Robinson, Leo Demory

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0421-14
LEO DEMORY ROBINSON, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
FROM THE FIFTH COURT OF APPEALS
DALLAS COUNTY
A LCALA, J., filed a concurring opinion in which M EYERS, J OHNSON, and
R ICHARDSON, JJ., joined.
CONCURRING OPINION
I concur in this Court’s judgment affirming the judgment of the court of appeals that
upholds the conviction of Leo Demory Robinson, appellant, but I do not join the majority
opinion. See Robinson v. State, No. 05-12-01502-CR, 2014 WL 428029, at *1 (Tex.
App.—Dallas Feb. 3, 2014). In agreement with almost all of this Court’s analysis, I would
identically hold that the evidence is legally sufficient to affirm this conviction, that findings
Robinson - 2
of fact and conclusions of law are inapplicable to sufficiency-of-the-evidence reviews, and
that the State must prove that a defendant acted knowingly or recklessly as to the duty-to-
register element of the offense. Where I part ways with this Court’s majority opinion is with
respect to its decision not to apply a culpable mental state to the latter portion of the statute
that addresses a defendant’s failure to give timely notification of a change in his address. See
T EX. C ODE C RIM. P ROC. art. 62.102(a), 62.055(a). The majority opinion’s holding will result
in this offense essentially becoming a strict-liability offense for which the penalties are
severe, even in the absence of any indication from the Legislature that it intended to impose
strict liability in this context. See id.1
As this Court’s majority opinion accurately observes, in determining those elements
to which a culpable mental state must apply, an appellate court begins its analysis by
examining the statutory language in order to determine whether it expressly prescribes or
dispenses with a culpable mental state. See Aguirre v. State, 22 S.W.3d 463, 471-72 (Tex.
Crim. App. 1999). An examination of the statutory language for the sex-offender-registration
statute reveals that no culpable mental state is expressly prescribed. Article 62.102 of the
1
The practical consequences of this Court’s decision will be that a sex offender who timely
appears at a police station in a diligent effort to comply with the law—even if he sits in the police
station day in and day out for twenty-four hours each day patiently waiting and begging to be
registered—will be found guilty of the offense of failure to register as a sex offender if an officer
refuses to register him for any reason whatsoever, whether it be valid or irrational. This is now
essentially a strict-liability crime that gives defendants absolutely no defense to a charge of failure
to give timely notification. As I explain more fully below, this Court’s harsh interpretation will
result in the imposition of criminal penalties upon individuals who lack any criminal intent as to their
conduct but are penalized as a result of their status as sex offenders. This cannot be what the
Legislature intended when it drafted this statute.
Robinson - 3
Code of Criminal Procedure states, “A person commits an offense if the person is required
to register [as a sex offender] and fails to comply with any requirement of [the Chapter 62
sex-offender-registration program].” See T EX. C ODE C RIM. P ROC. art. 62.102(a). With
respect to the pre-move notification portion of Chapter 62, Article 62.055 of the Code states,
“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 . . . .” Id. art. 62.055(a). The failure-to-register statute, therefore, as applied in the
particular context of a failure to comply with the pre-move notification requirements,
contains two parts: (1) the requirement that a particular individual be subject to registration
as a sex offender, and (2) the individual’s failure to comply with the specific registration
requirements by failing to report in person to the registering authority not later than the
seventh day before an intended change of address. See id. art. 62.102(a), 62.055(a).
Next, this Court’s majority opinion determines that, although no mental-state
requirement is expressly included in the statutory language, it is necessary to include one
under the requirements of the Texas Penal Code. See T EX. P ENAL C ODE § 6.02(b), (c);
Aguirre, 22 S.W.3d at 470. Again, I agree. Section 6.02 of the Texas Penal Code states, “If
the definition of an offense does not prescribe a culpable mental state, a culpable mental state
is nevertheless required unless the definition plainly dispenses with any mental element.”
