Clifford Bart Dunbar v. State ( 2014 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-12-00315-CR
Clifford Bart Dunbar, Appellant
v.
The State of Texas, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT
NO. D-1-DC-12-904010, HONORABLE MICHAEL LYNCH, JUDGE PRESIDING
MEMORANDUM OPINION
A jury found appellant Clifford Bart Dunbar guilty of failure to comply with sex
offender registration requirements and, with the offense level enhanced by his previous offenses,
the jury assessed punishment of life in prison. See Tex. Code Crim. Proc. arts. 62.051(h), .055(a).
Appellant contends that the evidence was insufficient to show that he possessed the intent to change
his residency needed to trigger the reporting requirements. He also contends that he was deprived
of his constitutional right to a jury instruction requiring a unanimous verdict of guilty because the
charge presented alternative means of committing the offense disjunctively within a general charge.
He further asserts that his counsel provided ineffective assistance. We affirm the judgment.
BACKGROUND
In 1983, appellant was convicted of aggravated rape in Howard County, Texas and
indecency with a child in Mitchell County, Texas. He was sentenced to prison terms of fifteen and
thirty years, respectively, for these convictions, to be served consecutively. He was released on
parole in 1998 and required to register as a sex offender. He was required to verify his residence
every ninety days and to comply with registration requirements governing travel and relocation. He
signed a statement that he understood his registration requirements. Appellant registered timely
upon his release from prison, verified his address over the following ten years while living in Austin,
and changed his address when he moved to Manor in December 2008.
In early 2009, appellant had a small janitorial services company through which
he worked as a subcontractor for Kevin Wyrick. On April 9, 2009, Wyrick received complaints
that appellant had not cleaned the stores he was assigned. Wyrick unsuccessfully tried to contact
appellant, then reported him missing to the Travis County Sheriff’s Office. The Travis County
registrar for sex offenders tried to contact appellant on his cell phone from April 9-14, but received
no reply. A peace officer went to appellant’s Manor home on April 14 and did not find him or his
car, but did find someone else’s vehicle. Appellant’s wife stated that he was missing. His parole
officer, who had met with appellant on April 6, 2009, attempted to contact him but could not despite
a requirement that appellant be at home between 10 a.m. and 1 p.m. The parole officer also left
phone messages and visited appellant’s Manor home on April 14. She could not make contact
then or when she tried again on April 20. Appellant failed to appear at his scheduled parole visit on
May 4, 2009. Appellant did not report an intended move or travel.
Appellant was arrested in Michigan on May 8, 2009. United States marshals,
responding to a tip, went to an apartment to inquire about appellant’s whereabouts. When the
marshals drew their weapons and called for appellant to surrender, he attempted to escape
by jumping out of a third-floor window. Hampered by a broken back from the fall, appellant
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was arrested two blocks away. On May 20, 2009, appellant’s vehicle was reported to Michigan
authorities as abandoned more than thirty miles away from where he had been arrested. The
owner of the home where the vehicle was abandoned had the keys to the car and told the Michigan
state trooper that the vehicle had been there for at least a month. In the vehicle, there were pillows,
notebooks, stacks of papers, a photo, newspapers, and a cup that combined to give Michigan State
Trooper Zachary Sparks the impression that someone had been living out of the vehicle. The trooper
found no indications that appellant had established a Michigan address such as an apartment lease
or utility bill. Appellant never informed Texas authorities he was leaving or Michigan authorities
that he was coming and had arrived, nor was there any evidence that he had communicated his travel
or relocation intentions to any relevant authorities.
The State of Texas charged appellant with failure to register as a sex offender
by failing to report an intended change of address to law enforcement or his parole officer within
seven days of the change, failing to provide law enforcement or his parole officer with his anticipated
move date and address, failing to report to his supervising officer not less than weekly during the
time period in which he had not moved to the intended residence, and failing to provide his
supervising officer with his temporary address following his intended move. See Tex. Code Crim.
