Burton Childers v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-391-CR
BURTON CHILDERS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 211TH DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
A jury found Appellant Burton Childers guilty of failure to comply with sex
offender registration requirements and assessed punishment at twenty years’
1
… See Tex. R. App. P. 47.4.
incarceration.2 In two points, Childers argues that the evidence is legally and
factually insufficient to sustain the guilty verdict. We will affirm.
II. B ACKGROUND
In 1998, Childers was convicted of three counts of indecency with his
six-year-old daughter and sentenced to prison. Childers was released on
December 19, 2001. Upon release, Childers signed a prerelease notification
form verifying that he had been informed that he was subject to a lifetime
recurring ninety-day verification requirement under Texas’ sex offender
registration program. Department of Public Safety records that were introduced
at trial show that Childers reported to the Sanger Police Department roughly
every ninety days from his release until late January, 2004. On February 6,
2004, less than two weeks after his last verification in Sanger, Texas, the
record reflects that Childers began reporting to the Denton Police Department
that he lived in Denton, Texas. The DPS records reflect that Childers no longer
reported consistently every ninety days. Instead, the DPS records reveal that
Childers sometimes reported for verification within weeks of his previous
verification and sometimes he reported at intervals greater than ninety days. 3
2
… See Tex. Code Crim. Proc. Ann. art. 62.102(a)(3) (Vernon 2006).
3
… Childers explains in his brief that two of the intervals that are greater
than ninety days were the result of him being incarcerated on unrelated
2
Denton Police Department Investigator Scott Miller testified that he was
placed in charge of sex offender registration in January, 2006. Miller said that
the first time he personally registered Childers was January 24, 2006. Miller
stated that less than a month later, on February 21, 2006,4 Childers updated
his registration information—reporting an address change. Miller testified that
when a registrant reports an address change, the ninety-day reporting period is
reset and registrants are required to verify their information again ninety days
from the time they make any address change. Childers updated his address
again on April 5, 2006. Miller said that on this date, per the department’s
policy, Childers was given a blue card bearing the April 5, 2006 date and was
informed that his next verification would be ninety days from that date. Miller
testified that Childers failed to verify within the required time and a warrant
was issued for Childers’s arrest. Childers was arrested on July 19, 2006.
Miller testified that he had no doubt that Childers knew when he was required
to report. Denton police officer David Bearden also testified that a registrant
charges. The date in the indictment indicates the offense underlying this appeal
concerns a failure to verify “on or about the 17th of July, 2006.” Childers does
not argue here, nor did he at trial, that he was incarcerated during July 2006.
4
… The DPS record actually shows that Childers verified his information
on February 20, 2006.
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who had registered multiple times in Denton should be familiar with Denton’s
registration process.
Childers testified that he was familiar with the registration and verification
process. Childers stated that he knew he was required to verify his registration
within seven days of July 4, 2006. He also said that he had attempted to
verify his registration around July 4, 2006, on “two or three” occasions. But
Childers also testified that he generally attempted to verify his information
before the 19th of every third month because that was “based on when I got
out of jail, o[f] prison, I got out [on] the 19th.” The jury found Childers guilty.
This appeal followed.
III. V IOLATION OF S EX O FFENDER R EGISTRATION S TATUTE
In two points, Childers argues that the evidence was legally and factually
insufficient to prove that he intentionally, knowingly, or recklessly failed to
comply with his ninety-day registration requirement.
In reviewing the legal sufficiency of the evidence to support a conviction,
we view all the evidence in the light most favorable to the prosecution in order
to determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443
U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d
772, 778 (Tex. Crim. App. 2007).
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Under this standard, the jury’s inference of intent is afforded more
deference than the evidence supporting proof of conduct. Margraves v. State,
34 S.W.3d 912, 919 (Tex. Crim. App. 2000). Circumstantial evidence of a
defendant’s guilty knowledge is not “required to meet the same rigorous criteria
for sufficiency as circumstantial proof of other offensive elements.” Id.
(quoting Brown v. State, 911 S.W.2d 744, 747 (Tex. Crim. App. 1995)). In
determining the legal sufficiency of the evidence to show an appellant’s intent,
and faced with a record that supports conflicting inferences, we “must
presume—even if it does not affirmatively appear in the record—that the trier
of fact resolved any such conflict in favor of the prosecution, and must defer
to that resolution.” Matson v. State, 819 S.W.2d 839, 846 (Tex. Crim. App.
1991).
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.
Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006); Drichas v.
State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005). We then ask whether
the evidence supporting the conviction, although legally sufficient, is
nevertheless so weak that the fact-finder’s determination is clearly wrong and
manifestly unjust or whether conflicting evidence so greatly outweighs the
evidence supporting the conviction that the fact-finder’s determination is
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manifestly unjust. Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23
S.W.3d 1, 11 (Tex. Crim. App. 2000). To reverse under the second ground,
we must determine, with some objective basis in the record, that the great
weight and preponderance of all the evidence, though legally sufficient,
contradicts the verdict. Watson, 204 S.W.3d at 417.
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by legally sufficient evidence, it is not
enough that this court “harbor a subjective level of reasonable doubt to
overturn [the] conviction.” Id. We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. Id. We may not simply substitute our judgment for the fact-
finder’s. Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997). Unless the record clearly reveals that a different result
is appropriate, we must defer to the jury’s determination of the weight to be
given contradictory testimonial evidence because resolution of the conflict
“often turns on an evaluation of credibility and demeanor, and those jurors were
in attendance when the testimony was delivered.” Johnson, 23 S.W.3d at 8.
Thus, we must give due deference to the fact-finder’s determinations,
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“particularly those determinations concerning the weight and credibility of the
evidence.” Id. at 9.
