COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00285-CR
WILLIAM C. BROWN APPELLANT V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO. 1356206D
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MEMORANDUM OPINION1
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Appellant William C. Brown appeals his conviction for failing to register as a sex offender. A jury found Appellant guilty, found the habitual offender allegations true, and assessed his punishment at thirty years’ imprisonment. In two issues, Appellant attacks the sufficiency of the evidence to support his conviction and complains of charge error. We affirm.
1 See Tex. R. App. P. 47.4.
Background
In the indictment, the State alleged that on or about October 8, 2013, Appellant intentionally or knowingly failed to report to the local law enforcement authority with whom he was required to register once each year. Specifically, the State alleged Appellant was required to register under the sex offender registration program of Chapter 62 of the Texas Code of Criminal Procedure not earlier than the thirtieth day before and not later than the thirtieth day after the anniversary of Appellant’s birth date to verify the information in the registration form maintained by the law enforcement authority. Tex. Code Crim. Proc. Ann. art. 62.058(a) (West Supp. 2015).
The Evidence
Officer Karey Reynolds was a member of the sex crimes unit of the Fort Worth Police Department. She was familiar with Appellant. Officer Reynolds testified that Appellant had a conviction for sexual assault, a “reportable” conviction, in 1996 for which he received a ten-year sentence. Appellant was convicted on August 13, 2009, for failing to comply with the sex offender registration requirement and received a three-year sentence. Officer Reynolds saw Appellant in March 2012 when Appellant was being released from prison for the offense of failure to register.
Officer Reynolds said she explained to Appellant that he was required to register for the rest of his life. She told Appellant that he had to report to register once a year on his birthday. She testified that on March 28, 2012, Appellant
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acknowledged he understood and signed the paperwork acknowledging he understood, and that Appellant received a copy of the documents that day. Officer Reynolds testified that she had no doubt that Appellant understood the registration requirements. Officer Reynolds said Appellant did not show up in 2013 to verify his annual registration.
The State introduced into evidence State’s Exhibits 1 and 2.2 State’s Exhibit 1 is a Fort Worth Police Department document for the Sex Crimes Registration Apprehension and Monitoring Unit. Signed by Appellant on March 28, 2012, the first page of this form provides:
Effective September 1, 1999 a change was made in article 62 of the Texas Code of Criminal Procedure. The change pertains to the annual anniversary date on which you are required to report to the local law enforcement authority to verify the information in the registration form maintained by that authority.
Effective September 1, 1999 your anniversary date is the same as your date of birth. You must report in person to the local law enforcement authority once each year not earlier than the 30th day before or not later than the 30th day after your birthday.
YOUR BIRTHDAY IS Sep / 07. THIS IS YOUR ANNIVERSARY DATE.
The second page of State’s Exhibit 1, also signed by Appellant on March 28, 2012, has two spots check-marked. The first provided that Appellant acknowledged that he was required to register once a year within thirty days
2 Both exhibits are attached in the appendix.
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before or thirty days after his birthday. The second provided that he acknowledged having to register for the rest of his life.
State’s Exhibit 2 is a “Pre-Release Notification Form / Texas Sex Offender Registration Program.” Appellant signed this document on March 28, 2012. The box for “Lifetime” is checked for the duty to register, and the box for “Annual (on birthdate)” is checked for the verification requirement. Below these boxes, Appellant initialed the portion that provided, “Periodic Verification of Registration: I must personally appear at my primary registration authority and verify my registration information annually, every 90 days, or every 30 days, as indicated above.” As noted, the above indicated Appellant had to register annually for the rest of his life.
Officer Reynolds explained for the jury that State’s Exhibit 1 told Appellant of his duty to register once a year around his birthday. Officer Reynolds testified that State’s Exhibit 2 was a form that outlined the duty-to-register requirements. Officer Reynolds said she went over the form with Appellant. After verifying that Appellant could read, Officer Reynolds said she instructed Appellant to read the rest of the form and place his initials next to each paragraph to show that he had read the paragraph. Officer Reynolds said she reviewed each paragraph with registrants to reassure herself that the registrants understood each paragraph and had no questions.
For the annual reporting requirement, the registrant was given a sixty-day window—from thirty days before to thirty days after the registrant’s birthday—to
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schedule an appointment and report. Compliance was determined by when the appointment was set, not by when office contact was made; Officer Reynolds explained that the reporting office was sometimes “booked up” and that as long as the registrant made some effort, they would register him.
