William C. Brown v. State ( 2016 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00285-CR
WILLIAM C. BROWN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 432ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1356206D
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MEMORANDUM OPINION1
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Appellant William C. Brown appeals his conviction for failing to register as
a sex offender. A jury found Appellant guilty, found the habitual offender
allegations true, and assessed his punishment at thirty years’ imprisonment. In
two issues, Appellant attacks the sufficiency of the evidence to support his
conviction and complains of charge error. We affirm.
1
See Tex. R. App. P. 47.4.
Background
In the indictment, the State alleged that on or about October 8, 2013,
Appellant intentionally or knowingly failed to report to the local law enforcement
authority with whom he was required to register once each year. Specifically, the
State alleged Appellant was required to register under the sex offender
registration program of Chapter 62 of the Texas Code of Criminal Procedure not
earlier than the thirtieth day before and not later than the thirtieth day after the
anniversary of Appellant’s birth date to verify the information in the registration
form maintained by the law enforcement authority. Tex. Code Crim. Proc. Ann.
art. 62.058(a) (West Supp. 2015).
The Evidence
Officer Karey Reynolds was a member of the sex crimes unit of the Fort
Worth Police Department. She was familiar with Appellant. Officer Reynolds
testified that Appellant had a conviction for sexual assault, a “reportable”
conviction, in 1996 for which he received a ten-year sentence. Appellant was
convicted on August 13, 2009, for failing to comply with the sex offender
registration requirement and received a three-year sentence. Officer Reynolds
saw Appellant in March 2012 when Appellant was being released from prison for
the offense of failure to register.
Officer Reynolds said she explained to Appellant that he was required to
register for the rest of his life. She told Appellant that he had to report to register
once a year on his birthday. She testified that on March 28, 2012, Appellant
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acknowledged he understood and signed the paperwork acknowledging he
understood, and that Appellant received a copy of the documents that day.
Officer Reynolds testified that she had no doubt that Appellant understood the
registration requirements. Officer Reynolds said Appellant did not show up in
2013 to verify his annual registration.
The State introduced into evidence State’s Exhibits 1 and 2.2 State’s
Exhibit 1 is a Fort Worth Police Department document for the Sex Crimes
Registration Apprehension and Monitoring Unit. Signed by Appellant on March
28, 2012, the first page of this form provides:
Effective September 1, 1999 a change was made in article 62
of the Texas Code of Criminal Procedure. The change pertains to
the annual anniversary date on which you are required to report to
the local law enforcement authority to verify the information in the
registration form maintained by that authority.
Effective September 1, 1999 your anniversary date is the
same as your date of birth. You must report in person to the local
law enforcement authority once each year not earlier than the 30th
day before or not later than the 30th day after your birthday.
YOUR BIRTHDAY IS Sep / 07. THIS IS YOUR
ANNIVERSARY DATE.
The second page of State’s Exhibit 1, also signed by Appellant on March 28,
2012, has two spots check-marked. The first provided that Appellant
acknowledged that he was required to register once a year within thirty days
2
Both exhibits are attached in the appendix.
3
before or thirty days after his birthday. The second provided that he
acknowledged having to register for the rest of his life.
State’s Exhibit 2 is a “Pre-Release Notification Form / Texas Sex Offender
Registration Program.” Appellant signed this document on March 28, 2012. The
box for “Lifetime” is checked for the duty to register, and the box for “Annual (on
birthdate)” is checked for the verification requirement. Below these boxes,
Appellant initialed the portion that provided, “Periodic Verification of Registration:
I must personally appear at my primary registration authority and verify my
registration information annually, every 90 days, or every 30 days, as indicated
above.” As noted, the above indicated Appellant had to register annually for the
rest of his life.
Officer Reynolds explained for the jury that State’s Exhibit 1 told Appellant
of his duty to register once a year around his birthday. Officer Reynolds testified
that State’s Exhibit 2 was a form that outlined the duty-to-register requirements.
