Andrew Cude v. State ( 2007 )

                                                NO. 12-06-00263-CR

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

ANDREW CUDE,     §                      APPEAL FROM THE 294TH

APPELLANT

V.        §                      JUDICIAL DISTRICT COURT OF

THE STATE OF TEXAS,

APPELLEE   §                      VAN ZANDT COUNTY, TEXAS

MEMORANDUM OPINION

            Andrew Cude appeals his conviction for failure to comply with registration requirements, for which he was sentenced to confinement for twenty months.  In three issues, Appellant contends that the evidence is neither legally nor factually sufficient to support his conviction and that the trial court erred in admitting into evidence a document containing hearsay.  We affirm.

Background

            On April 7, 2003 in Van Zandt County, Appellant was found to have committed, as a juvenile, two acts of indecency with a child.  Appellant was ordered to register as a sex offender with such registration to remain nonpublic.  Van Zandt County Juvenile Probation Officer Larry Willis discussed the sex offender registration requirements with Appellant prior to Appellant’s registering as a sex offender in Van Zandt County.

            Appellant later relocated to Smith County and, in July 2005, registered as a sex offender with the Tyler Police Department.  At that time, Appellant met with Tyler Police Department Investigator Richard Stratton, who discussed the sex offender registration requirements with Appellant.  Stratton testified that he told Appellant that if he planned to move, he needed to contact Stratton seven days beforehand.  Stratton further testified that he told Appellant that if he moved outside of the jurisdiction, he would be required to register in the new jurisdiction within seven days.

            In October 2005, Appellant moved into a house in Van Zandt County with his girlfriend and her mother.  On November 21, 2005, Appellant witnessed an assault.  Edgewood Police Department Assistant Chief of Police Henry Askew interviewed Appellant.  During the interview, Askew obtained Appellant’s address, which he recognized was located in Van Zandt County.  Upon his return to Van Zandt County, Appellant had not re-registered as a sex offender.

            Appellant was charged by indictment with failure to comply with registration requirements.¹  At trial, a jury found Appellant guilty as charged and assessed his punishment at confinement for twenty months and a two thousand dollar fine.  The trial court sentenced Appellant accordingly, and this appeal followed.

Evidentiary Sufficiency

            In his first and second issues, Appellant argues that the evidence is neither legally nor factually sufficient to support the trial court’s judgment. Specifically, Appellant argues that there is insufficient evidence that (1) he intentionally, knowingly, or recklessly failed to register with Van Zandt County and (2) that he had made Van Zandt County his permanent residence. 

Legal Sufficiency

            Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. Jackson v. Virginia, 443 U.S. 307, 315-16, 99 S. Ct. 2781, 2786-87, 61 L. Ed. 2d 560 (1979); Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d). The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson v.  State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).  The evidence is examined in the light most favorable to the jury’s verdict.  Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.  A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.  See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).

            The sufficiency of the evidence is measured against the elements of the offense as defined by a hypothetically correct jury charge.  Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).  Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant was tried.”  Id.

            A person commits an offense if he is required to register as a sex offender and fails to comply  with any of the requirements of Texas Code of Criminal Procedure, article 62.  See Tex. Code Crim. Proc. Ann. art. 62.102. A person required to register must, within seven days of changing his address, register with the local law enforcement authority in the municipality or county in which the person’s new residence is located. See Tex. Code Crim. Proc. Ann. art. 62.055(a) (Vernon 2006).

            In the case at hand, the record reflects that Appellant had previously registered in both Van Zandt and Smith Counties.  It therefore follows that Appellant was aware that he was required to register as a sex offender.  A juvenile probation officer from Van Zandt County discussed the registration requirements with Appellant prior to Appellant’s initially registering in Van Zandt County.  Further, Stratton discussed the registration requirements with Appellant in July 2005, including the requirement that Appellant re-register if he were to move. Jordana Kinzie, Appellant’s girlfriend’s mother, testified that Appellant moved into her home located at 299 FM 1504, Wills Point, Texas.  Appellant provided a statement to the Edgewood Police Department in which he listed Kinzie’s home as his address.  Moreover, Askew testified that the Wills Point address was located in Van Zandt County, Texas.

            Examining the aforementioned evidence in the light most favorable to the jury’s verdict, we conclude that the jury could have determined beyond a reasonable doubt that Appellant  committed the offense of failure to comply with registration requirements.  Thus, we hold that the evidence was legally sufficient to support the trial court’s judgment.  Appellant’s second issue is overruled.

Factual Sufficiency

            Turning to Appellant’s contention that the evidence is factually insufficient to support the trial court’s judgment, we must first assume that the evidence is legally sufficient under the Jackson standard.  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996).  We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact.  See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the

weight and credibility of witness testimony.  Santellan, 939 S.W.2d at 164.  Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d).  Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (Evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict.).

            In the instant case, Appellant argues that Kinzie’s testimony was indefinite.  And though Appellant admits that Kinzie testified that he moved in permanently to the Wills Point address on or about October 2005, he urges us to consider that Kinzie’s statements were equivocal.  Specifically, Appellant notes that Kinzie stated that Appellant “kind of” stayed at her house permanently and that Appellant had only moved in “some” of his belongings. 

