of necessity.
The fundamental difference between Green and Thomas is that Green
looked at the date the defendant vacated a prior residence and required the
State to adduce evidence that there was an intent prior to the move, but
Thomas looked at the date when it was obvious that the defendant was living
elsewhere and inferred that the move was intentional. Intuitively, the Thomas
inference makes sense: The decision to live at a particular place is an
intentional one, thus a rational jury, upon being told that a defendant was
living on Green Street but is now living on Houston Street could infer that the
move was an intentional one.
This inference remains true even if that defendant did not intend to
move from Green Street, because, regardless of why he left Green Street, it is
highly unlikely that he started living on Houston Street by accident. Thus, even
if Thomas would have preferred living on Green Street, when he changed his
address to Houston Street it was an intentional act and he was required to give
seven days’ notice prior to doing so.
8 On its face, Article 62.055(a)’s requirement is a blanket requirement
with no exceptions, effectively disallowing those subject to the registration
requirement from moving without at least seven days’ notice. See TEX. CODE
CRIM. PROC. art. 62.055(a) (“If a person required to register under this chapter
intends to change address … shall, not later than the seventh day before the
intended change, report in person to the local law enforcement authority
designated as the person’s primary registration authority … and provide the
authority … with the person’s anticipated move date and new address.”). This
requirement makes sense under the structure of the statute, because the law
enforcement authority to whom the registrant gives notice must, within three
days of receiving that notice, itself provide notice to the Department of Public
Safety and the reporting authority for the address to which the registrant is
moving. See id. at 62.055(c), (d), (f), (g), (h). Effectively, Article 62.055 serves
to give a heads-up to reporting authorities that someone subject to the
registration requirement is moving to their area. Allowing sex offenders to up
and move without lead time would thwart the legislative aims of monitoring
their whereabouts.
In the face of this blanket requirement, the State believes this Court’s
instincts in Green were sound: Despite the fact that Article 62.055 plainly
disallows sex offenders from moving with less than seven days’ notice, there 9 are circumstances where individuals might be required to suddenly leave their
homes, and turning an eviction or a criminal trespass notice or a disastrous
fire into a felony seems harsh and unfair. However, defendants in those
circumstances are still protected under Thomas, if they present their evidence
properly. If a defendant is charged for failure to give seven days’ notice and his
defense is that he was forced to leave his registered address because he was
served with a criminal trespass warning, he is not disputing that he
intentionally moved to another place. Indeed, he is more or less admitting as
much. What he is disputing is whether he had a legal alternative to violating
the seven-days’ notice requirement.
Penal Code Section 9.22 provides a defense for people caught in such
tough situations: “Conduct is justified if the actor reasonable believes the
conduct is immediately necessary to avoid imminent harm.” TEX. PENAL CODE §
9.22(1). In order to qualify for this defense, “the desirability and urgency of
avoiding the harm clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by the law proscribing the
conduct.” Id. at 9.22(2). Although the “imminent harm” for this sort of defense
is ordinarily some type of physical harm, there is no legal requirement that the
harm being avoided be physical. See TEX. PENAL CODE § 1.07(25) (“‘Harm’ means
anything reasonably regarded as loss, disadvantage, or injury …”); 10 compare TEX. PENAL CODE § 9.22(1) (allowing necessity defense if conduct was
necessary to “avoid imminent harm”) to § 8.05(a) (Duress: “It is an affirmative
defense to prosecution that the actor engaged in the proscribed conduct
because he was compelled to do so by threat of imminent death or serious
bodily injury …”).
A registered sex offender who is forced to move at a moment’s notice
because of a criminal trespass warning will violate the criminal-trespass
statute if he does not change his address, and he will violate the seven-day
notice requirement if he does. It should be clear that, given that choice,
violating the seven-day notice requirement will generally be the preferable
option. Violating the criminal-trespass statute will bring with it the danger of
immediate harm, namely being arrested for staying at the forbidden property.1
If the sex offender goes to jail, the problem for him will persist, because Article
62.055 requires that the notice of an intended address change be given “in
person,” which an incarcerated defendant would almost certainly not be able
to do. Thus, once he is released from the jail, he will again face the exact same
dilemma.