Officer Reynolds said she went over the form with Appellant. After verifying that
Appellant could read, Officer Reynolds said she instructed Appellant to read the
rest of the form and place his initials next to each paragraph to show that he had
read the paragraph. Officer Reynolds said she reviewed each paragraph with
registrants to reassure herself that the registrants understood each paragraph
and had no questions.
For the annual reporting requirement, the registrant was given a sixty-day
window—from thirty days before to thirty days after the registrant’s birthday—to
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schedule an appointment and report. Compliance was determined by when the
appointment was set, not by when office contact was made; Officer Reynolds
explained that the reporting office was sometimes “booked up” and that as long
as the registrant made some effort, they would register him.
Officer Reynolds testified further that because Appellant registered as
homeless, he had to report every thirty days as well. This requirement was in
addition to his annual reporting requirement. For the monthly reporting, the
registrant had to come in between 3:00 and 4:00 any day of the month unless it
was a holiday. State’s Exhibits 3 and 4 were monthly sign-in sheets. State’s
Exhibits 3 and 4 are clearly captioned, “Transient/Homeless 30-Day Update.”
They showed that Appellant reported on August 30, 2012, but did not report in
September 2012. Officer Reynolds said she did not issue a warrant; instead, she
passed the information on to a monitor, and the monitor decided whether to grant
the registrant any leeway. Monitors were the persons who actually went into the
field to look for registrants.
Appellant reported in October 2012. In November 2012, Appellant signed
in at the front desk but did not sign in with Officer Reynolds because the desk
officer told Appellant that he needed an appointment. Officer Reynolds passed
on that information to the monitor but made no effort to arrest Appellant for failing
to report. Appellant did not report in December 2012.
Thereafter, Appellant reported in January and February 2013, but failed to
appear in March, appeared in April, but then failed to appear in May, June, and
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July, after which Officer Reynolds said she quit checking the sheet and
forwarded the information to the monitor. She said Appellant failed to report for
his annual registration in 2013 as well. Appellant was not seen again until he
was arrested pursuant to a warrant.
Sufficiency of the Evidence
In his first issue, Appellant contends that no rational juror could have found
that he had actual knowledge of an annual reporting requirement separate and
apart from his monthly reporting obligation because the forms are “far too
ponderous and confusing.” He further argues that no rational juror could
conclude beyond a reasonable doubt that he consciously remembered and
understood his two distinct reporting requirements and that he consciously chose
to ignore the annual obligation.
In our due-process review of the sufficiency of the evidence to support a
conviction, we view all of the evidence in the light most favorable to the verdict 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); Dobbs v. State, 434 S.W.3d 166, 170
(Tex. Crim. App. 2014). 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; Dobbs, 434 S.W.3d at 170.
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State’s Exhibits 1 and 2 showed Appellant knew about the annual
registration requirements. Officer Reynolds testified about how she went over
the annual registration requirements and made certain Appellant understood
them. There was no evidence contradicting State’s Exhibits 1 and 2 or Officer
Reynolds’s testimony showing that Appellant knew about the annual registration
requirements, and there was no evidence showing that Appellant confused the
monthly reporting requirement with the annual reporting requirement. To the
contrary, the record reflects that after April 2013, he failed to comply with either
one.
Generally, since no mental state is specified for article 62 offenses, proof
that the defendant acted “intentionally, knowingly, or recklessly” is sufficient.
Harris v. State, 364 S.W.3d 328, 335 (Tex. App.—Houston [1st Dist.] 2012, no
pet.); Ford v. State, 313 S.W.3d 434, 438 (Tex. App.—Waco 2010), rev'd on
other grounds, 334 S.W.3d 230 (Tex. Crim. App. 2011); see also Tex. Penal
Code Ann. § 6.02(c) (West 2011) (providing that, if definition of offense does not
prescribe culpable mental state and one is required, “intent, knowledge, or
recklessness suffices to establish criminal responsibility.”)
