PD-0033-15 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 1/29/2015 10:54:18 AM Accepted 1/29/2015 3:29:05 PM ABEL ACOSTA NO. PD-0033-15 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS
JOHNNY RUIZ, January 29, 2015 APPELLANT
vs.
THE STATE OF TEXAS, APPELLEE
Seeking discretionary review of an opinion from the Court of Appeals for the Fifth District of Texas at Dallas in Cause No. 05-13-00918-CR
STATE’S SUPERSEDING PETITION FOR DISCRETIONARY REVIEW
Counsel of Record:
SUSAN HAWK PATRICIA POPPOFF NOBLE CRIMINAL DISTRICT ATTORNEY ASSISTANT DISTRICT ATTORNEY DALLAS COUNTY, TEXAS STATE BAR NO. 15051250 FRANK CROWLEY COURTS BUILDING 133 N. RIVERFRONT BOULEVARD, LB-19 DALLAS, TEXAS 75207-4399 (214) 653-3634(o) Email: pnoble@dallascounty.org
Attorneys for the State of Texas IDENTITY OF JUDGE, PARTIES, AND COUNSEL
JUDGE The Honorable Dominique Collins, Presiding Judge Dallas County Criminal District Court No. 4 Frank Crowley Courts Building 133 N. Riverfront Blvd. Dallas, Texas 75207-4399
DEFENDANT Johnny Ruiz
STATE’S TRIAL AND APPELLATE ATTORNEYS Justin Lord (at trial) Patricia Poppoff Noble (on appeal) Dallas County Criminal District Attorney’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd. Dallas, Texas 75207-4399
DEFENSE COUNSEL AT TRIAL AND ON APPEAL Mary Jo Earle (at trial) Julie Woods (on appeal) Dallas County Public Defender’s Office Frank Crowley Courts Building 133 N. Riverfront Blvd. Dallas, Texas 75207-4399
ii TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………………………………iv
STATEMENT REGARDING ORAL ARGUMENT……………………………….1
STATEMENT OF THE CASE………………………………………………………2
STATEMENT OF PROCEDURAL HISTORY…………………………………….2
QUESTION PRESENTED FOR REVIEW………………………………………..3
ARGUMENT…………………………………………………………………………..3
PRAYER FOR RELIEF…………………………………………………………….14
CERTIFICATE OF SERVICE AND WORD COUNT …………………………15
iii INDEX OF AUTHORITIES
Cases
Clayton v. State, 235 S.W.3d 772 (Tex. Crim. App. 2007) .................................... 13
Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991) ............................... 10, 12
King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000) ........................................ 9
Merritt v. State, 368 S.W.3d 516 (Tex. Crim. App. 2012) .............................. 11, 12
Rabb v. State, 434 S.W.3d 613 (Tex. Crim. App. 2014), Alcala, J., dissenting, .... 4
Ruiz v. State, No. 05-13-00918-CR, 2014 Tex. App. LEXIS 12095 (Tex. App. – Dallas Nov. 5, 2014, no pet. h.) (mem. op.) (not designated for publication) .................................................. 1, 7, 9
Wise v. State, 364 S.W.3d 900 (Tex. Crim. App. 2012) ............................... 12, 13
Statutes
TEX. CODE CRIM. PROC. ANN. arts. 62.102(a), 62.055(a) (West Supp. 2013) ................................................................................ 2
Rules
TEX. R. APP. P. 66.3(f) .................................................................... 4
TEX. R. APP. P. 68.......................................................................... 1
iv TO THE HONORABLE COURT OF CRIMINAL APPEALS OF
TEXAS:
The State of Texas, pursuant to TEX. R. APP. P. 68, seeks
discretionary review of the opinion of the Court of Appeals for the
Fifth District of Texas at Dallas in Ruiz v. State, No. 05-13-00918-
CR, 2014 Tex. App. LEXIS 12095 (Tex. App. – Dallas Nov. 5, 2014,
no pet. h.) (mem. op.) (not designated for publication) (see
APPENDIX). The State’s original petition omitting the Identity of
Judge, Parties, and Counsel was filed yesterday, January 21, 20-
15. This superseding petition is filed to correct the omission.
In support of the superseding petition, the State would show
the following:
Statement regarding oral argument
Only one question is presented. Its resolution relies on a few
facts in a brief record, and well-settled legal principles. Oral
argument does not appear to be necessary, but the State will
provide it, if this Court so desires upon granting discretionary
review.
