James Milligan v. State ( 2000 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

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NO. 03-99-00191-CR

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James Milligan, Appellant

v.

The State of Texas, Appellee

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FROM THE DISTRICT COURT OF TRAVIS COUNTY, 331ST JUDICIAL DISTRICT NO. 99-0319, HONORABLE BOB PERKINS, JUDGE PRESIDING

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Appellant James Milligan appeals his conviction for the offense of failure to register as a sex offender. See Tex. Code Crim. Proc. Ann. art. 62.10 (West Supp. 2000). We will affirm.

BACKGROUND

On July 21, 1995, appellant was convicted of indecency with a child, a "reportable conviction" creating a duty to register with local law enforcement as a sex offender under the sex offender registration program. See id. arts. 62.01(5)(A), .02 (West Supp. 2000).

While on parole, appellant registered his residence with the Austin Police Department ("APD") as an address on Tahoe Drive. On December 12, 1998, appellant received notice of eviction. Evidence at trial revealed that appellant left the Tahoe Drive address on or before December 31, 1998. Appellant informed his parole officer of the eviction but failed to notify APD.

On January 8, 1999, appellant's parole officer informed Texas Department of Public Safety special crimes investigator Carlton Scott that appellant had moved and subsequently failed to re-register with APD. Scott went to the Tahoe Drive address, confirmed that appellant had been evicted, and learned from neighbors that appellant had been gone for approximately two weeks. Scott also checked with APD to verify that appellant had not registered a new address. On January 13, 1999, appellant was arrested for failing to re-register. Appellant admitted he had not updated his registration and told Scott that his current residence was on Blue Crest.

Appellant was indicted on February 4, 1999 for the offense of failure to register as a sex offender. The indictment, in relevant part, reads as follows:

James Milligan, on or about the 12th day of January A.D. 1999, and before the presentment of this indictment, in the County of Travis, and State of Texas, did then and there intentionally and knowingly fail to register as a sex offender with the Austin Police Department to wit: defendant was convicted of Indecency with a Child on July 21, 1995, in Cause no. 219-80375-95 in the 219th District Court of Collin County, Texas, and Defendant changed his residence within the municipality of Austin, Texas, but failed to provide written notice to the Austin Police Department of that change within seven days of said change of address . . . .

Appellant waived his right to a jury and was convicted and sentenced to ten months in the state jail.

DISCUSSION

Appellant brings three points of error asserting two basic arguments. Appellant argues that (1) there is legally insufficient evidence to support his conviction based on the indictment and, (2) because an element of the offense occurred before the offense became a felony, appellant's conviction under the statute in effect at the time of his arrest was error.

Felony Conviction  

In his second and third points of error, appellant argues that the trial court lacked both jurisdiction and sufficient evidence to convict him of a felony under the law in effect on the date of his alleged failure to re-register. Appellant argues that because failure to register is a crime of omission, "the facts creating the duty [to] register, i.e. a reportable conviction, constitute an essential element of the offense." Appellant then reasons that he is subject to the prior law and can be prosecuted only for a misdemeanor because his underlying, reportable conviction occurred on July 21, 1995--before the effective date of the amendment raising the offense of failure to register to a felony. We disagree with appellant's assertion that the facts creating his duty constitute an essential element of the offense of failure to register.

Article 62.02 of the sex offender registration program places a duty to register on a "person who has a reportable conviction or adjudication." Tex. Code. Crim. Proc. Ann. art. 62.02. Article 62.01 specifies that a conviction for a violation of Texas Penal Code section 21.11 (indecency with a child) is a reportable conviction. See id. art. 62.01(5)(A). The registration program applies to reportable convictions occurring on or after September 1, 1970. See id. art. 62.11 (West Supp. 2000). An individual commits an offense under the sex offender registration program if the person is required to register and fails to comply with any requirement of the program. See id. art. 62.10. One such requirement mandates that when a person with a duty to register moves, that person must re-register with the local law enforcement authority not later than the seventh day after changing addresses. See id. art. 62.04 (West Supp. 2000). The Legislature amended the sex offender registration program, effective September 1, 1997, elevating the offense of failure to register from a misdemeanor to a state jail felony. ⁽¹⁾ Notes accompanying the amendments indicate that changes to article 62.10 (failure to comply with registration requirements) apply only to an offense committed on or after September 1, 1997 and state that an offense was committed before September 1, 1997 "if any element of the offense occurred before that date." Id. art. 62.10 historical and statutory notes.