Proc. arts. 62.051, .055. The trial court put these theories into a single paragraph in the jury charge
and charged them disjunctively, thereby permitting the jury to convict appellant of a single violation
if they found he failed to take any of the four required actions. This charge permitted the jury to find
a violation even if the jurors did not all agree on which omission occurred. The jury found that
appellant had failed to comply with sex offender registration requirements.
3
At the punishment phase, the jury heard evidence that appellant had sexually
assaulted a woman in early 2009. In cooperation with law enforcement, this woman called appellant
to discuss the assault, as well as her resulting pregnancy, on April 8, 2009—the day before appellant
was first reported as having missed work.
DISCUSSION
Evidence supports implied finding of intent to move
Appellant contends that any theory on which he was convicted is undermined by
the lack of evidence to support the implied finding that he intended to change addresses. Appellant
argues that without an intent to move, he was not required to provide notice of intent to move or
the move date and address and that he was not required to report to his parole officer weekly
or provide a temporary address pending the move he never intended to make. On that premise, he
contends, no reasonable jury could find that he broke the reporting requirements he was charged
with violating.1
1
The two relevant statutory provisions state as follows:
If a person subject to registration under this chapter does not move to an intended residence
by the end of the seventh day after the date on which the person is released or the date on
which the person leaves a previous residence, the person shall:
(1) report to the juvenile probation officer, community supervision and
corrections department officer, or parole officer supervising the person by not
later than the seventh day after the date on which the person is released or the
date on which the person leaves a previous residence, as applicable, and
provide the officer with the address of the person’s temporary residence; and
(2) continue to report to the person’s supervising officer not less than weekly
during any period of time in which the person has not moved to an intended
4
When reviewing the sufficiency of the evidence, we consider all of the evidence in
the light most favorable to the verdict to decide whether any rational trier of fact could find the
essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319
(1979). The jury is the sole judge of the credibility and weight to be attached to the testimony of
witnesses. Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013) (citing Jackson, 443 U.S.
at 319)). We presume that the jury resolved any conflicting inferences in favor of the verdict and
we defer to that resolution. Id.
The evidence admitted at the guilt-innocence phase was sufficient to support the
verdict that appellant intended to change his address from his Manor home. He was informed of
and had complied with his sex-offender registration and reporting requirements for ten years,
including registering when he moved from Austin to Manor. He stopped working by April 9, 2009,
residence and provide the officer with the address of the person’s temporary
residence.
Tex. Code Crim. Proc. art. 62.051(h).
If a person required to register under this chapter intends to change address,
regardless of whether the person intends to move to another state, the person shall,
not later than the seventh day before the intended change, report in person to the local
law enforcement authority designated as the person’s primary registration authority
by the department and to the juvenile probation officer, community supervision and
corrections department officer, or parole officer supervising the person and provide
the authority and the officer with the person’s anticipated move date and new
address. If 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.
Tex. Code Crim. Proc. art. 62.055(a).
5
discontinued contact with officers monitoring him, failed to comply with his parole curfew
hours (which is not a violation of the registration requirement, but is consistent with acting on an
intent to change address), and appeared to have rented his house in Manor to someone as of
April 14—although the house appeared vacant on April 20. There is no indication that he intended
to return to Manor. He was found in a Michigan apartment on May 8, albeit without evidence
he was living in that or any other apartment. When his vehicle was reported abandoned in Michigan
on May 20, it contained pillows, notebooks, stacks of papers, a photo, newspapers, and a cup, giving
the impression he had been living in it. Appellant had left the keys with the landowner, who told
Michigan police that the vehicle had been on his property for more than a month. Viewed most
favorably to the verdict, this record contains sufficient evidence on which a rational jury could find
beyond a reasonable doubt that appellant intended to change his address and failed to provide the
new address to the proper authorities and also that appellant failed to apprise the proper authorities
of his temporary address pending his move to an intended address.
