Gilder, Craig Anthony ( 2015 )

PD-0975-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 8/31/2015 10:32:20 AM
Accepted 9/1/2015 11:48:49 AM
PD-0975-15 ABEL ACOSTA
CLERK
IN THE COURT OF CRIMINAL APPEALS OF
THE STATE OF TEXAS
__________________________________________________________________
CRAIG ANTHONY GILDER
Appellant,
vs.
THE STATE OF TEXAS
Appellee
________________________________________________________________
Petition for Discretionary Review from the Fourteenth Court of Appeals
No. 14-14-00523-CR, affirming the conviction of Cause No. 1388541
177th District Court of Harris County, Texas
Honorable Ryan Patrick, Judge Presiding
__________________________________________________________________
ALEXANDER BUNIN
Chief Public Defender,
Harris County, Texas
________________________
MELISSA MARTIN
Assistant Public Defender
Harris County, Texas
TBN. 24002532
1310 Prairie, Suite 980
Houston, TX 77002
Phone: (713)274-6709
September 1, 2015
Fax: (713)437-4319
melissa.martin@pdo.hctx.net
Attorney for Appellant
IDENTITY OF PARTIES AND COUNSEL
APPELLANT: Craig Anthony Gilder
SPN# 00291119
1200 Baker
Houston, TX 77002
TRIAL PROSECUTOR: Nathan P. Hennigan
Assistant District Attorney
Harris County Texas
1201 Franklin St, 6th Floor
Houston, TX 77002
DEFENSE COUNSEL AT TRIAL: Anthony Balderas, Jr.
Attorney at Law
10701 Corporate Dr Ste 185
Houston, TX 77002
COUNSEL ON APPEAL FOR APPELLANT: Melissa Martin
Assistant Public Defender
Harris County TX
1201 Franklin St, 13th Floor
Houston, TX 77002
melissa.martin@pdo.hctx.net
PRESIDING JUDGE: Hon. Ryan Patrick
177th District Court
Harris County, TX
1201 Franklin St, 19th Floor
Houston, TX 77002
ii
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
TABLE OF CONTENTS .............................................................................................................iii
INDEX OF AUTHORITIES ....................................................................................................... iv
STATEMENT OF THE CASE ..................................................................................................... 1
STATEMENT OF PROCEDURAL HISTORY .............................................................................. 1
STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1
GROUND FOR REVIEW ........................................................................................................... 1
The Fourteenth Court of Appeals erred in affirming appellant’s
conviction. Gilder v. State, __S.W.3d __ , 2015 WL 3917924, 14-14-00523-
CR. Mr. Gilder contends that this Court did not intend, its holding in
Thomas v. State, 444 S.W.3d 4 (2014) to abrogate the intermediate court’s
holding in Green v. State, 350 S.W.3d 617 (Tex. App.—Houston [14th
Dist.], 2012, pet ref’d.) Rather, appellant argues that Thomas is explicitly
limited to its facts and the court of appeals incorrectly extended the reach
of this Court’s holding to include both Green and Gilder. This Court should
review Gilder in order to clarify its position regarding the requirements set
out in Art. 62.055(a) of the Texas Code of Criminal Procedure.
ARGUMENT
A. BACKGROUND ............................................................................................................. 2
B. ANALYSIS ...................................................................................................................... 4
C. CONCLUSION ............................................................................................................... 7
PRAYER .................................................................................................................................... 7
CERTIFICATE OF SERVICE ...................................................................................................... 8
CERTIFICATE OF COMPLIANCE ............................................................................................. 9
APPENDIX
iii
INDEX OF AUTHORITIES
Cases
Gilder v. State, __S.W.3d __ , 2015 WL 3917924, 14-14-00523-CR ..................................... 1, 3, 7
Green v. State, 350 S.W.3d 617 (Tex. App.—Houston [14th Dist.], 2012, pet ref’d.) ......... 1, 3, 7
Thomas v. State, 411 S.W.3d 685 (Tex. App.—Texarkana, 2014, pet. granted) ............................ 1
Thomas v. State, 444 S.W.3d 4 (2014) .................................................................................... 1, 3, 4, 7
Thomas v. State, 454 S.W.3d 660 (Tex. App.—Texarkana, 2014, pet ref’d) .................................. 4
Statutes
Tex. Code Crim. Proc. Art. 62.055(a) ...........................................................................................2, 7
iv
Statement of the Case
On June 26, 2014 Craig Gilder was convicted by a jury of failure to comply with
a sex-offender registration requirement and sentenced to seven years’ incarceration in
the Institutional Division of the Texas Department of Criminal Justice (C.R. at 9, 88,
and 92). Notice of appeal was filed June 26, 2014.
