Haim Silber v. State , 2012 Tex. App. LEXIS 5663 ( 2012 )

Opinion issued July 12, 2012
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00346-CR
———————————
HAIM SILBER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 232nd District Court
Harris County, Texas
Trial Court Case No. 0977241
OPINION
A jury previously convicted appellant, Haim Silber, of the second degree
felony offense of indecency with a child.1 The jury assessed punishment at a
1
See TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011).
$10,000 fine and nine years’ confinement, and it recommended that the sentence
be probated. Upon the recommendation of the jury, the trial court placed appellant
on community supervision for five years. The State subsequently filed a motion to
revoke appellant’s community supervision. The trial court granted the motion,
revoked appellant’s community supervision, and assessed punishment at five
years’ confinement. In one issue, appellant contends that the State failed to present
sufficient evidence that he violated conditions of community supervision by
(1) committing an offense against the laws of Texas by changing his residence
without complying with the sex offender registration requirements and (2) failing
to attend a sex-offender treatment session.
We reverse the revocation order and reinstate appellant’s community
supervision.
Background
In 2005, appellant was convicted of indecency with a child, and, on the
jury’s recommendation, the trial court placed him on community supervision for
five years. As a condition of his community supervision, appellant was required to
register as a sex offender and comply with all sex offender registration
requirements contained in Code of Criminal Procedure Chapter 62, including the
requirement that, if he changed addresses, he inform the applicable registration
authority of his new address and provide proof of residence. See TEX. CODE CRIM.
2
PROC. ANN. art. 62.055(a) (Vernon Supp. 2011). The terms and conditions of
appellant’s community supervision also required him to refrain from committing
any new offenses against the laws of Texas and to participate in a sex offender
treatment program. Pursuant to these conditions, appellant registered as a sex
offender and provided his address to the registration authorities (“the registered
address”).
On February 3, 2011, the State moved to revoke appellant’s community
supervision. The State alleged that appellant committed the following violations of
the terms and conditions of his community supervision:
Committing an offense against the laws of Texas, to wit: on or about
December 7, 2010, the Defendant did then and there unlawfully while
a person with a reportable CONVICTION for the offense of
INDECENCY WITH A CHILD, and while subject to registration
under the Texas Sex Offender Registration Program, change his
residential address and intentionally and knowingly fail to timely
report in person to the local law enforcement agency in the
municipality or county in which the Defendant’s new address was
located in order to provide proof of identity and proof of residence, by
failing to report and provide said information in person to said
authority within seven days after the change of address or upon the
first date the authority would, by policy, allow the Defendant to
report.
....
Failing to comply with sex offender registration, to wit; the Defendant
was ordered to comply with sex offender registration procedures as
required by the laws of this or any other State in which he resides
beginning 10/3/06, and at anytime thereafter as directed by his
Community Supervision Officer. The Defendant failed to comply
with sex offender registration procedures by moving without notifying
the registering agency as required by law.
3
....
Failing to attend sex offender treatment as scheduled on January 27,
2011.
Appellant pleaded not true to the allegations in the State’s motion to revoke.
At the revocation hearing, Houston Police Department (“HPD”) Sergeant T.
Wood, who is also a member of an HPD/FBI task force, testified that he was
approached by an FBI agent who requested Wood’s assistance in locating appellant
to conduct an interview concerning an unrelated investigation. The FBI agent
informed Sergeant Wood that he attempted to interview appellant at his registered
address on December 7, 2010, but no one was present. The agent learned that
appellant rented a mailbox at a local UPS Store, and UPS records indicated that
appellant listed his parents’ address, not his registered address, as his home
address. The agent drove by appellant’s parents’ house and saw a vehicle
registered to appellant parked in front of the house.
Around 7:30 a.m. on December 13, 2010, Sergeant Wood and his partner
drove to appellant’s parents’ house and saw his vehicle parked in front of the
house. The officers then drove directly to appellant’s registered address, knocked
on the door, and received no answer. Sergeant Wood testified that there was a
vehicle parked in the driveway of the registered address that appeared to be broken
down. Appellant’s next-door neighbor informed Sergeant Wood that appellant had
previously given him permission to park the vehicle in appellant’s driveway.
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Sergeant Wood testified that he spoke with several of appellant’s neighbors who
lived across the street. These neighbors opined that “[n]o one currently lives at
that address” and told Sergeant Wood that they had seen appellant stop by the
house, pick up the mail, and then leave. The neighbors correctly identified
appellant’s vehicle.
