Clister Ray Thomas v. State ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-1326-13
CLISTER RAY THOMAS, Appellant
v.
THE STATE OF TEXAS
ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SIXTH COURT OF APPEALS
‘ GREGG COUNTY '
HERVEY, J., delivered the opinion of the Court in which KELLER, P.J.,
MEYERS, KEASLER, and ALCALA, JJ., joined. COCHliAN, J., filed a dissenting opinion
in which PRICE, and JOHNSON, JJ., joined. WOMACK, J., concurred.
O P I N I O N
We granted the State Prosecuting Attorney’s petition for discretionary review to
determine whether the court of appeals erred when it held that there Was insufficient
evidence to sustain Appellant’s conviction for failure to register as a sex offender. After
reviewing the evidence in this case, we will reverse the judgment of the court of appeals
and remand this case to the court of appeals for consideration‘of whether Appellant was
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harmed by any error in the jury charge.
BACKGROUND
Appellant is required to register under Chapter 62 of the Texas Code of Criminal -
Procedure as a sex offender due-to a 1987 conviction for aggravated sexual assault.
Appellant registered his address, 1900 south Green Street, Apartment 210., with the
Longview Police Department, the local law-enforcement agency responsible for sex—
offender registration. That apartment was leased by the daughter of Appellant’s girlfriend,
but Appellant and his girlfriend stayed at the apartment “off and on.”
On April 3, 2012, Officer Jeff Hall ofthe Longview Police Department contacted
the property manager of the apartment complex to ask if she was aware that Appellant, a
registered sex offender, was living on the premises. The manager to1d Hall that she was
not aware ofthat, and she subsequently called the Longview Police Department to ask
officers to issue a criminal—trespass warning to Appellant. When the officers arrived, the
manager, Appellant’s girlfriend, and her daughter were present. At that time, the manager
told the daughter that she would be evicted if Appellant continued to reside with her and
her mother. Ultimately, the officers issued Appellant a criminal-trespass warning and
arrested him on other outstanding warrants. When Appellant was booked into the county
jail, he told officers that he lived at a different address, 1703 Houston Street.
On June 13, 2012, an officer contacted Detective Brownlee ofthe Longview
Police Department and told him that, when Appellant was arrested, he gave an address
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CODE CRIM. PROC. art. 62.055(a). Thus, the hypothetically correct jury charge in this case
was one that authorized a jury to convict Appellant only (1) if 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. See id.
B. A rationaljury could have found Appellant guilty offailing to register his new
address seven days before the intended change.
The resolution of this case in large part turns upon the answers to two questions.
First, what inference was the jury allowed to draw from what Appellant told Brownlee?
Second, was there sufficient record evidence for the jury to conclude that Appellant
“intended” to move to the Houston Street address? The answer to the first question is that,
with respect to the testimony of witnesses, the jury is the sole judge of the credibility and
weight to be attached thereto, including whether to believe all of a witnesses’ testimony,
portions of it, or none of it. The answer to the second question is “yes,” for the reasons we
describe below.
Although Appellant disputes whether he had moved to Houston Street, no one
disputes that Appellant told officers that he had moved there. Appellant argues that he
told officers that he moved only to protect his family, while the State argues that the jury
had the right to believe Appellant’s testimony that, as of June 25, he intended to, and did,
live on Houston Street. We agree with the State that the jury, as the factfinder, was
entitled toibelieve Brownlee’s testimony that Appellant told him that he lived on Houston
Street as of June 25 but to disregard other, contrary testimony, including Appellant’s
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testimony that he was lying about moving to protect his family. Having decided that
Brownlee’s testimony was credible, the jury could have further reasonably concluded that
“Appellant was guilty of the charged crime because he never reported his intended change
in address in person and at least seven days before his intended move on June 25. The
latest date on which Appellant could have complied with the law to report his intended
change in address would have been June 18, but Appellant never appeared in person to
report his intended change of address.
We now address the question of whether the evidence was legally sufficient to
convict Appellant despite the fact that the jury seemingly concluded that Appellant was
guilty of the crime, but not guilty of committing it on the day alleged in the indictment.
