Orlando Bell v. State ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________
No. 07-18-00173-CR
________________________
ORLANDO BELL, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 21st District Court
Burleson County, Texas
Trial Court No. 14,753; Honorable J. D. Langley, Presiding
July 24, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.
Following a plea of not guilty, Appellant, Orlando Bell, was convicted by a jury of
failure to comply with the sex offender registration requirements of chapter 62 of the
Texas Code of Criminal Procedure.1 Because Appellant was required to register as a sex
1 TEX. CODE CRIM. PROC. ANN. art. 62.102(a) (West 2018). A person commits the offense of failure
to comply with sex offender registration requirements if the person is required to register and fails to comply
with any requirement of chapter 62 of the Texas Code of Criminal Procedure.
offender based upon his prior conviction for the offense of sexual assault pursuant to
section 22.011 of the Texas Penal Code,2 his “duty to register expires under article
62.101(a) [of the Texas Code of Criminal Procedure].” See TEX. CODE CRIM. PROC. ANN.
art. 62.101(a)(1) (West 2018). See also art. 62.001(6)(A) (defining an offense under
section 22.011 of the Texas Penal Code as a “sexually violent offense”). As such,
because he was required to verify his registration once each year under article 62.058 of
the Texas Code of Criminal Procedure, the offense in question was a third degree felony.
Id. at art. 62.102(b)(2).
The State attempted to enhance the applicable range of punishment by alleging
two prior felony convictions.3 A proper double-enhanced felony conviction requires the
State to prove beyond a reasonable doubt that the second previous felony conviction was
both final and “for an offense that occurred subsequent to the first previous felony
conviction having become final.” See TEX. PENAL CODE ANN. § 12.42(d) (West 2018).
See also Ex parte Pue, 552 S.W.3d 226, 230-31 (Tex. Crim. App. 2018); Jordan v. State,
256 S.W.3d 286, 291 (Tex. Crim. App. 2008) (finding that “when the State seeks to
enhance a defendant’s sentence for the primary offense by alleging that a defendant has
a prior conviction, and the defendant enters a plea of not true, the factfinder must decide
2 TEX. PENAL CODE ANN. § 22.011(a) (West 2019).
3 The indictment failed to properly allege a double-enhanced felony because it alleged two prior
felony convictions that occurred on the same day. See Myhand v. State, No. 03-09-00488-CR, 2010 Tex.
App. LEXIS 6358, at *4 (Tex. App.—Austin Aug. 4, 2010, pet. ref’d) (mem. op., not designated for
publication). The State attempted to remedy this problem by subsequently filing State’s Notice of Intent to
Use Prior Convictions for Enhancement of Punishment alleging the two prior felony convictions offered into
evidence during the punishment phase of trial.
2
whether the State has sustained its burden by entering a finding that the enhancement
allegation is true or not true”). (Emphasis added).
In the underlying case, the court’s charge failed to require a jury finding that the
second prior felony conviction was both final and for an offense that occurred subsequent
to the first prior felony conviction having become final.4 As such, the State failed to meet
its burden of proof concerning whether the offense was properly double-enhanced.
Based on this erroneous punishment charge, the jury assessed Appellant’s sentence at
fifty years confinement. Accordingly, because the offense was not a properly double-
enhanced third degree felony, the punishment assessed exceeded the maximum
punishment allowed by law.5 See § 12.42(a).
By a sole issue, Appellant challenges the sufficiency of the evidence to support his
conviction and judgment.6 Although he does not raise an issue addressing the illegal
sentence, a void sentence cannot be waived; Scott v. State, 988 S.W.2d 947, 948 (Tex.
App.—Houston [1st Dist.] 1999, no pet.), and must be reversed even if it is not raised as
error on appeal. Barton v. State, 962 S.W.2d 132, 139 (Tex. App.—Beaumont 1997, pet.
4 The State did obtain a jury finding that (1) prior to the commission of the primary offense, Appellant
had been finally convicted of the felony offense of delivery of a controlled substance and (2) after the
commission of the offense of delivery of a controlled substance, Appellant had been finally convicted of the
felony offense of engaging in organized criminal activity. What the State did not obtain was a jury finding
that the second previous felony conviction (engaging in organized criminal activity) was for an offense that
occurred subsequent to the first previous felony conviction (delivery of a controlled substance) having
become final.