Officer Reynolds testified further that because Appellant registered as homeless, he had to report every thirty days as well. This requirement was in addition to his annual reporting requirement. For the monthly reporting, the registrant had to come in between 3:00 and 4:00 any day of the month unless it was a holiday. State’s Exhibits 3 and 4 were monthly sign-in sheets. State’s Exhibits 3 and 4 are clearly captioned, “Transient/Homeless 30-Day Update.” They showed that Appellant reported on August 30, 2012, but did not report in September 2012. Officer Reynolds said she did not issue a warrant; instead, she passed the information on to a monitor, and the monitor decided whether to grant the registrant any leeway. Monitors were the persons who actually went into the field to look for registrants.
Appellant reported in October 2012. In November 2012, Appellant signed in at the front desk but did not sign in with Officer Reynolds because the desk officer told Appellant that he needed an appointment. Officer Reynolds passed on that information to the monitor but made no effort to arrest Appellant for failing to report. Appellant did not report in December 2012.
Thereafter, Appellant reported in January and February 2013, but failed to appear in March, appeared in April, but then failed to appear in May, June, and
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July, after which Officer Reynolds said she quit checking the sheet and forwarded the information to the monitor. She said Appellant failed to report for his annual registration in 2013 as well. Appellant was not seen again until he was arrested pursuant to a warrant.
Sufficiency of the Evidence In his first issue, Appellant contends that no rational juror could have found that he had actual knowledge of an annual reporting requirement separate and apart from his monthly reporting obligation because the forms are “far too ponderous and confusing.” He further argues that no rational juror could conclude beyond a reasonable doubt that he consciously remembered and understood his two distinct reporting requirements and that he consciously chose to ignore the annual obligation.
In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to 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, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State, 434 S.W.3d 166, 170 (Tex. Crim. App. 2014). This standard gives full play to the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Dobbs, 434 S.W.3d at 170.
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State’s Exhibits 1 and 2 showed Appellant knew about the annual registration requirements. Officer Reynolds testified about how she went over the annual registration requirements and made certain Appellant understood them. There was no evidence contradicting State’s Exhibits 1 and 2 or Officer Reynolds’s testimony showing that Appellant knew about the annual registration requirements, and there was no evidence showing that Appellant confused the monthly reporting requirement with the annual reporting requirement. To the contrary, the record reflects that after April 2013, he failed to comply with either one.
Generally, since no mental state is specified for article 62 offenses, proof that the defendant acted “intentionally, knowingly, or recklessly” is sufficient. Harris v. State, 364 S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.] 2012, no pet.); Ford v. State, 313 S.W.3d 434, 438 (Tex. App.—Waco 2010), rev'd on other grounds, 334 S.W.3d 230 (Tex. Crim. App. 2011); see also Tex. Penal Code Ann. § 6.02(c) (West 2011) (providing that, if definition of offense does not prescribe culpable mental state and one is required, “intent, knowledge, or recklessness suffices to establish criminal responsibility.”)
Regarding Appellant’s mental state, where the evidence establishes that a sex offender is told of the reporting requirement, a jury can properly find that the violation was done knowingly. See Tatum v. State, 431 S.W.3d 839, 843 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d); Varnes v. State, 63 S.W.3d 824, 832 (Tex. App.—Houston [14th Dist.] 2001, no pet.). Officer Reynolds’ testimony and
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the State’s Exhibits 1 and 2 show that Appellant was told about and understood the annual reporting requirement. Viewing the evidence in the light most favorable to the verdict, we hold that any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. We overrule Appellant’s first issue.
Charge Error
In his second issue, Appellant asserts the trial court erroneously included an “on or about” instruction in the jury charge. Appellant asserts that the evidence at trial was not limited to his failure to report in 2013 but also suggested he may not have appeared for his annual registration in 2012. Appellant acknowledges the evidence shows he appeared within thirty days of his birthday in August 2012 but maintains that it is not clear whether he appeared as part of a monthly-reporting requirement or his annual reporting requirement. Because the jury charge authorized a conviction for a failure to report “so long as the indictment was presented within three years from the date of the offense,” and because the indictment was presented on February 13, 2014, Appellant contends the charge incorrectly authorized a conviction for any failure to report between February 2011 and February 2014.
The charge provided:
You are instructed that the State is not bound to prove the exact date alleged in the indictment, but may prove the offense, if any, to have been committed at any time prior to the presentment of the indictment, so long as said indictment is presented within three years from the date of the offense, if any.
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The jury is instructed that the Court has taken judicial notice that the date the indictment in this case was presented was on the 13th day of February, 2014. The jury is further instructed that it may, but is not required to, accept as conclusive the fact judicially noted.
