Dwayne Cordova v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00007-CR
DWAYNE CORDOVA APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1331247R
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MEMORANDUM OPINION1
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A jury found Appellant Dwayne Cordova guilty of failure to comply with sex
offender registration requirements, found an enhancement count true, and
assessed Appellant’s punishment at 162 months in the Texas Department of
Criminal Justice—Institutional Division. The trial court sentenced him
1
See Tex. R. App. P. 47.4.
accordingly, and Appellant perfected this appeal. He raises one issue
challenging the sufficiency of the evidence to support his conviction.
An individual commits the offense of failure to comply with sex offender
registration requirements if he is required to register as a sex offender and fails to
comply with any requirement of chapter 62 of the code of criminal procedure.
Tex. Code Crim. Proc. Ann. art. 62.102(a) (West Supp. 2014). Article 62.055(a)
provides that
[i]f a person required to register changes address, the person shall,
not later than the later of the seventh day after changing the address
or the first date the applicable local law enforcement authority by
policy allows the person to report, 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.
Id. art. 62.055(a) (West Supp. 2014).
Appellant’s sufficiency challenge asserts that the evidence is insufficient in
two respects. First, the court’s charge, in part, instructed the jury to find
Appellant guilty if he “intentionally or knowingly” failed to register; Appellant
contends the evidence is insufficient to establish that his failure to register was
intentional or knowing. Second, because article 62.055(a) allows a sex offender
to register not later than the later of the seventh day after changing his address
or the seventh day after “the first date the applicable local law enforcement
authority by policy allows the person to report,” Appellant contends the evidence
is insufficient to show that he did not comply with this alternative date for
registration.
2
In determining whether the evidence legally suffices to support a
conviction, a reviewing court must consider all of the evidence in the light most
favorable to the verdict and determine whether, based on that evidence and
reasonable inferences therefrom, a rational fact finder could have found the
essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia,
443 U.S. 307, 318–19, 99 S. Ct. 2781, 2788–89 (1979); Crabtree v. State, 389
S.W.3d 820, 824 (Tex. Crim. App. 2012). This standard gives full play to the
responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the
evidence, and to draw reasonable inferences from basic facts to ultimate facts.
Jackson, 443 U.S. at 319, 99 S. Ct. at 2789. The jury reasonably may infer facts
from the evidence presented, credit the witnesses it chooses to credit, disbelieve
any or all of the evidence or testimony proffered, and weigh the evidence as it
sees fit. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986). An
appellate court may not reevaluate the weight and credibility of the evidence
produced at trial or substitute its judgment for that of the jury. King v. State, 29
S.W.3d 556, 562 (Tex. Crim. App. 2000).
Appellant stipulated that he had been convicted of an offense requiring him
to register as a sex offender. Appellant agrees that he changed his address on
March 26, 2012, by moving to Fort Worth and that under article 62.055(a)’s
seventh-day-after-changing-his-address provision, he was required to report to
the Fort Worth Police Department by April 2, 2012, and provide them with proof
of identity and proof of residence. Appellant points out that his new Fort Worth
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address was on his pre-release form for registration purposes and that he
remained at that address until he was arrested there for this offense. Appellant
explains that he called the Fort Worth Police Department on April 2, 2012, and
made an appointment for April 30, 2012. He was forty minutes late to that
appointment, and the appointment was rescheduled to May 30, 2012. Appellant
did not attend that May 30, 2012 appointment, but he called and rescheduled it to
July 17, 2012. Appellant attended the July 17, 2012 appointment; he brought a
Texas identification card sufficient to establish his identity but not his address,
and he failed to bring proof of his residence address. The appointment was
rescheduled to July 25, 2012. Appellant did not attend this appointment but left a
voicemail attempting to reschedule it. Fort Worth Police Officer Karey Reynolds
then called Appellant and left him a voicemail telling him to call back and
schedule an appointment to come in and provide proof of his identity and
address. Appellant did not call back and never provided proof of residence. A
November 6, 2012 search of the Texas and national sex offender registry
databases showed no evidence that Appellant had ever registered as a sex
offender.
Regarding Appellant’s contention that the evidence is insufficient to
establish that he intentionally or knowingly failed to register as a sex offender, we
note that the court’s charge instructed the jury as follows:
A person acts intentionally, or with intent, with respect to the
nature of his conduct when it is his conscious objective or desire to
engage in the conduct.
4
A person acts knowingly, or with knowledge, with respect to
the nature of his conduct or to circumstances surrounding his
conduct when he is aware of the nature of his conduct or that the
circumstances exist.
See Tex. Penal Code Ann. § 6.03 (a), (b) (West 2011) (defining intentionally and
knowingly). When the State alleges that a defendant intentionally or knowingly
failed to comply with a requirement of the sex-offender registration program, as in
the present case, we review the record for evidence that the defendant’s failure
was intentional or knowing. See Harris v. State, 364 S.W.3d 328, 335 (Tex.
App.––Houston [1st Dist.] 2012, no pet.); Varnes v. State, 63 S.W.3d 824, 833
(Tex. App.––Houston [14th Dist.] 2001, no pet.).
The evidence established that Appellant knew of the requirement that he
provide verification of his current address because he repeatedly rescheduled an
appointment for that purpose. Additionally, Officer Reynolds testified that he left
a voicemail for Appellant after Appellant failed to attend the July 25, 2012
appointment and told Appellant that he needed to reschedule the appointment
and provide proof of identity and residence. Appellant did not return Officer
Reynolds’s call, did not reschedule the appointment, did not bring proof of his
residence to the Fort Worth Police Department, and had not registered as a sex
offender by November 6, 2012. Viewing this evidence in the light most favorable
to the jury’s verdict, we hold that a rational trier of fact could have found the
essential elements of the offense, including that Appellant intentionally or
knowingly failed to register, beyond a reasonable doubt. See Tatum v. State,
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431 S.W.3d 839, 843 (Tex. App.––Houston [14th Dist.] 2014, pet. ref’d) (holding
evidence sufficient to establish intentional or knowing element of offense of
failure to register as a sex offender); Harris, 364 S.W.3d at 335–36 (same);
Varnes, 63 S.W.3d at 832–33 (same).
Appellant also contends that the evidence is insufficient because article
62.055(a) alternatively allows a sex offender to register not later than the “the first
date the applicable local law enforcement authority by policy allows the person to
report” and that, by allowing him to continue rescheduling his appointment, the
Fort Worth Police Department allowed him “by policy” to report at a later date.
But even if the Fort Worth Police Department’s allowing Appellant to reschedule
his appointments could be considered a “policy,” the first date that Appellant was
“allow[ed]” to report under that “policy” was at his first April 30, 2012
appointment, which he missed. And the fact remains that Appellant never
showed up for the last appointment that he rescheduled to July 25, 2012, to
provide the statutorily-required proof of residence.2 Viewing the evidence in the
light most favorable to the jury’s verdict, we hold that a rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789.
2
To the extent that Appellant’s argument may be construed as asserting
that police were already aware of his address, we have found no authority for the
proposition that such knowledge replaces the statutory requirement set forth in
article 62.055(a) that Appellant provide proof of residence.
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We overrule Appellant’s sole issue and affirm the judgment of the trial
court.
/s/ Sue Walker
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and WALKER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 26, 2015
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