Statement of Procedural History
Appellant’s brief was filed on January 6, 2015, and his reply to the state’s brief
was filed on March 17, 2015. The First Court of Appeals affirmed the conviction on
June 25, 2015. No motion for rehearing was filed.
Statement Regarding Oral Argument
Appellant requests oral argument in this matter because there appears to be some
ambiguity as to this Court’s intention in reversing Thomas v. State, 411 S.W.3d 685 (Tex.
App.—Texarkana, 2014, pet. granted)(hereafter, Thomas 1). Thomas v. State, 444 S.W.3d
4 (2014)(hereafter, Thomas 2). Argument could be helpful in resolving the confusion.
Ground for Review
The Fourteenth Court of Appeals erred in affirming appellant’s conviction. Gilder
v. State, __S.W.3d __ , 2015 WL 3917924, 14-14-00523-CR. Mr. Gilder contends that
this Court did not intend, its holding in Thomas v. State, 444 S.W.3d 4 (2014) to abrogate
the intermediate court’s holding in Green v. State, 350 S.W.3d 617 (Tex. App.—Houston
[14th Dist.], 2012, pet ref’d.) Rather, appellant argues that Thomas is explicitly limited to
1
its facts and the court of appeals incorrectly extended the reach of this Court’s holding
to include both Green and Gilder. This Court should review Gilder in order to clarify its
position regarding the requirements set out in Art. 62.055(a) of the Texas Code of
Criminal Procedure.
Argument
A. Background
The indictment in this case charged “[appellant] did then and there unlawfully,
while a person with a reportable conviction for the offense of sexual assault, and while
subjection to registration under the Texas sex offender registration program, and while
intending to change his residential address, intentionally and knowingly fail[ed] to timely
provide in person [his] anticipated move date and new address…at least seven days
before the defendant (sic) change of address” (C.R. at 9).
Art. 62.055(a) provides two ways to comply with its requirements:
(a) If a person required to register under this chapter intends to change
address, regardless of whether the person intends to move to another
state, the person shall, not later than the seventh day before the intended
change, report in person to the local law enforcement authority designated
as the person’s primary registration authority … and provide the authority
… with the person’s anticipated move date and new address. If a person
required to register changes address, the person shall, not later than the
later of seven days after changing the address or the first date the
applicable local law enforcement authority, by policy, allows the person to
report, shall 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. Art 62.055(a).
2
The state chose to indict Mr. Gilder only for failing to comply with the first way.
The state proved up a violation of the other way, which it did not plead. The Green
court, under the same scenario, found a fatal variance between the indictment and the
proof and acquitted Green on the basis of insufficient evidence that Green had ever
intended to move to an anticipated address. Green, 350 S.W.3d at 6241.
The state in Thomas, like in Green and Gilder, had alleged only the violation of the
first means of complying with Art. 65.055(a). This Court followed the same steps the
court of appeals took in analyzing Green:
In this case … the indictment was not as broad as authorized by law
because the State alleged a specific manner and means. As a result of
specifying a specific statutory manner and means in the indictment, the
“law as authorized by the indictment” in this case allowed the jury to
convict Appellant only if he failed to report a change in address “not later
that the seventh day before the intended change.” Thus, the hypothetically
correct jury charge in this case was one that authorized a jury to convict
Appellant only if (1) he was required to register as a sex offender, and (2)
he failed to report an anticipated change of address seven days before the
intended change.
Id at 10 (citations omitted, emphasis in the original); Green, S.W.3d 620.
This Court decided the evidence in Thomas was legally sufficient and remanded
to the court of appeals to consider whether the application paragraph permitting the
jury to consider both manners and means of violating the requirements caused Thomas
1This opinion in Green, supra, was issued on remand to the court of appeals by this Court’s opinion on
review of the State’s petition asking for review in light of Brooks v. State, which abolished factual
sufficiency. The court of appeals, in the first appeal, had found the evidence factually insufficient to
support the conviction. Green, 350 S.W.3d at 620.