Regarding Appellant’s mental state, where the evidence establishes that a
sex offender is told of the reporting requirement, a jury can properly find that the
violation was done knowingly. See Tatum v. State, 431 S.W.3d 839, 843 (Tex.
App.—Houston [14th Dist.] 2014, pet. ref’d); Varnes v. State, 63 S.W.3d 824, 832
(Tex. App.—Houston [14th Dist.] 2001, no pet.). Officer Reynolds’ testimony and
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the State’s Exhibits 1 and 2 show that Appellant was told about and understood
the annual reporting requirement. Viewing the evidence in the light most
favorable to the verdict, we hold that any 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. We overrule Appellant’s first issue.
Charge Error
In his second issue, Appellant asserts the trial court erroneously included
an “on or about” instruction in the jury charge. Appellant asserts that the
evidence at trial was not limited to his failure to report in 2013 but also suggested
he may not have appeared for his annual registration in 2012. Appellant
acknowledges the evidence shows he appeared within thirty days of his birthday
in August 2012 but maintains that it is not clear whether he appeared as part of a
monthly-reporting requirement or his annual reporting requirement. Because the
jury charge authorized a conviction for a failure to report “so long as the
indictment was presented within three years from the date of the offense,” and
because the indictment was presented on February 13, 2014, Appellant contends
the charge incorrectly authorized a conviction for any failure to report between
February 2011 and February 2014.
The charge provided:
You are instructed that the State is not bound to prove the
exact date alleged in the indictment, but may prove the offense, if
any, to have been committed at any time prior to the presentment of
the indictment, so long as said indictment is presented within three
years from the date of the offense, if any.
8
The jury is instructed that the Court has taken judicial notice
that the date the indictment in this case was presented was on the
13th day of February, 2014. The jury is further instructed that it may,
but is not required to, accept as conclusive the fact judicially noted.
The charge elsewhere provided:
Now, if you find from the evidence beyond a reasonable doubt
that the Defendant, William C. Brown, in Tarrant County, Texas, on
or about the 8th day of October, 2013,3 did then and there
intentionally or knowingly fail to report to the local law enforcement
authority with whom said defendant is required to register once each
year, . . . then you will find the Defendant guilty of Failure to Register
as a Sex Offender as charged in the Indictment.
The State responds that Officer Reynolds testified that Appellant reported
on August 30, 2012. The State points out that there was no contrary evidence
showing a failure to comply in 2012. The State argues that, conversely, the
evidence was, as alleged in the indictment, Appellant failed to report during the
sixty-day window in 2013.
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. Id. If error
occurred, whether it was preserved determines the degree of harm required for
reversal. Id. Unpreserved charge error warrants reversal only when the error
3
The State ostensibly chose October 8, 2013, because thirty days after
Appellant’s birthday (September 7) was October 7, 2013, so by October 8, 2013,
the State could say with certainty that Appellant had not registered within the
previous sixty-day window.
9
resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.
App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006). The
appropriate inquiry for egregious harm is a fact specific one that must be
performed on a case-by-case basis. Gelinas v. State, 398 S.W.3d 703, 710
(Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App.
2011).
In making an egregious harm determination, “the actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a
whole.” Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at
708–10 (applying Almanza). Errors that result in egregious harm are those “that
affect the very basis of the case, deprive the defendant of a valuable right, vitally
affect the defensive theory, or make a case for conviction clearly and significantly
more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at
172). The purpose of this review is to illuminate the actual, not just theoretical,
harm to the accused. Almanza, 686 S.W.2d at 174.
The trial court must give the jury a written charge that sets forth the law
applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). It is
not error, generally, for an indictment to allege an “on or about” date for a
charged offense. Garcia v. State, 981 S.W.2d 683, 686 (Tex. Crim. App. 1998)
10
(reaffirming prior holdings that it is not error, constitutional or otherwise, for an
indictment to allege an “on or about” date for the charged offense); Sledge v.