            Nonetheless, we must consider this evidence in the context of the record as a whole.  As such, we conclude that the jury could have reasonably found that Appellant moved into the Wills Point address permanently in October 2005.  See Wesbrook, 29 S.W.3d 103, 111 (Tex. Crim. App. 2000) (generally jury determines weight to give testimony of a witness and resolution of any conflicts in the evidence); Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986) (jury may believe all, some, or none of a witness’s testimony).

            Our review of the entirety of the record, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the trial court’s judgment.  Appellant’s first issue is overruled.

Hearsay Evidence

            In his third issue, Appellant argues that the trial court erred in admitting a document signed by Appellant entitled Pre-Release Notification Form Texas Sex Offender Registration Program because it contained inadmissible hearsay.

Waiver

            To preserve a complaint for appellate review, a party must present the complaint to the trial court by a timely request, objection, or motion that states the grounds for the ruling that the complaining party seeks from the trial court with sufficient specificity to make the trial court aware of the complaint.  See Tex. R. App. P. 33.1.  Rule 33.1 ensures that the trial court had the opportunity to rule on the matter for which a party later seeks appellate review. See In re East Tex. Med. Ctr. Athens, 154 S.W.3d 933, 936 (Tex. App.–Tyler 2005, orig. proceeding). For an objection to meet the “sufficient specificity” requirement, the party must “let the trial judge know what he wants, why he thinks himself entitled to it, and  . . .  do so clearly enough for the judge to understand him at a time when the trial court is in a proper position to do something about it.”  Lankston v. State, 827 S.W.2d 907, 909 (Tex. Crim. App. 1992).

            During Stratton’s testimony, the State offered State’s Exhibit 5, the prerelease notification form signed by Appellant. Appellant conducted a voir dire examination of Stratton and at the conclusion thereof, made the following objection:

[Appellant’s Counsel]:  Your Honor, we have several objections.  No. 1, that it’s a copy.  The State has somewhere in its possession, I would hope, the original.  Second one is, this witness has admitted that it’s a copy and he cannot testify as to whether this is a true and accurate copy of the original.  The other objection is that it’s hearsay, and the other objection is that whether–the State can’t offer a business record of another agency into evidence.  It may be a business record, but it’s a copy of something that we don’t know what it is a copy of, and this witness can’t testify to anything about this document or its authenticity.  It is merely a copy of something.

The trial court sustained Appellant’s objection.

            Canton Police Department Chief Michael Wayne Echols testified next on the State’s behalf.  During Echols’s testimony, the State offered State’s Exhibit 6, the same prerelease notification form signed by Appellant it had previously offered as State’s Exhibit 5.  Echols testified that the document (1) was made by a person with personal knowledge of the contents of the document, (2) was made at or near the time that the events took place, (3) was made in the regular course of business, and (4) was maintained in the regular course of business.  Appellant conducted a voir dire examination of Echols.  In the midst of his voir dire examination, Appellant made the following objection:  “Again, your Honor, I am going to object to State’s No. 6 which . . . ”  But instead of completing his objection, Appellant resumed his voir dire examination.  When Appellant completed his voir dire examination, he stated, “Same objection, your Honor.”  The trial court overruled Appellant’s objection, and the following exchange occurred:

[Appellant’s Counsel]:  Your–objection again, your Honor.  He said he cannot connect this to anyone and you’re–

                [Trial Court]:  I believe he testified that the document was in reference to [Appellant].

[Appellant’s Counsel]:  He cannot testify to this document.  I just asked him that.  He says he cannot testify to this to any living person that it belongs to.  The whole purpose of this is to have a thumb print, which there is nothing on there to identify him.  The witness stated he could not identify this to any living document–any living person, and the Court’s going to allow this?

The trial court again overruled Appellant’s objection

            With two exceptions not applicable here, a party is required to continue to object each time inadmissible evidence is offered.  See Martinez v. State, 98 S.W.3d 189, 193 (Tex. Crim. App. 2003).  Here, Appellant’s objection to Exhibit 6 did not adequately apprise the trial court of his complaint that the document contained hearsay.  While Appellant objected to Exhibit 5 during Stratton’s testimony on hearsay grounds, his argument in that regard was that the document was not created by the Tyler Police Department.  To the contrary, Exhibit 6 was offered during Echols’s testimony and was a record of the Canton Police Department.  Appellant’s objection concerning Exhibit 6 was that the document could not be conclusively linked to Appellant because it did not contain Appellant’s thumb print.  Appellant made no objection that Exhibit 6 contained inadmissible hearsay. Therefore, the error, if any, of which Appellant now complains was waived.  See Tex. R. App. P. 33.1.  Appellant’s third issue is overruled.

Disposition

            Having overruled Appellant’s first, second, and third issues, we affirm the trial court’s judgment.

                                                                                                    BRIAN HOYLE   

                                                                                                               Justice

Opinion delivered April 11, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(DO NOT PUBLISH)

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¹ See Tex. Code Crim. Proc. Ann. art. 62.102 (Vernon 2006).