3
egregious harm. Thomas, 444 S.W.3d at 11. On remand, the court of appeals found
egregious harm; this Court refused the state’s petition for review. Thomas v. State, 454
S.W.3d 660 (Tex. App.—Texarkana, 2014, pet ref’d)(hereafter Thomas 3).
B. Analysis
In Thomas 2, this Court found the jurors, as the sole judges of credibility, were
entitled to believe all or some of the testimony from the arresting officer and the
defendant and to infer from their testimony that Thomas had intended to move to the
address he did, in fact, move to and then failed to report the move seven days prior to
moving. The jury found, however, that the date alleged in the indictment was not the
correct date. This Court found that the “on or about” language in the indictment was
sufficient to find the state’s evidence legally sufficient to convict. Thomas 2, 444 S.W.3d
at 10-11.
Thomas reported he lived at 1900 South Green Street, apartment 210, when he
registered as a sex offender with the Longview authorities. An officer contacted the
manager of the apartment building to inform her that a registered sex offender was
living at the address; she asked that a criminal-trespass warrant be issued to Thomas.
On April 3, 2012, officers delivered the warrant to him at the South Green Street
address. At that time the apartment manager warned Thomas’s girlfriend’s daughter,
the leaseholder, that she would be evicted if Thomas continued living there. Thomas 2,
444 S.W.3d at 6.
4
Officers arrested Thomas at that time for outstanding warrants. When he was
booked into the jail, he listed his address at 1703 Houston Street. On June 13, an officer
contacted Officer Brownlee, to inform him that Thomas was apparently living at an
address different from the one he listed for the sex-offender registry. Brownlee testified
that on June 25, 2012 he checked with the apartment manager to find out if Thomas
was still at the South Green Street address; she told him he was not. Brownlee testified
he then went to the Houston Street address, where he found Thomas. Id.
According to Brownlee, Thomas told him he was living at the Houston Street
home and that he had called the authorities to notify them of the address change. Since
the address change was required to be made in person and because the South Green
was still his registered address, Brownlee arrested him on failure to comply with sex-
offender registration requirements. Id.
Thomas testified that he had lied about living at Houston Street and that he had
been living at South Green Street even after Brownlee encountered him at the Houston
address; he stated he had lied about being at South Green Street to protect his
girlfriend’s daughter from being evicted. Id at 7.
This majority opinion (five to four) concluded that on this evidence, the jurors
could have believed Brownlee’s testimony that Thomas had told him he was living at
Houston Street. The jurors had also been entitled to disbelieve the part of Thomas’s
testimony where he claimed he had lied about Houston Street. From that evidence
jurors could have properly inferred his intent to live at Houston Street. Id. This makes
5
sense, because Thomas reported living at Houston Street to the jail on April 3, 2012
and was actually found there on June 25, 2012—he had another place to go at least as
early as April 3, 2012.
These facts are quite different from those in Mr. Green’s and Mr. Gilder’s cases.
In neither of those cases did the defendants testify and there was no evidence that they
told anyone they had another address at the time they moved.
In Mr. Gilder’s case, the testifying officer explained the reporting requirements
as they were told to registrants—incorrectly--stating that all moves had to be reported
seven days before the move. The apartment manager testified she had not known Mr.
Gilder had been living in his mother’s apartment until August 2012, when neighbors
began to complain (4 R.R. at 50). She also testified had not seen Mr. Gilder after the
criminal-trespass warrant was issued on August 13, but she had never seen him leave (4
R.R. at 50-51). She could not say when Mr. Gilder’s mother actually vacated the
apartment complex, due to upcoming renovations to the complex (4 R.R. at 45 and 47).
The state offered no evidence as to where the arresting officer found Mr. Gilder
after he had determined no one was living at the apartment on the day he checked on
Mr. Gilder. There is nothing from which the jurors could have inferred Mr. Gilder’s
intent to move prior to having done so or his having had an anticipated address to move
to. There is no evidence about the date he moved. There is no evidence he had even
had an address when he was arrested.
6
Conclusion
In Thomas, this Court made clear that the second part of 65.055(a) is a separate
manner and means from the first one and that having pleaded only the first one, the
state has limited itself to convicting on evidence of that only that manner and means.
