Mickey Boswell v. State ( 2015 )


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  •             NUMBERS 13-11-00785-CR; 13-11-00786-CR;
    & 13-11-00791-CR
    COURT OF APPEALS
    THIRTEENTH DISTRICT OF TEXAS
    CORPUS CHRISTI - EDINBURG
    MICKEY BOSWELL,                                                           Appellant,
    v.
    THE STATE OF TEXAS,                                                       Appellee.
    On appeal from the 319th District Court
    of Nueces County, Texas.
    MEMORANDUM OPINION
    Before Justices Benavides, Perkes, and Longoria
    Memorandum Opinion by Justice Perkes
    Appellant Mickey Boswell appeals his convictions in three separate causes. In
    cause number 13-11-00786-CR, a jury convicted appellant for failing to register as a sex
    offender, enhanced to a first degree felony, and the trial court sentenced appellant to
    twenty years’ imprisonment. On the basis of his indictment in that cause, the State
    moved to revoke community supervision in:                      (1) cause number 13-11-00791-CR,
    involving three counts of failure to register as a sex offender, enhanced to second degree
    felonies; and (2) cause number 13-11-00785-CR, involving charges of theft and
    unauthorized use of a motor vehicle, enhanced to first and second degree felonies,
    respectively. 1     The trial court found the alleged violations to be true, adjudicated
    appellant guilty, and sentenced him to fifty years’ imprisonment for theft, twenty years for
    the unauthorized use of a mother vehicle, and twenty years for each failure to register
    count. The trial court ordered all sentences to run concurrently.
    By seven issues,2 appellant argues: (1) the receipt of other evidence by the jury
    warranted mistrial; (2) the trial court committed reversible jury charge error; (3) application
    of the quarterly registration statute constituted an ex post facto violation; (4) the theft
    conviction was not supported by evidence; (5) his convictions for theft and unauthorized
    use of a motor vehicle constituted double jeopardy; (6) his sentence for the theft
    conviction was improperly enhanced; and (7) his convictions for three counts of violating
    the registration requirements were improper. We affirm.
    1 Appellate Cause No. 13-11-00785-CR is the appeal from trial cause number 09-CR-1082-G.
    Appellate Cause No. 13-11-00786-CR is the appeal from trial cause number 10-CR-4228-G. Appellate
    Cause No. 13-11-00791-CR is the appeal from trial cause number 09-CR-1006-G. The State’s motions to
    revoke were carried with the case in trial cause number 10-CR-4228-G. Our analysis allows us to consider
    them in a consolidated opinion.
    2  The State asserts that many issues presented by appellant are multifarious. We agree. A
    multifarious issue “is one that embraces more than one specific ground.” Stults v. State, 
    23 S.W.3d 198
    ,
    205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). “By combining more than one contention in a single
    point of error, an appellant risks denial on the ground that the issue is multifarious and presents nothing for
    review.” Prihoda v. State, 
    352 S.W.3d 796
    , 801 (Tex. App.—San Antonio 2011, pet. ref'd). We have
    discretion to “refuse to review a multifarious issue or we may elect to consider the issue if we are able to
    determine, with reasonable certainty, the alleged error about which the complaint is made.” Gilley v. State,
    
    418 S.W.3d 114
    , 119 n. 19 (Tex. Crim. App. 2014) (quoting 
    Prihoda, 352 S.W.3d at 801
    ). To the extent
    we can discern an issue in the brief, we will address the issue in the interest of justice.
    2
    I. BACKGROUND
    In 1994, appellant was convicted of two counts of indecency with a child by contact,
    second degree felonies.      See TEX. PENAL CODE ANN. § 21.11(a)(1) (West, Westlaw
    through Chapter 46 2015 R.S.). As a result of his conviction, appellant was required to
    register as a sex offender. In 2004, appellant was convicted for failure to comply with
    sex offender registration requirements and was sentenced to two years’ imprisonment.
    In 2009, appellant was indicted for three counts of violating the sex offender
    registration requirements. See TEX. CODE CRIM. PROC. ANN. art. 62.055, 62.057 (West,
    Westlaw through Chapter 46 2015 R.S.). That same year, appellant was also indicted
    for felony theft and unauthorized use of a motor vehicle. See TEX. PENAL CODE ANN. §§
    31.03, 31.07. In each of the 2009 causes, appellant pleaded guilty pursuant to a plea
    bargain agreement, and waived his right to appeal. The trial court deferred adjudication
    in those cases and placed appellant on community supervision for concurrent periods of
    ten years. The “Conditions of Community Supervision” provided that appellant must
    commit no offense against the laws of this state, and required appellant to comply with all
    sex offender registration requirements. Appellant was also required to serve 360 days
    in the Nueces County Jail.
    On March 22, 2010, upon his release from jail, appellant was notified by way of a
    “Pre-Release Notification Form” that he was required to register annually as a sex
    offender.   When appellant registered with the Corpus Christi Police Department’s
    (“CCPD”) Sex Offender Registration Division on March 29, 2010, a CCPD employee
    informed appellant that he was required to register every ninety days or “quarterly.”
    3
    Appellant reported in person to CCPD on April 29 and June 22 because he did not have
    a driver’s license to confirm his residence. On each occasion he reported to CCPD,
    appellant signed a sex offender verification form stating he was required to register every
    ninety days. Appellant was arrested on October 30 because he had not registered within
    ninety days of June 22, 2010.