The Texas Penal Code defines "element of offense" as: "(A) the forbidden conduct; (B) the required culpability; (C) any required result; and (D) the negation of any exception to the offense." Tex. Penal Code Ann. § 1.07(22) (West 1994). Appellant characterizes the forbidden conduct here as conduct by omission, meaning a "failure to act." See id. § 1.07(34) (West 1994). A failure to act is not an offense unless a defendant has a statutory duty to act. See Billingslea v. State, 780 S.W.2d 271, 276 (Tex. Crim. App. 1989); Sabine Consol., Inc. v. State, 816 S.W.2d 784, 787 (Tex. App.--Austin 1991, pet. ref'd).

As previously noted, article 62.02 placed appellant under a statutory duty to register because he had a reportable conviction. See Tex. Code Crim. Proc. Ann. art. 62.02. Thus, in order to prove that appellant had a duty to act, the State was required to prove that appellant had a reportable conviction. The record contains proof of appellant's reportable conviction on July 21, 1995. Appellant cites no authority for the proposition that the State was required to prove "the facts creating the duty." In this respect, the present case is similar to State v. Mason, 980 S.W.2d 635 (Tex. Crim. App. 1998). In Mason, the defendant-appellee argued that he could not be prosecuted for unlawful possession of a firearm by a felon because the date of his prior felony conviction was an element of the offense that occurred before the statute's effective date. ⁽²⁾ See Mason, 980 S.W.2d at 641. The court of criminal appeals rejected Mason's argument and ruled that he was subject to prosecution under the existing version of the statute, reasoning that the concept of "element of an offense" does not include every issue to which the State has the burden of proof. See id. The court went on to state that only Mason's status as a felon, not the date upon which the prior felony conviction occurred, could be viewed as an element of the crime. See id. at 640. Likewise, here the State was required to prove appellant's status as a sex offender, not that the sex offense or the conviction occurred after the registration statute's effective date. Appellant's attempt to distinguish Mason does not dissuade us that the reasoning in that case should apply to his complaint.

The indictment charged (A) appellant's status as a person with a reportable conviction, (B) the forbidden conduct of failing to register, and (C) his intentional and knowing culpability. ⁽³⁾ While appellant's status as a person with a reportable conviction was an element of the offense the State was required to prove, the facts underlying the sex offense are not elements of the offense of failure to register. Appellant's status as a convicted sex offender, his change of residence, and his failure to register his new address within seven days thereafter all occurred after the statute's effective date. Because no element of the offense occurred before the effective date of the amendment raising the offense of failure to register to a felony, appellant is subject to the amended version of the law.

Appellant's reliance on Perez v. State, 938 S.W.2d 761 (Tex. App.--Austin 1997, pet. ref'd), does not alter our conclusion. In Perez, this Court stated in dicta that the 1995 amendments applied only to reportable convictions occurring on or after September 1, 1995. See id. at 764. But Perez was not decided on that basis. Instead, the case was dismissed for want of jurisdiction, and Perez's argument was rejected because his conviction occurred after the effective date of the 1995 amendments. In addition, the amendments in Perez affected the nature of Perez's duty. The amendments here in no way affected appellant's duty. Finally, Perez predates the court of criminal appeals' decision in Mason. For all of the foregoing reasons, we find Perez inapposite. We overrule appellant's second and third points of error.

