Ajak Malual Gwath v. the State of Texas

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00181-CR
___________________________
AJAK MALUAL GWATH, Appellant
V.
THE STATE OF TEXAS
On Appeal from Criminal District Court No. 1
Tarrant County, Texas
Trial Court No. 1600434D
Before Birdwell, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Appellant Ajak Malual Gwath appeals from a judgment adjudicating him guilty
of indecency with a child and sentencing him to three years’ incarceration. We affirm.
I. Background
In October 2019, Appellant was indicted for three counts of sexual assault of a
child. Pursuant to a negotiated guilty plea, the State waived Counts 1–3 and amended
the indictment to add Count 4, indecency with a child. Appellant pleaded guilty to
indecency with a child and was placed on community supervision in January 2020.
The trial court deferred adjudication of guilt for five years and assessed a $500 fine
and $300 in court costs. In February 2020, the State petitioned to proceed to
adjudication, alleging Appellant had violated the terms of his community supervision.
The State later withdrew the petition after Appellant was ordered to serve a term of
confinement in an intermediate sanction facility.
In August 2021, the State filed its second petition to proceed to adjudication
alleging that Appellant (1) committed the offense of “Sex Offenders Duty to Register
Life/Annually” and (2) failed to pay supervision fees and costs. At his revocation
hearing on November 15, 2021, Appellant pleaded “not true” to both allegations.
Tarrant County Probation Officer Sophia Badih and Officer Thomas Johnson with
the Fort Worth Police Department’s Sex Offender Registration and Tracking Unit
testified for the State. As factfinder, the trial court found both allegations true and
found Appellant had violated the terms and conditions of his community supervision.
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The trial court adjudicated Appellant guilty of indecency with a child and sentenced
him to three years’ incarceration.
II. Sufficiency of the Evidence
In his first issue on appeal, Appellant argues that the State’s evidence was
insufficient to show Appellant violated the conditions of his community supervision
by committing the offense of failure to register as a sex offender.
A. Standard of Review
We review a trial court’s decision to adjudicate guilt with the same standard we
use to review a trial court’s decision to revoke community supervision. See Tex. Code
Crim. Proc. Ann. art. 42A.108(b). In a revocation proceeding, the State must prove by
a preponderance of the evidence that the defendant violated at least one of the terms
and conditions of community supervision. Bryant v. State, 391 S.W.3d 86, 93 (Tex.
Crim. App. 2012); Rickels v. State, 202 S.W.3d 759, 763–64 (Tex. Crim. App. 2006).
The trial court is the sole judge of the witnesses’ credibility and the weight to be given
their testimony, and we review the evidence in the light most favorable to the trial
court’s ruling. Hacker v. State, 389 S.W.3d 860, 865 (Tex. Crim. App. 2013); Cardona v.
State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984). If the State fails to meet its burden
of proof, the trial court abuses its discretion by revoking the community supervision.
Cardona, 665 S.W.2d at 493–94.
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B. Failure to Comply with Registration Requirements
A person commits the offense of failure to comply with sex-offender
registration requirements if the person 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). Under Chapter 62, a person who is required to register as a
condition of community supervision “shall register . . . with the local law enforcement
authority[1] in any municipality where the person resides or intends to reside.” Id. art.
62.051(a). The registration process requires the person to provide “the address at
which the person resides or intends to reside.” Id. art. 62.051(c)(1-a). If the person
does not move to an intended residence within seven days of leaving a previous
residence, the person must report to his community supervision officer and provide
the address of his temporary residence and continue to report weekly until the person
moves to an intended residence. Id. art. 62.051(h). Once a person has registered an
address, if the person later intends to change that address, the person must—within
seven days—report to both the “local law enforcement authority designated as the
person’s primary registration authority” and the person’s community supervision
officer and provide the anticipated move date and new address. Id. art. 62.055(a). The
continuing duty to report also requires the person to report any changes in
employment status—within seven days or the first date the applicable authority allows
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“Local law enforcement authority” means the office of the chief of police of a
municipality, the office of the sheriff of a county in this state, or a centralized
registration authority. Id. art. 62.001(2).
