Joshua Glenn Bohner v. the State of Texas

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-21-00128-CR

JOSHUA GLENN BOHNER, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 188th District Court Gregg County, Texas Trial Court No. 51780-A

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Justice Stevens MEMORANDUM OPINION

Joshua Glenn Bohner was indicted on one count of failing to register or report a change

of address as a sex offender. After a bench trial, the trial court found him guilty and sentenced

him to nine years’ imprisonment. On appeal, Bohner contends (1) that the evidence is legally

insufficient to sustain his conviction and (2) that the trial court erred in assessing attorney fees

against him.

We modify the trial court’s judgment by deleting the award of attorney fees, and we

affirm the trial court’s judgment because the evidence supporting the court’s verdict is legally

sufficient.

I. Sufficient Evidence Supports the Trial Court’s Verdict

In his first point of error, Bohner contends that the evidence is legally insufficient to

support his conviction for failure to register.

“[T]he appellate standard for reviewing the sufficiency of the evidence is based on a

hypothetical rational fact[-]finder.” Robinson v. State, 466 S.W.3d 166, 172 (Tex. Crim. App.

2015). Thus, in bench trials, “we view the evidence in the light most favorable to the verdict in

order to determine whether [the trial court rationally] could have found the essential elements of

the offense beyond a reasonable doubt.” Id. A conviction must be rationally “based on the

evidence . . . whether a judge or jury sits as the fact finder in the case.” Id. In bench trials and

jury trials, an appellate court must apply the Jackson v. Virginia standard to determine if the

evidence is sufficient to sustain the conviction. See id. at 173; see also Jackson v. Virginia, 443

U.S. 307 (1979); Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010). This

2 standard requires the reviewing court to determine whether, considering all the evidence in the

light most favorable to the verdict, the fact-finder was rationally justified in finding guilt beyond

a reasonable doubt. See Jackson, 443 U.S. at 319; see also Brooks, 323 S.W.3d at 899.

A person commits the offense of failure to comply with registration requirements if the

person “is required to register and fails to comply with any requirement” of Chapter 62 of the

Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 62.102. Under Article

62.055(a),

If a person . . . required to register changes address, the person shall, not later than the later of the seventh day after changing the address . . . report in person to the local law enforcement authority in the municipality or county in which the person’s new residence is located and provide the authority with proof of identity and proof of residence.

TEX. CODE CRIM. PROC. ANN. art. 62.055(a) (Supp.). The indictment alleges that on or about

December 13, 2020, Bohner, as a person required to register a change of address with the local

law enforcement authority, failed to register with the Longview Police Department (LPD) within

seven days after changing his address.1 See id.

Bohner argues that the evidence is legally insufficient to show that he failed to register

within seven days of changing his address. Specifically, he contends that the State failed to

prove when he moved and when he violated the statute by failing to register.2 The State alleged

1 Article 62.051(a) of the Texas Code of Criminal Procedure requires anyone who has a reportable conviction to register as a sex offender, and Article 62.001(5)(A) of the Texas Code of Criminal Procedure establishes that a “reportable conviction” includes a conviction for aggravated sexual assault. Bohner does not dispute that he has four prior convictions for aggravated sexual assault and that he must register as per the provisions of Chapter 62 of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. arts. 62.001(5)(A), 62.055 (Supp.). 2 Although the indictment alleges that the offense occurred “on or about” December 13, 2020, the State was not required to prove the charged offense occurred exactly on December 13, 2020. “[T]he ‘on or about’ language of an 3 that Bohner moved out of his residence at 1100 Centenary Drive in Longview, Texas, prior to

December 13, 2020, and that he failed to register the change with the LPD within seven days of

having done so.

At trial, Aaron Williams testified that he owned the home located at 1100 Centenary in

Longview. Bohner was a tenant in the home until December 1, 2020, when Williams gave

Bohner a citation of eviction. The eviction notice itself, which was signed by Bohner, is dated

November 20, 2020. Williams testified that, due to the eviction, the last time Bohner was in the

home was December 1, 2020. On December 3, 2020, Williams changed the locks on the

residence. Bohner sent a text message to Williams stating that he would have “everything out”

of the house by that day. As far as Williams knew, all of Bohner’s property had been removed

from the residence by then. However, on cross-examination, Williams admitted that the text

messages between he and Bohner indicated that Bohner was still in the house on December 3,

2020, and although Bohner was intending to leave, Williams was trying to “work with him” for a

few days on moving out.

Randal Hudson, Bohner’s parole officer, testified that Bohner lived at 1100 Centenary

Drive and that he had routine parole visits with Bohner at that residence. That said, Hudson

testified that Bohner was not home for his scheduled visits on December 8 and December 10,

2020. On December 13, 2020, Hudson went to the Centenary residence, looked inside, and saw

indictment allows the State to prove a date other than the one alleged in the indictment as long as the date [proven] is anterior to the presentment of the indictment and within the statutory limitation period.” State v. West, 632 S.W.3d 908, 913 (Tex. Crim. App. 2021) (quoting Sledge v. State, 953 S.W.2d 253, 256 (Tex. Crim. App. 1997)). 4 “absolutely nothing in the house.” Although Hudson performed no further investigation of the

home, from his experience, that meant Bohner no longer lived there.

On December 17, 2020, Officer Edward Buckner with the LPD pulled over a vehicle

being driven by Bohner. Buckner arrested Bohner on an outstanding “blue warrant” issued

because Bohner had violated the terms of his parole. During the recording from Buckner’s body

camera, Bohner could be heard giving the officer a false name and telling Buckner that he lived

in a hotel because he had been “kicked out” of his house. Bohner admitted lying to Buckner

about his name.

