Walsh, John Carroll v. State

• Court: Court of Appeals of Texas
• Decided: March 20, 2003
• Docket: 01-02-00535-CR
• Status: Published

Opinion

Opinion Issued March 20, 2003

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-00535-CR

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JOHN CARROLL WALSH, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 182nd District Court

Harris County, Texas

Trial Court Cause No. 900867

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MEMORANDUM OPINION

          The trial court found appellant, John Carroll Walsh, guilty of the felony offense of failure to comply with sexual offender registration requirements and assessed punishment at five years’ confinement. See Tex. Code Crim. Proc. Ann. art. 62.02 (Vernon Supp. 2003). We determine (1) whether the evidence is factually insufficient to support appellant’s conviction and (2) whether appellant knowingly and intelligently waived his right to a jury trial by signing a waiver prior to the grand jury indictment. We affirm.

Facts

          As a convicted sex offender, appellant was required to report any change in his residence to the Harris County Sheriff’s Department within seven days of the change. On November 8, 2001, appellant reported to Deputy Belinoski that he was changing his residence from an address in Webster to 7307 Millbrae in Houston. On January 24, 2002, appellant again reported to Deputy Belinoski for his required annual registration and said that he still lived at the Millbrae address. At this meeting, appellant told Deputy Belinoski that he had rented other locations for people who worked for him and asked whether these rentals made any difference regarding his residency. Deputy Belinoski replied that renting other locations did not matter so long as appellant truly resided at the Millbrae address.

           Officer Jugenheimer, a patrol officer assigned to randomly check on sex offenders, visited the Millbrae address on two occasions—on January 15, 2002 and again on January 17, 2002—between the hours of 6:00 and 9:00 p.m. On both occasions, the house was completely dark, and no one answered Officer Jugenheimer’s knocks. When Officer Jugenheimer peered through a window, he noticed there was no furniture inside the house. Officer Jugenheimer also observed a “for sale” sign in the front yard.

          Dale Ross, a realtor, listed the house at the Millbrae address for Lisa Parvin, appellant’s sister. At the time of the December 2001 listing, Parvin told Ross that the house was vacant. Between January 8, 2002 and February 2, 2002, Ross entered the house at least three times and did not observe any evidence of occupancy.

          Appellant had rented a room in the motel Intown Suites from December 21, 2001 to February 2, 2002. On February 2, Officer Gamble was dispatched to appellant’s motel room after a manager reported that someone had thrown a chair into the parking lot from a second-story room. When Officer Gamble arrived at appellant’s room, the location of the reported disturbance, appellant stated that he was staying there with a man named Larry Woodward and that they were both finishing construction work in the area. Officer Gamble estimated that appellant had enough clothes in the room to last him a few weeks.

          At trial, Lisa Parvin testified that she and her husband owned the house at the Millbrae address. Although she and her husband had listed the house for sale in December 2001, Parvin stated that they allowed appellant to live in the house after they moved out. Parvin said she gave appellant a key to the house, spoke to appellant numerous times at the telephone number listed for the house, and saw appellant at the house on at least three occasions after she moved out.

          Appellant testified that he had rented the motel room as a place to house some of his workers and to store his construction tools. He explained that, while he stayed at the motel room on occasion, he did not intend to move his permanent residence to the motel. Appellant admitted, however, that the house at 7307 Millbrae was empty and that there was no bed or furniture of any kind, personal effects, or clothing in the house.

Jury Trial Waiver

          In his first point of error, appellant contends that he did not knowingly and intelligently waive his right to a jury trial. Appellant argues that, because he signed the waiver prior to the return of the indictment, he did not know exactly with which offense he was being charged or which allegations would be listed in the indictment and, therefore, his waiver was not knowingly and intelligently made.

          Upon entering a plea, a defendant may waive the right of trial by jury. Tex. Code Crim. Proc. art. 1.13 (Vernon Supp. 2003). Waiver of a jury trial must be made in person, in writing, and in open court. Id. To protect the inviolable nature of the right to a trial by jury, a defendant may withdraw his waiver of this right if (1) the request is made in good faith, and (2) granting the withdrawal would not prejudice the State, inconvenience the witnesses, or interfere with the orderly administration of the court. Green v. State, 36 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2001, no pet.).