The jury instruction was not erroneous and did not cause egregious harm
Appellant contends that the trial court erred by instructing the jury that it could
convict him for failing to comply with sex-offender registration requirements without agreeing
unanimously on the particular provision he violated. The trial court instructed the jury that it could
convict him of failure to register if it found that he failed (1) to report in advance an intended change
of address, along with the date of the move and the address, or (2) to report to his supervising officer
while any move was pending and failed to provide the officer with the address of his interim
6
residence.2 See Tex. Code Crim. Proc. arts. 62.051(h), .055(a). Although the trial court instructed
the jury that its verdict must be unanimous, it did not instruct the jurors that they must agree
unanimously that appellant violated a particular registration requirement. Appellant argues that this
was error because the court of criminal appeals has held that the ways of failing to register that are in
separate statutes are different offenses for purposes of the court’s instructions to the jury. See Young
v. State, 341 S.W.3d 417, 425 (Tex. Crim. App. 2011). Otherwise, the defendant could be convicted
for failing to register without a unanimous verdict regarding the violation of any particular statute,
which appellant urges is unconstitutional. See id.; see also Tex. Const. art. V, § 13.
2
The application paragraph of the trial court’s charge provided as follows:
Now bearing in mind the foregoing instructions, if you believe from the evidence
beyond a reasonable doubt that on or about the 15th day of April, 2009, in the
County of Travis, and State of Texas, the defendant, Clifford Bart Dunbar, being
required to register under the sex offender registration program for receiving a
reportable conviction for aggravated rape with a deadly weapon in Cause No. 6572,
on the 13th day of July, 1983, in the 118th District Court of Howard County, Texas,
intentionally or knowingly failed to comply with a requirement of law, namely, failed
to report an intended change of address within seven days before the change to local
law enforcement authority with whom Clifford Bart Dunbar last registered and to the
parole officer supervising Clifford Bart Dunbar and provide the authority and the
officer with anticipated move date and address of the said Clifford Bart Dunbar, or
that said Clifford Bart Dunbar failed to continue to report to his supervising officer
in the required time period of not less than weekly during any period of time in which
Clifford Bart Dunbar had not moved to an intended residence and failed to provide
the officer with the address of his temporary residence, you will find the defendant
guilty of the offense of failure to comply with sex offender registration requirements
and so say by your verdict, but if you do not so believe, or if you have a reasonable
doubt thereof, you will acquit the defendant of the offense of failure to comply with
sex offender registration requirements.
7
Because appellant did not object to the jury charge on this ground,3 we can reverse
only if any error was fundamental and caused egregious harm by depriving appellant of a fair and
impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
The trial court’s instruction was not erroneous. The legislature created a single
crime—failure to comply with registration requirements, Tex. Code Crim. Proc. art. 62.102(a)—and
numerous registration requirements. See Young, 341 S.W.3d at 425 (listing various requirements).
In Young, the court of criminal appeals held that, although the provision relating to an intended move
has two parts—reporting the anticipated move and reporting the completed move, Tex. Code Crim.
Proc. art. 62.055(a)—the legal duty is a single responsibility to report a move. Young, 341 S.W.3d
at 427. The jurors need only agree unanimously that the offender failed to comply with one or
the other requirement, not on which particular aspect of the reporting requirement he violated. Id.
Although the requirement to report when an intended move is delayed is in a separate statute,
see Tex. Code Crim. Proc. art. 62.051(h), it seems naturally part of the requirement to report a
move—report that the move is intended, report that it is completed, or report that it did not occur
and where the offender will live in the interim. All three are ways in which an offender can violate
his duty to report his residence status as it is affected by an intended move and, therefore, they
constitute alternate means of committing the same offense. As the Young court wrote with respect
to the provisions of article 62.055(a), “The jury must unanimously agree that the defendant violated
3
Although the parties and trial court discussed how the issues should be charged to require
unanimity, appellant did not object to the instruction given when the trial court announced
its conclusion that a disjunctive instruction was authorized. Appellant argues that the discussion
preserved error, while the State contends that appellant’s attorney agreed that the court’s charge
was correct. This type of disagreement is a chief reason that the rules require an objection to
preserve error and why we believe one was required here. See Tex. R. App. P. 33.1.
8
the statutory duty, but need not be unanimous concerning the specific manner and means of
the violation.” Young, 341 S.W.3d at 427. The trial court did not err by submitting this instruction.