1In this case, the trespass warning was given in the presence of a police officer, so had the appellant refused to leave immediately he almost certainly would have been arrested. (See State’s Ex. 6). 11 Additionally, if the question is how can a sex offender in this
circumstance best comply with the law, moving and providing notice as
quickly as possible would be preferable to continuing to reside at the
forbidden property. If a sex offender moves immediately and notifies the
reporting authority as soon as possible of his forced relocation, he will violate
the seven-day notice requirement but in other regards he will be in
compliance with Article 62.055. Moreover, because a violation of a registration
requirement is an administrative violation, no one will actually be harmed by
the lack of pre-move notice. If, on the other hand, he remains on property
despite being forbidden from doing so by the owner, the criminal-trespass
statute is completely violated, and with it the fundamental property rights of
the land owner.2
In summary, while the Court of Criminal Appeals’s opinion in Thomas
makes it easier for the State to gain a conviction by allowing an inference of
intent that this Court’s prior caselaw did not allow, the existence of a necessity
defense means that there is still legal protection for those sex offenders who
are forced to move without being able to provide seven days’ notice. 3
2 Others may be harmed as well if a defendant stays at the forbidden property. Here, the reason the appellant was given a trespass warning was because he was beating his mother.
3 Though it seems counterintuitive to apply it to such a situation, the public duty defense also seems to apply here. See TEX. PENAL CODE § 9.21(a) (“[C]onduct is justified if the actor 12 While understanding the necessity defense is important for
understanding the workings of this statute, it is important to note that the
appellant did not adduce evidence that would support a justification defense
in this case. See Juarez v. State, 308 S.W.3d 398, 404 (Tex. Crim. App. 2010)
(justification defenses subject to confession-and-avoidance doctrine, requiring
defendant to admit to conduct and mental state of offense). Though the
appellant’s defense on appeal is that he could not give seven days’ notice
because he was forced to move by the trespass warning, that argument was
foreclosed by his failure to adduce this evidence and request a necessity
instruction.
II. Under Thomas, the evidence is sufficient to show that the appellant intentionally changed his address and failed to provide seven days’ notice prior to doing so.
A. The State’s evidence supports an inference that the appellant left 7601 Curry at one of two different time periods, and that he failed to provide seven days’ notice.
The evidence in this case showed that the appellant was registered to
live at 7601 Curry Street, Apartment 2. (State’s Ex. 2). In August 2012, he was
given a criminal trespass notice prohibiting him from being at 7601 Curry;
reasonably believes the conduct is required or authorized by law …”). In this situation, the law requires the sex offender to leave immediately, and to give seven days’ notice prior to leaving. Indeed, the public-duty defense might protect the sex offender in this situation regardless of whether he chooses to leave or stay. 13 while the apartment manager testified that she did not hear reports of him
being at the complex after that, there is no direct evidence that the appellant
left the premises at the time. (4 RR 49-51).
However, by January 2013, the appellant’s mother had moved out of the
apartment building and the management conducted a remodeling project that
left the apartment uninhabitable. (4 RR 44, 56-58; State’s Ex. 4 (“JAN 3, 2013
APT VACATED PER MRG”)). When the police investigated the appellant’s
whereabouts in April and May, 2013, the apartment was still vacant. (4 RR 22-
23; State’s Ex. 4).
The State believes that the evidence would support an inference that the
appellant left 7601 Curry either in September 2012 or January 2013. The later
inference is probably stronger. The indictment alleged that he failed to report
a move on January 11, 2013, but the specific date is not relevant on a
sufficiency review so long as the evidence was sufficient to show that he
moved without providing notice at some period within the three years prior to
the issuance of the indictment. See Thomas, 444 S.W.3d at 11.