1 STATEMENT OF THE CASE
After a bench trial, Appellant was convicted of the offense of
failing to comply with the sex offender registration requirements of
chapter 62 of the Texas Code of Criminal Procedure and sentenced
to two years in prison. See TEX. CODE CRIM. PROC. ANN. arts.
62.102(a), 62.055(a) (West Supp. 2013).
STATEMENT OF PROCEDURAL HISTORY
On January 7, 2013, Appellant was indicted for failure to
comply with sex offender registration requirements. (CR: 8). On
June 28, 2013, Appellant proceeded to trial on his plea of Not
Guilty and waived his right to a jury trial. (CR: 23; RR:6). The
court found Appellant guilty and assessed punishment at two years’
confinement in the Texas Department of Criminal Justice,
Institutional Division. (CR: 28-30; RR: 33).
Appellant’s Motion for New Trial was overruled. (CR: 33). On
March 13, 2014, Appellant filed his brief on appeal raising eleven
alleged trial errors which included a challenge to the sufficiency of
the evidence.
2 In an unpublished opinion, delivered November 5, 2014, the
Court of Appeals for the Fifth District of Texas at Dallas reversed
the trial court’s judgment and acquitted Appellant after finding the
evidence insufficient. On December 5, 2014, the court of appeals
denied the State’s Motion for Rehearing. The State’s Petition for
Discretionary Review was due on January 5, 2015. This Honorable
Court granted the State’s motion requesting an extension of time to
file its petition on or before February 4, 2015.
QUESTION PRESENTED FOR REVIEW
Did the court of appeals err in finding that the State’s failure to present more objective facts to support the inferences of guilt, and to negate the existence of reasonable alternative hypotheses favoring the not guilty plea, make the evidence insufficient?
ARGUMENT
The State will demonstrate that through the opinion in this
case, the court of appeals circumvents the fact-finder’s decision,
calling the evidence “conclusory,” and, in the process, resurrects
“the long-dead reasonable-alternative-hypothesis analysis, which
permits an appellate court to find the evidence insufficient based on
the existence of scenarios in which the fact-finder’s verdict could
3 theoretically be wrong.” As Judge Alcala has so wisely advised,
this Honorable Court should “keep the nail in the coffin of the
reasonable-alternative-hypothesis analytical construct.” Rabb v.
State, 434 S.W.3d 613, 619 (Tex. Crim. App. 2014), Alcala, J.,
dissenting, citing Geesa v. State, 820 S.W.2d 154, 156, 159 (Tex.
Crim. App. 1991) (rejecting reasonable hypothesis analytical
construct for evaluating sufficiency of evidence). For all the
following reasons, discretionary review of the opinion from the court
of appeals is appropriate under TEX. R. APP. P. 66.3(f) because the
court of appeals has so far departed from the accepted and usual
course of judicial proceedings as to call for an exercise of the Court
of Criminal Appeals’ power of supervision.
Appellant, a convicted sex offender, was charged with violating
the sex offender registration statute by failing to report an intended
change of address and move date, and by not residing at his
registered address. (CR: 8). During trial, it appeared that the State
had abandoned the theory that the offense was committed by failing
to report an intended change of address and move date because the
4 State’s evidence was focused primarily on proving that Appellant
was not residing at his registered address.
Evidence showed that on or about July 10, 2012, the date of
the offense, Appellant’s registered address was 525 Runstone in
Irving, Texas. (RR1: 9). The major portion of the State’s case was
presented through Irving Police Department Officer Steven Buesing
who testified that he received information that Appellant had a
parole violation “for drugs.” He went to Appellant’s registered
address on July 3, 2012 to execute a warrant for the parole
violation, but Appellant was not there. (RR1: 15-16). Buesing
testified that he found no evidence that Appellant was living at the
registered address. Further, after Buesing spoke with Appellant’s
mother and sister, he concluded that Appellant had not been living
at the residence for at least two weeks. (RR1: 16-17).
Buesing testified that he called and spoke to Appellant that
day. Buesing confronted Appellant and told him that he knew
about his parole violation and that Appellant wasn’t living at the
registered location. Buesing told Appellant that because he wasn’t
living at the location, he had failed to comply with registration
5 requirements. Appellant offered to turn himself in, and Buesing
replied that if Appellant would do that, the “the fail to comply”
would not be filed on Appellant. Appellant said that he would turn
himself in that day. That never happened. (RR1: 18-19).
Officer Dale Gant testified that he made numerous
unsuccessful attempts to locate Appellant at his registered address
over a period of months. (RR1: 27). In the course of his
investigation into Appellant’s whereabouts, Gant spoke with
Appellant’s known associates. He got an anonymous tip that
Appellant was staying at a house located at 3314 Clymer Street.