Palankal Patel, the owner of a Super 8 hotel in Longview, confirmed that Bohner stayed

at his hotel from December 15 through December 17.

Officer Debra Stiles testified that she received an email that Bohner’s residence appeared

to be vacant and, upon checking her records, discovered that Bohner had received an eviction

notice on December 1, 2020. However, there was no record that Bohner had registered a change

of address. A warrant for Bohner’s arrest was issued on December 18, 2020, alleging a failure to

register.

Bohner denied ever being personally served with an eviction notice. He testified that he

was working at the time it was served at his residence and that someone staying at his residence

falsely claimed to be him when the notice was served. He claimed that, as per the text messages

in evidence, Williams knew that he was still living in the residence as of December 4, 2020, and

that, because he had “nowhere to go,” he had a “running dialogue” with Williams and they were

going to “work on” terms for him to stay at the residence. Bohner testified that, after he left the

5 Centenary residence, he stayed at a nearby Motel 6 “to shower and stuff like that” and that, from

the motel, he would return to the Centenary residence “every day up to [December] 13th” to

check his mail, feed his cat, and “get whatever [he] could in and out of the house.” Bohner knew

that he had to register any change of address, but he testified that he was arrested just four days

after he had to finally leave the Centenary residence. That is why he claimed that he had not

failed to register a change of address.

Here, Bohner admitted that he was evicted from the Centenary residence. Williams

testified that the locks were changed on December 3. Hudson testified that no one was at the

Centenary residence on December 8 or 10. From this evidence, the trial court was free to

reasonably infer that Bohner ceased living in the Centenary residence on the day of or the day

after December 3, when the locks were changed. From the testimony of Bohner and Patel, the

trial court could have also inferred that Bohner lived in at least two different Longview hotels

after he left the Centenary residence. Finally, the evidence was undisputed that Bohner failed to

register any change of address after leaving the Centenary residence.

Bohner claimed that he did not fail to register, and there was some testimony and text

message evidence indicating that Bohner continued to live at the Centenary residence for days

after the locks were changed. But the trial court, as the trier of fact and sole judge of witness

credibility, could have rationally rejected that evidence. We must assume that the trial court

resolved any conflicts in the evidence in favor of the verdict. See Mosley v. State, 983 S.W.2d

249 (Tex. Crim. App. 1998); see also Matchett v. State, 941 S.W.2d 922, 936 (Tex. Crim. App.

1996).

6 Viewing the evidence in the light most favorable to the verdict, we find that the trial court

could have found beyond a reasonable doubt that Bohner failed to register or report a change of

address within seven days of leaving the Centenary residence. See TEX. CODE. CRIM. PROC.

ANN. art. 62.055(a); see Brooks, 323 S.W.3d at 912. Having found evidence sufficient to

support the trial court’s verdict, we overrule this point of error.

II. Attorney Fees

In his final point of error, Bohner contends that the trial court erred by assessing him

$1,275.00 in attorney fees. The State agrees.

Under Article 26.05(g) of the Texas Code of Criminal Procedure, a trial court has the

authority to order the reimbursement of a court-appointed attorney’s fees only if “the judge

determines that a defendant has financial resources that enable defendant to offset in part or in

whole the costs of the legal services provided . . . including any expenses and costs.” TEX. CODE

CRIM. PROC. ANN. art. 26.05(g) (Supp.). “[T]he defendant’s financial resources and ability to

pay are explicit critical elements in the trial court’s determination of the propriety of ordering

reimbursement of costs and fees” of legal services provided. Armstrong v. State, 340 S.W.3d

759, 765–66 (Tex. Crim. App. 2011) (quoting Mayer v. State, 309 S.W.3d 552, 556 (Tex. Crim.

App. 2010)).

Due to Bohner’s indigency, he received a court-appointed attorney, and throughout this

case, Bohner has remained incarcerated and indigent. The record lacks any indication that

Bohner’s financial status or ability to pay changed at any point in the case. Even so, the

judgment reflects that Bohner was assessed $1,275.00 in attorney fees. Since there is no finding

7 of the ability of Bohner to pay them, the assessment of the attorney fees was erroneous. See

Cates v. State, 402 S.W.3d 250, 252 (Tex. Crim. App. 2013); see also Mayer v. State, 309

S.W.3d 552 (Tex. Crim. App. 2010); Martin v. State, 405 S.W.3d 944, 946–47 (Tex. App.—

Texarkana 2013, no pet.).

Notwithstanding the fact that we denied Bohner’s challenge to the sufficiency of the

evidence, appellate courts “have the authority to reform judgments and affirm as modified in

cases where there is nonreversible error.” Sharpe v. State, 607 S.W.3d 446, 448 (Tex. App.—

Texarkana 2020, no pet.) (quoting Ferguson v. State, 435 S.W.3d 291, 293 (Tex. App.—Waco

2014, pet. struck), overruled on other grounds by Cummins v. State, 646 S.W.3d 605 (Tex.

App.—Waco 2022, no pet. h.)). Accordingly, we modify the trial court’s judgment by deleting

the assessment of $1,275.00 for attorney fees from the judgment.

III. Conclusion

As modified, we affirm the trial court’s judgment.

Scott E. Stevens Justice

Date Submitted: July 15, 2022 Date Decided: August 11, 2022

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