The use of the “on or about” language in the indictment was sufficient to put Appellant
on notice of the State’s allegation and to allow Appellant to prepare a defense, which he
did. In addition, the evidence adduced at trial established that the offense date was before
the presentment of the indictment and before the expiration of the statute of limitations in
conformance with previous decisions from this Court. Thus, there was not a variance
between the allegations in the indictment and the evidence adduced at trial with respect to
the date of the commission of the offense because there was sufficient evidence for the
jury to find that “on or about” the date alleged in the indictment, Appellant committed the“ .
alleged crime. Consequently, we hold that, when the evidence is vieWed in the light most
favorable to the verdict, the evidence was legally sufficient to support Appellant’s
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conviction. As a result, we reverse the judgment ofthe court of appeals.
THE JURY CHARGE
Although we hold that there was sufficient evidence adduced at Appellant’s trial to
sustain his conviction, we remand this case to the court of appeals to address the jury
charge. As the court of appeals indicated in its opinion, the application paragraph of the
charge'in this case allowed the jury to convict Appellant only if“the defendant changed
his address for more than seven days and intentionally or knowingly failed to report in
person to the Lon‘gview Police Department to register the defendant’s new address.”
Thomas, 411 S.W.3d at 689. But the jury should not have been instructed to consider this
manner and means because it was not included in the indictment. _On remand, the court of
appeals should review the jury charge and determine in the first instance whether
Appellant was harmed. See Wooley v. State, 273 S.W.3d 260, 271—72 (Tex. Crim. App.
2008).
CONCLUSION
There was sufficient evidence to sustain Appellant’s conviction for failure to
report a change in his address under Article 62.055(a) of the Texas Code of Criminal
Procedure as alleged in the indictment. However, we remand this case to the court of
appeals to decide whether Appellant was harmed by any error in the jury charge. As a
result, we reverse the judgment ofthe court of appeals and remand this case for further
' proCeedings consistent with this opinion.
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‘ Hervey, J.
Delivered: September 24, 2014
Publish " \
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different than his sex-offender registration address. On June 25, Brownlee went. to 1900
South Green to see if Appellant was still living there, but he was informed by the manager
that Appellant no longer lived on the premises. Without going to the apartment located on
South Green, Brownlee went to 1703 Houston Street looking for'Appellant and found
him. Once the detective made contact with Appellant, he asked him where he was staying,
and Appellant responded that he was staying at 1703 Houston Street. Because the address
Appellant gave Brownlee was different from Appellant’s sex—offender registration
address, Brownlee asked Appellant if he had updated his sex-offender registration
address. Appellant stated that he had updated it by calling the Longview Police
Department, but Brownlee testified that “it is impossible ,to change your address by
calling in.” In addition, the detective’s records indicated that Appellant was still
registered at the South Green address. Consequently, Brownlee arrested Appellant for
failure to comply with sex-offender registration requirements.
All three of Appellant’s witnesses, including Appellant, testified that, even after
Appellant received the criminal trespass warning, he continued to reside at the South
Green address through October 2012. Appellant also testified that he began lying and
giving police officers the'Houston Street address when he was arrested on April 3 to
protect his family because he did not want his girlfriend’s daughter to be evicted from her
apartment for allowing him to continue staying at the apartment.
Appellant was charged, and convicted of, failure to comply with sex-offender
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registration requirements. He was sentenced to two years’ confinement. On appeal, the
Texarkana Court of Appeals reversed the judgment of the trial court and rendered an
acquittal after it held that there was a fatal variance between the indictment and the proof
adduced at trial. See Thomas v. State, 411 S.W.3d 685, 690—91 (Tex. App.——Texarkana
2013, pet. ref’d). The court found that the State failed to prove, per the indictment, that
Appellant intended to move from the South Green address to the Houston Street address
and failed to report his anticipated new address at least seven days before moving. Id. In
its analysis, the court noted that the State “presented no evidence that [Appellant]
intended to change his address at least seven days before he was required to leave the
apartment.” Id. at 693. The court of appeals went on to say in reference to the criminal-
trespass warning that, “if anything, the evidence proves that [Appellant] had no
eitpectation or intention to change his address . . . .” Id. Thus, it appears the court of
appeals did not reach the second issue of whether Appellant failed to report his new
address in person at least seven days before his anticipated move date because it held that
there was no evidence to prove the threshold issue that Appellant intended to move.