See T EX. P ENAL C ODE § 6.02(b). Because the sex-offender-registration statute does not
Robinson - 4
plainly dispense with any mental element, the offense requires proof of a culpable mental
state of either intent, knowledge, or recklessness. See id. § 6.02(c); see also id. § 6.03
(defining culpable mental states).
Next, the majority opinion determines, and I agree, that in determining the portion or
portions of a statute to which a culpable mental state attaches, a court should examine the
“conduct elements” of the offense to determine whether they are nature-of-conduct, result-of-
conduct, or circumstances-surrounding-conduct elements. See McQueen v. State, 781
S.W.2d 600, 603 (Tex. Crim. App. 1989) (citing Lugo-Lugo v. State, 650 S.W.2d 72, 74
(Tex. Crim. App. 1983)). “An offense may contain any one or more of these ‘conduct
elements’ which alone or in combination form the overall behavior which the Legislature has
intended to criminalize, and it is those essential ‘conduct elements’ to which a culpable
mental state must apply.” Id. In related contexts, this Court has similarly focused on the
gravamen or “gist” of the offense to determine, for example, those elements for which a
unanimous jury verdict is required. See, e.g., Young v. State, 341 S.W.3d 417, 424 (Tex.
Crim. App. 2011) (in jury-unanimity context, observing that “[o]ne looks to the gravamen
or focus of the offense” to determine whether the gravamen is the result of the act, the nature
of the act itself, or the circumstances surrounding that act). An offense may have multiple
“gravamina.” See Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015).
Although it recognizes that McQueen is “authoritative in resolving the present case,”
as do I, this Court’s majority opinion does not fully explain the significance of McQueen,
Robinson - 5
which does not limit a culpable mental state requirement to a single element but instead
permits more than one culpable mental state in certain situations. This is the point where I
part ways with the majority opinion. In McQueen, this Court observed that, “where
otherwise innocent behavior becomes criminal because of the circumstances under which it
is done, a culpable mental state is required as to those surrounding circumstances.”
McQueen, 781 S.W.2d at 603. In that case, the Court considered whether the statute
criminalizing unauthorized use of a vehicle required proof of a culpable mental state only as
to the defendant’s conduct in operating the vehicle, or whether it rather additionally required
proof of a culpable mental state as to the lack of the owner’s effective consent. Id. at 601-02.
Although McQueen is factually distinguishable from the present case because it involved a
statute with an expressly prescribed mental state, and, therefore, the question in that case was
“how far down the sentence” the Legislature intended for the mens rea to travel,2 as opposed
to what culpable mental state should apply in the absence of any express indication, this
Court’s approach in that related context was instructive. See id. In reaching its holding that
a culpable mental state was required both as to the defendant’s conduct in operating the
motor vehicle and as to the lack of consent, the Court in McQueen reasoned that
[w]hat makes the conduct unlawful is that it is done under certain
circumstances, i.e., without the owner’s permission. Therefore, the
unauthorized use of a motor vehicle is a ‘circumstances’ type offense, and the
culpable mental state of ‘knowingly’ must apply to those surrounding
circumstances.
2
See DeLay v. State, 443 S.W.3d 909, 924 (Tex. Crim. App. 2014) (citing Liparota v.
United States, 471 U.S. 419, 424 n.7 (1985)).
