Jamari Carter v. State

• Court: Court of Appeals of Texas
• Decided: December 11, 2019
• Docket: 08-19-00018-CR
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

JAMARI CARTER, § No. 08-19-00018-CR Appellant, § Appeal from the v. § 371st Judicial District Court § THE STATE OF TEXAS, Of Tarrant County, Texas § Appellee. (TC# 1508284D) §

MEMORANDUM OPINION1

Advancing four issues, Jamari Carter appeals a trial court's order revoking his deferred

adjudication community supervision. We affirm in part and reform the judgment of conviction in

part.

BACKGROUND

On August 29, 2018, Appellant pleaded guilty to one count of aggravated sexual assault of

a child under fourteen. In accordance with Appellant's plea bargain with the State, the trial court

deferred a finding of guilt and placed him on community supervision for eight years. The trial

court imposed several conditions on the community supervision, including that Appellant

1 See TEX.R.APP.P. 47.4.

1 “[c]omply with sex offender registration procedures as required by the laws of this State and of

any other State and pay any costs thereof as required by law.”

On October 11, 2018, the State filed a petition to adjudicate Appellant guilty of the original

offense, alleging that he had violated the sex offender registration requirement. Appellant pleaded

not true to the petition's allegations. Following an evidentiary hearing, the trial court revoked

Appellant’s probation, and adjudicated him guilty of the underlying offense. The trial court

assessed his punishment at five years' confinement.

As we explain below, he contends that the evidence is legally insufficient to prove that he

intentionally failed to register as a sex offender. He also points out an error in the judgment that

requires correction. We begin with our standard of review.

STANDARD OF REVIEW

“The question at a revocation hearing is whether the appellant broke the contract he made

with the court after the determination of his guilt.” Kelly v. State, 483 S.W.2d 467, 469

(Tex.Crim.App. 1972). While defendants are not entitled to probation as a matter of right, once a

defendant is placed on probation in lieu of other punishment, this conditional liberty “should not

be arbitrarily withdrawn by the court ....” DeGay v. State, 741 S.W.2d 445, 449 (Tex.Crim.App.

1987).

We review orders revoking community supervision under the abuse of discretion standard.

Leonard v. State, 385 S.W.3d 570, 576 (Tex.Crim.App. 2012). A trial court has the discretion to

revoke a criminal defendant's community supervision when a preponderance of the evidence

supports the State's allegation that the defendant violated a condition of probation. Rickels v. State,

202 S.W.3d 759, 763-64 (Tex.Crim.App. 2006), quoting Scamardo v. State, 517 S.W.2d 293, 298

(Tex.Crim.App. 1974); Lawrence v. State, 420 S.W.3d 329, 331 (Tex.App.--Fort Worth 2014, pet.

2 ref’d). Here, a “preponderance of the evidence” means the “greater weight of the credible evidence

which would create a reasonable belief that the defendant has violated a condition of his

probation.” Rickels, 202 S.W.3d at 764. The trial court is the sole judge of witness credibility and

the weight to be given their testimony, and we review the evidence in the light most favorable to

the trial court's ruling. Hacker v. State, 389 S.W.3d 860, 865 (Tex.Crim.App. 2013). Nonetheless,

if the State fails to meet its burden of proof, the trial court abuses its discretion by revoking the

community supervision. Cardona v. State, 665 S.W.2d 492, 493-94 (Tex.Crim.App. 1984) (en

banc).

THE STATE’S EVIDENCE

The State presented two witnesses at the hearing below. Jennifer Aguilar serves as a

Tarrant County probation officer.2 She met with Appellant on August 31, 2018, to explain the

terms of his community supervision. She did so by reading out loud his specific probation terms

as described on two department forms, and then having him initial next to the specific terms to

acknowledge his understanding of them. One term that Appellant acknowledged states: “No later

than the 7th day after 08/31/2018 (date of release/placement on community supervision or juvenile

probation), I must personally appear at the following local law enforcement authority to verify and

complete my registration.” Because Appellant intended to relocate to Forest Hill following his

release, the form then stated that he was to register at the Forest Hill Police Station, and also

provided the station’s address. This same condition was actually read to and acknowledged by

Appellant twice, as it appears on two department forms. Officer Aguilar described Appellant’s

2 This case was transferred from our sister court in Fort Worth pursuant to the Texas Supreme Court’s docket equalization efforts. See TEX.GOV'T CODE ANN. § 73.001. We follow the precedents of the Fort Worth Court to the extent they might conflict with our own. See TEX.R.APP.P. 41.3.