(RR1: 27-28). Buesing was informed that another officer had
learned that Appellant was staying at the Clymer Street location.
On November 11, 2012, Buesing and other officers went there. The
house looked like an abandoned crack house. (RR1: 22). They
found Appellant hiding in the attic. (RR1: 20, 22, 24-25, 31).
On appeal, the State argued that the evidence was sufficient to
show Appellant committed the offense by failing to reside at his
registered address, based on (1) the investigation which yielded
evidence that Appellant had not been residing there for weeks, and
6 (2) the fair inferences of guilt from Appellant’s admission that he
would “turn himself in” when an officer accused him of committing
the offense, and Appellant’s attempt to evade arrest for the offense.
The court of appeals disagreed. Why?
The court found Buesing’s testimony was too “conclusory.”
Ruiz, 2014 Tex. App. LEXIS 12095 at *9. Buesing had failed to offer
objective facts which supported his conclusion. The court
suggested there was better evidence, such as:
But other than affirming that he learned this information “in the course of [his] investigation,” Buesing did not substantiate his testimony and ultimate conclusion that Ruiz was not living at the registered address with any objective facts. For example, Buesing did not testify to any surveillance the officers did of the location. Nor did he testify that Ruiz had moved his belongings or no longer received mail at the registered address.
Id.
The court of appeals called for additional evidence to show where
Appellant was living, if not at the registered address, stating:
In addition, the fact that the officers found Ruiz at the Clymer Street address does not suggest that Ruiz was not residing at his registered address. [Citation omitted]. There was no testimony or other evidence that gave the impression Ruiz was living at the Clymer Street address where he was found. . . . The officers did not testify to any surveillance done of the
7 Clymer Street address to prove Ruiz was living there for a longer period of time.
Id. at *11.
Further, the court did not agree that Appellant’s statement to
Buesing that he would turn himself was an admission of guilt for
the registration requirement violation; it might have been an
admission of guilt for the parole violation. Moreover, it did not
agree that Appellant was trying to evade arrest for the registration
requirement violation; he might have been evading arrest for the
parole violation. The court rejected the inferences supporting the
fact-finder’s verdict not because they are fair ones. But there
existed different reasonable inferences which had not been
disproved.
The State contends that Ruiz’s response “exhibited a consciousness of guilt” and that leads to an inference of his knowledge that Buesing’s accusation was true. But during the phone call, Buesing confronted Ruiz with more than just the accusation that Ruiz was not living at his registered address. Buesing testified that after not finding Ruiz at the Runstone Road address, he called Ruiz and told him that (1) he knew Ruiz was not living at his registered address and (2) that Ruiz had a parole violation. The record shows that the purpose of Buesing’s visit to the Runstone Road address (and his only involvement with Ruiz) was to arrest Ruiz for a
8 parole violation. Although the State asserts that Ruiz’s response was an admission to Buesing that he violated the registration requirement, the response also could be an admission to Buesing that Ruiz knew he violated his parole. Buesing only testified that Ruiz told him “[t]hrough the conversation” that he was “gonna turn himself in.” Buesing also testified that he told Ruiz that if Ruiz would turn himself in, then Buesing would “not file the fail to comply” against Ruiz. We finally reject the State’s contention that “it may be logically concluded that [Ruiz] was hiding in the attic [at the Clymer Street address] because he was attempting to flee from the police and evade arrest for the offense he admitted he committed.” The evidence shows that Ruiz told Buesing he would turn himself in, Ruiz did not do so, and then he was found in an abandoned house on Clymer Street. These facts do not support a conclusion that Ruiz was hiding in the attic to avoid being prosecuted for the offense at issue in this case. Cf. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (noting that to support the admission of evidence of escape from custody or flight, “it must appear that the escape or flight have some legal relevance to the offense under prosecution”).
Id. at *11-13.
The evidence that Appellant was not living at the registered
address was entirely circumstantial. Evidence can be legally
sufficient to support a conviction even if it is entirely
circumstantial. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim.
App. 2000). Since the State’s case was circumstantial, the court of
appeals had the duty to determine whether the necessary inferences
9 favoring the guilty verdict were reasonable. Reasonableness of the
inferences offered must be judged by the combined and cumulative
force of all the evidence. Geesa, 820 S.W.2d at 156 (holding that in
weighing the sufficiency of the evidence, a court should consider
only whether the inferences necessary to establish guilt are
reasonable based upon the cumulative force of all the evidence
when considered in the light most favorable to the verdict).