Robinson - 6
Id. at 603. McQueen thus stands for the propositions that (1) a culpable mental state is
generally required at least as to any circumstances-surrounding-the-conduct element that
renders otherwise lawful behavior unlawful, and (2) although an offense may be
characterized as a “circumstances” type offense, proof of a culpable mental state may
nevertheless be required as to more than one “conduct element” if those conduct elements
combine to form the overall criminal behavior.3
This Court’s majority opinion seeks to limit a culpable mental state only to the first
portion of the failure-to-register statute, the existence of a particular individual’s duty to
register as a sex offender, which everyone agrees is a circumstances-surrounding-conduct
element. Under McQueen, this element requires proof of a culpable mental state because it
is, in part, the existence of that circumstance that renders otherwise lawful conduct—moving
to a new address without providing proper notification—unlawful. See McQueen, 781
S.W.2d at 603. Although I agree that a culpable mental state applies to the duty to register,
unlike this Court’s majority opinion, I would additionally apply a culpable mental state to the
3
See McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989) (stating that “some
form of culpability must apply to those ‘conduct elements’ which make the overall conduct
criminal,” and stating that unauthorized-use statute, a circumstances-type offense, encompassed “two
‘conduct elements,’ viz: that the defendant intentionally or knowingly operated a vehicle (nature of
conduct) knowing that such operation was without the effective consent of the owner (circumstances
surrounding conduct)”); see also DeLay, 443 S.W.3d at 923 (Tex. Crim. App. 2014) (analyzing
money laundering statute and holding that culpable mental state was required both as to the nature-
of-conduct element and as to the circumstance-surrounding-conduct element because “[o]therwise,
the statute would attach a mens rea to nothing more than conduct . . . that is not intrinsically
blameworthy”) (citing McQueen, 781 S.W.2d at 600, 603, 604).
Robinson - 7
second portion of the statute, the failure-to-notify element of the offense, in light of this
Court’s previous statements in Young v. State indicating that the gravamen or focus of the
failure-to-register offense is the “forbidden act” of failing to comply with registration
requirements. See Young, 341 S.W.3d at 426. I would hold that the statute’s focus
encompasses both the nature of the conduct in failing to register as well as the surrounding
circumstances of being required to register, thereby triggering culpable-mental-state
requirements as to both conduct elements. See id.; see also McQueen, 781 S.W.2d at 603.
As the following discussion of Young v. State shows, the duty to register, alone,
cannot be what the Legislature was concerned with when it enacted this statute because one’s
knowledge of his duty to register is not what makes the conduct criminal. Instead, it is the
failure to register when registration is required that the statute is intended to punish. The
suggestion that the gravamen or focus of the offense is simply the duty to register clearly
misunderstands the Legislature’s intent in drafting a statute that punishes sex offenders for
failure to verify their addresses with police departments. Citing to Young, this Court’s
majority opinion determines, and I agree, that a gravamen of the offense is the duty to
register and that the offense is a circumstances-surrounding-conduct offense, which is one
that “prohibit[s] otherwise innocent behavior that becomes criminal only under specific
circumstances.” See Young, 341 S.W.3d at 423, 427 (“Because Article 62.055 punishes what
would otherwise be innocent behavior—moving to a new address [without giving proper
notification]—under the circumstances that the person is a registered sex offender, we
Robinson - 8
conclude that the statute creates a ‘circumstances surrounding the conduct’ offense.”). I
agree with this characterization of this portion of Young, but I believe that this is too narrow
a view of what Young actually determined is the gravamen of this offense. In Young, the
defendant, a registered sex offender, moved to a new residence but failed to notify authorities
of his move as required by statute. Id. at 419; see also T EX. C ODE C RIM. P ROC. art. 62.055(a).
He was charged by a two-paragraph indictment alleging that he (1) failed to notify law
enforcement seven days prior to his move, or (2) failed to provide proper notice within seven
days after his move. Young, 341 S.W.3d at 419. The jury instructions at Young’s trial
permitted the jury to convict him if it unanimously found that he had failed to report his
change of address, but it did not require unanimity as to whether he did so either before or
after his move. Id. On discretionary review, Young complained that the jury should have
been required to unanimously agree upon whether he failed to register either before or after
his move, but this Court rejected his complaint. Id. at 420. This Court stated,
To address appellant’s argument, we look to the gravamen or focus of the
offense created by Article 62.055(a). The forbidden act is failing to inform law
enforcement about an impending or completed change of residence. The
primary purpose of creating and maintaining a sex-offender registry is to give
local law enforcement officers a means of monitoring sex offenders who are
living within their jurisdiction in order to better thwart repeat offenses.