Sergeant Wood testified that, during the course of his investigation, he went
by the registered address three or four times from 6:30 to 8:30 in the morning,
three or four times from noon to 2:00 p.m., and three or four times during the
evening, as late as 6:00 p.m. Sergeant Wood never saw appellant or his vehicle at
the registered address, and no one ever answered when he knocked. Sergeant
Wood also checked appellant’s parents’ house three or four times in the morning,
and each time, appellant’s vehicle was present at the house. He never attempted to
speak with appellant at his parents’ house, and he never spoke with appellant’s
parents.
HPD officers arrested appellant on January 27, 2011. Sergeant Wood spoke
with appellant after his arrest, and he testified that appellant told him that he did
not have electricity at his registered address because he could not afford it, but he
did have water service because his landlord required it.
Miguel Acosta, who lives across the street from appellant’s registered
address, testified that, although he did not often see appellant at his house, when he
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did, he would usually see appellant between 8:00 p.m. and 10:00 p.m., and
appellant would arrive and “would look in the mail box for the mail just for a while
and then he would leave.” Acosta never saw any lights on at the house. He also
testified that he usually left for work around 3:00 or 4:00 a.m., and on a few
occasions, he would see appellant’s vehicle parked outside his house. On cross-
examination, Acosta acknowledged that he told his wife that he “used to see
[appellant] coming home at night and leaving early in the morning.”
Sandra Acosta, Miguel’s wife, testified that she never noticed appellant at
home during daylight hours, but she would see appellant arrive at the registered
address around 8:00 or 9:00 p.m. She did not know how long appellant would stay
at the house, but she would sometimes see appellant’s vehicle parked outside his
house when she awoke to fix Miguel’s lunch around 3:45 a.m. She estimated that
appellant spent the night at the registered address around three nights per week.
She stated that appellant did not spend every night there. On cross-examination,
Sandra acknowledged that she had seen appellant leaving the registered address
around 4:00 a.m.
Luis Bonilla, who lives directly across the street from appellant, testified that
he had infrequently seen appellant around the neighborhood. He stated that he had
seen appellant a “[l]ittle more often in the past couple of weeks” before the
revocation hearing, at least three times per week. He testified that his wife spoke
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to a police officer in December 2010, and, before that time, he saw appellant at the
registered address “[m]aybe once every two weeks, no more than three times a
month maybe.” Bonilla testified that, when he saw appellant, it was either from
5:00 p.m. to 7:00 p.m. in the evening or from 8:00 p.m. to midnight. Bonilla
would also occasionally see appellant either “leaving the house or coming to the
house” when he left for work at 6:00 a.m. He testified that appellant would usually
stop at the house, get his mail, and leave, but he stated that appellant would
sometimes stay overnight or for “just a couple [of] hours.” In the weeks leading up
to the revocation hearing, appellant would arrive after 9:00 p.m. and would leave
in the morning.
John Gallo, another neighbor, agreed with Bonilla that he saw appellant’s
vehicle at the registered address “a lot more often” since the State moved to revoke
appellant’s community supervision. He testified that he had seen appellant
walking to his vehicle a “couple [of] times” and only after 9:00 p.m. Before an
officer spoke with him about this case, Gallo had only seen appellant “[m]aybe a
couple [of] times in like six months.” Gallo testified that he usually left his house
around 6:00 or 7:00 a.m., and he never saw appellant’s vehicle in front of the
registered address.
Allen Sumair, appellant’s landlord, testified that appellant had been leasing
the registered address for over two years. Before appellant moved in, no utilities
7
were hooked up, but appellant had hooked up both water and gas service. Sumair
testified that this house had never had electricity service during the time that
appellant has lived there. He also testified that he drives by the property once a
month, and, because the yard and house look well-maintained, he does not stop and
go inside. He has never seen appellant present when he drives by.
Appellant called Rabbi Betzalel Marinovsky, who testified that appellant is a
student of his. He testified that he is familiar with appellant’s usual daily schedule,
which includes attending a ritual bath and morning prayers at the synagogue
around 6:00 a.m. Appellant goes to Rabbi Marinovsky’s house in the evenings,
after work, for dinner or classes approximately three times per month. On those
occasions, he usually leaves around 10:00 p.m.