The court of appeals conducted its sufficiency review by
speculating on what the State could have presented through direct
evidence. Then it separately considered each circumstance the
State had used to allow an inference of guilt. The court did not
decide that the inferences the State had relied upon were not
reasonable. But, the court decided that there were alternate
reasonable inferences from these circumstances favoring Appellant
which had not been disproved. Thus, it found the evidence
insufficient.
The court’s use of this analytical method was error. Id.
(holding the State need not disprove all reasonable alternative
hypotheses that are inconsistent with the defendant’s guilt);
10 Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012)
(finding that the court of appeals improperly used a “divide-and-
conquer” approach, separating each piece of evidence offered to
support the conviction, followed by speculation on the evidence the
State did not present). In Merritt, an arson case, the court of
appeals reversed the jury’s verdict after finding the evidence
insufficient because it did not establish the defendant’s identity as
the person who set his vehicle on fire. The court of appeals had
considered separately, and rejected, each piece of evidence relied on
by the State for an inference of guilt.
For example, the court observed that trash bags found in
Merritt’s garage contained items commonly found in a vehicle’s
glove box. But, it decided that a reasonable inference that Merritt
committed arson could not be drawn from that fact. The court also
noted that matches were found at the scene. But, it believed
nothing in the record linked the matches to Merritt’s possession.
Finally, the court recognized that Merritt was in possession of both
sets of keys to the subject vehicle at the time that it was allegedly
stolen. But, it discounted that fact because although there was no
11 evidence that the car was towed to the location by a wrecker, there
was also no evidence that the car was not towed to the location by a
wrecker. Id.
This Court found that the court had improperly engaged in
speculation on the evidence State did not present. Giving proper
deference to the jury’s verdict, this Court found the evidence
sufficient to sustain Merritt’s conviction. Id. at 526.
Similarly, in Wise v. State, 364 S.W.3d 900 (Tex. Crim. App.
2012), a computer-pornography case, the court of appeals had
reversed the conviction, holding that the State had failed to prove
that Wise knowingly or intentionally possessed the images. On
discretionary review, the State argued that the court of appeals had
erroneously applied the “reasonable hypothesis analytical
construct,” which this Court had rejected in Geesa. This Court
criticized the court of appeals for crediting Wise’s suggestion that
viruses on his computer could have placed the images there
because the jury could have reasonably disregarded that
explanation. Id. at 904-06. The court of appeals had erroneously
12 focused on two alternative hypotheses to reverse the conviction
based on insufficient evidence. Id. at 905.
Likewise, in Clayton v. State, 235 S.W.3d 772, 778-79 (Tex.
Crim. App. 2007), Clayton testified that he discovered the murder
victim in the backseat of a car covered in blood and that he left after
trying, but failing, to move the car. Clayton’s bloody prints were
found inside the car. Considering Clayton’s bloody prints first, the
court of appeals stated that the bloody prints “are not evidence that
[Clayton] was with the victim before the shooting. Id. at 777. The
court concluded that the prints only proved that Clayton was at the
crime scene after the victim was shot and that Clayton’s presence
after the murder was not enough to prove guilt. However, on
discretionary review, this Court held that the court of appeals
incorrectly failed to consider that there were more bloody prints
than were justified by Clayton’s explanation, and that supported an
inference that he was lying. It also failed to consider the cumulative
force of other incriminating circumstances which supported an
inference that Clayton was with the victim at the time of the
shooting. Id. at 779-82.
13 In the present case, Appellant’s conviction was reversed
because the court of appeals speculated on what other evidence
could have been presented in his trial. It reasoned that there
existed scenarios in which the fact-finder’s verdict could
theoretically be wrong. It improperly focused its attention on the
failure of the evidence to disprove these existing alternate
reasonable hypotheses other than guilt. Had the court of appeals
given the proper deference to the verdict, it would have found the
evidence sufficient.
PRAYER FOR RELIEF
The State prays that this Honorable Court will grant the
State’s petition, and after conducting its review, reverse the opinion
of the court of appeals and affirm the trial court’s judgment.
Respectfully submitted,
/s/Patricia Poppoff Noble
SUSAN HAWK PATRICIA POPPOFF NOBLE District Attorney Assistant District Attorney Dallas County, Texas State Bar No. 15051250 Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19
14 Dallas, Texas 75207-4399 (214) 653-3634 pnoble@dallascounty.org
CERTIFICATE OF SERVICE AND WORD COUNT
I hereby certify that a true copy of the foregoing superseding petition was served on Assistant Public Defender Julie Woods, attorney for Appellant by TexFile.Gov and by hand delivery on January 29, 2015. I hereby certify that a true copy of the foregoing superseding petition was served on the State’s Prosecuting Attorney, Lisa McMinn, by eFile.Gov and by United States mail on January 29, 2015. I hereby further certify that the length of this petition, with authorized exclusions, is 2,219 words using Microsoft Word 2010.