As further evidence the Court considers the statute provides two manners and means,
the Court stated the Thomas jury should not have been permitted to consider the second
manner and means included in the charge, leaving only the harm for the court of appeals
to consider on remand.
The majority opinion by this Court in Thomas makes no mention of the Green
case, which it refused to review on the state’s petition. The Thomas Court carefully laid
out the factual bases from which the jurors could infer Thomas’s intent to move to an
anticipated address. There is nothing in the opinion to indicate the Court was making a
blanket statement that simply showing someone moved creates a permissible inference
that he violated the first manner and means of the statute. The dissent by Justice
Cochran, joined by Justices Price and Johnson, and with which Justice Womack
concurred, discusses Green, yet the majority does not state an intent to abrogate that
decision.
Prayer
Mr. Gilder asks this Court to review the court of appeals decision in Gilder v. State
(attached as an Appendix) by allowing him to fully brief the issue, with argument, and
ultimately remand to the court of appeals for appropriate action.
7
Respectfully Submitted,
ALEXANDER BUNIN
Harris County Public Defender
/s/ Melissa Martin
______________________________
MELISSA MARTIN
Assistant Public Defender
1201 Franklin, 13th Floor
Houston, TX 77002
Phone 713-274-6709
Fax 713-437-4319
Texas Bar No. 24002532
melissa.martin@pdo.hctx.net
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Petition for Discretionary Review was e-
served to Alan Curry, Assistant District Attorney, Harris County Texas and to the State
Prosecuting Attorney.
/s/Melissa Martin
_______________________________
MELISSA MARTIN
8
CERTIFICATE OF COMPLIANCE
Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1. Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 1,909 words printed in a proportionally spaced typeface.
2. This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by Microsoft
Word software.
3. Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4. Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.
/s/ Melissa Martin
____________________________
MELISSA MARTIN
9
Gilder v. State, --- S.W.3d ---- (2015)
conducted compliance check. Tex. Crim. Proc.
Code Ann. art. 62 .102(a).
2015 WL 3917924 Only the Westlaw citation is currently available.
Cases that ci tc this headnote
NOTICE: THIS OPINION HAS NOT BEEN
RELEASED FOR PUBLICATION IN THE
[2] Mental Health
PERMANENT LAW REPORTS. UNTIL RELEASED,
Offenses and prosecutions
IT IS SUBJECT TO REVISION OR WITHDRAWAL.
When the indictment alleges that a defendant
"intentionally and knowingly" failed to comply
Court of Appeals of Texas,
with a requirement of the sex-offender
Houston (14th Dist.).
registration program, the appellate court reviews
Craig Anthony Gilder, Appellant
the record for evidence that the defendant's
v.
failure was intentional or knowing.
The State of Texas, Appellee
Cases that cite this headnote
NO. 14-14-00523-CR
Opinion filed June 25, 2015 [3] Criminal Law
Circumstantial Evidence
Synopsis
Criminal Law
Background: Defendant was convicted in the 177th District
Relative strength of circumstantial and
Court, Harris County, of failure to comply with sex offender
direct evidence
registration requirements, based on his failure to report
Circumstantial evidence is as probative as direct
intended move to new residence within seven days of move.
evidence in establishing the guilt of an actor, and
Defendant appealed.
circumstantial evidence alone can be sufficient
to establish guilt.
IHolding:] The Court of Appeals, Martha Hill Jamison, 1., Cases that cite this headnote
held that evidence was sufficient to support conviction.
14] Criminal Law
Elements of offenses in general
Affirmed.
Proof of a culpable mental state generally relies
on circumstantial evidence.
West Headnotes (5) Cases that cite this headnote
11] Mental Health [5] Criminal Law
Offenses and proseclltions " Intent
Evidence was sufficient to support finding that Criminal Law
defendant's failure to report intended move Elements of offenses
to new address within seven days of move Intent may be determined from a defendant's
was intentional and knowing, as required to words, acts, and conduct, and is a matter of fact
support conviction for failure to comply with to be determined from all of the circumstances.
sex offender registration requirements; officer
conducted compliance check at apartment at Cases that cite this headnote
address that defendant had registered, apartment
was vacant due to renovation, and it had been
vacant for five months when police officer
APPENDIX
'Nestla'.'vNext (c) 2015 Thomson Reuters No claim to onglnal U.S. Government Works.