    Appellant was indicted in cause number 10-CR-4228-G for failing to register within
    ninety days, see TEX. CODE CRIM. PROC. ANN. art. 62.058, and the State filed motions to
    revoke community supervision in trial cause numbers 09-CR-1006-G and 09-CR-1082-
    G, which were carried with the case. Following a jury trial, the jury returned a guilty
    verdict. The trial court further found that appellant violated the terms of his community
    supervision. This appeal followed.
    II. JURY DELIBERATIONS
    A.     Receipt of Other Evidence
    By his first issue, appellant argues “the trial court erred in denying [his] motion for
    mistrial during the jury’s deliberations [in cause 10-CR-4228-G] after discovering a juror
    became an unsworn witness against [appellant].” Specifically, appellant maintains that
    the jury received “other evidence” detrimental to appellant during deliberations and that
    he was deprived of his right to an impartial jury.
    1. Pertinent Facts
    The jury heard evidence regarding three separate addresses that appellant
    reported as his residence. After retiring to deliberate, the jury sent four notes to the trial
    judge. The second note read as follows:
    4
    One jury member owns property that [appellant] gave as his address. It is
    a commercial property. This jury says it represents dishonesty on
    [appellant’s] part. Are we to allow or dismiss this comment?
    Appellant moved for a mistrial. The trial court denied the motion, but directed the jury in
    writing “Do not consider anything not in evidence. Refer to paragraph 10, subpart 4 [of
    the jury charge].”     The referenced portion of the jury charge reads:             “During
    deliberations, the jury may not . . . consider or discuss matters not in evidence including
    personal knowledge or information about any fact or person connected with the case.”
    Appellant argues the jury note establishes that new evidence was received by the jury
    and that no instruction could cure the error.
    2. Standard of Review and Applicable Law
    A mistrial is required only in extreme circumstances where the prejudice is
    incurable. Ocon v. State, 
    284 S.W.3d 880
    , 884 (Tex. Crim. App. 2009). Prejudice is
    incurable when it “is of such character as to suggest the impossibility of withdrawing the
    impression produced on the minds of the jurors.” Ladd v. State, 
    3 S.W.3d 547
    , 567 (Tex.
    Crim. App. 1999). We review the trial court's denial of a motion for mistrial for an abuse
    of discretion, viewing the evidence in the light most favorable to the trial court's ruling,
    and considering only those arguments before the court at the time of the ruling. 
    Id. We must
    uphold the ruling if it was within the zone of reasonable disagreement. 
    Ocon, 284 S.W.3d at 884
    .
    A mistrial is an extreme remedy, and should be granted “only when residual
    prejudice remains” after less drastic alternatives are explored. 
    Id. (quoting Barnett
    v.
    State, 
    161 S.W.3d 128
    , 134 (Tex. App.—Fort Worth 2005), aff’d, 
    189 S.W.3d 272
    (Tex.
    5
    Crim. App. 2006)). Less drastic alternatives include questioning the jury about the extent
    of any prejudice if instructions alone do not sufficiently cure the problem. 
    Id. at 885.
    If
    the movant for mistrial does not first request a lesser remedy, we will not reverse the trial
    court’s judgment if the problem could have been cured by the less drastic alternative. 
    Id. “A defendant
    is entitled to a mistrial if the jury, after retiring to deliberate, receives
    other evidence adverse to the defendant.” Bustamante v. State, 
    106 S.W.3d 738
    , 743
    (Tex. Crim. App. 2003).3 “In determining whether the evidence was ‘received’ by the
    jury, a court may consider how extensively the evidence was considered by the jury and
    whether the jury was given an instruction to disregard.” 
    Id. If the
    trial court gives an
    instruction to disregard that is found to be effective, “it is as though the evidence was
    never ‘received’ by the jury.” 
    Id. To determine
    whether evidence was detrimental or
    adverse, we consider its character in light of the issue before the jury rather than its actual
    effect. Garza v. State, 
    630 S.W.2d 272
    , 274 (Tex. Crim. App. [Panel Op.] 1981); Reed
    v. State, 
    841 S.W.2d 55
    , 59 (Tex. App.—El Paso 1992, pet. denied).
    3. Analysis
    The jury timely sought guidance from the trial court concerning the juror’s
    disclosure, and they were provided a proper instruction to disregard the information with
    a reference to the appropriate section of the jury charge. There is no evidence in the
    record indicating that the jury was unable to follow the trial court’s instruction. Under
    3 In Bustamante v. State, 
    106 S.W.3d 738
    , 743 (Tex. Crim. App. 2003), the court of criminal
    appeals applied Texas Rule of Appellate Procedure 21.3(f) and interpretive case law in its review of a
    motion for mistrial. Rule 21.3(f) requires that a new trial be granted “when, after retiring to deliberate, the
    jury has received other evidence.” TEX. R. APP. P. 21.3(f).
