Don Wayne Basey v. State ( 2005 )

Opinion issued February 17, 2005

In The

Court of Appeals

For The

First District of Texas

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  NO. 01-03-01014-CR

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DON WAYNE BASEY, Appellant

V.

THE STATE OF TEXAS, Appellee

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On Appeal from the 21st District Court

Washington County, Texas

Trial Court Cause No. 13,808

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MEMORANDUM OPINION

          Don Basey, appellant, pleaded not guilty to failure to comply with sex offender registration. The jury found him guilty and the trial court assessed punishment at three-years’ confinement. In two points of error, appellant contends that the trial court erred in (1) denying appellant’s motion to set aside the indictment and (2) denying appellant’s requests and overruling his objections to the jury charge. We affirm.    

                                                            BACKGROUND  

          On June 22, 1989, appellant was convicted of the felony offense of indecency with a child in Travis County. Appellant then registered as a sex offender at the address of 12314 Hickory Street, Burton, Washington County, Texas. On or about January 13, 2003, appellant moved and “lived at” or “resided at” 817 Gay Hill Street, Brenham, Washington County. After he made this move, appellant did not register as a sex offender. A person commits a third-degree felony if the person is required to register and fails to comply with any requirement of the sex offender registration program (“SORP”) statute. Tex. Code Crim. Proc. Ann. art. 62.10(a) (Vernon Supp. 2004-2005). Appellant was indicted for failure to comply with sex offender registration on February 13, 2003.

          Prior to trial, appellant filed a motion to set aside the indictment. In his motion, appellant argued that the indictment was defective because the indictment failed to allege all the essential acts or omissions by the defendant necessary to constitute a violation under the SORP statute. The trial court denied appellant’s motion. This appeal followed.   

Motion to Set Aside the Indictment

          In his first point of error, appellant asserts that the trial court erred in denying appellant’s motion to set aside the indictment. Specifically, appellant contends the indictment fails (1) to state sufficient facts to constitute an offense by using an indictment that leaves it unclear as to whether the alleged date to notify law enforcement occurred within seven days before appellant allegedly changed his address or within seven days after he allegedly changed his address; and (2) to allege specific facts sufficient to give appellant notice of the charged offense.

          We review the trial court’s ruling on a motion to set aside the indictment for an abuse of discretion. Thomas v. State, 621 S.W.2d 158, 163 (Tex. Crim. App. 1981) (op. on reh’g); State v. Goldsberry, 14 S.W.3d 770, 772 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). A trial court abuses its discretion if it acts without reference to guiding rules and principles, or acts arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex. Crim. App. 1993).

          An indictment must convey sufficient notice to allow the accused to prepare his defense. See Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989) (everything that the State must prove should be in the indictment); State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998). The Texas Code of Criminal Procedure provides that “[t]he certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense.” Tex. Code Crim. Proc. Ann. art. 21.04 (Vernon 1989). Article 21.11 of the Texas Code of Criminal Procedure provides, in pertinent part, that

[a]n indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment . . . .

Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 1989).

          Thus, an indictment must allege, in plain and intelligible language, all the facts and circumstances necessary to establish all the material elements of the offense charged. See Tex. Code Crim. Proc. Ann. art. 21.02(7) (Vernon 1989) (requiring that “[t]he offense must be set forth in plain and intelligible words”); Garcia v. State, 981 S.W.2d 683, 685 (Tex. Crim. App. 1998) (holding that an indictment need not specify the precise date when the charged offense occurred because time usually is not a material element of an offense).

          Generally, an indictment that tracks the statutory language is legally sufficient, and it need not allege facts that are merely evidentiary in nature. Bynum v. State, 767 S.W.2d 769, 778 (Tex. Crim. App. 1989).

          The State’s indictment alleged that

Don Wayne Basey, defendant herein, . . . did then and there, while being a person required to register with the local law enforcement authority in the municipality where the defendant resided or intended to reside for more than seven days, to wit: Brenham County, Texas, because of a reportable conviction for Indecency With a Child, intentionally, knowingly, or recklessly fail to notify law enforcement of change of address within seven days as required by law . . . .

(emphasis added). Article 62.04 of the SORP statute, in relevant part, states

(a) If a person required to register 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. . . If a person required to register changes address, the person shall, not later than the seventh day after changing the address, report in person to the local law enforcement authority . . . .

Tex. Code Crim. Proc. Ann. art. 62.04(a) (Vernon Supp. 2004-2005). Appellant argues that “[n]owhere does the applicable statute state that an accused must notify law enforcement ‘within seven days’ of a change of address . . . .” Appellant, in his brief, outlines a number of hypothetical scenarios that the jury could possibly have considered in order to convict appellant on the indictment used at trial, but that would not have violated the statute.