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the person to report—to the “local law enforcement authority designated as the
person’s primary registration authority.” Id. art. 62.057(b). “[A] person’s job status
changes if [he] leaves employment for any reason . . . or begins employment with a
new employer[.]” Id. art. 62.057(c).
C. Analysis
As part of his community supervision, Appellant was required to register as a
sex offender in accordance with Chapter 62 of the Code of Criminal Procedure. See
generally Tex. Code Crim. Proc. Ann. Ch. 62.
Officer Badih testified that she had supervised Appellant since February 2021.
During the ten months Officer Badih supervised Appellant, his registered vehicle was
a 2008 Toyota Camry, and he had registered two addresses. At the time of the
adjudication petition’s filing, Appellant’s registered residence was at a friend’s house in
Fort Worth.
Officer Johnson testified that he investigated Appellant’s compliance with his
registration requirements. To check for compliance, Officer Johnson visited
Appellant’s registered Fort Worth residence approximately five times over a period of
“months.” Appellant had registered the address with the Fort Worth Police
Department, but Officer Johnson never found Appellant at that residence.
Regarding Appellant’s employment, Officer Badih testified that Appellant
reported to her in February 2021 that he was working at W Packaging. During the ten
months Officer Badih supervised Appellant, Appellant never reported a change in
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employment status. Indeed, to Officer Badih’s knowledge, Appellant was still
employed by W Packaging. But Officer Johnson testified that Appellant worked at
SKU2U Fulfillment, a warehouse distribution center in Fort Worth. Officer Johnson
located Appellant’s Toyota Camry at SKU2U’s business address in Fort Worth. The
company’s human resources department confirmed that Appellant had accepted its
employment offer on June 11, 2021. And Officer Johnson testified that Appellant
drove his vehicle to SKU2U Fulfillment and was on shift working at the time he was
arrested in August 2021. However, Appellant had never registered any employment
with the Fort Worth Police Department.
Based on the witnesses’ testimony, the trial court could have determined
Appellant failed to report the change in his employment status—and therefore failed
to comply with the sex-offender registration requirements. See id. art. 62.057(b);
Mantooth v. State, 269 S.W.3d 68, 77 (Tex. App.—Texarkana 2008, no pet.).
Notwithstanding the above testimony, Appellant argues he was not required to
register with or report to the Fort Worth Police Department because the Bedford
Police Department was the appropriate local law enforcement authority to whom he
owed the duty to register. Therefore, Appellant argues, because the State did not
present evidence showing he had failed to register with and report to the Bedford
Police Department, rather than Fort Worth, the evidence was insufficient to show he
violated the conditions of community supervision.
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Appellant’s initial sex-offender registration paperwork from January 2020 lists a
Bedford location as his physical address and the Bedford Police Department as the
local law enforcement agency for verification of registration. But when Appellant
moved to the Fort Worth address, he registered that address and employment with his
community supervision officer, and he registered the Fort Worth address with the
Fort Worth Police Department. He had not reported a change of address to either the
Fort Worth Police Department or his community supervision officer. See Tex. Code
Crim. Proc. Ann. art. 62.055(a). And no evidence shows that Appellant registered or
intended to register in Bedford. Accordingly, the trial court could have concluded
Fort Worth was the local law enforcement authority to whom Appellant was required
to register and report.
We overrule Appellant’s first issue.
III. Failure to Pay Supervision Fees
In his second issue, Appellant argues that the revocation of his probation for
failure to pay supervision fees violated his 14th Amendment due process rights
because the trial court did not consider Appellant’s ability to pay, whether the failure
to pay was willful, or alternatives to incarceration. Based on our disposition of
Appellant’s first issue, it is unnecessary for us to address his second issue. See Tex. R.
App. P. 47.1 (requiring appellate courts to hand down opinions that are as brief as
practicable but address every issue raised and necessary to the final disposition of the
appeal); State v. Bernard, 512 S.W.3d 351, 352 (Tex. Crim. App. 2017) (remanding the
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case to address an alternative issue because it could change the disposition of the
case).
IV. Conclusion
The trial court did not abuse its discretion by revoking Appellant’s deferred-
adjudication community supervision and adjudicating him guilty of indecency with a
child. We affirm the judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: August 18, 2022
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