    6
    these facts, we conclude that the trial court’s curative instruction was an effective
    alternative to the extreme remedy of a mistrial. Therefore, it is as though the evidence
    was never “received” by the jury. See 
    Bustamante, 106 S.W.3d at 745
    (holding that
    exhibit improperly submitted to the jury was not “received” by the jury where jurors
    recognized a potential problem, sought guidance from the trial court, and received an
    instruction to disregard the exhibit); Cuellar v. State, 
    943 S.W.2d 487
    , 492 (Tex. App.—
    Corpus Christi 1996, pet. denied) (concluding “other evidence” of the defendant’s gang
    affiliation was not received by the jury due to corrective instruction by another juror that
    information should not be considered).
    Further, appellant’s counsel did not pursue the alternative of questioning the jury.
    The party alleging juror misconduct should initiate juror questioning. 
    Ocon, 284 S.W.3d at 886-87
    . “Questioning jurors who allegedly participated in misconduct is a less drastic
    remedy than a mistrial.” 
    Id. at 886.
    Because a less drastic remedy was available to
    cure any prejudice that may have resulted from the juror’s disclosure, we will not reverse
    the judgment of the trial court.
    The trial court did not abuse its discretion in overruling appellant’s motion for
    mistrial on the basis of the jury’s receipt of other evidence.
    B.     Impartial Jury
    Appellant further argues under his first issue that the juror’s personal knowledge
    regarding appellant’s residence deprived appellant of his right to an impartial jury. We
    disagree.
    7
    1. Applicable Law
    An accused in a criminal prosecution has the right to a fair trial by an impartial jury.
    See TEX. CONST. art. I, § 10. When a juror “‘withholds material information during the
    voir dire process, the parties are denied the opportunity to exercise their challenges, thus
    hampering their selection of a disinterested and impartial jury.’” Franklin v. State, 
    138 S.W.3d 351
    , 354 (Tex. Crim. App. 2004) (quoting Salazar v. State, 
    562 S.W.2d 480
    , 482
    (Tex. Crim. App. 1978)). To obtain a new trial based on juror misconduct, the defendant
    must show that the juror withheld material information during voir dire despite the
    defendant’s due diligence. 
    Id. at 355–56;
    see Armstrong v. State, 
    897 S.W.2d 361
    , 363–
    64 (Tex. Crim. App. 1995). Diligence requires that counsel ask questions calculated to
    bring out information that might indicate a juror’s inability to be impartial and truthful.
    
    Armstrong, 897 S.W.2d at 363
    –64.            In the absence of such questions, material
    information that a juror fails to disclose is not really “withheld.” 
    Id. at 364.
    Counsel must
    ask specific questions, not rely on broad ones, to satisfy this obligation and must ask
    follow-up questions after a potential bias is discovered. Gonzales v. State, 
    3 S.W.3d 915
    , 917 (Tex. Crim. App. 1999).
    2. Analysis
    In reviewing the voir dire record, we find no instance where appellant’s counsel
    questioned the venire panel concerning their knowledge of appellant’s address.
    Appellant cannot demonstrate that the juror “withheld” information because appellant's
    counsel did not ask questions calculated to reveal the information appellant claims
    indicates impartiality or bias. See 
    id. at 917–18
    (holding that juror did not “withhold”
    8
    information where “defense counsel did not ask any oral questions in an effort to verify
    whether prospective jurors who returned juror questionnaires had been involved in
    criminal cases as that question was meant to be understood”). Therefore, there exists
    no misconduct warranting a reversal.       See 
    id. The cases
    cited by appellant are
    inapposite, because they each involve a juror’s failure to disclose material information in
    response to specific questions posed in voir dire. See 
    Franklin, 138 S.W.3d at 352
    (after
    stating that she knew none of the parties involved in trial, juror informed court that she
    was the assistant leader of victim's Girl Scout troop and that her daughter was also in the
    victim's troop); Von January v. State, 
    576 S.W.2d 43
    , 44 (Tex. Crim. App. 1978) (juror
    failed to disclose that he knew the deceased victim's family although asked directly during
    voir dire); 
    Salazar, 562 S.W.2d at 481
    –82 (when asked whether he had been a witness
    in a criminal case, juror failed to disclose that he had been a prosecution witness in a
    criminal proceeding where he was eyewitness to sexual assault of his daughter).
    C.     Summary
    Viewing the evidence in the light most favorable to the trial court’s ruling, we
    conclude the trial court’s failure to declare a mistrial was not an abuse of discretion. See
    
    Ocon, 284 S.W.3d at 884
    . We overrule appellant’s first issue.
    III. JURY CHARGE ERROR
    By his second issue, appellant argues that the trial court “committed reversible jury
    charge error.” Under two sub-issues, appellant maintains he was entitled to (1) a jury
    determination of the “applicability of the quarterly verification requirement” and (2) an
    affirmative defense instruction on mistake of law.
    9
    A.     Standard of Review
    Appellate review of alleged jury charge error involves a two-step process. Abdnor
    v. State, 
    871 S.W.2d 726
    , 731 (Tex. Crim. App. 1994). Initially, we determine whether
    error occurred, and, if so, we evaluate whether sufficient harm resulted from the error to
    require reversal. 
    Id. at 731-32.
    Where a timely objection is made at trial, jury charge
    error requires reversal if the error was “calculated to injure the rights of defendant,” which
    means there must be “some harm” to the accused. TEX. CODE CRIM. PROC. ANN. art.