Gilder v. State, .*. S.W.3d •••• (2015)
required vouchers issued by the Department of Housing and
On Appeal from the 177th District Court, Harris County, Urban Development to be issued as a condition of residence.
Texas, Trial Court Cause No. 1388541 In order to comply with federal regulations, the apartment
complex underwent renovation beginning in November 2012.
Attorneys and Law Firms
The renovation was completed in January 2014. Jenkins
Melissa Martin, for Craig Anthony Gilder. testified that appellant was never a legal resident at the
apartment complex, but his mother lived in apartment number
Devon Anderson, Clinton Morgan, for the State of Texas. 2 until she had to relocate due to the renovation. Jenkins
testified that appellant was living in the apartment illegally.
Panel consists of Chief Justice Frost and Justices Jamison and
She explained that because the housing was subsidized,
Busby.
appellant's mother could only have an overnight guest for a
period of 30 days. After the 30- day period, appellant was
required to move. On August 13, 2012, a trespass warning
OPINION was issued to appellant because he was living at the apartment
illegally.
Martha Hill Jamison, Justice
*1 Appellant Craig Anthony Gilder appeals his conviction The jury found appellant guilty of failure to comply with
for failure to comply with a sex-offender registration sex-offender registration and assessed punishment at seven
requirement. See Tex. Code Crim. Proc. Ann. art. 62.102 years' confinement in the Institutional Division of the Texas
(West Supp.20 14). In a single issue, he contends the evidence Department of Criminal Justice.
is legally insufficient to support his conviction because
no rational juror could have found beyond a reasonable
doubt that appellant committed the offense with the requisite SUFFICIENCY OF THE EVIDENCE
culpable mental state. We affirm.
II] In his sole issue on appeal, appellant asserts the evidence
is insufficient to support his conviction. Appellant argues
the State did not prove he intentionally or knowingly
BACKGROUND
failed to comply with the requirement that he report in
In 1988, appellant was convicted of sexual assault, which person to the appropriate authority and provide the authority
subjected him to registration as a sex offender under with appellant's anticipated move date and new address at
article 62.102 of the Texas Code of Criminal Procedure. least seven days prior to an anticipated change of address.
Officer C.R. Black of the Houston Police Department Sexual Appellant challenges the State's proof that appellant intended
Compliance Unit testified that by being subject to sex­ to change his address.
offender registration, appellant was required to register
once a year. On May 14, 20l3, at 10:30 in the morning, *2 In a sufficiency review, we view all evidence in the
Black conducted a compliance check at appellant's registered light most favorable to the verdict and determine whether any
address, 7601 Curry Rd. , No . 2. Appellant had registered this rational trier of fact could have found the essential elements
address on July 24, 2012 . The apartment appellant had listed of the offense beyond a reasonable doubt . Salinas v. State,
as his residence was vacant; the apartment manager informed 163 S.W.3d 734, 737 (Tcx.Crim.App .2005) . The jury, as
Black that the apartment complex was being renovated, which the sole judge of the credibility of the witnesses, is free to
is why the apartment was vacant. A Sex Offender Compliance believe or disbelieve all or part of a witness's testimony. Jones
Report that was admitted into evidence at trial recites that this v. State, 984 S.W.2d 254, 257 (Tex.Crim.App.1998). The
apartment was vacated on January 3, 2013. After finding the jury reasonably may infer facts from the evidence presented,
apartment vacant, Black determined that appellant was not credit the witnesses it chooses to credit, disbelieve any or
registered at any other address in the State of Texas or the all of the evidence or testimony proffered, and weigh the
United States, and he was not in custody. evidence as it sees fit. Sharp v. Slate, 707 S.W.2d 611,
614 (Tex .Crim .App. 1986). Reconciliation of conflicts in the
Andrea Jenkins, the apartment manager at 7601 Curry Rd., evidence is within the jury's discretion . Losada v. State,
testified that the property was federally subsidized and 721 S.W.2d 305, 309 (Tex.Crim.App .1986). An appellate
'i\!estla"~ `` ext © 2015 Thornson Reuters. No claim to original U.S. Government Works. 2
Gilder v. State, --- S.W.3d ---- (2015)
court may not reevaluate the weight and credibility of of the seventh day after changing the address or the first date
the evidence produced at trial or substitute its judgment the applicable authority by policy allows the person to report,
for that of the jury. King v. State, 29 S.W.3d 556, 562 and fails to provide the authority with proof of identity and
(Tex.Crim.App.2000). Inconsistencies in the evidence are proof of residence ("Failing to Report an Actual Move"). See
resolved in favor of the verdict. Curry v. State, 30 S. W.3d Tex. Code Crim. Proc. Ann. art. 62.055(a); Thomas v. State,
394,406 (Tex.Crim.App.2000). We do not engage in a second 444 S.W.3d 4, 9 (Tex.Crim.App.2014). Although there was
evaluation of the weight and credibility of the evidence, but evidence that would support a conviction of appellant based
only ensure the jury reached a rational decision. Muniz v. on Failing to Report an Actual Move, appellant was charged
State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993). only with intentionally and knowingly Failing to Report an
Intended Move.