          Although the issue of jury waiver may be raised for the first time on direct appeal, appellant must present evidence sufficient to overcome the judgment’s presumption of regularity. Ex Parte Sadberry, 864 S.W.2d 541, 543 f. 4 (Tex. Crim. App. 1993). We look to the record to determine whether appellant knowingly and intelligently waived his right to a jury trial. See Johnson v. State, 72 S.W.3d 346, 347 (Tex. Crim. App. 2002).

          The record shows that appellant was charged by complaint on January 29, 2002. On March 12, 2002, appellant signed a waiver of jury trial and an agreed setting form, setting the case for trial on May 9, 2002. The waiver of jury trial form indicates that appellant was informed of his right to a jury trial and that he intentionally, knowingly, and voluntarily waived his right to a trial by jury. On March 20, 2002, the indictment was returned. Appellant’s trial began on May 9, 2002.

          We find no evidence in the record to support appellant’s contention that he did not knowingly and intelligently waive his right to a jury trial. The record explicitly shows the contrary. Moreover, although appellant had over 50 days between the time the indictment was returned and the time of trial, he never attempted to withdraw his waiver, even though he could have done so at any time. Green, 36 S.W.3d at 214. Further, appellant was charged by complaint more than a month before he waived his right to a jury trial, and that complaint stated the offense for which appellant was ultimately convicted in language identical to the language in the indictment. Appellant never complained that the indictment language was insufficient to give him notice. Finally, at the beginning of trial, the judge reiterated that appellant had filed written papers waiving his right to a jury trial and asked if both parties were ready for trial. Appellant answered affirmatively and did not object to the absence of a jury.           Therefore, we hold that appellant’s waiver was made knowingly and intelligently.

          Accordingly, we overrule appellant’s first point of error.Factual Sufficiency

          In his second point of error, appellant contends that the evidence is factually insufficient to support a conviction for failure to comply with the sexual offender registration requirements.  

          In reviewing factual sufficiency, we view all the evidence in a neutral light, rather than in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Evidence is factually insufficient if it is so weak as to be clearly wrong and manifestly unjust or if the adverse finding is against the great weight and preponderance of the available evidence. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). We may not substitute our judgment for that of the factfinder. King v. State, 29 S.W.3d 556, 563 (Tex. Crim. App. 2000).

          The State elicited testimony from Ross, Officer Jugenheimer, Davis, and Officer Gamble that appellant was not residing at the Millbrae address at the time of his arrest. On several occasions, both Officer Jugenheimer and Ross visited the Millbrae address, appellant’s alleged residence, found no one at home, and observed no evidence of occupancy. Ross testified that appellant’s sister had told him that the house was vacant and that there was no need to call prior to a showing. Davis testified that appellant had rented a motel room from December 21, 2001, to February 2, 2002. Further, Officer Gamble, who was dispatched to appellant’s motel room to investigate a reported disturbance, found appellant in the motel room and estimated that appellant had enough clothes to last him a few weeks. Officer Gamble testified that appellant told him he was staying at the motel.

          Although both appellant and his sister claimed that appellant was living at the Millbrae address, a rational factfinder could have reasonably inferred that appellant had moved out of the house at the Millbrae address on or shortly after December 21st, and that appellant, therefore, failed to comply with his sexual offender registration requirements. Viewing all of the evidence in a neutral light, the verdict is not so contrary to the overwhelming weight of the evidence as to be clearly wrong or unjust. We hold that the evidence is factually sufficient to support appellant’s conviction.           Accordingly, we overrule appellant’s second point of error.

Conclusion

We affirm the trial court’s judgment.

                                                                        Tim Taft

                                                                        Justice

Panel consists of Justices Taft, Keyes, and Higley.Do not publish. Tex. R. App. P. 47.4.