    36.19; see also 
    Abdnor, 871 S.W.2d at 731
    –32. But when the error is not so preserved,
    the harm must be “egregious” before reversal is proper. 
    Id. An egregious
    harm is one
    that goes to the “very basis of the case.” Druery v. State, 
    225 S.W.3d 491
    , 504 (Tex.
    Crim. App. 2007).
    B.     Quarterly Verification Requirement
    By his first sub-issue, appellant argues that he was “entitled to a jury determination
    of the applicability of the quarterly verification requirement.”      Specifically, appellant
    maintains there was a fact issue regarding whether he was subject to supervision or
    confinement on September 1, 1999, which impacts whether the 1999 amendments
    excused him from the quarterly registration requirement. This issue presents a matter
    of statutory construction.
    1. Applicable Law
    When this court interprets statutes, “we seek to effectuate the ‘collective’ intent or
    purpose of the legislators who enacted the legislation.” Reynolds v. State, 
    423 S.W.3d 377
    , 382 (Tex. Crim. App. 2014) (citations omitted). We first look at the language of the
    10
    statute to discern the fair, objective meaning of the text at the time of its enactment. 
    Id. Where the
    statute is clear and unambiguous, we give effect to its plain meaning, unless
    doing so would lead to absurd results that the legislature could not have intended. 
    Id. If the
    statute is ambiguous, we may then look beyond the plain text and consider
    additional factors. 
    Id. 2. Analysis
    The 1999 amendments to the sex offender registration statute extended the
    quarterly registration requirement to those persons who have “been convicted two or
    more times” of a sexually violent offense. Act of Sept. 1, 1999, 76th Leg., ch. 1415,                  §
    15, 1999 Tex. Gen. Laws 4838. The “savings clause” to the 1999 amendments limited
    the Act’s application to those who were confined or under supervision as of September
    1, 1999. Act of Sept. 1, 1999, 76th Leg., ch. 1415, § 29, 1999 Tex. Gen. Laws 4842.
    Appellant argues there was a fact issue concerning whether he was subject to the
    quarterly registration requirement because there was conflicting evidence regarding
    appellant’s discharge date. However, we conclude the 2001 amendments4 extended
    the quarterly registration requirement to appellant, regardless of his discharge date. See
    Act of Sept. 1, 2001, 77th Leg., ch. 211, § 19, 2001 Tex. Gen. Laws 405.
    The plain language of the transition clause in the 2001 amendments provides for
    application of the law to those persons required to register as a sex offender “before, on,
    or after” September 1, 2001. 
    Id. Appellant, who
    was required to register as a sex
    4 The 2001 amendments further clarified that the quarterly registration requirement applies to
    offenders with two or more qualifying convictions regardless of whether the convictions were entered on
    different dates or whether the offenses arose out of the same criminal transaction. Act of Sept. 1, 2001,
    77th Leg., ch. 211, § 9, 2001 Tex. Gen. Laws 401.
    11
    offender before September 1, 2001, is clearly within the class of persons identified by the
    legislation. The 2005 amendments merely renumbered article 62.06 as 62.058. See
    Act of September 1, 2005, 79th Leg., ch. 1008, art. 1, § 1.01, 2005 Tex. Gen. Laws 3402.
    Therefore, there is no fact issue concerning the application of article 62.058’s quarterly
    reporting requirement, and the trial court did not err in refusing to submit the issue to the
    jury.   See 
    Reynolds, 423 S.W.3d at 382
    (interpreting similar language in the 2005
    reenactment of Chapter 62, the court of criminal appeals noted “[t]here is no language
    within the statute that indicates the [earlier] ‘savings clause’ was to be retained. The
    plain language of the statute also does not indicate that ‘person[s] subject to Chapter 62’
    means only those individuals who had been subject to it prior to the amendments . . . and
    we see no reason to read this meaning into it.”)
    C.      Mistake of Law Instruction
    By his second sub-issue, appellant argues that “the changes in the law and
    resulting confusion established a bona fide ‘mistake of law.’”          During the charge
    conference, appellant’s counsel requested a mistake of law defense because of
    appellant’s reliance on statements from various agencies “including the probation
    department from Nueces County [telling appellant] that he was an annual registrant.”
    The trial court denied the request.
    1. Applicable Law
    A defendant is entitled to a mistake of law instruction if the defendant reasonably
    believed the conduct charged did not constitute a crime, and he acted in reasonable
    reliance upon:
    12
    (1) an official statement of the law contained in a written order or grant of
    permission by an administrative agency charged by law with responsibility
    for interpreting the law in question; or
    (2) a written interpretation of the law contained in an opinion of a court of
    record or made by a public official charged by law with responsibility for
    interpreting the law in question.
    TEX. PENAL. CODE ANN. § 8.03(b). The defendant has the burden of producing sufficient
    evidence to raise a defensive issue. Riddle v. State, 
    888 S.W.2d 1
    , 6 (Tex. Crim. App.
    1994). The instruction is not required if the evidence viewed in the light most favorable
    to the defendant does not raise the issue. Dyson v. State, 
    672 S.W.2d 460
    , 463 (Tex.
    Crim. App. 1984).