/s/Patricia Poppoff Noble PATRICIA POPPOFF NOBLE
15 APPENDIX 2014 Tex. App. LEXIS 12095, *
JOHNNY RUIZ, Appellant v. THE STATE OF TEXAS, Appellee
No. 05-13-00918-CR
COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS
2014 Tex. App. LEXIS 12095
November 5, 2014, Opinion Filed
NOTICE: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE FOR CITATION OF UNPUBLISHED OPINIONS.
PRIOR HISTORY: [*1] On Appeal from the Criminal District Court No. 4, Dallas County, Texas. Trial Court Cause No. F-1235122-K.
CASE SUMMARY
OVERVIEW: HOLDINGS: [1]-The evidence was legally insufficient to support
defendant's conviction under Tex. Code Crim. Proc. Ann. art. 62.102 (Supp. 2013) for
failure to comply with the sex offender registration requirements; [2]-There was no
evidence presented that defendant intentionally, knowingly, or recklessly failed to report
an intended change of address seven days before the intended change; [3]-The fact that
the police officers found defendant at another address did not suggest that defendant was
not residing at his registered address; [4]-That defendant was found in the attic of an
abandoned house did not support a conclusion that defendant was hiding in the attic to
avoid being prosecuted for the offense at issue in this case.
OUTCOME: The judgment of the trial court was reversed, and defendant was acquitted. CORE TERMS: registered, registration requirements, sex offender, phone call, fact finder, residing, reside, arrest, attic, insufficient to support, required to register, registration, locate, hiding, parole violation, law enforcement authority, failing to comply, failure to comply, fail to comply, abandoned, annual, intends, execute, evidence presented, reasonable inferences, intentionally, surveillance, electricity, anticipated, recklessly
LexisNexis® Headnotes Hide
Criminal Law & Procedure > Appeals > Standards of Review > Deferential Review > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence > Sufficiency of Evidence
Evidence > Procedural Considerations > Burdens of Proof > Proof Beyond Reasonable Doubt
Evidence > Inferences & Presumptions > Inferences
Evidence > Procedural Considerations > Weight & Sufficiency
HN1 An appellate court reviews a sufficiency challenge by considering all the evidence in the light most favorable to the verdict; based on that evidence and any reasonable inferences, it must determine whether a rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Under this standard, the fact finder has full responsibility for resolving conflicts in the testimony, weighing the evidence, and drawing reasonable inferences from basic facts to ultimate facts. The appellate court presumes the fact finder resolved any conflicts in the evidence in favor of the verdict and defers to that determination. More Like This Headnote
Criminal Law & Procedure > Postconviction Proceedings > Sex Offenders > Registration HN2 A person commits the offense of failing to comply with sex offender registration requirements if he 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(a) (Supp. 2013). One requirement is that a person with a reportable conviction must register with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days. Tex. Code Crim. Proc. Ann. art. 62.051(a). Another requirement is that if a person who is required to register intends to change his address, he must report in person to the local law enforcement authority and provide at least seven days' notice of the intended move. Tex. Code Crim. Proc. Ann. art. 62.055(a). More Like This Headnote
Criminal Law & Procedure > Postconviction Proceedings > Sex Offenders > Registration
HN3 A registered sex offender is not required to spend every spare moment and every night at his or her registered address. More Like This Headnote
Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Fleeing & Eluding > General Overview
Evidence > Relevance > General Overview
HN4 To support the admission of evidence of escape from custody or flight, it must appear that the escape or flight have some legal relevance to the offense under prosecution. More Like This Headnote
COUNSEL: For Appellants: Julie Woods, Katherine Drew , Lynn Richardson , Dallas, TX. For Appellees: Patricia Poppoff Noble , Michael Casillas , Craig Watkins , Dallas, TX.
JUDGES: Before Justices O'Neill , Lang-Miers , and Brown. Opinion by Justice Brown. OPINION BY: ADA BROWN OPINION
MEMORANDUM OPINION
Opinion by Justice Brown
After a bench trial, the trial court convicted Johnny Ruiz of the offense of failing to
comply with the sex offender registration requirements of chapter 62 of the Texas Code
of Criminal Procedure1 and sentenced him to two years in prison. In his first four issues,
Ruiz challenges the sufficiency of the evidence to support his conviction and contends
the trial court erred when it overruled his objections to hearsay testimony, violated his
constitutional right to confrontation when it allowed the State's witness to testify as to
what other people told him, and failed to invoke the Rule after defense counsel's request.