The charge elsewhere provided:
Now, if you find from the evidence beyond a reasonable doubt that the Defendant, William C. Brown, in Tarrant County, Texas, on or about the 8th day of October, 2013,3 did then and there intentionally or knowingly fail to report to the local law enforcement authority with whom said defendant is required to register once each year, . . . then you will find the Defendant guilty of Failure to Register as a Sex Offender as charged in the Indictment.
The State responds that Officer Reynolds testified that Appellant reported on August 30, 2012. The State points out that there was no contrary evidence showing a failure to comply in 2012. The State argues that, conversely, the evidence was, as alleged in the indictment, Appellant failed to report during the sixty-day window in 2013.
“[A]ll alleged jury-charge error must be considered on appellate review regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether error occurred; if error did not occur, our analysis ends. Id. If error occurred, whether it was preserved determines the degree of harm required for reversal. Id. Unpreserved charge error warrants reversal only when the error
3 The State ostensibly chose October 8, 2013, because thirty days after Appellant’s birthday (September 7) was October 7, 2013, so by October 8, 2013, the State could say with certainty that Appellant had not registered within the previous sixty-day window.
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resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). The appropriate inquiry for egregious harm is a fact specific one that must be performed on a case-by-case basis. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).
In making an egregious harm determination, “the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at 708–10 (applying Almanza). Errors that result in egregious harm are those “that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The purpose of this review is to illuminate the actual, not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174.
The trial court must give the jury a written charge that sets forth the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). It is not error, generally, for an indictment to allege an “on or about” date for a charged offense. Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998)
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(reaffirming prior holdings that it is not error, constitutional or otherwise, for an indictment to allege an “on or about” date for the charged offense); Sledge v. State, 953 S.W.2d 253, 356 (Tex. Crim. App. 1997) (“It is well settled that the ‘on or about’ language of an indictment allows the State to prove a date other than the one alleged in the indictment as long as the date is anterior to the presentment of the indictment and within the statutory limitation period.”) However, relying on Taylor v. State, Appellant contends that the jury charge is erroneous in this case because it presented the jury “with a much broader chronological perimeter than [was] permitted by law.” See 332 S.W.3d at 488.
In Taylor, the defendant was charged with aggravated sexual assault offenses committed as an adult, that is, after his seventeenth birthday, but there was evidence of many aggravated sexual assault offenses committed both before and after his seventeenth birthday. Id. at 485–86. As to offenses committed before his seventeenth birthday, the defendant could not be convicted absent the juvenile court’s waiving its jurisdiction and certifying him to be tried as an adult. Id. at 485. The charge, however, authorized the jury to convict the defendant regardless of whether the offenses occurred before or after his seventeenth birthday. Id. at 487–88, 492–93. Defense counsel did not object. Id. at 486. The court concluded the charge was erroneous because it presented the jury “with a much broader chronological perimeter than [was] permitted by law.” Id. at 488. Taking the record as a whole, however, the court of criminal appeals held that egregious harm did not result from the jury charge error
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because the defense’s theory was that no sexual abuse occurred at any time; therefore, the court concluded it was unlikely that the jury believed that Appellant sexually assaulted the victim before he turned seventeen years’ old but not after. Id. at 493.
Appellant next relies on Kelley v. State. 429 S.W.3d 865 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d). In Kelley, the defendant was convicted of failure to comply with statutory sex offender registration requirements. Id. at 869. The charge’s “on or about” instruction informed the jury that the State was not bound by the dates in the indictment but could rely on a failure to comply with the registration requirements any time within the three years before the filing of the indictment. Id. at 878. The indictment relied upon a specific failure to report in August 2011. Id. at 880. But the evidence encompassed two subsequent reporting periods as well. Id. The court concluded that the charge, like the one in Taylor, “‘present[ed] the jury with a much broader chronological perimeter than is permitted by law.’” Id. (quoting Taylor, 332 S.W.3d at 488.) After discussing the evidence and the arguments, the court concluded the error was harmless because the focus of both the evidence and the arguments was to prove the failure to report in August 2011. Id. at 880–82.
The trial court has an “absolute sua sponte duty” with regard to and is “ultimately responsible for the accuracy of the jury charge and accompanying instructions.” Taylor, 332 S.W.3d at 488 (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). This duty exists even when the defense fails
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to object to inclusions or exclusions in the charge. See Taylor, 332 S.W.3d at 486. Thus, the question here is whether the inclusion of the sua sponte “on or about” instruction in the context of this sex offender registration case rendered the charge inaccurate with regard to the law applicable to the case.