    2. Analysis
    The record reflects appellant may have been notified by law enforcement agencies
    that he was required to report annually, including upon his release from jail on March 22,
    2010.    The uncontroverted testimony at trial, however, further reflects that, on the
    following three occasions appellant reported to CCPD, he was expressly notified by
    CCPD personnel that he was required to register every ninety days, including June 22,
    2010, the last day he reported prior to his arrest.      Appellant did not testify at trial;
    therefore, there is no evidence in the record concerning whether he relied upon prior
    agency representations.
    Viewing the evidence in the light most favorable to appellant, we conclude
    appellant failed to produce sufficient evidence that he reasonably believed the conduct
    charged did not constitute a crime. See TEX. PENAL. CODE ANN. § 8.03(b); 
    Riddle, 888 S.W.2d at 6
    ; 
    Dyson, 672 S.W.2d at 463
    . Further, appellant presented no evidence that
    13
    he relied on an official statement of the law by an administrative agency charged with the
    responsibility for interpreting the law. See 
    id. The trial
    court did not err in denying a
    mistake of law instruction.
    D.     Summary
    We conclude the trial court did not commit jury charge error; therefore, we need
    not determine whether sufficient harm resulted requiring reversal. See 
    Abdnor, 871 S.W.2d at 731
    . We overrule appellant’s second issue.
    IV. EX POST FACTO PROHIBITION
    By his third issue, appellant argues the retroactive application of the quarterly
    verification requirement violates the ex post facto prohibition of the state and federal
    constitutions. Specifically, appellant maintains “the quarterly verification requirement
    . . . increas[es] the punishment for his prior [indecency with a child] convictions.” We
    disagree.
    A.     Standard of Review and Applicable Law
    We review the constitutionality of a criminal statute de novo, as a question of law.
    Moloney v. State, 
    294 S.W.3d 613
    , 626 (Tex. App.–Houston [1st Dist.] 2009, pet. ref'd).
    We presume the statute is valid and the legislature did not act unreasonably or arbitrarily.
    Rodriguez v. State, 
    93 S.W.3d 60
    , 69 (Tex. Crim. App. 2002). The party challenging the
    statute has the burden to establish its unconstitutionality.    
    Id. We must
    uphold the
    statute if we can apply a reasonable construction that will render it constitutional. Ely v.
    State, 
    582 S.W.2d 416
    , 419 (Tex. Crim. App. [Panel Op.] 1979).
    14
    Both the United States and Texas Constitutions prohibit Texas from applying any
    ex post facto law. U.S. CONST. art. I, § 10, cl. 1; TEX. CONST. art. I, § 16. Texas interprets
    the proscription against ex post facto laws in the Texas Constitution to have the same
    meaning as the proscription against ex post facto laws found in the United States
    Constitution. Grimes v. State, 
    807 S.W.2d 582
    , 586 (Tex. Crim. App. 1991); Young v.
    State, 
    358 S.W.3d 790
    , 805 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). “An ex
    post facto law: (1) punishes as a crime an act previously committed which was innocent
    when done; (2) changes the punishment and inflicts a greater punishment than the law
    attached to a criminal offense when committed; or (3) deprives a person charged with a
    crime on any defense available at the time the act was committed.”             
    Rodriguez, 93 S.W.3d at 66
    (citing Collins v. Youngblood, 
    497 U.S. 37
    , 42–44 (1990)).
    We apply the “intent-effects” test to determine whether the application of a statute
    constitutes punishment. 
    Id. at 67.
    A court must first determine whether the legislature
    intended the statute to impose a criminal punishment.          
    Id. (citing Hudson
    v. United
    States, 
    522 U.S. 93
    , 99 (1997)). If it is the legislature’s intent to establish a civil remedy,
    we look to the factors articulated in Kennedy v. Mendoza-Martinez, 
    372 U.S. 144
    , 168–
    69 (1963), to determine whether the effects of a statute are criminally punitive. 
    Id. at 67–
    68. Under Kennedy, we consider whether the regulation: (1) involves an affirmative
    disability or restraint; (2) has been traditionally regarded as punishment; (3) applies only
    on a finding of scienter; (4) promotes the traditional aims of punishment; (5) applies to
    behavior that is already a crime; (6) has a rational connection to a non-punitive purpose;
    and (7) appears excessive in relation to this 
    purpose. 372 U.S. at 168
    –69.
    15
    B.     Analysis
    The State does not contest the retroactive application of the quarterly registration
    requirement, and appellant does not argue that the legislature intended for the
    requirement to be criminal punishment.        Therefore, we must determine whether the
    effects of the statute are criminally punitive.
    The court of criminal appeals has held on two occasions that the sex offender
    registration statute is non-punitive in effect. See 
    Rodriguez, 93 S.W.3d at 79
    ; Ex Parte
    Robinson, 
    116 S.W.3d 794
    , 798 (Tex. Crim. App. 2003). However, those cases did not
    involve the application of the quarterly registration requirement.
    In Rodriguez, the court thoroughly analyzed the annual reporting requirement of
    the 1997 amendments to the sex offender registration statute utilizing the seven Kennedy
    factors and concluded that the statute was 
    non-punitive. 93 S.W.3d at 69
    –79. The
    court reviewed the frequency of the in-person reporting requirements and public
    notification provisions in relation to whether the statute was an “affirmative disability or
    restraint,” and concluded that “although registration and notification impose a burden
    upon those required to register, it does not impose an affirmative disability or restraint as
    the term is commonly understood.” 
