Orlando Ochoa Rodriguez v. State of Texas

Opinion

Opinion filed August 7, 2008

Opinion filed August 7, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-07-00079-CR

                          ORLANDO OCHOA RODRIGUEZ, Appellant

                                                             V.

                                        STATE OF TEXAS,  Appellee

                                        On Appeal from the 142nd District Court

                                                        Midland County, Texas

                                                 Trial Court Cause No. CR31479

                                              M E M O R A N D U M   O P I N I O N

The jury convicted appellant of failing to comply with sex offender registration requirements.  The trial court assessed his punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of two years.  Appellant challenges the legal and factual sufficiency of the evidence supporting his conviction in two issues.  We affirm.

                                                               Background Facts

As a result of a California conviction for committing a lewd act with a child, appellant was required to register as a sex offender.  Appellant registered with the Midland Police Department on July 7, 2003, when he moved to Midland from California.  He listed an address of 1936 English Drive when he initially registered with the Midland Police Department.  Appellant notified the police department on April 14, 2004, of a change of address to 401 East Hickory.

On May 26, 2005, Officer James Williams of the Midland Police Department visited 401 East Hickory for the purpose of verifying appellant=s address.  Officer Williams spoke  with appellant=s sister, Leticia Madrid, at the address.  Madrid advised Officer Williams that appellant was not at the address and that he had not lived there for at least a month.  Officer Williams testified that Madrid also told him that she had no idea where he could find appellant.  Officer Williams asked Madrid to complete a Afield witness statement@ wherein she stated as follows: AOrlando Rodriguez does not live at 401 E. Hickory as of April 05.@

Madrid testified at trial that appellant had lived at 401 East Hickory from time to time during the period of time that Officer Williams contacted her.  She further testified that appellant was living several different places at the time because he was coming back and forth between 401 East Hickory, his girlfriend=s apartment, and a job site that was located down the street from 401 East Hickory.  When questioned by appellant=s trial counsel on cross-examination, Madrid testified that she lived in a portion of the house that had a separate outside entrance and that it was not uncommon for her not to see her brother when he was living there.

Ann Denison is appellant=s girlfriend.  She testified that she lived at 401 East Hickory on May 26, 2005, and that appellant also lived at 401 East Hickory on that date.  Denison stated that appellant was working on a construction project located close to 401 East Hickory and that he would stay at night at the construction project to guard it but that he would return to 401 East Hickory to shower each day.  She further testified that she moved out of the house at 401 East Hickory in August 2005 but that appellant continued to reside there until September 2006.  Additional witnesses testified that appellant worked at the nearby construction project and that he lived at 401 East Hickory during this period.

                                                              Standard of Review

In order to determine if the evidence is legally sufficient, we must review all the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.  Jackson v. Virginia, 443 U.S. 307 (1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10‑11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407‑08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414‑15; Johnson, 23 S.W.3d at 10‑11. The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony. Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

                                                                        Analysis

Chapter 62 of the Texas Code of Criminal Procedure^[1] outlines the reporting requirements for persons convicted of a sexual offense.  Grant v. State, 154 S.W.3d 684, 686 (Tex. App.CHouston [14th Dist.] 2004, pet. ref=d). If a person who is required to register intends to change his or her address, Article 62.055(a) requires that person to Areport in person to the local law enforcement authority designated as the person=s primary registration authority@ and to Aprovide the authority ... with the person=s anticipated move date and new address.@  Article 62.055(a); Grant, 154 S.W.3d at 686. This must be done Anot later than the seventh day before the intended change.@  Article 62.055(a); Grant, 154 S.W.3d at 686.

Appellant contends that he was not required to report an address change to authorities because he continued to reside at 401 East Hickory.  His sister, however, advised Officer Williams on May 26, 2005, that appellant did not reside at the address.  She further advised Officer Williams that appellant had not resided there since April 2005.  Based upon Madrid=s oral statement to Officer Williams and her written statement, we conclude that appellant=s conviction is supported by legally sufficient evidence.  A rational jury could have found beyond a reasonable doubt that appellant=s address had changed and that he failed to inform the appropriate law enforcement authorities of the change.  Appellant=s first issue is overruled. 

We also conclude that the evidence was factually sufficient to support appellant=s conviction.  Appellant attempted to discredit Madrid=s statements to Officer Williams by suggesting that she was not in a position to determine if he resided at 401 East Hickory because she used a separate entrance to enter the residence and because her schedule differed from appellant=s schedule.  However, Madrid  did not merely inform Officer Williams that appellant did not reside at 401 East Hickory on the day he visited the residence (May 26, 2005); she told Officer Williams that he had not resided at the address since April 2005.  The suggestion that one occupant of a home would be mistaken about her sibling=s occupancy of the home for a period of a month or more is doubtful.  Furthermore, the evidence that appellant continued to reside at 401 East Hickory during the relevant period was offered through the testimony of his girlfriend and brother.  The jury was free to disbelieve the testimony of these interested witnesses.  Appellant=s second issue is overruled.

                                                               This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

August 7, 2008

Do not publish.  See Tex. R. App. P. 47.2(b).

Panel consists of:  Wright, C.J.,

McCall, J., and Strange, J.

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^[1]Tex. Code Crim. Proc. Ann. ch. 62 (Vernon 2006 & Supp. 2007).