5 An offense “punished as” a higher offense raises the level of punishment, not the degree of the
offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex. Crim. App. 2018).
6 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the
Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX.
R. APP. P. 41.3.
3
ref’d). We affirm Appellant’s conviction; however, we reverse the judgment and remand
the cause to the trial court for a new hearing on punishment.
BACKGROUND
In 2006, pursuant to a plea agreement, Appellant was convicted of sexual assault
and sentenced to five years confinement. Upon his release from prison in August 2011,
he submitted his sex offender registration as required by chapter 62 of the Texas Code
of Criminal Procedure. At the time, he moved in with his sister who lived in a family-
owned house in Caldwell, Texas. Three years later, pursuant to a sex offender
compliance check, an investigator with the Texas Department of Public Safety, Robert
Neuendorff, attempted to locate Appellant at his registered address in Caldwell on
October 29, 2014.7 When he arrived, he observed that the structure at that address had
burned down and was uninhabitable. Based on the condition of the house, Neuendorff
began surveillance to determine where Appellant was residing.
On that same day, Neuendorff saw three vehicles on the Caldwell property. One
of the vehicles, an SUV, was covered by a tarp. Neuendorff peeked through a hole in the
tarp and did not see any signs that a person was living in the SUV. He canvassed the
neighborhood and spoke with a distant cousin of Appellant’s who would come by daily to
care for an elderly relative who was Appellant’s neighbor. She told Neuendorff that she
saw Appellant “come and go once [sic] a while, but he didn’t live there” after the house
burned down. Neuendorff did not see Appellant at the registered address on that day.
7Neuendorff testified that Appellant was selected for a compliance check because he had not
updated his driver’s license to reflect that he was a registered sex offender upon being released from prison.
4
On November 4, 2014, Neuendorff again went to the Caldwell address and did see
Appellant tending to his animals. He did not, however, alert Appellant to his presence.
He noticed that Appellant was in a different vehicle than those that were usually parked
on the property. When Appellant left, Neuendorff followed him to an address outside the
city limits in Tunis, Texas. Neuendorff made another visit to the Caldwell address on
November 19th and did not see Appellant there. This time he did encounter a gentleman
in the neighborhood and inquired about Appellant. The gentleman was Appellant’s cousin
and neighbor. He told Neuendorff that after the fire, Appellant came by the Caldwell
address “off and on, but he don’t live with us.” The gentleman believed Appellant was
living with his girlfriend. He mentioned that Appellant was at the Caldwell address daily
to feed his dogs and tend to other animals and would sometimes sleep in his vehicle, on
the premises, at night.
Based on his investigation, Neuendorff began surveillance of the Tunis address
and Appellant became suspicious that someone was following him. On November 22,
2014, Neuendorff made a final visit to the Caldwell address but did not see Appellant
there on that day. Two days later, Neuendorff concluded that Appellant was not in
compliance with his sex offender registration requirements for failing to timely inform his
primary registration authority of a change of address. Appellant was arrested on
November 25th and Neuendorff conducted a custodial interrogation.
During the interrogation, Appellant claimed the Caldwell address was still his
residence. Despite the structure having burned down, he claimed he was living in one of
the vehicles located on his property and that he visited his girlfriend’s Tunis address for
meals and for personal hygiene reasons. He admitted the vehicle he had been driving
5
belonged to his girlfriend and that he sometimes visited the Tunis address. But he
claimed he regularly slept in one of his vehicles at the Caldwell address between 3:00
a.m. and 7:00 a.m. because his girlfriend’s grandmother did not want him staying at the
Tunis address.8
Following a jury trial, Appellant was convicted and sentenced to fifty years
confinement. By a sole issue, he challenges the sufficiency of the evidence to support
his judgment and conviction.
STANDARD OF REVIEW—SUFFICIENCY OF THE EVIDENCE
The only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense the State is required
to prove beyond a reasonable doubt is the standard set forth in Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). See Adames v. State, 353 S.W.3d
854, 859 (Tex. Crim. App. 2011); Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App.