We granted the State Prosecuting Attorney’s single ground for review asking
Did the court of appeals err to hold that the evidence was insufficient to
prove that Appellant failed to register his intent to change his sex-offender
registration address seven days before the intended change when evidence
of Appellant’s actual residence change necessarily establishes his
underlying or subsumed intended change date?
ARGUMENTS OF THE PARTIES
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The State argues that the proper day from which to calculate the requisite seven-
day period when Appellant was required to notify the local law-enforcement authority
about his intended move was June 25, the day Appellant was arrested at the Houston
Street address, not April 3,.the day Appellant was arrested at the apartment complex and
given a criminal-trespass warning: In addition, the State contends that, although that
would mean that the date the crime was committed according to the indictment was
different from the date ,proven at trial, that is of no consequence because caselaw from '
this Court allows the State to prove a date different than the one alleged in the indictment
so long as it was before the indictment was returned and the date was within the
limitations period. To support its argument regarding the “on or about” language in the
indictment, the State cites Sledge v. State, 953 S.W.2d 253 (Tex; Crim. App. 1997).
The State contends that the evidence was legally sufficient because the jury could
have found that Appellant intended to move to Houston Street on June 25 when Appellant
told Brownlee that he lived on Houston Street, but that intent was not followed up with
the requisite in-person notification. Moreover, the State argues, if the jury believed that
Appellant intended to move to Houston Street on June 25, then it reasonably could have
inferred that Appellant had an obligation to report his intended change in address no later
than June lS—seven days before his intended move—which he failed to fulfill.
Appellant responds that the State’s assumption that Appellant actually moved to
the Houston Street address is not supported by the record. Specifically, Appellant asserts
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that Appellant and his witnes'ses testified that Appellant lived “at the South Green Street
apartment even after the criminal trespass warning and well past the date of the
indictment.” Finally, Appellant cites Johnson v. State, 364 S.W.3d 292 (Tex. Crim. App.
2012), for the proposition that there was a fatal variance between the allegations in the
charging instrument and the evidence adduced at trial.
DISCUSSION
To determine if there is sufficient evidence to support a criminal conviction, a
reviewing court must ask “whether, after viewing the evidence in the light most favorable
" to the prosecution, any rational trier of fact could have found the essential elements ofthe
crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979)
(emphasis in original); see Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App.
2014). This standard of review allows a jury to resolve fact issues and to draw reasonable
inferences from the evidence. Jackson, 443 U.S. at 319; see Lucio v. State, 351 S.W.3d
878, 894 (Tex. Crim. App. 2011). With respect to testimony of witnesses, the jury is the
sole judge of the credibility and weight to be attached thereto, and when the record
supports conflicting inferences, we presume that the jury resolved the conflicts in favor of
the verdict, and we defer to that determination. See Jackson, 443 U.S. at 319. “Each fact
need not point directly and independently to the guilt of the appellant, as long as the
cumulative force of all the incriminating circumstances is sufficient to support the
conviction.” Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). When assaying
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the record for evidentiary sufficiency, we consider all ofthe admitted evidence, even_ifit
I was improperly admitted. Id.; see Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App.
2011).
To determine whether the State has met its burden under Jackson to prove a
defendant guilty beyond a reasonable doubt, we compare the elements ofthe crime as
defined by the hypothetically correctjury charge to the evidence adduced at trial. See
Malik v. State, 953 S.W.Zd 234, 240 (Tex. Crim. App. 1997). A hypothetically correct
jury charge is 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. The “law as authorized by the indictment” consists of the
statutory elements ofthe offense and those elements as modified by the indictment. See
Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). For example, although the
State may be permitted to plead multiple statutory manner and means in the charging
instrument, it could choose to plead only one. However, in so doing, the State is required
to prove that the defendant committed the alleged crime using that specific statutory
manner and \means, and it may not rely on any other statutory manner and means of
committing the crime it did not plead in the charging instrument. Cada v. State, 334
S.W.3d 766, 773—74 (Tex. Crim.-App. 2011) (footnote omitted) (“[l]fthe . . . offense sets
out various statutory alternatives for the distinct elements of the crime, the jury charge
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may contain only those alternative elements that are actually alleged in the indictment.