    Id. at 71.
    In Ex Parte Robinson, the defendant argued that the registration requirements
    constituted cruel and unusual 
    punishment. 116 S.W.3d at 797
    . Relying on its decision
    in Rodriguez, the court of criminal appeals concluded the 1999 version of the statute was
    non-punitive, and, therefore, did not constitute cruel and unusual punishment. 
    Id. at 798.
    16
    In Smith v. Doe, the United States Supreme Court considered for the first time
    whether a sex offender registration law violated the ex post facto clause of the federal
    constitution. 
    538 U.S. 84
    , 92 (2003). Applying the Kennedy factors, the Court reviewed
    the Alaska sex offender registration statute which, like the Texas statute, required an
    offender who was convicted two or more times to verify information quarterly (although
    not in person).    
    Id. at 97–105.
         In analyzing whether the reporting requirements
    constituted an “affirmative disability or restraint,” the Court rejected the argument that the
    registration system is parallel to probation or supervised release. 
    Id. at 101.
    The Court
    explained:
    [O]ffenders subject to the Alaska statute are free to move where they wish
    and to live and work as other citizens, with no supervision. Although
    registrants must inform the authorities after they change their facial features
    . . . borrow a car, or seek psychiatric treatment, they are not required to
    seek permission to do so. A sex offender who fails to comply with the
    reporting requirement may be subjected to a criminal prosecution for that
    failure, but any prosecution is a proceeding separate from the individual’s
    original offense . . . It suffices to say the registration requirements make a
    valid regulatory program effective and do not impose punitive restraints in
    violation of the Ex Post Facto Clause.
    
    Id. at 101–02.
    The Court concluded that “[t]he Act is non-punitive, and its retroactive
    application does not violate the Ex Post Facto Clause.” 
    Id. at 105–06.
    The only difference between the statute before the court of criminal appeals in
    Reynolds and the statute as applied to appellant is the frequency of the reporting
    requirement—quarterly vs. annually.       However, like the Alaska statute, an individual
    subject to quarterly registration in Texas may choose where to live and work without
    supervision. 
    Id. at 101–02.
    We conclude that the quarterly reporting requirement does
    not constitute an “affirmative disability or restraint,” and, in light of Texas precedent, we
    17
    conclude that the sex offender registration statute is non-punitive in effect.        See
    
    Rodriguez, 93 S.W.3d at 79
    ; Ex Parte 
    Robinson, 116 S.W.3d at 798
    . As a result, the
    retroactive application of the quarterly reporting requirement does not violate the ex post
    facto clause of the state and federal constitutions. We overrule appellant’s third issue.
    V. PLEA PROCEEDINGS
    By issues four through seven, appellant alleges error concerning the original plea
    proceedings in trial cause numbers 09-CR-1006-G and 09-CR-1082-G. Specifically,
    appellant argues: (1) his conviction for theft is not supported by the evidence; (2) his
    conviction of theft and unauthorized use of a motor vehicle violates the double jeopardy
    clause of the federal constitution; (3) his sentences in trial cause number 09-CR-1082-G
    are void because they were improperly enhanced; and (4) his convictions for three counts
    of violating the registration requirements is not supported by sufficient evidence and
    constitutes double jeopardy. We conclude appellant has waived these issues, but we
    will review the judgments to determine whether they are void or a double jeopardy
    violation is clearly apparent from the face of the record.
    A.     Waiver
    A defendant must raise issues relating to the original plea proceeding, including
    evidentiary sufficiency, only in a timely appeal taken when deferred-adjudication
    community supervision is first imposed. Perez v. State, 
    424 S.W.3d 81
    , 86 (Tex. Crim.
    App. 2014); Manuel v. State, 
    994 S.W.2d 658
    , 661–62 (Tex. Crim. App. 1999); see also
    Wiley v. State, 
    410 S.W.3d 313
    , 319 (Tex. Crim. App. 2013) (“An appellant will not be
    permitted to raise on appeal from the revocation of his community supervision any claim
    18
    that he could have brought on an appeal from the original imposition of that community
    supervision.”). There are two limited exceptions to the general rule that the original plea
    cannot be attacked on an appeal of the revocation proceedings: the “void judgment”
    exception; and the “habeas corpus” exception. See Nix v. State, 
    65 S.W.3d 664
    , 667
    (Tex. Crim. App. 2001).
    Further, a “defendant in a criminal prosecution for any offense may waive any
    rights secured him by law.” TEX. CODE CRIM. PROC. ANN. art. 1.14. “A waiver of the right
    to appeal made voluntarily, knowingly, and intelligently will prevent a defendant from
    appealing without the consent of the trial court.” Ex parte Broadway, 
    301 S.W.3d 694
    ,
    697 (Tex. Crim. App. 2009).
    B.    Sufficiency Challenge
    Appellant was required to raise the issue of sufficiency of the evidence supporting
    his plea in a timely appeal following the original plea proceedings. See 
    Perez, 424 S.W.3d at 86
    . Because appellant failed to do so, our inquiry is limited to determining
    whether the judgments are void because of a complete lack of evidence to support the
    conviction. See Nix, 65 S.W.3d. at 668 (“For the judgment to be void, the record must
    show a complete lack of evidence to support the conviction, not merely insufficient
    evidence.”). Appellant’s guilty pleas in trial cause numbers 09-CR-1006-G and 09-CR-
    1082-G were accompanied by a judicial confession covering all of the elements of the
    charged offenses.     See TEX. CODE CRIM. PROC. ANN. art. 1.15.         This evidence is
    sufficient to support the convictions. See Menefee v. State, 
    287 S.W.3d 9
    , 13 (Tex. Crim.