Sufficiency of Evidence   

In his first point of error, appellant argues that there is legally insufficient evidence to support his conviction for violation of article 62.04 as it is alleged in the indictment. In determining the legal sufficiency of the evidence to support a criminal conviction, we view all of the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994).

Articles 62.04 and 62.10 make it an offense for a convicted sex offender to move and fail to register his new address within seven days. See Tex. Code Crim. Proc. Ann. arts. 62.04(a), .10(a). Appellant contends that because January 12, 1999 is the only date alleged in the indictment, this date must refer to the date appellant changed his address. Based on this reading, appellant argues that the State was required to prove that appellant failed to register within seven days after January 12, 1999. Because undisputed evidence establishes that appellant was placed in custody on January 13, 1999, appellant argues that the State adduced no evidence that appellant intentionally and knowingly failed to register after January 12, 1999. We disagree with appellant's reading of the indictment.

We construe an indictment by reading the document as a whole and taking into account practical considerations. See Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990). The indictment states that "James Milligan, on or about the 12th day of January, A.D. 1999 . . . did then and there intentionally and knowingly fail to register . . . ." A plain reading of the indictment reflects that as of January 12, 1999, appellant had completed commission of the offense of failure to register, which necessarily includes both a change of address and a failure to report the new address within seven days. The evidence adduced at trial established that appellant was evicted from his Tahoe Drive address on or before December 31, 1998. Officer Scott testified that on January 11, 1999, neighbors at the Tahoe Drive address informed him that appellant had been gone for two weeks. Based on the evidence, a rational trier of fact could have found beyond a reasonable doubt that appellant failed to report his change of address as of January 12, 1999 and that he had changed his address more than seven days before that date. Viewing all the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support the trial court's finding of guilt. We overrule appellant's first point of error.

CONCLUSION Having overruled all of appellant's points of error, we affirm the trial court's judgment.   

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices Smith and Yeakel

Affirmed

Filed: April 20, 2000

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ent was rejected because his conviction occurred after the effective date of the 1995 amendments. In addition, the amendments in Perez affected the nature of Perez's duty. The amendments here in no way affected appellant's duty. Finally, Perez predates the court of criminal appeals' decision in Mason. For all of the foregoing reasons, we find Perez inapposite. We overrule appellant's second and third points of error.

Sufficiency of Evidence   

In his first point of error, appellant argues that there is legally insufficient evidence to support his conviction for violation of article 62.04 as it is alleged in the indictment. In determining the legal sufficiency of the evidence to support a criminal conviction, we view all of the evidence in the light most favorable to the verdict and ask whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); Staley v. State, 887 S.W.2d 885, 888 (Tex. Crim. App. 1994).

Articles 62.04 and 62.10 make it an offense for a convicted sex offender to move and fail to register his new address within seven days. See Tex. Code Crim. Proc. Ann. arts. 62.04(a), .10(a). Appellant contends that because January 12, 1999 is the only date alleged in the indictment, this date must refer to the date appellant changed his address. Based on this reading, appellant argues that the State was required to prove that appellant failed to register within seven days after January 12, 1999. Because undisputed evidence establishes that appellant was placed in custody on January 13, 1999, appellant argues that the State adduced no evidence that appellant intentionally and knowingly failed to register after January 12, 1999. We disagree with appellant's reading of the indictment.

We construe an indictment by reading the document as a whole and taking into account practical considerations. See Whetstone v. State, 786 S.W.2d 361, 364 (Tex. Crim. App. 1990). The indictment states that "James Milligan, on or about the 12th day of January, A.D. 1999 . . . did then and there intentionally and knowingly fail to register . . . ." A plain reading of the indictment reflects that as of January 12, 1999, appellant had completed commission of the offense of failure to register, which necessarily includes both a change of address and a failure to report the new address within seven days. The evidence adduced at trial established that appellant was evicted from his Tahoe Drive address on or before December 31, 1998. Officer Scott testified that on January 11, 1999, neighbors at the Tahoe Drive address informed him that appellant had been gone for two weeks. Based on the evidence, a rational trier of fact could h