In the alternative, any error in the instruction did not inflict egregious harm because
of the nature of the case. When assaying harm, we examine: 1) the entire jury charge; 2) the state
of the evidence, including contested evidence and the weight of probative evidence; 3) the arguments
of counsel; and 4) any other relevant information in the record to determine whether appellant
suffered egregious harm. Id. Egregious harm may occur in a variety of circumstances—e.g., if
the error affected the very basis of the case, undermined a defensive theory, made a conviction
significantly more likely, or deprived the defendant of a valuable right. Taylor v. State, 332 S.W.3d
483, 490 (Tex. Crim. App. 2011). The contested issue in this case—common to the statutes
appellant is charged with violating—is whether appellant intended to move. See Tex. Code Crim.
Proc. arts. 62.051(h), .055(a). Appellant contends that there is no evidence that he intended to
move and, thus, that these reporting statutes did not apply to him. The State contends that there
is evidence that he intended to move and failed to provide the requisite notice.4 The dispute over
intent, however, does not create a possibility in which the jury’s verdict would be non-unanimous
on any particular means of commission of the offense because appellant undisputedly did not provide
any notice required by articles 62.051 and 62.055. Either appellant intended to change his address
4
The evidence is undisputed that appellant utterly failed to report anything related to an
intended or completed move to Michigan or anywhere else. He did not give notice of an intended
move, notice that he had moved, or notice that a planned move was on hold and that he had an
interim address. The only evidence is that appellant was last seen in the Austin area on April 8, that
he was arrested in Michigan on May 8, and that, on May 20, his car—which contained his belongings
and looked as if someone had been living in it—was reported abandoned nearby in Michigan and
as having been in that location for at least a month.
9
and committed the violations alleged—which is sufficient to support the judgment whether the
theories were submitted conjunctively or disjunctively—or he did not intend to change his address,
the reporting requirements do not apply, and he is not guilty of the charged offenses.5 The jury
found him guilty, so it necessarily found that he intended to change his address and we have
affirmed that verdict. We note that this must mean that the jury unanimously found that he violated
article 62.055(a) because his duty to report under article 62.051(h) did not arise unless he first
intended to move and then did not. Put another way, no reasonable juror could have found from
the evidence presented that appellant failed to report an interim address pending an incomplete
move under article 62.051(h) without first finding that he intended to move, in which case the juror
must have found a violation of 62.055(a) based on the evidence presented that appellant provided
no notice of an intended move. Because the jury necessarily unanimously found a violation of
article 62.055(a), any error in the instruction did not affect the basis of either party’s case, undermine
a defensive theory, make a conviction more likely, or deprive appellant of a valuable right.
We conclude that the trial court did not err by giving the challenged instruction or,
if it did err, the error asserted did not cause appellant egregious harm.
Appellant’s counsel did not render ineffective assistance
An appellant alleging ineffective assistance of counsel must show by a preponderance
of the evidence that (1) counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms and (2) the deficient performance prejudiced the defense.
5
Whether appellant might then be guilty of other theories of failure to report is beyond the
scope of this opinion.
10
Strickland v. Washington, 466 U.S. 668 (1984); Salinas v. State, 163 S.W.3d 734, 740 (Tex. Crim.
App. 2005). Ineffective-assistance claims turn on the facts and circumstances of each particular case,
Johnson v. State, 691 S.W.2d 619, 626 (Tex. Crim. App. 1984), and must be firmly founded in
the record. Bone v. State, 77 S.W.3d 828, 835 (Tex. Crim. App. 2002). An accused is not entitled
to entirely errorless representation, and we look to the totality of the representation in gauging
the adequacy of counsel’s performance. Frangias v. State, 392 S.W.3d 642, 653 (Tex. Crim. App.