[21 [31 141 [51 When the indictment alleges that a
defendant "intentionally and knowingly" failed to comply *3 An individual acts intentionally, or with intent, with
with a requirement of the sex-offender registration program, respect to the nature of his conduct or to a result of his
as in the present case, we review the record for evidence conduct when it is his conscious objective or desire to engage
the defendant's failure was intentional or knowing. See in the conduct or cause the result. Tex. Penal Code Ann. §
Tatum v. State, 431 S.\V.3d 839, 841 (Tex.App.-·Houston 6.03(a) (West 2013). An individual acts knowingly, or with
[14th Dist.] 2014, pet. refd). "Circumstantial evidence is as knowledge, with respect to the nature of his conduct or to
probative as direct evidence in establishing the guilt of an circumstances surrounding his conduct when he is aware of
actor, and circumstantial evidence alone can be sufficient the nature of his conduct or that the circumstances exist. ld.
to establish guilt." Sorrells v. State, 343 S.W.3d 152, § 6.03(b). An individual acts knowingly, or with knowledge,
155 (Tex.Crim.App.20 II). Proof of a culpable mental state with respect to a result of his conduct when he is aware that
generally relies on circumstantial evidence. Lane v. State, 763 his conduct is reasonably certain to cause the result. ld.
S.W.2d 785, 787 (Tex.Crim .App.1989) ("Establishment of
culpable mental states is almost invariably grounded upon Appellant argues the State did not prove that he intended to
inferences to be drawn by the factfinder from the attendant move to a known new address; therefore, appellant claims
circumstances ."); see also Varnes v. State, 63 S.W.3d 824, the evidence is insufficient to support appellant's conviction
833 (Tex.App.-Houston [14th Dist.] 2001, no peL). Intent based on Failing to Report an Intended Move. Appellant
may be determined from a defendant's words, acts, and cites this court's opinion in Green v. State, 350 S.W.3d 617,
conduct, and "is a matter of fact to be determined from all 630-34 (Tex.App.-Houston [14th Dist.] 2011, pet. refd), in
of the circumstances." Smith v. State, 965 S.W.2d 509, 518 support of his argument. In Green, the defendant, similar to
(Tex.Crim.App.1998); see also Kelley v. State, 429 S.W.3d appellant in this case, was charged only with intentionally and
865,872 (Tex.App.--Houston [14th Dist.12014, pet. refd). knowingly Failing to Report an Intended Move. ld. at 631.
Green lived in Texas, but worked in Arizona for extended
Texas Code of Criminal Procedure mtic\e 62 . 102(a) states periods of time. ld. at 633. Green's wife testified that while
that a person commits an offense if the person is required to Green was working in Arizona, she moved to another address
register and fails to comply with any requirement of Chapter in Texas without telling Green, and took his possessions
62 of the Texas Code of Criminal Procedure, entitled "Sex with her. ld. Under the legal-sufficiency standard of review,
Offender Registration Program." Tex. Code Crim. Proc. Ann. this court presumed that the jury did not believe the wife's
art. 62.1 02(a). There are two alternative manners and means testimony, which indicated that appellant had no intent to
of violating the requirement contained in Texas Code of change his address that would require him to report his
Criminal Procedure section 62.055(a): (1) a person required anticipated move date and new address. ld. Nonetheless, this
to register intends to change address and fails to report in court concluded that the evidence was legally insufficient to
person, not later than the seventh day before the intended support a finding that appellant ever had an intent to change
change, to the applicable authorities and to provide then with his address that triggered a duty to report under 62.055(a).