State, 953 S.W.2d 253, 356 (Tex. Crim. App. 1997) (“It is well settled that the ‘on
or about’ language of an indictment allows the State to prove a date other than
the one alleged in the indictment as long as the date is anterior to the
presentment of the indictment and within the statutory limitation period.”)
However, relying on Taylor v. State, Appellant contends that the jury charge is
erroneous in this case because it presented the jury “with a much broader
chronological perimeter than [was] permitted by law.” See 332 S.W.3d at 488.
In Taylor, the defendant was charged with aggravated sexual assault
offenses committed as an adult, that is, after his seventeenth birthday, but there
was evidence of many aggravated sexual assault offenses committed both
before and after his seventeenth birthday. Id. at 485–86. As to offenses
committed before his seventeenth birthday, the defendant could not be convicted
absent the juvenile court’s waiving its jurisdiction and certifying him to be tried as
an adult. Id. at 485. The charge, however, authorized the jury to convict the
defendant regardless of whether the offenses occurred before or after his
seventeenth birthday. Id. at 487–88, 492–93. Defense counsel did not object.
Id. at 486. The court concluded the charge was erroneous because it presented
the jury “with a much broader chronological perimeter than [was] permitted by
law.” Id. at 488. Taking the record as a whole, however, the court of criminal
appeals held that egregious harm did not result from the jury charge error
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because the defense’s theory was that no sexual abuse occurred at any time;
therefore, the court concluded it was unlikely that the jury believed that Appellant
sexually assaulted the victim before he turned seventeen years’ old but not after.
Id. at 493.
Appellant next relies on Kelley v. State. 429 S.W.3d 865 (Tex. App.—
Houston [14th Dist.] 2014, pet. ref’d). In Kelley, the defendant was convicted of
failure to comply with statutory sex offender registration requirements. Id. at 869.
The charge’s “on or about” instruction informed the jury that the State was not
bound by the dates in the indictment but could rely on a failure to comply with the
registration requirements any time within the three years before the filing of the
indictment. Id. at 878. The indictment relied upon a specific failure to report in
August 2011. Id. at 880. But the evidence encompassed two subsequent
reporting periods as well. Id. The court concluded that the charge, like the one
in Taylor, “‘present[ed] the jury with a much broader chronological perimeter than
is permitted by law.’” Id. (quoting Taylor, 332 S.W.3d at 488.) After discussing
the evidence and the arguments, the court concluded the error was harmless
because the focus of both the evidence and the arguments was to prove the
failure to report in August 2011. Id. at 880–82.
The trial court has an “absolute sua sponte duty” with regard to and is
“ultimately responsible for the accuracy of the jury charge and accompanying
instructions.” Taylor, 332 S.W.3d at 488 (quoting Delgado v. State, 235 S.W.3d
244, 249 (Tex. Crim. App. 2007)). This duty exists even when the defense fails
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to object to inclusions or exclusions in the charge. See Taylor, 332 S.W.3d at
486. Thus, the question here is whether the inclusion of the sua sponte “on or
about” instruction in the context of this sex offender registration case rendered
the charge inaccurate with regard to the law applicable to the case.
We disagree with Appellant’s reliance on Taylor. The problem with the
charge in Taylor was that it authorized the jury to convict the defendant for
conduct he engaged in before his seventeenth birthday when the law prohibited
the jury from relying on that conduct. Id. at 485. It was in that context that the
court concluded the charge was erroneous because it presented the jury “with a
much broader chronological perimeter than [was] permitted by law.” Id. at 488.
In contrast, Appellant’s charge (and the charge in Kelley as well) did not
authorize the jury to consider a period of time that the law otherwise prohibited
the jury from considering. Rather, the problem in Appellant’s charge (and the
charge in Kelley) was that (1) the evidence showed the defendant possibly
committed the offense on more than one occasion during the time period
authorized by the charge, (2) the defendant failed to have the State elect which
one of the events it intended to rely upon, and (3) in the absence of an election,
the jury potentially rendered a non-unanimous verdict if different jurors relied on
different events when voting to convict. See Cosio v. State, 353 S.W.3d 766,
771–74 (Tex. Crim. App. 2011).