2013). The review of defense counsel’s representation is highly deferential and presumes that
counsel’s actions fell within a wide range of reasonable professional assistance. Tong v. State,
25 S.W.3d 707, 712 (Tex. Crim. App. 2000). The record on direct appeal will only rarely be
adequate to show that counsel’s performance fell below an objectively reasonable standard of
performance. See Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005). When the
record is silent as to trial counsel’s strategy, we will not conclude that appellant received ineffective
assistance unless the challenged conduct was “so outrageous that no competent attorney would
have engaged in it.” Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001). Counsel should
ordinarily have the opportunity to explain the reason for litigation decisions, and the trial record
rarely contains sufficient information to permit a reviewing court to fairly evaluate the merits of the
serious assertion that counsel was ineffective and harmed the defendant. See Goodspeed v. State,
187 S.W.3d 390, 392 (Tex. Crim. App. 2005).
Appellant contends that his trial counsel provided ineffective assistance by failing to
object to testimony appellant contends was inadmissible. He complains about the failure to object
to the admission of the following evidence germane to his theory that he had not actually moved
his residence:
11
(1) Sex offender registrar Bonnie Harris testified that she believed that appellant had
left his employment. She based her opinion on her review of an email by a sheriff’s
deputy who was investigating appellant’s whereabouts. Appellant contends that
Harris’s testimony was hearsay because the underlying email was hearsay.
(2) When the court sustained counsel’s objection to Harris’s testimony that she
“knew” appellant had vacated his residence, counsel did not request an instruction
that the jury disregard the objected-to testimony.
(3) After counsel objected to hearsay regarding information that Travis County
Deputy Lawson obtained from appellant’s wife, counsel did not object to Deputy
Lawson’s testimony that he advised her to “file a missing person’s report” on
appellant. He contends that Lawson’s testimony was indirect hearsay.
(4) Counsel did not object to a statement made by appellant’s parole office
Heather McKenzie that she thought a renter lived at appellant’s residence as of
April 20. Appellant contends that McKenzie’s opinion was based on information
from a third party and therefore was inadmissible hearsay.
(5) Counsel did not object to testimony by Michigan State Trooper Zachary Sparks
that appellant’s vehicle had been abandoned for up to a month and a half on property
in Ravenna, Michigan. Appellant contends that this testimony was based on the
property owner’s complaint and was therefore hearsay and a violation of his
constitutional right to confront witnesses against him.
Many of the allegedly deficient actions relate to the admission of hearsay
or statements based on hearsay. Hearsay is defined as “a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” Tex. R. Evid. 801(d). Witnesses are generally allowed to explain that an out-of-
court statement caused the witness to take a particular action so long as the testimony does
not strongly imply the content of the out-of-court statement. See Head v. State, 4 S.W.3d 258, 261
(Tex. Crim. App. 1999); Schaffer v. State, 777 S.W.2d 111, 114 (Tex. Crim. App. 1989). For
example, a police officer can testify that information received about possible illegal drug sales
caused the officer to investigate the situation described, but more specific statements about
12
the defendant’s involvement can be excluded. See Poindexter v. State, 153 S.W.3d 402, 408 n.21
(Tex. Crim. App. 2005). If the officer’s conduct is called into question, however, the court may
allow the officer to reveal the specific information conveyed by the out-of-court declarant so that the
jury may assess issues like whether the officer had probable cause to arrest or search a particular
person. See id. (citing Schaffer, 777 S.W.2d at 115 n.4).
We will consider together counsel’s reaction to the first three passages concerning
testimony from registrar Harris and Deputy Lawson. The effect of any failure to object to Harris’s
conclusions regarding appellant’s employment and any indirect revelation of the content of a
Travis County deputy’s email on that subject was nullified by the testimony of the janitorial service
contractor Kevin Wyrick. He testified that appellant failed to show up for work, failed to answer
his telephone, and failed to respond to the contractor’s messages, and that the contractor did not find
him when he checked with area hospitals and jails. Wyrick’s testimony rendered harmless any effect
of any misstep in counsel’s decision not to object to Harris’s testimony regarding appellant’s
employment status. See Rogers v. State, 853 S.W.2d 29, 35 (Tex. Crim. App. 1993). Similarly,
counsel’s failure to ask the court to instruct the jury to disregard Harris’s testimony that she “knew”
that appellant had moved from his home was harmless in light of the testimony of several other
witnesses that appellant was sought and not found via phone or at his home—even during the hours
his parole terms required him to be there. Lawson’s testimony that he advised appellant’s wife to
file a missing person’s report revealed nothing more than did other testimony about appellant’s
apparent disappearance, such as Wyrick’s testimony that he reported appellant as missing to the
Travis County Sheriff’s Department. With regard to each of these situations, we do not know why
13
appellant’s counsel acted as she did, but the result of her inaction was negligible in light of other
evidence admitted, and we cannot say that her actions were outrageous and incompetent.