the person's anticipated move date and new address ("Failing Jd. This court found the evidence legally insufficient despite
to Report an Intended Move"); and (2) a person required to evidence that, more than two weeks after the move, appellant
register changes address and fails to report in person to the reported to the applicable authority that he had moved from
applicable authority in the municipality or county in which the prior address and was currently living at a different
the person's new residence is located, not later than the later address. See id. at 619 (plurality op.); id. at 632-33 (majority
'NestlCl',/Next (,\ :201 b Thomson Reut"r~) No cllim to ongincll U.S. Government Works. 3
·
~
Gilder v. State, --- S.W.3d ---- (2015)
op.). In concluding that the evidence was legally insufficient,
this court noted as follows: *4 The Court of Criminal Appeals reversed the court of
appeals, concluding that the evidence was legally sufficient
There are various ways that a person's to support Thomas's conviction based on Failing to Report an
belongings can be moved out of a Intended Move. See Thomas, 444 S.W.3d at 6. The high court
residence in the absence of that person concluded that, because there was evidence that appellant
intending to move. The testimony of was living at a new address as of June 25, 2012, the jury
Guthrie and Graham that appellant reasonably could have concluded that Thomas intended to
had moved out of the 602 Highland change address on June 25, 2012, and that he violated article
Avenue residence on or about April 62.055(a) by failing to report this intended address change on
15,2007, is not evidence that appeUant or before June 18, 2012. See id. at 10-· 11. In so holding, the
had an intent to move out during this Thomas court effectively abrogated the part of Green in which
time that he failed to report at least this court concluded that evidence the defendant was living
seven days before the date of the at a different address at some point in time did not, by itself,
intended move . justify a reasonable inference that the defendant ever had an
intent to change his address that he failed to report not later
/d. at 633. than the seventh day before the date of the intended address
change. Compare Thomas, 444 S.W.3d at 10·- 11, with Green
In Thomas v. Slate. the defendant registered the address 350 S.W.3d at 633.
of an apartment leased by the daughter of his girlfriend.
Thomas, 444 S.W.3d at 6. After a police officer contacted In the case under review, Officer Black testified that appellant
the property manager to ask if she was aware that Thomas registered 7601 Curry Rd., No.2 as his address on July 24,
lived on the premises, the manager requested that local police 2012. On May 14, 2013, that apartment was vacant. The
officers issue a criminal trespass warning. /d. Ultimately, evidence is sufficient to support a finding that appellant was
Thomas was given a trespass warning and arrested on other living at a new address as of January 3, 2013. Under Thomas,
outstanding warrants. ld. When he was booked into the county because there was evidence that appellant was living at a new
jail, Thomas gave an address different than his registered address as of January 3, 2013, the jury reasonably could have
address. /d. On June 25, 2012, after Thomas was released, a concluded that appellant intended to change address on this
police officer went to this address and found Thomas there. date and that he violated article 62.055(a) by failing to report
ld. Thomas told the officer that he was living there and that this intended address change on or before December 27,2012.
he had updated his sex-offender registration address by a See Thomas, 444 S.W.3d at 10 - 11. Under this precedent,
telephone call. ld. As in Green and the case under review, the the evidence was legally sufficient to support appellant's
defendant (Thomas) was charged only with Failing to Report conviction based on Failing to Report an Intended Move. See
an Intended Move. /d. at 10. Thomas appealed his conviction, id. Accordingly, we overrule appellant's sole issue on appea\.
and the court of appeals reversed, holding that the State did
not prove that Thomas intended to change his address and that We affirm the trial court's judgment.
the evidence was insufficient to support a finding that Thomas
intentionally or knowingly failed to register an intended
change of address seven days before the intended change. All Citations
Thomas v. Slate, 411 S.W.3d 685,693 (Tex.App.--Texarkana
--- S.W.3d ----, 2015 WL 3917924
2013), rev'd 444 S.W.3d 4, 6 (Tcx.Crim.App.20 14).
End of Document © 201 5 Thomso n Reu ters . No claim to origin al U S. Government Works .
Westlc 'NNext ,\: 201 f> Thor-nson r~euters No clalnl to Original U.S. Government Works.