In seven additional issues, Ruiz complains of inaccuracies in the trial court's judgment.
We agree that the evidence is legally insufficient to support Ruiz's conviction.
Accordingly, we reverse his conviction and render a judgment of acquittal.
FOOTNOTES
1 See Tex. Code Crim. Proc. Ann. art. 62.102(a) (West Supp. 2013); id. art. 62.055(a)
(ChangeofAddress).
I.
Ruiz was convicted of an [*2] offense that required him to register as a sex offender. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A); see also Tex. Penal Code Ann. §
22.021(a) (West Supp. 2014). On January 26, 2011, Ruiz registered the following address
with the City of Irving Police Department: 525 Runstone Road, Irving, Texas. He
completed his annual registration at that same address on February 6, 2012. See Tex.
Code Crim. Proc. Ann. art. 62.058(a).
In July 2012, Irving police officers Steven Buesing and Dale Gant went to Ruiz's
registered address to execute a warrant for a parole violation. Buesing testified that when
they arrived at the residence, "lots" of Ruiz's family were there, including Ruiz's mother,
sister, nieces, and nephews, but that Ruiz was not there. Buesing then testified to his
investigation at Ruiz's residence, answering just four questions about his investigation
and offering two conclusions that Ruiz was not living at 525 Runstone Road:
Q. During the course of your investigation while you were at the location on 525 Runstone, did you have any evidence that the defendant Johnny Ruiz was living there?
A.No.
Q. Did you develop evidence, in fact, that he was not living there?
A.Yes.
Q. And that he hadn't been living there for quite some time?
A.Yes. [*3]
. . .
Q. Let me move on. In the course of your investigation, you were able to determine that this Defendant was not living there?
A. Yes. Buesing also said he spoke with Ruiz over the telephone on July 3, 2012. Buesing
testified to that phone call as follows:
I explained to [Ruiz] that I knew that he wasn't living at the location and that [Ruiz] had a parole violation, and I also told [Ruiz] that because he wasn't living at the location that he was in violation for his failure to comply for the registration. Through the conversation, [Ruiz] told me that he was gonna turn himself in.
Buesing added that despite telling Ruiz that Buesing would not "file the fail to comply"
charge if Ruiz turned himself in, Ruiz did not do so. Buesing reported a registration
violation to detective Scott Teien with the department's sex offender registration unit.
Teien verified that the Runstone Road address was Ruiz's registered address and that
Ruiz was in compliance with his annual registration requirement. Teien testified that in
July 2012, Ruiz had not changed his registered address or informed Teien that he was
moving.
Gant continued to visit Ruiz's registered address "over the course of a couple [of]
months." [*4] Gant testified that he "made numerous attempts" to locate Ruiz at the
Runstone Road address but that Ruiz was not at the location each time Gant went there.
Buesing testified that Gant learned through the investigation that Ruiz "was supposed to
be staying at a house" located at 3314 Clymer Street in Dallas. On November 11, 2012,
Buesing went with Gant and another officer to the Clymer Street address. Buesing said
the house at that address looked like an abandoned "crack house" with boarded-up
windows. The house was in very poor repair and did not appear to have electricity. After knocking on the front door for fifteen to twenty minutes, a woman answered the door.
The officers then conducted a search of the house and found Ruiz hiding in the attic.
Buesing testified that Ruiz told the officers he hurt his back and "had been in the attic for
two days because no one knew he was up there." Buesing also said that there was no
record of Ruiz registering as a sex offender for the Clymer Street address.
The State argued that this evidence showed that Ruiz was not living at the Runstone Road
address and he was not registered or supposed to be living at the Clymer Street address
where he was [*5] found. After hearing this evidence, the trial court found Ruiz guilty of
the offense and sentenced him to two years in prison.
II.
Ruiz contends in his first issue that the evidence is insufficient to support his conviction
for failure to comply with the sex offender registration requirements. HN1 We review
Ruiz's sufficiency challenge by considering all the evidence in the light most favorable to
the verdict; based on that evidence and any reasonable inferences, we must determine
whether a rational fact finder 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 (1979); Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014).