On cross-examination, Rabbi Marinovsky confirmed that he has been to the
registered address “a few times.” He testified that appellant does not have
electricity at his house. On re-direct, Rabbi Marinovsky testified that he is familiar
with appellant’s financial situation. He stated that appellant earns “very little” and
that he is trying to live a “very economical” life and “as frugal[ly] as possible.”
David Morekhay testified that he hired appellant on Rabbi Marinovksy’s
recommendation to help with appellant’s financial situation. Morekhay stated that
appellant primarily helps with Morekhay’s family business in Israel. He testified
that he will often work on documents during the day and will then give those
8
documents to appellant to fax, and, because of the eight-hour time difference
between Houston and Israel, appellant has to wait until after 11:00 p.m. Houston
time in order to fax the documents and receive confirmation that the fax was
successfully transmitted. Morekhay testified that his business does not have a fax
machine but appellant’s parents do, and appellant would send faxes from his
parents’ house a “couple [of] times a week at least.”
On cross-examination, Morekhay testified that he has been to appellant’s
house and that it does not have electricity because appellant “can’t afford it.” He
stated that appellant did have some furniture and belongings there and that he
sleeps there. He also testified that appellant goes to the ritual bath at the
synagogue every morning around 6:00 a.m.
Nora Sosa, appellant’s next door neighbor, testified that, when she needs to
speak with appellant, she goes to his house around 11:30 p.m. or 6:00 a.m., when
she knows that he is there. She stated that her husband and appellant have an
arrangement whereby her husband cuts appellant’s grass and appellant allows the
Sosas to park their car in his driveway instead of on the street. On cross-
examination, she testified that she believes appellant is at the registered address
every night and that she often sees his vehicle parked at the house.
Dr. Nicholas Edd, a psychologist and licensed sex offender treatment
provider, testified that appellant was referred to him for treatment in March 2007.
9
Dr. Edd stated that he meets with appellant once weekly and that appellant has
missed appointments in the past, but he has always notified Edd in advance to
schedule a make-up session. He testified that, in his opinion, appellant is making
“minimal progress” in his treatment because he is “not taking full responsibility for
the nature of the offense.” On cross-examination, Dr. Edd acknowledged that
appellant was also seeing a psychiatrist and was participating in “ongoing
treatment.”
At the close of the hearing, the trial court stated, on the record, that it found
that appellant “violated conditions of [his] probation.” The written judgment
states:
The Court FINDS Defendant has violated the conditions of
community supervision as set out in the State’s ORIGINAL Motion to
Revoke Community Supervision as follows: ON OR ABOUT 12-07-
2010 HE COMMITTED THE OFFENSE OF FAILURE TO
COMPLY WITH SEXUAL REGISTRATION REQUIREMENTS.
HE ALSO FAILED TO ATTEND SEX OFFENDER TREATMENT.
The trial court revoked appellant’s community supervision and assessed
punishment at five years’ confinement.
Revocation of Community Supervision
In his sole issue, appellant contends that the State failed to present sufficient
evidence that he violated the terms of his community supervision by changing his
10
address without notifying the sex offender registration office and by failing to
attend a sex-offender treatment session.2
A. Standard of Review
At a hearing to revoke a defendant’s community supervision, the State must
prove by a preponderance of the evidence that the defendant has violated a
condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763–64
(Tex. Crim. App. 2006) (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex.
Crim. App. 1974)); Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston
[1st Dist.] 2006, pet. ref’d). “[A]n order revoking probation must be supported by
a preponderance of the evidence; in other words, that greater weight of the credible
evidence which would create a reasonable belief that the defendant has violated a
condition of his probation.” Rickels, 202 S.W.3d at 763–64 (quoting Scamardo,
517 S.W.2d at 298). Our review of an order revoking community supervision is
limited to determining whether the trial court abused its discretion in ruling that the
defendant violated the terms of his community supervision. Rickels, 202 S.W.3d at
763 (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984));
2
Although the State, in its motion to revoke, alleged three distinct violations of the
terms of appellant’s community supervision, it alleged that appellant committed a
new offense against the laws of the State of Texas by failing to comply with the
applicable sex-offender registration requirements—namely, by failing to notify
authorities of his change in address—and, as a separate violation, that appellant
violated the sex-offender registration requirements by failing to report his address
change. We treat these allegations as one ground supporting revocation of
appellant’s community supervision.
11
Duncan v. State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet.
ref’d). We examine the evidence in the light most favorable to the trial court’s
order. Duncan, 321 S.W.3d at 57; Canseco, 199 S.W.3d at 439.