3 demeanor at that time as “very defensive” and he was “resistant to being put on probation, resistant

to the conditions, [and] resistant to being there.”

The State’s other witness, Corporal Zachary Hodgson, handles sex offender registration at

the Forest Hill Police Department. Either a probation department or an institution will notify him

when a sex offender intends to move to Forest Hill. Corporal Hodgson was specifically notified

that Appellant was moving into Forest Hill, so he set up the appropriate paperwork and awaited

Appellant to come in and complete the registration. Corporal Hodgson understood that

Appellant’s seven-day window started on August 31, 2018. By September 26th, however, he had

still not heard anything from Appellant.3 So Corporal Hodgson went to the address listed on the

probation department’s form--a hotel--and was informed that Appellant had last lived there nine

months earlier. The desk clerk, however, had seen Appellant around, but not for several weeks.

Corporal Hodgson then contacted Officer Grant, Appellant’s probation officer, and when she did

not have a good address for Appellant, Corporal Hodgson issued an arrest warrant.

Appellant also testified at the revocation hearing. He claimed that he called to set up an

appointment with the Forest Hill Police Department, but the person who was responsible for

registrations was not there at the time and would not return until past the seven-day deadline.

Nonetheless, Appellant claims he left a message with his name and date of birth. And before the

deadline, he moved back to Fort Worth. He also claimed that he informed his probation officer

about this move and provided her a specific Fort Worth address. She informed him that she was

going to visit him at the Fort Worth address, but she never showed up. He reported to her about

two weeks later, but by that time, the arrest warrant had already issued. The probation officer later

3 Corporal Hodgson allows a grace period of two to three weeks at most and stated that if Appellant had come in by the 12th day, he would have processed the paperwork as if it were timely.

4 told Appellant that she had gone to the address that he had given her, but he had already moved

elsewhere. During this period, Appellant did make three visits to the “PSY” office for a sex-

offender evaluation.

As to several of these issues, however, the record reflects disputes in the testimony.

Corporal Hodgson agreed that he works a variable shift--on one week he works every day except

Wednesdays and Thursdays, followed the next week by a Wednesday-Thursday-only shift. He

testified, however, that he was never off more than three days, and he never received any kind of

message from Appellant. Additionally, Appellant acknowledged that in early September he told

his probation officer that he knew he needed to register but he did not have a ride. He also called

her on September 18th and gave her a Fort Worth address and she went to see him on the 21st, but

he had already moved to Arlington by that time. He did not tell his probation officer about the

Arlington move because he was “scared” and “embarrassed.”

SUFFICIENCY CHALLENGES

A person commits the offense of failure to comply with sex offender registration

requirements “if the person is required to register and fails to comply with any requirement of this

chapter.” TEX.CODE CRIM.PROC.ANN. art. 62.102(a). Because Article 62.102(a) does not itself

contain a culpable mental state and does not clearly dispense with one, the Texas Court of Criminal

Appeals concluded that the State must prove knowledge or recklessness to establish criminal

responsibility under that Article. Robinson v. State, 466 S.W.3d 166, 170 (Tex.Crim.App. 2015),

citing TEX.PENAL CODE ANN. § 6.02(b) (“If the definition of an offense does not prescribe a

culpable mental state, a culpable mental state is nevertheless required unless the definition plainly

dispenses with any mental element.”). However, the Robinson court determined that the offense

of failure to register as a sex offender is a “circumstances of conduct” type of offense. Robinson,

5 466 S.W.3d at 170-71. As such, “[t]he ‘circumstance’ at issue is the duty to register and the

culpable mental state of ‘knowledge and recklessness’ applies only to the duty-to-register element,

rather than the failure-to-comply element.” Febus v. State, 542 S.W.3d 568, 573 (Tex.Crim.App.