In Appellant’s case, there was no evidence or argument that Appellant was
required to register—much less that he failed to register—in 2011. Appellant was
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still in prison in 2011, and the duty to report does not arise until the defendant is
released from prison. See Tex. Code Crim. Proc. Ann. arts. 62.051, 62.053
(West Supp. 2015). Therefore, there was no possibility the jury would have
convicted Appellant based on any conduct in 2011.
In 2012, there was evidence that Appellant reported on August 30, 2012.
However, the evidence reflected that he reported on that date as part of the
monthly-reporting requirement and not as part of the annual reporting
requirement. Officer Reynolds was not expressly asked whether Appellant
complied with the annual reporting requirement in 2012. Appellant argues that
some of the jurors could have concluded Appellant failed to report in 2012 as well
as in 2013. If that is true, the nature of the error would not be that the jury was
prohibited from considering any failure to report in 2012; rather, the danger was
that the jury potentially rendered a non-unanimous verdict. See Cosio, 353
S.W.3d at 771–74. For purposes of this opinion, because the evidence was that
the annual reporting requirement and monthly reporting requirement were
separate requirements, because the evidence in the record shows that
Appellant’s August 30, 2012 compliance was in conjunction with his monthly
reporting requirement, and because there was no evidence Appellant otherwise
complied with his annual reporting requirement in 2012, we will assume, without
holding, that the charge contained error on the basis that it potentially allowed for
a non-unanimous verdict. See id. We proceed to whether the error was harmful.
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Because there was no objection to the charge, Appellant acknowledges he
must show egregious harm. See Taylor, 332 S.W.3d at 489; Almanza, 686
S.W.2d at 171. Egregious harm requires actual rather than theoretical harm.
Cosio, 353 S.W.3d at 777; Kelley, 429 S.W.3d at 881. Actual harm requires that
the charge error must have affected the very basis of the case, deprived the
defendant of a valuable right, vitally affected a defensive theory, or made the
case for conviction clearly and significantly more persuasive. Taylor, 332 S.W.3d
at 490; see Cosio, 353 S.W.3d at 777. When assessing harm, courts consider
(1) the charge, (2) the evidence, (3) the parties’ arguments, and (4) all other
relevant information in the record. Cosio, 353 S.W.3d at 777.
The indictment alleged Appellant failed to report annually in 2013. The
evidence showed he failed to report annually in 2013. The evidence from 2012
and early 2013 showed that as long as Appellant reported monthly, even if
sporadically, the State was lenient. The evidence showed that it was only after
Appellant stopped reporting at all after April 2013 that the State decided to indict
Appellant for his failure to comply with his annual reporting requirement later that
year—between August 8, 2013, and October 7, 2013. During final arguments,
nothing suggested any confusion over which incident the State was attempting to
convict Appellant on.4 Although the charge authorized the jury to look to 2011 or
4
Defense counsel argued, “The evidence is pretty conclusive. I’m not
going to argue that. He failed to register. But did he knowingly and
intentionally?” The record reflects that this statement regarding failing to report is
15
2012, nothing in the way the case was presented or argued suggested the State
sought a conviction for Appellant’s conduct in those prior years. Everything
pointed to Appellant’s failure to report at all after April 2013 and, more
specifically, his failure to comply with his annual reporting requirement during the
sixty-day window between August 8, 2013, and October 7, 2013. We hold,
therefore, that Appellant did not suffer egregious harm and overrule his second
issue. See Kelley, 429 S.W.3d at 882 (holding no egregious harm because both
sides framed the issue in the context of one specific violation).
Conclusion
Having overruled both of Appellant’s issues, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: GARDNER, GABRIEL, and SUDDERTH, JJ.
GABRIEL, J., concurs without opinion.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: February 18, 2016
true regarding 2013, not necessarily true regarding 2012, and would have no
applicability regarding 2011 because Appellant was still incarcerated.
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02-14-00285-CR Appendix
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