    App. 2009) (“[S]o long as such a judicial confession covers all of the elements of the
    19
    charged offense, it will suffice to support the guilty plea.”).     Therefore the original
    judgments are not void.
    We also observe that appellant specifically waived his right to appeal in trial cause
    numbers 09-CR-1006-G and 09-CR-1082-G. In both causes, appellant signed a written
    waiver of his right to appeal. Appellant also signed acknowledgments of receipt of a
    copy of the “Trial Court's Certification of Defendant's Right of Appeal,” which noted that
    this “is a plea-bargain case, and the defendant has NO right of appeal.” (emphasis in
    original).   Appellant does not challenge whether his waiver was made voluntarily,
    knowingly, and intelligently. Therefore, appellant may not now raise issues concerning
    the original judgments.
    C.     Double Jeopardy
    Appellant raises his double jeopardy challenge for the first time on appeal. In
    general, a defendant must preserve a double jeopardy objection at or before the time the
    issue of his guilt is submitted to the finder of fact. See Gonzalez v. State, 
    8 S.W.3d 640
    ,
    642 (Tex. Crim. App. 2000); King v. State, 
    161 S.W.3d 264
    , 267 (Tex. App.—Texarkana
    2005, pet. ref'd). A defendant is excused from the preservation requirement only when
    (1) the undisputed facts show the double jeopardy violation is clearly apparent on the face
    of the record, and (2) enforcement of the usual rules of procedural default serves no
    legitimate state interest. Langs v. State, 
    183 S.W.3d 680
    , 687 (Tex. Crim. App. 2006).
    The protection against double jeopardy includes the protection against multiple
    punishments. Ex parte Benson, 
    459 S.W.3d 67
    , 71 (Tex. Crim. App. 2015). “In the
    multiple-punishment context, the double-jeopardy clause prevents a court from
    20
    prescribing greater punishment than the legislature intended.” 
    Id. “Where two
    distinct
    statutory provisions are at issue, the offenses must be considered the same under both
    an ‘elements’ analysis and a ‘units’ analysis for a double-jeopardy violation to occur.” 
    Id. Under the
    elements analysis, the question is “‘whether each provision requires proof of a
    fact which the other does not.’” 
    Id. at 72
    (quoting Blockburger v. United States, 
    284 U.S. 299
    , 304 (1932)). Under Texas law, the same-elements test is governed by the cognate-
    pleadings approach which requires “comparing the elements of the greater offense as
    pleaded to the statutory elements of the lesser offense.” 
    Id. If the
    two offenses have
    different elements, “the judicial presumption is that the offenses are different for double-
    jeopardy purposes and that cumulative punishment may be imposed.”                
    Id. This presumption
    is rebutted by a showing that the legislature clearly intended only one
    punishment. 
    Id. (citing Ex
    Parte Ervin, 
    991 S.W.2d 804
    , 814 (Tex. Crim. App. 1999)
    (setting out non-exclusive list of factors to consider in determining whether legislature
    intended only one punishment)).
    The elements analysis is a legal question and does not depend on evidence
    offered at trial. Hall v. State, 
    225 S.W.3d 524
    , 535 (Tex. Crim. App. 2007). If the
    elements are legally the same, we must then review whether they are factually the same
    by determining the allowable unit of prosecution. Ex Parte 
    Benson, 459 S.W.3d at 73
    –
    74. The allowable unit of prosecution of an offense turns on statutory construction and
    usually requires ascertaining the gravamen of the offense. 
    Id. 21 1.
    Theft and Unauthorized Use of a Motor Vehicle
    Appellant argues that a double jeopardy violation is clearly apparent on the face of
    the record, because he was sentenced for the same act for Theft and Unauthorized Use
    of a Motor Vehicle. We disagree.
    Because appellant was sentenced under two distinct statutory provisions, we must
    first determine whether the offenses have the same elements using the cognate-
    pleadings approach. Ex Parte 
    Benson, 459 S.W.3d at 72
    . The theft indictment alleged
    that appellant unlawfully appropriated a boat by acquiring or otherwise exercising control
    over the boat without the effective consent of the owner and with the intent to deprive the
    owner of the property. See TEX. PENAL CODE ANN. § 31.03. A person commits the
    lesser offense of unauthorized use of a motor vehicle if “he intentionally or knowingly
    operates another’s boat, airplane, or motor-propelled vehicle without the effective consent
    of the owner.” See TEX. PENAL CODE ANN. § 31.07.
    Theft requires an appropriation of some property, while the latter offense requires
    the operation of a motor vehicle. Therefore, each offense requires proof of a fact which
    the other does not. 
    Id. at 73.
    For instance, a defendant might steal a boat or automobile
    by having it towed, without ever operating the motor vehicle. On the other hand, one
    could operate a motor vehicle without the consent of the owner, and later return it, without
    having committed theft. See State v. Houth, 
    845 S.W.2d 853
    , 869 (Tex. Crim. App.