Appellant’s attorney performed adequately by not objecting to hearsay in parole
officer McKenzie’s statement about a renter staying in appellant’s home because her testimony
did not indicate a hearsay source. On appeal, appellant asserts without reference to the record that
“[h]er knowledge of the status of any individuals’ present was based on information conveyed to
her by a third party.” McKenzie testified that she had been to appellant’s home at least twelve times
previously, did not find him or his vehicle there on April 14 during his curfew hours, and did
find an unfamiliar vehicle in the driveway. She stated that, when she returned on April 20 with a
Fugitive Task Force, it appeared that a renter might be living in the home. On the record before us,
McKenzie’s statement appears to be based on her personal observations. Appellant’s counsel did
not act deficiently by choosing not to object to McKenzie’s opinion as indirect hearsay.
Appellant contends finally that his trial counsel was deficient for failing to object
to Michigan State Trooper Sparks’s testimony that he was told that appellant’s vehicle had been
on Archie Dempsey’s property for more than a month. Appellant contends that the statement about
the duration of the vehicle abandonment was hearsay and testimonial and, therefore, that its
repetition by Sparks in court violated appellant’s right to confront witnesses against him. This
passage from Sparks’s testimony occurred early in his recitation of his response to the report of the
abandoned vehicle and contains the sort of information that provides context for his response. The
statement about the duration of the vehicle’s stay was not directly solicited and may have been
offered for a purpose other than the truth of the matter asserted—rendering it not hearsay under the
definition. See Tex. R. Evid. 801(d). Trial counsel may have chosen not to object to the statement
14
of duration in order to avoid drawing attention to it. Defense counsel also elicited testimony on
cross-examination of Sparks that any information about the vehicle he received before he went to
Dempsey’s property—including, implicitly, the duration of the vehicle’s stay—came from a source
other than direct conversation with Dempsey. Appellant has not shown that his trial counsel’s failure
to object to Sparks’s testimony was deficient performance.
Further, we conclude that these alleged missteps by defense counsel did not render her
overall performance deficient. She participated in pretrial hearings including voir dire, successfully
objected to testimony, cross-examined witnesses, and argued strongly that the State had not
proved that appellant intended to move, and therefore had not proved that he failed to comply
with requirements that he report the progress of his intended move. She highlighted the absence of
evidence that appellant discussed moving to a new place and of evidence that he did move, such as
utility bills, an apartment lease, or storage fees. She argued that his failure to return the registrar’s
calls did not show violation of the requirement that he report on any intended move and that his
absence from his Manor home when various authorities checked on him did not show that he had
moved or intended to move. She noted that the only evidence that he personally was in Michigan
any particular day was his arrest on May 8, and still there was no evidence that he intended to move
there. She noted the fact that the landowner who reported the vehicle abandoned had the keys and
could have placed the pillows in the vehicle. She also noted there was no evidence that appellant
had intended to move or had moved to the location where his vehicle was found. The jury’s decision
to make reasonable inferences to fill the alleged gaps in the evidence does not demonstrate
that appellant’s counsel was ineffective. It shows only that the jury found, among other things, that
15
appellant intended to change his address and failed to report that intention, accomplishment, or a
deviation from the intention as required.
Appellant has not shown that his counsel provided ineffective assistance or that any
deficiency in her performance prejudiced his defense. As discussed above, appellant undisputedly
did not report anything relating to an intended, thwarted, or accomplished change of address to any
relevant authority, and the jury was well within its province from the evidence admitted to infer that
he intended to change his address.
CONCLUSION
We affirm the judgment of conviction.
Jeff Rose, Justice
Before Justices Puryear, Pemberton, and Rose
Affirmed
Filed: June 13, 2014
Do Not Publish
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