Knowing where a sex offender lives is arguably the simplest and best way to
monitor him. By failing to report where he is residing, the sex offender is
subverting the objective of the registry. The community and law enforcement
want to know where the sex offender lives so they may take proper
precautions.
Id. at 426 (emphasis added).
Robinson - 9
Rather than limiting the gravamen of the offense merely to the duty to register, this
passage from Young signals the Court’s understanding that the gravamen of the failure-to-
register offense extends to a defendant’s “forbidden act” of failing to comply with the
registration requirements, which is a nature-of-conduct element of the offense. See id.
Concluding that “[t]he focus of the [failure-to-register] statute is on giving notification to law
enforcement and not the means by which a sex offender failed to do so,” this Court described
the gravamen of the offense as also encompassing a nature-of-conduct element. Id. at 427.
It concluded that jury unanimity was required as to Young’s failure to register, but not as to
whether that failure had occurred before or after his move. See id. at 427-28.
Reading them in conjunction, this Court’s statements in Young suggest that it is the
combined force of the circumstance of being required to register and the failure to comply
with one’s registration obligations that form the overall behavior that the Legislature has
sought to punish. See id. at 426-28; see also McQueen, 781 S.W.2d at 604. The Court in
Young placed great emphasis on the statute’s primary purpose of monitoring sex offenders
as a means of thwarting repeat offenses, and it observed that, by failing to comply with the
pre-move notification requirements, an offender “is subverting the objective” of the registry.
Young, 341 S.W.3d at 426. This language shows that the nature-of-conduct element in
failing to register is equally important as the circumstance of being required to register
because it is only the combination of those elements that subverts the Legislature’s objective
in monitoring sex offenders and preventing sex crimes. See id.
Robinson - 10
In support of this conclusion, I note further that, unlike pure “circumstances” type
offenses, the mere existence of the circumstance in this case—being required to
register—does not, taken on its own, turn the otherwise innocent conduct of changing one’s
address into a criminal offense. After all, a sex offender who moves does not commit an
offense unless he also fails to do something that the law requires of him, namely, providing
the required notification to the authorities. Rather, as this Court suggested in Young, it is
only the combination of the duty to register plus the failure to comply that turns the act of
moving into a criminal offense. See id. In this sense, the failure-to-register offense is
distinguishable from the purely circumstances-type offenses that were at issue in DeLay v.
State and McQueen because, in those situations, the inherently innocuous conduct was
rendered criminal solely by virtue of the existence of some circumstance. See DeLay v. State,
443 S.W.3d 909, 924 (Tex. Crim. App. 2014) (otherwise lawful conduct of engaging in
financial transactions would be rendered unlawful solely by circumstance that transactions
involved proceeds of criminal activity); McQueen, 781 S.W.2d at 603-04 (conduct at
issue—driving a car—would turn into criminal conduct solely by virtue of lack of owner’s
consent).
McQueen indicates that, for a “circumstances” type offense, a culpable mental state
is at least required as to the circumstance that renders otherwise innocent conduct unlawful;
McQueen does not, however, suggest that a culpable mental state is required only as to that
circumstance. See McQueen, 781 S.W.2d at 603. I conclude that, in accordance with
Robinson - 11
McQueen, offenses may have multiple “essential conduct elements” that trigger culpable-
mental-state requirements if those conduct elements make up the overall behavior that the
Legislature sought to punish. See id. at 603.
I am unpersuaded that the offense of failure to stop and render aid is instructive
because there the knowledge of the accident and a victim were the gravamen that created the
circumstances-surrounding-the-conduct offense. See T EX. T RANSP. C ODE § 550.021;
Huffman v. State, 267 S.W.3d 902, 908 (Tex. Crim. App. 2008). At a minimum, knowledge
of an accident alone creates a burden on the drivers to stop to exchange insurance
information. In contrast, knowing about a duty to register as a sex offender, alone, shows
only that a defendant knew he was supposed to register, but that does not create any offense.
It is only the additional failure to register as required that creates the criminal penalty.