          The language in the indictment regarding a statutory duty to register is derived from the SORP statute. See Tex. Code Crim. Proc. Ann. art. 62.02(a) (Vernon Supp. 2004-2005). The SORP statute prescribes a sex offender’s duty to “satisfy the requirements of this subsection not later than the seventh day after the person’s arrival in the municipality or county” where he intends to reside or resides for more than seven days. Tex. Code Crim. Proc. Ann. art. 62.02(a) (Vernon Supp. 2004-2005). Because the indictment stated the source of appellant’s duty–the fact that he is a sex offender–and the timing within which he had to register–not later than the seventh day after changing an address–the indictment gives sufficient notice of the offense for which appellant was charged. Providing more detail about the manner in which one should register would involve alleging facts that are merely evidentiary. See Mays v. State, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998) (The indictment “by carefully tracking the statutory definition of a manner or means of commission [of the offense], provided ample notice to appellee.”); see also Moreno v. State, 721 S.W.2d 295, 300 (Tex. Crim. App. 1986) (holding that an indictment was not defective for failing to allege specific acts of victim, a peace officer, which constituted his acting in discharge of his duties). The trial court did not abuse its discretion in denying appellant’s motion to set aside the indictment.

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

Jury Charge  

          In his second point of error, appellant asserts that the trial court erred in denying appellant’s requests and overruling his objections to the jury charge. Specifically, appellant contends that the trial court erred in denying his request that the jury charge (1) be clarified to state that the defendant has “a 14-day window rather than a seven-day window prior to the intended move” and (2) include a jury instruction that the terms “change of address,” “intent to change address,” or “change of residence” are not defined by the SORP statute.

          When reviewing charge errors, an appellate court must undertake a two-step review: first, we must determine whether error actually exists in the charge; second, if we find error, we must determine whether sufficient harm resulted from the error to require reversal. See Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex. Crim. App. 1994).

14-day Window

          Here, the jury charge, tracking the language of the indictment, referred to appellant’s failure “to notify law enforcement of a change of address within seven days as required by law.” The SORP statute pertaining to a change of address requires a sex offender to register not later than the seventh day before the intended change of address to his primary registration authority as well as to register not later than the seventh day after changing the address to the local law enforcement authority in the municipality or county in which his new residence is located. Tex. Code Crim. Proc. Ann. art. 62.04(a) (Vernon Supp. 2004-2005) (emphasis added). Therefore, the charge does not describe a “seven day [sic] window” as appellant claims, but rather the last deadline by which appellant had to register in his new municipality of residence. The statute does not require that a person must fail to register in both locations–the place the person formerly resided and the place he intends to reside in–before an offense has been committed; on the contrary, “[a] person commits an offense if the person is required to register and fails to comply with any requirement of this chapter.” Tex. Code Crim. Proc. Ann. art. 62.10(a) (Vernon Supp. 2004-2005) (emphasis added). The trial court did not err in refusing to grant appellant’s request for a “14-day window.”

Lack of Statutory Definitions

          Chapter 62.01 of the Texas Code of Criminal Procedure governs the SORP statute. Article 62.04 provides in pertinent part, If a person required to register 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 and the officer 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 seventh day after changing the address, 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. Ann. art. 62.04(a) (Vernon Supp. 2004-2005).

          Here, there is no error in denying appellant’s requested jury instruction. When words are not defined in a statute, they are ordinarily given their plain meaning unless the statute clearly shows that they were used in some other sense. Daniels v. State, 754 S.W.2d 214, 219 (Tex. Crim. App. 1988). If the meaning of the statutory text should have been plain to the legislators who voted on it, then we ordinarily give effect to that plain meaning. See Smith v. State, 789 S.W.2d 590, 592 (Tex. Crim. App. 1990). Statutory words are to be “read in context and construed according to the rules of grammar and common usage.” Tex. Gov’t Code Ann. § 311.011(a) (Vernon 1998). Because the statute does not clearly show that the phrases “change of address” or “change in residence” were used in a sense different from their plain meaning, a jury should give the terms their plain meaning. A jury instruction telling jurors to use the plain meaning of these terms was not required. Therefore, the trial court did not err in denying appellant’s requests and overruling his objections to the jury charge.

          Accordingly, we overrule appellant’s second point of error.

CONCLUSION

          We affirm the judgment of the trial court.                                                                                                                                          

                                                             Sherry Radack

                                                             Chief Justice  

Panel consists of Chief Justice Radack and Justices Higley and Bland.                                                                                                                                                      

Do not publish. Tex R. App. P. 47.2(b).