2010). We consider all of the evidence in the light most favorable to the verdict and
determine whether, based on that evidence and reasonable inferences therefrom, any
rational juror could have found the essential elements of the crime beyond a reasonable
doubt. Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
We give deference to the responsibility of the trier of fact to fairly resolve conflicts
in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016). Each
8Neuendorff testified he did not conduct surveillance of the Caldwell address during those early
morning hours.
6
fact need not point directly and independently to the appellant’s guilt, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction. Id.
We compare the elements of the offense as defined by a hypothetically correct jury
charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4, 8 (Tex. Crim.
App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). In our
review, we must evaluate all of the evidence in the record, both direct and circumstantial
and whether properly or improperly admitted. Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). When the record supports conflicting inferences, we presume
the fact finder resolved the conflicts in favor of the prosecution and defer to that
determination. Jackson, 443 U.S. at 326.
APPLICABLE LAW
A person who has a “reportable conviction” is required to register with the local law
enforcement authority in any municipality or county where that person resides or intends
to reside for more than seven days. TEX. CODE CRIM. PROC. ANN. art. 62.051(a) (West
2018). One of the required items on the registration form is the address at which the
person resides or intends to reside or, if the person does not reside or intend to reside at
a physical address, a detailed description of each geographical location at which the
person resides or intends to reside. Id. at art. 62.051(c). A person required to register
pursuant to chapter 62 of the Texas Code Criminal Procedure is also required to
periodically verify his registration information as a sex offender. Id. at art. 62.058(a). In
addition, if a person required to register intends to change his address, he must report to
the appropriate authority his anticipated move date and new address. Id. at 62.055(a).
7
Furthermore, if a person required to register changes his address, he must report in
person to the appropriate authority in the municipality or county in which his new address
is located and provide that authority proof of identity and proof of residence. Id.
A person commits an offense if he is required to register under chapter 62 and fails
to comply with any requirement of that chapter. Id. at art. 62.102(a). See also Rogers v.
State, No. 10-11-00252-CR, 2012 Tex. App. LEXIS 10384, at *3 (Tex. App.—Waco Dec.
13, 2012, pet. ref’d) (mem. op., not designated for publication). The statute is a
generalized “umbrella” statute that criminalizes the failure to comply with any of the
registration requirements set out in chapter 62. Robinson v. State, 466 S.W.3d 166, 170
(Tex. Crim. App. 2015); Young v. State, 341 S.W.3d 417, 425 (Tex. Crim. App. 2011).
ANALYSIS
Appellant stipulated to his 2006 conviction for sexual assault. As a result of that
conviction, Appellant is a person required to comply with the registration requirements of
chapter 62. In challenging the sufficiency of the evidence to support his conviction for
failure to comply with those registration requirements, Appellant posits that he is “not
required to spend every spare moment and every night at their [sic] registered address.”
Essentially, he asserts that the evidence fails to establish that he did not “reside” at his
registered address, notwithstanding the fact that the residence located at that address
had burned down.
Nancy Green, an administrative assistant with the Caldwell Police Department who
managed sex offender registrations, testified that she began supervising Appellant’s
annual verifications in 2012. She explained that the annual verification process required
8
the offender to initial all stipulations on the verification form to indicate he had read and
understood them. She testified that Appellant was aware of the requirements of
registration.
On April 7, 2014, Appellant verified his registration. He reported his address as
the Caldwell location. He initialed the “status change” section which details how to report,
among other information, a change of address.9 He also initialed the “visiting locations”
section which provides how to report if a registrant is going to be visiting a location for
more than forty-eight consecutive hours.10
On October 29, 2014, the alleged date of the offense, the Caldwell location was
listed as Appellant’s registered address. It was not until November 24, 2014, after
Appellant suspected he was being investigated, that he mentioned to Green his intention
to move to Tunis. He was arrested the next day.
Statements obtained from Appellant’s neighbors and relatives indicated that after
the fire, Appellant was not residing at the Caldwell address. One of the witnesses who
gave Neuendorff her statement testified at trial that she would arrive at Appellant’s
neighbor’s house every day around eight in the morning and would stay until noon to care
9 The form tracks article 62.055(a) which provides that a person subject to chapter 62 who intends
to change address shall, not later than the seventh day before the intended change, report to the primary
registration authority the anticipated move date and new address. TEX. CODE CRIM. PROC. ANN. art.