2018). Accordingly, the State is not required to prove an additional culpable mental state regarding

a defendant’s failure to register beyond establishing his awareness of the registration requirements.

Id.

Article 62.051 addresses the situation where a person intends to move from one address to

another, but never actually completes the move. In that situation:

(h) If a person subject to registration under this chapter does not move to an intended residence by the end of the seventh day after the date on which the person is released or the date on which the person leaves a previous residence, the person shall:

(1) report to the juvenile probation officer, community supervision and corrections department officer, or parole officer supervising the person by not later than the seventh day after the date on which the person is released or the date on which the person leaves a previous residence, as applicable, and provide the officer with the address of the person's temporary residence; and

(2) continue to report to the person's supervising officer not less than weekly during any period of time in which the person has not moved to an intended residence and provide the officer with the address of the person's temporary residence.

TEX.CODE CRIM.PROC.ANN. art. 62.051(h).

Appellant contends: (1) that the State failed to show that Appellant was aware of the

specific provisions of Article 62.051(h) governing an intended but un-executed move (Issue One),

(2) that the State did not disprove that Article 62.051(h) was complied with (Issue Two), and (3)

that the State carried the burden to show Appellant knowingly failed to comply with his duty to

register (Issue Three). We take each claim in turn.

A. The State met its burden for the duty-to-register element.

6 Appellant first contends that the State failed to show that he was specifically aware of

Article 62.051(h)’s provision dealing with an intended, but un-executed move from one place to

another. He bases his claim on the Robinson decision that imposes the culpable mental state of

“knowledge” and “recklessness” on the duty-to-register element. Robinson, 466 S.W.3d at 173

(requiring State to prove defendant “knew or was reckless about whether he had a duty to register

as a sex offender”). We decline Appellant’s invitation to read Robinson that broadly or construe

the evidence in this case that narrowly. First, the defendant in Robinson acknowledged that he

was aware of his duty to register. Id. Thus, the issue of that person’s knowledge about every

specific provision of Article 62.051 was not at issue. Moreover, Appellant was specifically

informed of his obligation to comply with Texas registration law generally, and the provisions of

Article 62.051 specifically. He concedes at the hearing that he understood the registration

requirement. Any failure to familiarize himself with the specific sub-sections of the law is at best

evidence of recklessness. Finally, he actually acknowledged on department forms a warning that

summarized the Article 62.051(h) provision:

Change of Address: No later than the 7th day before I move to a new residence in this state or another state, I must report in person to the law enforcement authority designated as my primary registration authority . . . and inform that authority and officer of my intended move. … If I do not move to an intended address by the end of the 7th day after my anticipated move date, I shall report to my primary registration authority and any supervising officer weekly, and provide an explanation regarding changes in my anticipated move date and intended address.

We overrule Appellant’s first issue.

B. The State met any burden to disprove the application of Article 62.051(h).

In his second issue, Appellant claims that the State failed to disprove the application of

Article 62.051(h). We disagree. That sub-section required that if Appellant decided not to move

to his intended address, that he report to his parole officer “by not later than the seventh day after

7 the date” on which he was released or the date on which he “leaves a previous residence, as

applicable[.]” TEX.CODE CRIM.PROC.ANN. art. 62.051(h)(1)(2). Here, Appellant was required to

register in Forest Hill by September 7, 2018, but testified that he left Forest Hill before that date

to go to Tarrant County. That meant that he would have had to report to his probation officer

sometime between September 1st and September 14th. On cross examination, Appellant admitted

to making a call to his probation officer on September 18th to report his new address. Yet, he then

apparently abandoned that address before his probation officer went to see him there on September

21st. He did not tell her about his next Arlington address because he was “scared” and

“embarrassed.” Taking the evidence in the light most favorable to the trial court's ruling, as we

must, the trial court could have concluded that the State, by a preponderance of the evidence,

showed that Appellant did not comply with subsection (h). We overrule Issue Two.