A finding of a single violation of the terms of community supervision is
sufficient to support revocation. Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—
Houston [14th Dist.] 1999, no pet.); see also Moore v. State, 605 S.W.2d 924, 926
(Tex. Crim. App. 1980) (“We need not address appellant’s other contentions since
one sufficient ground for revocation will support the court’s order to revoke
probation.”). Thus, in order to prevail on appeal, the defendant must successfully
challenge all of the findings that support the revocation order. Joseph, 3 S.W.3d at
640 (citing Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. 1978)); see
also Baxter v. State, 936 S.W.2d 469, 472 (Tex. App.—Fort Worth 1996, pet.
dism’d) (holding that because appellant did not challenge second ground for
revocation, sufficient evidence supported revocation).
B. Failure to Update Sex Offender Registration Information
A person commits the offense of failure to comply with sex offender
registration requirements if he “is required to register 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) (Vernon 2006); Young v. State, 341 S.W.3d 417, 425
(Tex. Crim. App. 2011) (“Article 62.102 is a generalized ‘umbrella’ statute that
12
criminalizes the failure to comply with any of the registration requirements set out
in Chapter 62.”). Article 62.051(a) requires a person with a “reportable
conviction” to register with “the local law enforcement authority in any
municipality where the person resides or intends to reside for more than seven
days.” TEX. CODE CRIM. PROC. ANN. art. 62.051(a) (Vernon Supp. 2011).
If a person who is required to register as a sex offender intends to change the
address of his residence, he “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 . . . community supervision and corrections department officer . . . supervising
the person and provide the authority and the officer with the person’s anticipated
move date and new address.” Id. art. 62.055(a); Green v. State, 350 S.W.3d 617,
621 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Villanueva v. State, 257
S.W.3d 527, 529 (Tex. App.—Austin 2008, no pet.). The Code of Criminal
Procedure also provides,
If a person required to register changes address, the person shall, not
later than . . . the seventh day after changing the address . . . 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. ANN. art. 62.055(a); Young, 341 S.W.3d at 420 (“[A]ll
registered sex offenders are required to give notice in person to local law
13
enforcement when they intend to change their address and again after they have
done so.”). In this situation, the “forbidden act” is “failing to inform law
enforcement about an impending or completed change of residence.” Young, 341
S.W.3d at 426.
Code of Criminal Procedure Chapter 62 does not provide a definition for
what constitutes a “residence.”3 In the context of a defendant’s alleged failure to
inform his probation officer of a change in residence, as required by the terms and
conditions of his probation, the Court of Criminal Appeals has held that
[r]esidence is an elastic term. The meaning that must be given to it
depends upon the circumstances surrounding the person involved and
largely depends upon the present intention of the individual. Neither
bodily presence alone nor intention alone will suffice to create the
residence, but when the two coincide, at that moment the residence is
fixed and determined.
Whitney v. State, 472 S.W.2d 524, 525 (Tex. Crim. App. 1971); see also
Whitehead v. State, 556 S.W.2d 802, 805–06 (Tex. Crim. App. 1977) (citing
Whitney with approval and holding that State failed to present sufficient evidence
that probationer changed his residence when probationer stayed at another location
3
Instead, Chapter 62 solely defines “residence” as follows: “‘Residence’ includes a
residence established in this state by a person described by Article 62.152(e).”
TEX. CODE CRIM. PROC. ANN. art. 62.001(7) (Vernon Supp. 2011). Article
62.152(e) describes certain workers or students who reside in another state, are
“employed, carr[y] on a vocation, or [are] student[s] in this state,” and who
establish a second residence in this state to work or attend school. Id. art.
62.152(e) (Vernon 2006). This statute is not applicable here.
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for less than two weeks, but left property at registered address and testified that he
considered his registered address to be his permanent address).
Here, in its motion to revoke appellant’s community supervision, the State
alleged that appellant committed a new offense against the laws of Texas by failing
to comply with the sex offender registration requirement mandating that, if he
changes his address, he report his new address and provide proof of residence to
the proper authorities within seven days after the address change. The State
contended that appellant changed his residence from his registered address to his
parents’ house. As supporting evidence, the State pointed out that officers had
checked appellant’s registered address at different times of the day on several
different days and never found him at that address; that appellant’s neighbors
testified that they rarely saw him and, when they did, he would check his mail, stay
for a short period of time, and then leave; that his neighbors never saw any lights
on at his registered address; that appellant only spent a few nights per week at the
registered address; that, after the State moved to revoke, appellant began spending
more time at the registered address; that officers saw appellant’s vehicle parked at
his parents’ address on several occasions; and that appellant had rented a box at a
UPS Store and listed his parents’ address as his home address.
