Hance v. State

244 S.W.3d 504, 2007 Tex. App. LEXIS 9527, 2007 WL 4260636
CourtCourt of Appeals of Texas
DecidedDecember 5, 2007
Docket10-07-00083-CR
StatusPublished
Cited by2 cases

This text of 244 S.W.3d 504 (Hance v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hance v. State, 244 S.W.3d 504, 2007 Tex. App. LEXIS 9527, 2007 WL 4260636 (Tex. Ct. App. 2007).

Opinion

OPINION

TOM GRAY, Chief Justice.

Jack Georgelee Hance was convicted in 1985 of aggravated sexual abuse. He was required to register as a sex offender for Ms lifetime. On December 14, 2006, Hance was convicted of two counts of failure to comply with the registration requirements as a sex offender and sentenced to seven years in prison. Because the evidence is both legally and factually sufficient to support the convictions under Counts One and Two, we affirm the trial court’s judgment.

BACKGROUND

After being released from prison m 2006 following a conviction for driving while intoxicated, Hance arrived at the Ellis County Sheriff’s Office to register. Deputy Green reviewed the registration paperwork with Hance while Deputy McKinney observed. McKinney was training to replace Green. 1 When Hance did not report to the Sheriff’s Office within 80 days to show that he had obtamed an annually renewed driver’s license, a warrant was issued for his arrest. While deputies were attemptmg to serve the warrant at Hance’s residence, McKinney received a phone call from Hance informing McKrn-ney that Hance now had a job. The deputies then arrested Hance at his place of work.

STANDARDS OF REVIEW

Each of Hance’s five issues on appeal involves either a legal sufficiency of the evidence challenge or a factual sufficiency of the evidence challenge. The standards of review are provided as follows.

In reviewing the legal sufficiency of the evidence, this Court looks at all of the evidence m the light most favorable to the verdict to 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, 99 S.Ct. 2781, 61 L.Ed.2d 560 *506 (1979). A legal sufficiency of the evidence review does not involve any weighing of favorable and non-favorable evidence. Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App.2000). Courts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review. Evans v. State, 202 S.W.3d 158, 165 n. 27 (Tex.Crim.App.2006). When faced with conflicting evidence, the reviewing court presumes the trier of fact resolved any such conflict in favor of the prosecution. Fuentes v. State, 991 S.W.2d 267, 271 (Tex.Crim.App.1999).

In a factual sufficiency review, the evidence is “reviewed in a neutral light....” Roberts v. State, 220 S.W.3d 521, 524 (Tex.Crim.App.2007); accord Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App.2000). “There is only one question to be answered in a factual sufficiency review: Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt?” Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App.2006) (quoting Zuniga v. State, 144 S.W.3d 477, 484 (Tex.Crim.App.2004), overruled on. other grounds, Watson at 405). “Evidence is factually insufficient when ... the evidence is ‘so weak’ that the verdict ‘seems clearly wrong or manifestly unjust,’ or the verdict is ‘against the great weight and preponderance of the evidence.’ ” Castillo v. State, 221 S.W.3d 689, 693 (Tex.Crim.App.2007) (quoting Watson at 414-15, 417). “[A]n appellate court must first be able to say, with some objective basis in the record, that the great weight and preponderance of the ... evidence contradicts the jury’s verdict before it is justified in exercising its appellate fact jurisdiction to order a new trial.” Watson at 417.

Variance

In his first issue, Hance contends the evidence was legally insufficient to support his conviction under both counts because the State failed to prove that Hance failed to register with the local law enforcement agency in the municipality of Ellis County. Hance complains that he intended to reside in Ellis County and that Ellis County is not a municipality. 2 In essence, Hance is making a sufficiency of the evidence claim based upon a variance between the indictment and the proof at trial.

When faced with a sufficiency of the evidence claim based upon a variance between the indictment and the proof, only a material variance will render the evidence insufficient. Gollihar v. State, 46 S.W.3d 243, 257 (Tex.Crim.App.2001). Allegations giving rise to an immaterial variance may then be disregarded in a hypothetically correct jury charge but allegations giving rise to material variances must be included. Id. When reviewing a variance between the indictment and the proof, we must determine whether the indictment, as written, informed the defendant of the charge against him sufficiently to allow him to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted indictment would subject the defendant to the risk of being prosecuted later for the same crime. Id.

There is no indication in the record that Hance was confused about where he was required to register or about what offense *507 the State was charging him with. Hance also did not attempt to raise a defense that the State misidentified which place he was to register. His only defense was that he tried to register but he could not get anyone to answer the phone in order to schedule an appointment. Also, Hance is in no danger of being prosecuted again for the same failures alleged but in the county of Ellis, as proved. Therefore, we hold the variance was not material and should be disregarded in a sufficiency of the evidence review under a hypothetically correct jury charge.

Hance’s insufficiency claim is based solely on the variance; and he necessarily admits that the State proved he was required to register in Ellis County. Thus, the evidence is legally sufficient and his first issue is overruled.

Employment Status

In his second and third issues, Hance contends the evidence is legally and factually insufficient to support the conviction in Count One for failing to report a change in employment status within seven days.

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Cite This Page — Counsel Stack

Bluebook (online)
244 S.W.3d 504, 2007 Tex. App. LEXIS 9527, 2007 WL 4260636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hance-v-state-texapp-2007.