Under this standard, the fact finder has full responsibility for resolving conflicts in the
testimony, weighing the evidence, and drawing reasonable inferences from basic facts to
ultimate facts. Jackson, 443 U.S. at 319. We presume the fact finder resolved any
conflicts in the evidence in favor of the verdict and defer to that determination. See id. at
326. We do not reassess witness credibility. Thornton, 425 S.W.3d at 303. HN2 A person commits the offense of failing to comply with sex offender registration
requirements if he "is required to register and fails to comply" with any requirement of
Chapter 62 of the Code of Criminal Procedure. Tex. Code Crim. Proc. [*6] Ann. art.
62.102(a); Young v. State, 341 S.W.3d 417, 425 (Tex. Crim. App. 2011) ("Article 62.102
is a generalized 'umbrella' statute that criminalizes the failure to comply with any of the
registration requirements set out in Chapter 62."). One requirement is that a person with a
"reportable conviction" must register with "the local law enforcement authority in any
municipality where the person resides or intends to reside for more than seven days."
Tex. Code Crim. Proc. Ann. art. 62.051(a). Another requirement is that if a person who is
required to register intends to change his address, he must report in person to the local
law enforcement authority and provide at least seven days' notice of the intended move.
Id. art. 62.055(a). Ruiz does not dispute that he was required to register as a sex offender
and that his status as a registered sex offender mandated compliance with the registration
requirements governing a change of address.
The State charged Ruiz with violating his registration requirements in two ways.
Specifically, the State alleged in the indictment that Ruiz committed the offense by
intentionally, knowingly, and recklessly (1) failing to report in person an intended change
of address and move date to his local law enforcement authority at least seven days
before Ruiz changed his address [*7] and (2) not residing at his registered address.
Regarding the State's first allegation, Ruiz contends that the evidence is legally
insufficient to support his conviction because the State provided no evidence that he
intended to move from his registered address. He claims that Buesing's testimony that Ruiz was not at the Runstone Road address on the July 2012 date does not prove that
Ruiz intended to move from that location. He also contends that Buesing's assessment
that Ruiz no longer lived at the registered address was not supported by any facts and
Buesing's conclusory statement that he did not believe Ruiz resided there was not enough
to establish Ruiz intended to change his address. We agree with Ruiz's contentions.
The first registration requirement the State charged Ruiz with violating is triggered only
"[i]f a person required to register under this chapter intends to change address . . . ." Id.;
see also Green v. State, 350 S.W.3d 617, 623 (Tex. App.—Houston [14th Dist.] 2011,
pet. ref'd). None of the evidence presented at trial, however, established that Ruiz
intended to change his registered address or anticipated a move from that address. See
Green, 350 S.W.3d at 623. Teien testified that Ruiz had twice registered the Runstone
Road address as his residence and that Ruiz was in compliance [*8] with his annual
registration requirement. Teien confirmed that Ruiz was required to give Teien seven
days' notice before moving if Ruiz was no longer going to be living at the registered
address and testified that Ruiz had not reported an anticipated move or otherwise notified
Teien he was changing his address in July 2012. Buesing testified that he determined in
the course of his investigation that Ruiz was not living at the Runstone Road address. But
Buesing's testimony did not supply any information about whether Ruiz had an intention
to move from the Runstone Road address. Gant's testimony revealed only that Ruiz was
not there when Gant tried to locate Ruiz at the Runstone Road address and that Ruiz was
later found at the Clymer Street address. In its appellate brief, the State focuses its argument on the second allegation—that Ruiz
failed to reside at his registered address. The State claims that based on Buesing's
investigation which yielded "positive evidence" that Ruiz had not been living at the
address, Ruiz's admission that he would "turn himself in" on the phone call with Buesing,
and Ruiz's "attempt to evade arrest for the offense" by hiding in the attic of the house
on [*9] Clymer Street, it is "clear" Ruiz failed to reside at his registered address. We
disagree with the State.
Buesing offered only conclusory testimony that Ruiz was not residing at the Runstone
Road address. Buesing's testimony showed that he went to the Runstone Road address
with Gant to execute an arrest warrant for a parole violation. Buesing testified that he
found no evidence that Ruiz was living at the location and that he had "develop[ed]
evidence" that Ruiz had not been living at the address for some time. But other than
affirming that he learned this information "in the course of [his] investigation," Buesing
did not substantiate his testimony and ultimate conclusion that Ruiz was not living at the
registered address with any objective facts. For example, Buesing did not testify to any
surveillance the officers did of the location. Nor did he testify that Ruiz had moved his
belongings or no longer received mail at the registered address. When asked about his
"further efforts" to locate Ruiz, Buesing spoke only of the phone call, which Buesing said
happened the same day he tried to execute the arrest warrant at Ruiz's registered address
in July 2012.