An opinion addressing factual sufficiency must include a discussion of the
most important and relevant evidence that supports the appellant’s complaint
on appeal. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003).
Moreover, an opinion reversing and remanding on factual insufficiency grounds
must detail all the evidence and clearly state why the finding in question is
factually insufficient and under which ground. Goodman v. State, 66 S.W.3d
283, 287 (Tex. Crim. App. 2001); Johnson, 23 S.W.3d at 7.
In Texas, persons with multiple reportable convictions for sexually violent
offenses are required to register as sex offenders. See Tex. Code Crim. Proc.
Ann. arts. 62.001(5)–(6) (Vernon Supp. 2008), 62.058(a), 62.102(a) (Vernon
2006). Texas Code of Criminal Procedure Chapter 62 creates the offense of
failure to comply with registration requirements in the following terms: “A
person commits an offense if the person is required to register and fails to
comply with any requirement of this chapter.” Tex. Code Crim. Proc. Ann. art.
62.102(a). Chapter 62 generally describes persons subject to registration under
the chapter as follows: “A person who has a reportable conviction . . . shall
register, or if the person is a person for whom registration is completed under
this chapter, verify registration . . . with the local law enforcement authority”
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in the municipality or county “where the person resides or intends to reside for
more than seven days.” Id. art. 62.051(a) (Vernon 2006); see id. art.
62.001(5) (Vernon Supp. 2008). Chapter 62 specifically requires that:
A person subject to registration under this chapter who has for a
sexually violent offense been convicted two or more times . . . shall
report to the local law enforcement authority . . . not less than
once in each 90-day period following the date the person first
registered under this chapter to verify the information in the
registration form maintained by the authority for that person. Id.
art. 62.058(a).
For purposes of Code of Criminal Procedure Article 62.058, “a person
complies with a requirement that the person register within a 90-day period
following a date if the person registers at any time on or after the 83rd day
following that date but before the 98th day after that date.” Id.
Although the sex offender registration statute does not expressly require
proof of a mental state for prosecution of a failure to properly maintain
registration, the indictment in this case alleged that Childers “intentionally,
knowingly, or recklessly” failed to register. Texas courts which have reviewed
other convictions under Chapter 62 for sufficiency have treated the mens rea
requirement in the indictments or charges as going to the actual knowledge of
the defendant’s duty to register. See, e.g., Rodriguez v. State, 45 S.W.3d 685,
688 (Tex. App.—Fort Worth 2001) aff'd, 93 S.W.3d 60 (Tex. Crim. App.
2002); White v. State, 988 S.W.2d 277, 279–80 (Tex. App.—Texarkana
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1999, no pet.); see also Moore v. State, 38 S.W.3d 232, 235 (Tex.
App.—Texarkana 2001, pet. ref’d) (example of failure-to-register indictment
without mens rea requirement).
The evidence at trial showed that Childers verified his registration
information on April 5, 2006, and that, given the ninety-day requirement plus
the seven-day grace period, he needed to report again before July 11, 2006.5
By July 17—the date alleged in the indictment—Childers, admittedly, had not
verified his registration. Childers claims, however, that he did not know of the
July 11, 2006 verification requirement because he claims that his appearance
on April 5, 2006, was for an address change and not a ninety-day verification.
He also claims that the blue card given to him by Miller on April 5 failed to
inform him that his verification requirement had been reset by the change in
address. Further, Childers argues that he expected (and he testified as such)
that his next required registration would fall on the 19th of the month—a date
5
… Miller testified that ninety days from the April 5 address change would
have been July 5, 2006. Bearden said that ninety days from April 5, 2006,
would have been July 4, 2006. This court has counted the days and finds that
ninety days from the April 5 address change would be July 4. Given the seven-
day grace period, Childers would have been required to verify his registration
no later than July 11, 2006. It is important to note that the warrant was not
issued until July 17, 2006. Thus, even if Miller’s misstatement of July 5,
2006, was correct, Childers still would have been required to verify his
registration no later than July 12, 2006.
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consistent with a three month interval based on his release from prison on
December 19, 2001. Thus, Childers argues, the State did not prove that he
“intentionally, knowingly, or recklessly” violated the law. We disagree.
Childers’s claim that the evidence is insufficient to prove that he
“intentionally, knowingly, or recklessly” failed to register is belied by his own
testimony that he had registered properly over the past six years and that he
made attempts to register prior to July 11, multiple times “around the 4th or
5th (of July).” He also testified that he had always kept up with his
registration, and that the only time he had failed to do so during the previous
six years was, “just this one time (referring to his failure to verify his
registration on July 11, 2006.).” Additionally, Miller testified that he informed
Childers his ninety-day period had been reset with the address change and
Bearden testified that—given the number of times Childers had verified
registration in Denton—Childers was familiar with the verification procedures.
After reviewing the evidence in the light most favorable to the verdict, we
hold that the jury could have rationally found beyond a reasonable doubt that
Childers intentionally, knowingly, or recklessly failed to register under Chapter
62. See Clayton, 235 S.W.3d at 778. Furthermore, we hold that the evidence
contrary to Childers’s conviction is not so greatly outweighed by the evidence
supporting the conviction that the jury’s determination was manifestly unjust.
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See Watson, 204 S.W.3d at 414–15, 417. We overrule both of Childers’s
points.
IV. C ONCLUSION
Having overruled both of Childers points, we affirm the trial court’s
judgment.
DIXON W. HOLMAN
JUSTICE
PANEL: LIVINGSTON, DAUPHINOT, and HOLMAN, JJ.
DO NOT PUBLISH
T EX. R. A PP. P. 47.2(b)
DELIVERED: October 9, 2008
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