Having determined that the failure-to-register offense is properly understood as having
two equally important gravamina—the existence of the duty to register, which is the
circumstances-surrounding-the-conduct portion of the offense, and the failure to do so, which
is the nature-of-conduct portion of the offense—I conclude that a culpable mental state must
apply to both of those elements. See McQueen, 781 S.W.2d at 604. Specifically, a mens rea
of knowing or reckless must attach to a defendant’s duty to comply with sex-offender-
registration requirements, and a mens rea of intentional or knowing must attach to his failure
to provide notification of a change of address. See T EX. P ENAL C ODE §§ 6.02(c) (if statute
does not prescribe culpable mental state but one is nevertheless required under Penal Code
Robinson - 12
Section 6.02(b), intent, knowledge, or recklessness suffices to establish criminal
responsibility); 6.03(b), (c) (providing that a person may act “knowingly” or “recklessly”
with respect to the “circumstances surrounding his conduct”); 6.03(a), (b) (explaining that
person may act “intentionally” or “knowingly” with respect to the “nature of his conduct”).4
Like the First Court of Appeals, therefore, I agree that the test should be whether a “rational
jury could have found beyond a reasonable doubt that [a defendant] had notice of the new
registration location and that he intentionally and knowingly failed to verify his registration
information[.]” Harris v. State, 364 S.W.3d 328, 335-36 (Tex. App.—Houston [1st Dist.]
2012, no pet.) (holding that evidence was legally sufficient under that standard).
As to the merits of appellant’s sufficiency-of-the-evidence challenge, I would uphold
appellant’s conviction, even under my interpretation of the statute that includes a culpable
mental state as to the failure-to-register element of the offense. As the court of appeals
discussed, there is ample evidence from which a hypothetical rational fact finder could
conclude that appellant’s failure to provide the proper pre-move notification was intentional
or knowing. A rational fact finder could have reasonably disregarded appellant’s contentions
that the police department refused to accept his notification of a change of address in light
of the conflicting evidence from Detective Benson, who denied appellant’s claims. Viewing
4
Though not pertinent to the issue here, I note for purposes of clarity that I also conclude that,
because the means by which a sex offender failed to provide notice about his change of address is
not the gravamen of the offense, the State need not prove a culpable mental state as to the particular
means by which the failure occurred, namely, the lack of in-person notification seven days prior to
a defendant’s change of address, or the lack of notice of his new address seven days after changing
his address. See TEX . CODE CRIM . PROC. art. 62.102(a), 62.055.
Robinson - 13
the evidence in a light most favorable to the trial court’s judgment, appellant had moved from
his aunt’s residence as early as February 2010 based on the evidence that Detective Benson’s
February 27 visit to appellant’s aunt’s residence revealed that appellant no longer lived there.
According to parole officer Phillips’s testimony, appellant told Phillips that he intended to
move from his aunt’s residence on March 19, and Phillips sent a fax to the Glenn Heights
Police Department on April 23 to notify them of appellant’s intent to move. This evidence
is sufficient to show that on or about May 7, 2010, appellant intentionally or knowingly
failed to report in person an intended change of address to the Glenn Heights Police
Department not later than the seventh day before he changed his address, and that he had
knowledge of his obligation to provide such notice under Chapter 62.
The goal of the sex-offender-registration statute is to allow the public to know where
sex offenders reside in order to better ensure society’s safety while permitting the person to
reenter society. Rather than effectuate this goal, this Court’s majority opinion thwarts that
purpose by interpreting the registration statute as criminalizing every registration failure,
even if the failure was due to police malfeasance, neglect, or oversight, and even if the
defendant diligently made every possible effort to comply with the law. Because the majority
opinion effectively makes the failure-to-register offense a strict-liability crime that will lead
to the imposition of criminal penalties upon sex offenders who lack any criminal intent as to
their conduct in failing to register, I do not join the majority opinion. I, therefore,
respectfully concur in this Court’s judgment.
Robinson - 14
Filed: July 1, 2015
Publish