62.055(a) (West 2018).
10 The form tracks article 62.059(a) which provides that a person subject to chapter 62 who on at
least three occasions during any month spends more than forty-eight consecutive hours away from the
registered address shall report that fact. TEX. CODE CRIM. PROC. ANN. art. 62.059(a) (West 2018).
9
for the elderly neighbor. She testified that she saw Appellant come and go but did not
believe he lived at the Caldwell address.
Appellant’s sister, who had lived at the Caldwell address with Appellant, but who
moved after the fire, testified that Appellant did not move in with her because the Caldwell
address was his registered address. Another defense witness, the executive director of
the Burleson County Health Resource Center, testified that after Appellant’s house
burned down, he stayed with his pastor for a few days and was provided some support
by the American Red Cross. The director testified that Appellant looked into federal
assistance by applying for a housing voucher. However, on cross-examination, he
testified the application for a housing voucher was only in Appellant’s girlfriend’s name.
The jury, as the trier of fact, was the sole judge of the credibility of witnesses and
the weight to be given to their testimony. Thomas, 444 S.W.3d at 10. Here, the witnesses
presented conflicting testimony. The State’s witnesses testified that Appellant no longer
resided at the Caldwell address after the fire and that he had moved to Tunis to live with
his girlfriend without timely reporting a change of address to the proper law enforcement
authority. The defense’s theory was that Appellant continued to reside at the Caldwell
address after the fire, albeit in a vehicle. Ultimately, the jury believed the State’s
witnesses and resolved any conflict in the testimony against Appellant.
Accordingly, we agree with the State that we need not decide whether sleeping in
a vehicle on the registered property can comply as a residence for purposes of the
registration requirements because the jury rejected Appellant’s claim that property
10
constituted his “residence.” As such, we conclude the evidence is sufficient to support
Appellant’s conviction. Issue one is overruled.
PUNISHMENT ERROR
As we noted in our introductory paragraphs, Appellant was assessed a sentence
in excess of the maximum punishment allowed by law. “A sentence that is outside the
maximum or minimum range of punishment is unauthorized by law and therefore illegal.”
Mizell v. State, 119 S.W.3d 804, 806 (Tex. Crim. App. 2003). An illegal sentence is a
void sentence and must be reversed. Farias v. State, 426 S.W.3d 198, 200 (Tex. App.—
Houston [1st Dist.] 2013, pet. ref’d) (citing Hern v. State, 892 S.W.2d 894, 896 (Tex. Crim.
App. 1994) (finding that a sentence outside the statutory range of punishment for an
offense is void and must be reversed)). Within the Marin11 rubric, an accused has an
“absolute and non-waivable” right to be sentenced within the proper range of punishment
established by the Legislature, the contravention of which can be raised at any time.
Gutierrez v. State, 380 S.W.3d 167, 175 (Tex. Crim. App. 2012). Also, this court is
authorized to review “unassigned error”—a claim that was preserved at trial but was not
raised on appeal.12 Sanchez v. State, 209 S.W.3d 117, 120-21 (Tex. Crim. App. 2006).
Because the sentence in this case, fifty years confinement, exceeds the maximum
punishment allowed by law according to the verdict returned in this case, the sentence is
void. Having found the evidence sufficient to support Appellant’s conviction, we
11 Marin v. State, 851 S.W.2d 275, 279 (Tex. Crim. App. 1993). In Marin, for the purpose of
determining when procedural default rules applied, the Texas Court of Criminal Appeals identified three
distinct kinds of error.
12 During the State’s closing argument, when the prosecutor addressed the prior felony convictions,
she stated, “[t]hat is not a date that the State has to prove exactly.” Defense counsel objected to the
comment as a misstatement of law and added, “[t]hey pled it. They have to prove it.” In sustaining defense
counsel’s objection, the trial court announced, “[t]he jury has to follow the charge as given by the Court.”
11
nonetheless reverse his sentence and remand this cause to the trial court for a new
punishment hearing.
CONCLUSION
The trial court’s judgment pertaining to Appellant’s conviction is affirmed. That
portion of the judgment pertaining to punishment is reversed and the cause is remanded
to the trial court for a new punishment hearing.
Patrick A. Pirtle
Justice
Do not publish.
12