We disagree with Appellant’s reliance on Taylor. The problem with the charge in Taylor was that it authorized the jury to convict the defendant for conduct he engaged in before his seventeenth birthday when the law prohibited the jury from relying on that conduct. Id. at 485. It was in that context that the court concluded the charge was erroneous because it presented the jury “with a much broader chronological perimeter than [was] permitted by law.” Id. at 488. In contrast, Appellant’s charge (and the charge in Kelley as well) did not authorize the jury to consider a period of time that the law otherwise prohibited the jury from considering. Rather, the problem in Appellant’s charge (and the charge in Kelley) was that (1) the evidence showed the defendant possibly committed the offense on more than one occasion during the time period authorized by the charge, (2) the defendant failed to have the State elect which one of the events it intended to rely upon, and (3) in the absence of an election, the jury potentially rendered a non-unanimous verdict if different jurors relied on different events when voting to convict. See Cosio v. State, 353 S.W.3d 766, 771–74 (Tex. Crim. App. 2011).
In Appellant’s case, there was no evidence or argument that Appellant was required to register—much less that he failed to register—in 2011. Appellant was
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still in prison in 2011, and the duty to report does not arise until the defendant is released from prison. See Tex. Code Crim. Proc. Ann. arts. 62.051, 62.053 (West Supp. 2015). Therefore, there was no possibility the jury would have convicted Appellant based on any conduct in 2011.
In 2012, there was evidence that Appellant reported on August 30, 2012.
However, the evidence reflected that he reported on that date as part of the monthly-reporting requirement and not as part of the annual reporting requirement. Officer Reynolds was not expressly asked whether Appellant complied with the annual reporting requirement in 2012. Appellant argues that some of the jurors could have concluded Appellant failed to report in 2012 as well as in 2013. If that is true, the nature of the error would not be that the jury was prohibited from considering any failure to report in 2012; rather, the danger was that the jury potentially rendered a non-unanimous verdict. See Cosio, 353 S.W.3d at 771–74. For purposes of this opinion, because the evidence was that the annual reporting requirement and monthly reporting requirement were separate requirements, because the evidence in the record shows that Appellant’s August 30, 2012 compliance was in conjunction with his monthly reporting requirement, and because there was no evidence Appellant otherwise complied with his annual reporting requirement in 2012, we will assume, without holding, that the charge contained error on the basis that it potentially allowed for a non-unanimous verdict. See id. We proceed to whether the error was harmful.
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Because there was no objection to the charge, Appellant acknowledges he must show egregious harm. See Taylor, 332 S.W.3d at 489; Almanza, 686 S.W.2d at 171. Egregious harm requires actual rather than theoretical harm. Cosio, 353 S.W.3d at 777; Kelley, 429 S.W.3d at 881. Actual harm requires that the charge error must have affected the very basis of the case, deprived the defendant of a valuable right, vitally affected a defensive theory, or made the case for conviction clearly and significantly more persuasive. Taylor, 332 S.W.3d at 490; see Cosio, 353 S.W.3d at 777. When assessing harm, courts consider (1) the charge, (2) the evidence, (3) the parties’ arguments, and (4) all other relevant information in the record. Cosio, 353 S.W.3d at 777.
The indictment alleged Appellant failed to report annually in 2013. The evidence showed he failed to report annually in 2013. The evidence from 2012 and early 2013 showed that as long as Appellant reported monthly, even if sporadically, the State was lenient. The evidence showed that it was only after Appellant stopped reporting at all after April 2013 that the State decided to indict Appellant for his failure to comply with his annual reporting requirement later that year—between August 8, 2013, and October 7, 2013. During final arguments, nothing suggested any confusion over which incident the State was attempting to convict Appellant on.4 Although the charge authorized the jury to look to 2011 or
4 Defense counsel argued, “The evidence is pretty conclusive. I’m not going to argue that. He failed to register. But did he knowingly and intentionally?” The record reflects that this statement regarding failing to report is
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2012, nothing in the way the case was presented or argued suggested the State sought a conviction for Appellant’s conduct in those prior years. Everything pointed to Appellant’s failure to report at all after April 2013 and, more specifically, his failure to comply with his annual reporting requirement during the sixty-day window between August 8, 2013, and October 7, 2013. We hold, therefore, that Appellant did not suffer egregious harm and overrule his second issue. See Kelley, 429 S.W.3d at 882 (holding no egregious harm because both sides framed the issue in the context of one specific violation).
Conclusion
Having overruled both of Appellant’s issues, we affirm the trial court’s judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ. GABRIEL, J., concurs without opinion.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: February 18, 2016
true regarding 2013, not necessarily true regarding 2012, and would have no applicability regarding 2011 because Appellant was still incarcerated.
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02-14-00285-CR Appendix