And the sufficiency ofthe evidence is measured by the specific alternative elements that
the State has alleged in the indictment”).
There are two types of variances in an evidentiary—sufficiency analysis: material
variances and immaterial variances. Immaterial variances do not affect the validity ofa
criminal conviction, and we have held that a hypothetically correctjury charge need not
incorporate allegations that would give rise to only immaterial variances. See Geiek v.
State, 349 S.W.3d 542, 545 (Tex. Crim. App. 2011); see, e.g., Gollihar v. State, 46
S.W.3d 243, 256 (Tex. Crim. App, 2001) (holding that the fact that the indictment alleged
the incorrect serial number for a stolen Go Kart was immaterial and did not warrant
reversal of the conviction because the serial number was not a statutory element and the
appellant was not prejudiced by use of the incorrect serial number). However, a material
variance renders a conviction infirm, and the only remedy is to render an acquittal. See
Cada, 334 S.W.3d at 776 (reversing the judgment of the court of appeals and rendering an
acquittal when there was a material variance between the indictment and the proof
adduced at trial); Curry, 30 S.W.3d at 404 (“If the evidence is insufficient to support [the]
conviction, the remedy is acquittal”).
Article 21.02 ofthe Texas Code of CriminalProcedure sets out the requisites for
an indictment. TEX. CODE CRIM. PROC. art. 21.02. The sixth requirement states that the
alleged time that the offense was committed must‘be “anterior to the presentment ofthe .
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indictment, and not so remote that the prosecution of the offense is barred by limitation.”
Id. In Sledge, this Court addressed the “on or about” language used in many charging
instruments and concluded that, so long as the date on which the offense is proven to have
occurred c0mplies with Article 21.02, a conviction is not rendered infirm merely because
the State proved that the offense occurred on another day. See Sledge, 953 S.W.2d at
255—56; see also Thomas‘v. State, 753 S.W.2d 688, 693 (Tex. Crim. App. 1988). This is
because such a discrepancy is not a fatal variance. See Thomas, 753 S.W.2d at 693. It is
not a variance at all. Rather, when the State uses “on or about” language and proves that
the offense was committed on a date different from that alleged in the indictment, but ‘
before presentment of the indictment and expiration of the applicable statute of
limitations, the offense took place “on or about” the date alleged in the indictment.
APPLICATION
A. The hypothetically correctjury charge in this case.
Under Article 62.055 ofthe Texas Code of Criminal Procedure, a hypothetically
correct jury charge would require a jury to find Appellant guilty if (1) he was required to
register as a sex offender under Chapter 62 of the Texas Code of Criminal Procedure, and
(2) he failed to comply with Article 62.055(a) ofthe Texas Code of Criminal Procedure.
See TEX. CODE CRIM. PROC. art. 62.055(a). In addition, under our decision in Young v.
State, a hypothetically correct-jury charge could allege both manners and means
authorized by Article 62.055(a) of the Texas Code of Criminal Procedure: (1) failureto
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report a change of address “not later than the seventh day before the intended change,” or
(2) failing to report “not later than the . . . seventh day after changing the address.” See
Young v. State, 341 S.W.3d 417, 427 (Tex. Crim. App. 2011) (“Reporting a change of
address ‘not later than the seventh day before the intended change’ and ‘not later than
the . . . seventh day after changing the address’ are . . . alternative manners and means of
committing a single offense”); see also TEX. CODE CRIM. PROC. art. 62.055(a). Thus, a
hypothetically correct jury chargecould authorize a jury to convict Appellant 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, or Appellant did nOt report his change
of address earlier than the seventh day after changing addresses.
In this case, however, the indictment was not as broad as authorized by law
because the State alleged a specific manner and means.1 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 than the seventh day before the intended change.”2 TEX.
1The relevant portion of the indictment states that Appellant “intentionally or knowingly
fail[ed] to report . . . and provide [his] anticipated move date and the new address anticipated not
later than the seventh day before the anticipated move date as required by the Texas Code of
Criminal Procedure[.]”
zHowever, the application paragraph of the jury charge authorized the jury to convict
Appellant only of committing the offense by using the manner and means that was omitted from
the indictment. Thus, the jury charge in this case appears erroneous. See Cada, 334 S.W.3d 766at 773—74.