Likewise, Gant's testimony provided nothing [*10] that would lead a reasonable fact
finder to conclude that Ruiz was not residing at his registered address. Gant testified that he went to the Runstone Road address on multiple occasions to locate Ruiz and that Ruiz
was not there on any of those occasions. But the fact that Ruiz was not present at the
location when the officers visited the address does not suggest that Ruiz was not still
living and residing at the registered address. See Silber v. State, 371 S.W.3d 605, 613
(Tex. App.—Houston [1st Dist.] 2012, no pet.) (HN3 "A registered sex offender is not
required to spend every spare moment and every night at their registered address."). In
addition, the fact that the officers found Ruiz at the Clymer Street address does not
suggest that Ruiz was not residing at his registered address. See id. at 612 (noting that
bodily presence at a place alone is insufficient to create a residence). There was no
testimony or other evidence that gave the impression Ruiz was living at the Clymer Street
address where he was found. To the contrary, Buesing testified that the house looked
abandoned and that it did not appear to have electricity. Neither officer testified that
Ruiz's clothes or other belongings were at that house, and the State offered no evidence
of a possessory interest Ruiz [*11] had in the Clymer Street house. Further, the only
evidence of how long Ruiz had been at the Clymer Street address was Buesing's
testimony that Ruiz said he had been there for two days. The officers did not testify to
any surveillance done of the Clymer Street address to prove Ruiz was living there for a
longer period of time.
The State emphasizes the testimony about the phone call Buesing had with Ruiz on July
3, 2012. The State argues that when Buesing accused Ruiz of not living at his registered
address during the phone call, Ruiz said he would turn himself in. The State maintains
that when guilt must be inferred from circumstances in evidence, "additional evidence of the defendant's admission is sufficient to support a conviction." The State contends that
Ruiz's response "exhibited a consciousness of guilt" and that it leads to an inference of
his knowledge that Buesing's accusation was true.
But during the phone call, Buesing confronted Ruiz with more than just the accusation
that Ruiz was not living at his registered address. Buesing testified that after not finding
Ruiz at the Runstone Road address, he called Ruiz and told him that (1) he knew Ruiz
was not living at his registered [*12] address and (2) that Ruiz had a parole violation.
The record shows that the purpose of Buesing's visit to the Runstone Road address (and
his only involvement with Ruiz) was to arrest Ruiz for a parole violation. Although the
State asserts that Ruiz's response was an admission to Buesing that he violated the
registration requirement, the response also could be an admission to Buesing that Ruiz
knew he violated his parole. Buesing only testified that Ruiz told him "[t]hrough the
conversation" that he was "gonna turn himself in." Buesing also testified that he told Ruiz
that if Ruiz would turn himself in, then Buesing would "not file the fail to comply"
against Ruiz.
We finally reject the State's contention that "it may be logically concluded that [Ruiz]
was hiding in the attic [at the Clymer Street address] because he was attempting to flee
from the police and evade arrest for the offense he admitted he committed." The evidence
shows that Ruiz told Buesing he would turn himself in, Ruiz did not do so, and then he
was found in an abandoned house on Clymer Street. These facts do not support a
conclusion that Ruiz was hiding in the attic to avoid being prosecuted for the offense at
issue in this [*13] case. Cf. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994) (noting that HN4 to support the admission of evidence of escape from custody or flight,
"it must appear that the escape or flight have some legal relevance to the offense under
prosecution").
III.
After reviewing the record in this case, we conclude that there was no evidence presented
that Ruiz intentionally, knowingly, or recklessly failed to report an intended change of
address seven days before the intended change. We also conclude that even when we
review the evidence in the light most favorable to the verdict, a rational fact finder could
not have found beyond a reasonable doubt that Ruiz failed to reside at his registered
address. See Jackson, 443 U.S. at 319. We resolve Ruiz's first issue in his favor. Based on
our resolution of Ruiz's first issue, we do not address Ruiz's ten remaining issues. Tex. R.
App. P. 47.1.
Because the evidence is legally insufficient to support the judgment, we reverse Ruiz's
conviction for failing to comply with his sex offender registration requirements and
render judgment acquitting Ruiz of that charge.
/Ada Brown/
ADA BROWN JUSTICE
Do Not Publish
Tex. R. App. P. 47
JUDGMENT
Based on the Court's opinion of this date, the judgment of the trial court is REVERSED
and the appellant [*14] is hereby ACQUITTED. Judgment entered this 5th day of November, 2014.