    1992) (Benavides, J., concurring) (explaining that “crimes of Theft and Unauthorized Use
    of a Motor Vehicle are different inasmuch as the former requires an appropriation of some
    property, not necessarily a vehicle, while the latter specifically requires operation of a
    22
    motor vehicle”); see also Brady v. State, 14-98-00424-CR, 
    2001 WL 459719
    , at *3 (Tex.
    App.—Houston [14th Dist.] May 3, 2001, pet. dism’d) (mem. op.) (“The gravamen of
    unauthorized use is operating someone else's vehicle without consent, regardless of
    intent to deprive. In contrast, the gravamen of theft is intent to deprive, regardless of
    whether the vehicle is operated.”)
    Unauthorized use of a motor vehicle might be legally the same under the cognate-
    pleadings approach if the pleadings indicate that the manner of the motor vehicle’s
    appropriation includes its operation. See Ex Parte Jefferson, 
    681 S.W.2d 33
    , 34 (Tex.
    Crim. App. 1984) (holding conviction of theft and unauthorized use of a motor vehicle
    constituted double jeopardy violation where defendant stole a truck and was later arrested
    for driving the same truck). However, the indictments in this case do not indicate the
    manner of appellant’s appropriation of the boat. Because the offenses have different
    elements under the cognate-pleadings approach, a double jeopardy violation is not clearly
    apparent on the face of the record. See Ex Parte Denton, 
    399 S.W.3d 540
    , 544 (Tex.
    Crim. App. 2013) (“A double-jeopardy claim is apparent on the face of the trial record if
    resolution of the claim does not require further proceedings for the purpose of introducing
    additional evidence in support of the double-jeopardy claim.”).
    2. Sex Offender Registration Requirements
    Appellant argues that his convictions for three counts of violating the registration
    requirements constitutes a double jeopardy violation.
    In trial cause number 09-CR-1006-G, appellant was indicted for three counts of
    failure to comply with sex offender registration requirements. Specifically, appellant was
    23
    charged with: (1) failing to report in person his anticipated moving date or change of
    address in the registration form; (2) failing to report a change of employment or a change
    of address in person and verify registration information; and (3) failing to report a change
    of employment, job status, or a change of work location within a seven day period after
    the date of the change.
    Each of the counts in the indictment constitute separate violations of Chapter 62
    of the Texas Code of Criminal Procedure. A person required to register must: report
    an anticipated change of address, TEX. CODE OF CRIM. PROC. art. 62.055(a); report within
    seven days after the move, id.; and report a change in job status within seven days, 
    id. at art.
    62.057. Because the offenses do not involve the same elements, we conclude the
    record does not clearly reflect a double jeopardy violation. Further, we note that the
    legislature has clearly expressed its intent that each violation be punished separately.
    See 
    id. 62.102(a) (“[A]
    person commits an offense if the person is required to register and
    fails to comply with any requirement under this chapter.”).
    D.     Sentence Improperly Enhanced
    Appellant argues that his sentences in trial cause number 09-CR-1082-G were
    improperly enhanced using his prior convictions for indecency with a child and failure to
    comply with registration requirements, because the conviction of the former was an
    element of the latter conviction.
    A sentence outside the prescribed punishment range is void. Baker v. State, 
    278 S.W.3d 923
    , 926 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd). A defect which
    renders a sentence void may be raised at any time. Ex parte Beck, 
    922 S.W.2d 181
    ,
    24
    182 (Tex. Crim. App. 1996). “The use of a prior conviction to prove an essential element
    of an offense bars the subsequent use of that prior conviction in the same indictment for
    enhancement purposes.” Musgrove v. State, 
    425 S.W.3d 601
    , 614 (Tex. App.—Houston
    [14th Dist.] 2014, pet. ref’d) (citing Wisdom v. State, 
    708 S.W.2d 840
    , 845 (Tex. Crim.
    App.1986)). This would prohibit the use of appellant’s indecency conviction both as an
    element of failure to register and as a punishment enhancement for the same offense.
    However, this is not what occurred.
    While the indecency conviction was an element of appellant’s first conviction for
    failure to register, neither conviction was an element of the offenses of theft and
    unauthorized use of a motor vehicle.         Therefore, appellant’s sentences were not
    improperly enhanced. See Steels v. State, 
    858 S.W.2d 636
    , 638 (Tex. App.—Houston
    [1st Dist.] 1993, pet. ref’d) (holding it was permissible for conviction used for enhancement
    to have been an element of another conviction used for that purpose).
    E.     Summary
    We conclude that appellant waived issues four through seven by not timely
    appealing from the judgments imposing community supervision-deferred adjudication,
    and that he has voluntarily, knowingly, and intelligently waived his right to appeal the
    judgments. The judgments are not void, and a double jeopardy violation is not clearly
    apparent on the face of the record. We overrule issues four through seven.
    25
    VI. CONCLUSION
    We affirm the trial court’s judgment in each cause.
    GREGORY T. PERKES
    Justice
    Dissenting Memorandum Opinion
    by Justice Gina M. Benavides.
    Do not publish.
    TEX. R. APP. P. 47.2(b).
    Delivered and filed the
    24th day of September, 2015.
    26