Sergeant Wood testified that he visited appellant’s parents’ house “three or
four times in the morning” and found appellant’s vehicle parked outside, but the
15
State presented no evidence that appellant does anything more than frequently visit
his parents’ house. Sandra Acosta estimated that appellant only spent three nights
per week at the registered address, but the State presented no evidence that
appellant ever spent the night at his parents’ house or that he moved any of his
belongings to his parents’ house. Although he listed his parents’ address as his
home address for the purposes of obtaining a mailbox at a UPS Store, the State
presented no evidence concerning when appellant obtained that box or whether he
currently utilized that box at the time of the relevant events.
The State’s evidence that appellant was not present at the registered address
during the day, that he was not often seen by his neighbors at the registered
address, that he did not have electricity at the registered address, and that he did
not spend every night at the registered address does not constitute evidence that
appellant was not still living and residing at the registered address. The testimony,
for example, also reflected that appellant spent at least a few nights per week at the
registered address and that he still received mail at the registered address.
Appellant presented evidence that, due to his financial situation, he could not
afford electricity, but he could afford water and gas service at the registered
address, as required by his landlord. Appellant successfully made his monthly
rental payments, and his landlord testified that he drove by the property once a
month, and, because the house and the yard looked well-maintained, he did not
16
stop to inquire about appellant’s use of the property. Appellant’s witnesses also
testified concerning his unusual hours: appellant attended the ritual baths and
morning prayers at his synagogue every morning around 6:00 a.m., and, due to the
need to occasionally send faxes to Israel for work, he had to use the fax machine at
his parents’ house late at night.4 Appellant also presented evidence that he
maintains furniture and belongings at the registered address.
A registered sex offender is not required to spend every spare moment and
every night at their registered address. See Whitehead, 556 S.W.2d at 805–06;
Whitney, 472 S.W.2d at 525. We conclude that, based on the particular facts and
circumstances of this case, the State failed to prove that appellant changed his
residence from his registered address to his parents’ house. See Whitehead, 556
S.W.2d at 805–06. We hold that the trial court erroneously found that appellant
committed a new offense against the laws of Texas by failing to comply with Code
of Criminal Procedure article 62.055(a)’s requirement that he inform the
appropriate authorities of his change in residence in accordance with the particular
conditions of that statute.
C. Failure to Attend Sex Offender Treatment
The terms and conditions of appellant’s community supervision required
him to attend a sex-offender treatment program. Since March 2007, appellant had
4
There is no evidence that, on these occasions, appellant would then spend the
night at his parents’ house instead of returning to the registered address.
17
met with Dr. Edd once a week for such treatment. In its motion to revoke, the
State alleged that appellant “fail[ed] to attend sex offender treatment as scheduled
on January 27, 2011.” Appellant contends that the State presented no evidence that
he failed to attend treatment on this date and that, even if he did so fail, his failure
was due to HPD officers arresting him for failure to comply with the sex-offender
registration requirements. We agree with appellant.
Dr. Edd testified that he is a licensed sex-offender treatment provider and
that he had been treating appellant since March 2007. He testified that he meets
with appellant once a week, and, although appellant occasionally misses
appointments, he has always notified Dr. Edd ahead of time and scheduled a make-
up session. The prosecutor and Dr. Edd then discussed whether, in Dr. Edd’s
opinion, appellant was making progress in his treatment. The State did not ask Dr.
Edd whether appellant had an appointment scheduled for January 27, 2011, the
time of this appointment, or whether appellant failed to attend that appointment.
Moreover, in response to a question from the trial court, Sergeant Wood testified
that he arrested appellant on January 27, 2011. There was no testimony concerning
what time of day the arrest occurred.
We conclude that the State failed to prove that appellant did not attend his
required sex offender treatment appointment on January 27, 2011. We therefore
hold that, because the State failed to present sufficient evidence that appellant
18
violated the specific terms and conditions of his community supervision as
enumerated in the motion to revoke, the trial court abused its discretion in revoking
appellant’s community supervision.
We sustain appellant’s sole issue.
Conclusion
We reverse the revocation order of the trial court and reinstate appellant’s
community supervision.
Evelyn V. Keyes
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Publish. TEX. R. APP. P. 47.2(b).
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