C. The traditional legal insufficiency test is not applicable.

In his third issue, Appellant argues that the State was also required to show that he

knowingly and intentionally failed to register. He argues that he “completed the necessary forms

with the probation office” but did not register within the seven-day window because “his housing

situation changed” and he was “unable to see the person with Forest Hill Police Department[.]”

Appellant essentially argues that we adopt the rationale of a concurring opinion in Robinson that

would have applied the requisite mental state to both a person’s knowledge of the requirement to

register, and the actual act of failing to register. Robinson, 466 S.W.3d at 175 (Alcala, J.,

concurring). And he further claims that we must view the evidence as we would under a traditional

legal sufficiency challenge to a conviction. See Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)

(holding evidence is legally sufficient when, viewed in the light most favorable to the verdict, any

rational jury could have found the essential elements of the offense beyond a reasonable doubt);

8 Brooks v. State, 323 S.W.3d 893, 912 (Tex.Crim.App. 2010) (establishing legal insufficiency

under Jackson v. Virginia as the only standard for review of the evidence in sufficiency challenge

to conviction).

We reject Appellant’s argument for two reasons. First, this case does not come to us as a

conviction under Article 62.102 for a failure to register. Had that been the case, Appellant could

have been sentenced under that statute for the criminalized conduct. Rather, this case comes to us

as a challenge to an order revoking community supervision which is reviewed under the abuse of

discretion standard. Leonard, 385 S.W.3d at 576. Appellant cites no authority that the Jackson v.

Virginia standard applies in this context. Second, even if it did, we would decline to apply the

intent element challenged by Appellant to the act of reporting itself.

In Robinson, the defendant claimed that he attempted to register but the police officer kept

putting him off and would not fill out the paperwork. Robinson, 466 S.W.3d at 169. Answering

a concurrence’s claim that an intent element should apply to the actual failure to register, Presiding

Judge Keller wrote that “[t]he solution is not to impose a culpable mental state where it does not

belong, but to recognize, in an appropriate case, that the voluntary-omission requirement and due

process are the mechanisms to address any stonewalling by public officials that prevents a sex-

offender from complying with registration requirements.” Id. at 175 (Keller, P.J. concurring).

Neither the voluntary omission defense, nor a due process challenge are raised here. We are

compelled to follow the majority rationale in Robinson, and the standard of review applicable to

probation revocation cases. See Febus, 542 S.W.3d at 573 (declining to overrule Robinson and

impose a culpable mental state to the actual failure to register).

9 We therefore decline Appellant’s invitation to apply a mens rea requirement to the failure

to register, or to apply the Jackson v. Virginia legal sufficiency standard of review to the trial

court’s decision below. Issue Three is overruled.

CONFORMING THE JUDGMENT TO THE EVIDENCE

Appellant pleaded “not true” to the petition to adjudicate. The judgment, however, states

otherwise, reflecting a plea of true. We have the authority to reform the judgment to correct that

error and do so here. See French v. State, 830 S.W.2d 607, 609 (Tex.Crim.App. 1992) (en banc)

(holding that an appellate court has the authority to modify a judgment to make it speak the truth);

Bennett v. State, 471 S.W.3d 5, 15 (Tex.App.--El Paso 2015, pet. ref’d) (same). The judgment

also reflects that the “Terms of Plea Bargain” were “True But Hearing.” We are not sure what that

means, and reform it to state “Not Applicable.”

CONCLUSION

We overrule Appellant’s first, second, and third issues, and affirm the judgment of

conviction below, other than we modify the judgment of conviction to recite that Appellant pleaded

not true to the petition to adjudicate, and that there was no plea bargain at issue in the final

conviction.

JEFF ALLEY, Chief Justice December 11, 2019

Before Alley, C.J., Rodriguez, and Palafox, JJ.

(Do Not Publish)