B. What the State’s evidence did not directly show — that the appellant set up a new address — can be inferred.
There was no evidence in this case regarding where the appellant went
after he left 7601 Curry. Nonetheless, the State believes the evidence supports
14 an inference that the appellant did change addresses: If he wasn’t living at
7601 Curry, he had to be living somewhere else, and it would have been
almost impossible for him to have spent an extended period of time without
being required to report his whereabouts.
The sex-offender registration statutes do not directly define “address” or
“residence” in any useful way,4 but they do describe the sorts of addresses that
those subject to the registration requirement must report. Article 62.051
requires those subject to the registration requirement to register “the address
at which the person resides or intends to reside or, if the person does not
reside or intend to reside at a physical address, a detailed description of each
geographical location at which the person resides or intends to reside.” Id. at
(c)(2). This information must be provided to the local law enforcement
authority “in any municipality where the person resides or intends to reside
for more than seven days,” or, if the person does not live in a municipality, he
must register in the county “where he resides or intends to reside for more
than seven days.” TEX. CODE CRIM. PROC. art. 62.051 (a). He must register no
later than “the seventh day after the person’s arrival in the municipality or
county, or the first date the local law enforcement authority of the
4“‘Residence’ includes a residence in this state established by a person described by Article 62.152(e) [dealing with ‘Certain Workers or Students’].” TEX. CODE CRIM. PROC. art. 62.001(7). 15 municipality or county by policy allows the person to register ….” Id. at
62.051(a)(1)-(2).
A sex offender’s registration requirements kick in even before the seven-
day point. A sex offender subject to the registration requirement must report
to a local law enforcement authority, by the end of a month, if he spends “more
than 48 consecutive hours” in a municipality or county “on at least three
occasions during any month.” TEX. CODE CRIM. PROC. art. 62.059(a). Among the
information required to be reported to the law enforcement agency is the
individual’s address and the place in the municipality or county where the
individual is lodging. Id. at 62.059(b).
In this case, the appellant was gone from 7601 Curry at least from
January through May, at which point police filed charges. During that time, the
appellant never registered his location with any authority in this or another
state. (4 RR 32-33). While it does seem possible for an individual subject to
the reporting requirement to not have a reportable address, maintaining such
a non-resident status would be difficult and would probably require a
conscious effort. It seems that an individual could avoid having a reportable
residence if he:
16 1. Did not stay or intend to stay in the same municipality or county for more than seven consecutive days, and
2. Did not stay in the same municipality or county for more than 48 hours on three occasions in a month. 5
The chances of the appellant having followed those rules for four-and-a-half
months are exceedingly small; indeed, in the absence of evidence that the
appellant had uprooted himself to become such a legally-fastidious drifter, it
would be unreasonable to assume that he had.
From the State’s evidence that the appellant stopped living at his
registered address for four-and-a-half months, a rational jury could have
inferred that he lived somewhere, and that wherever he lived he lived
intentionally. See Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007) (“We
permit juries to draw multiple reasonable inferences as long as each inference
is supported by the evidence presented at trial.”). Thus, using the inference
allowed by Thomas, the evidence is sufficient to support the appellant’s
conviction.
5 The State does not represent this as a conclusive statement of the law; this is merely a statement of the requirements that the State’s appellate counsel could find. There may be other requirements that would make it even harder not to obtain a reportable residence. 17 Conclusion
The State respectfully submits that all things are regular and the
judgment of the trial court should be affirmed.
/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454
18 Certificate of Compliance and Service
I certify that, according to Microsoft Word’s word counting function, the
portion of this brief for which Rule of Appellate Procedure 9.4(i)(1) requires a
word count contains 3,869 words.
I also certify that I have requested that efile.txcourts.gov electronically
serve a copy of this brief to:
Melissa Martin melissa.martin@pdo.hctx.net
/s/ C.A. Morgan CLINTON A. MORGAN Assistant District Attorney Harris County, Texas 1201 Franklin, Suite 600 Houston, Texas 77002-1923 (713) 755-5826 Texas Bar No. 24071454
Date: March 6, 2015