in the Interest of G.B. II, a Child

• Court: Court of Appeals of Texas
• Decided: August 11, 2010
• Docket: 10-10-00244-CV
• Status: Published

Opinion

IN THE

TENTH COURT OF APPEALS

 

No. 10-10-00244-CV

In the Interest of G.B. II, a Child

From the 52nd District Court

Coryell County, Texas

Trial Court No. 38594

ORDER

            The parental rights of E.F. and G.B. were terminated as to their child, G.B.II.  The final hearing was held on April 23, 2010, and heard by an associate judge but the order was signed by the associate judge on May 14, 2010.  According to a letter submitted by appellant’s counsel, appellant filed a request on April 30, 2010 for a de novo hearing before the referring court.  See Tex. Fam. Code Ann. § 201.015 (a) (Vernon Supp. 2009).  Then, on June 25, 2010, appellant filed a notice of appeal and in that notice, waived the right to the de novo hearing.

            Because of the waiver of the de novo hearing, appellant has created vast uncertainty about how to comply with Texas Family Code Section 263.405, including which judge, the associate judge or the judge of the referring court, will conduct the necessary hearings.

            Accordingly, we will reset the timetable specified in Texas Family Code Section 263.405 to run from the date of this order, as if that date is the date the trial court signed the final judgment of termination.  Tex. Fam. Code Ann. § 263.405(Vernon 2008).  This is only a prophylactic remedy for scheduling purposes.  We have not yet resolved the question of the impact, if any, of appellant’s actions on our jurisdiction; a question we hereby request the parties to address in their briefs on the merits.

            Further, to expedite the Section 263.405 hearing process, to the extent not already held, the referring court, rather than the associate judge, should conduct all hearings, if any, to comply with the Family Code and any other relevant rule or statute.

                                                                        PER CURIAM

Before Chief Justice Gray,

            Justice Reyna, and

            Justice Davis

Order issued and filed August 11, 2010

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 in 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, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (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 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.

            According to article 62.057, Hance was required to notify the Ellis County Sheriff’s Office of any change in his job status not later than the seventh day after the date of the change.  Tex. Code Crim. Proc. Ann. art 62.057(b) (Vernon 2006).  A job status changes when a person begins employment with a new employer.  Id. (c).  Hance was not employed when he initially registered on April 17, 2006.  He became employed on May 10, 2006 when he went to work for Boyce Feed and Grain.  On May 24, the day deputies were attempting to serve the warrant for Hance’s arrest at his residence, Hance called McKinney to notify him that he was employed.  This was more than seven days after the date Hance became employed.  McKinney denied that Hance ever attempted to contact him about the change in Hance’s job status prior to May 24th.

            Hance contends the evidence is both legally and factually insufficient because he attempted to make contact with McKinney several times prior to May 24th.  He testified that Deputy Green, who was training McKinney for his position when Hance initially registered, would allow registrants to report changes over the phone.  McKinney required registrants to make an appointment to report changes.  Hance testified that he told Deputy Green in person that he had acquired a job, but Green told him to make an appointment with McKinney.  He further testified that he left messages about seven times from the 10th to the 24th because no one ever answered the phone.  He denied speaking to McKinney on the 24th.  Hance’s step father recalled Hance trying to make a phone call during the lunch hour.  Hance told his step father that he was calling the Sheriff’s Office.

             Reviewing the evidence under the appropriate standard for legal sufficiency of the evidence, we presume that the jury resolved the conflicts in the testimony against Hance.  Therefore, any rational trier of fact could have found beyond a reasonable doubt that Hance waited more than seven days to report a change in his job status.  The evidence is legally sufficient to support the conviction under Count One, and Hance’s second issue is overruled.

            Further, considering all of the evidence in a neutral light, the jury was rationally justified in finding guilt beyond a reasonable doubt.  The evidence that Hance failed to report a change in his job status until May 24th was not 'so weak' that the verdict seems ‘clearly wrong or manifestly unjust,’ or that the verdict is ‘against the great weight and preponderance of the evidence.’  Hance’s third issue is overruled.

Vehicle Identification

            In his fourth and fifth issues, Hance claims the evidence is legally and factually insufficient to support his conviction in Count Two in that he failed to ensure that his registration form was complete and accurate regarding his vehicle identification information. 

            Article 62.051(g) provides that a person who is required to register shall ensure that the person’s registration form is complete and accurate.  Tex. Code Crim. Proc. Ann. art. 62.051(g) (Vernon 2006).  There is no time limitation for this statute.  There is also no grace period provided for compliance with this statute.

            Hance argues that because there were no time limits within which he had to update his vehicle information, he did not violate the statute.  He also argues that he did not need to update his registration until his annual reporting time.  Although Hance testified that he thought there was no time limit to update his vehicle information, he did not testify that he believed he was not required to update the information until his annual reporting time.  Hance further testified that he was warned that if he drove a vehicle every day, he needed to bring it in to have it photographed.  He admitted to driving the van at least 10 times.  That amount of time is as many days as Hance worked.  And Hance did not say that he ever accepted a ride from anyone in order to get to or from work.  He did not bring the van in to be photographed and to update the vehicle information on his registration until after he was arrested and released.

            Reviewing the record pursuant to the appropriate standards, we find the evidence both legally and factually sufficient to support the conviction under Count Two.  Hance’s fourth and fifth issues are overruled.

Conclusion

            Having overruled each issue presented for review, the trial court’s judgment is affirmed.

                                                                        TOM GRAY

                                                                        Chief Justice

            Justice Vance, and

            Justice Reyna

Affirmed

Opinion delivered and filed December 5, 2007

Publish

[CR25]

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[1] Green passed away in August of 2006.

[2] Hance did not, at any time, object to this language in the indictment or in the court’s charge.