Barnes v. State
| Decision Date | 02 March 2022 |
| Docket Number | 06-21-00073-CR |
| Court | Court of Appeals of Texas |
| Parties | THOMAS GLENN BARNES, Appellant v. THE STATE OF TEXAS, Appellee |
THOMAS GLENN BARNES, Appellant
v.
THE STATE OF TEXAS, Appellee
No. 06-21-00073-CR
Court of Appeals of Texas, Sixth District, Texarkana
March 2, 2022
Do Not Publish
Date Submitted: January 25, 2022
On Appeal from the 276th District Court Marion County, Texas Trial Court No. F15294
Before Morriss, C.J., Stevens and Carter, [*] JJ.
MEMORANDUM OPINION
Josh R. Morriss, III Chief Justice
Thomas Glenn Barnes, a sex offender, was convicted after a bench trial of failing to register or report online identifier information. Barnes was sentenced to twelve years' imprisonment for the second-degree-felony offense. See Tex. Code Crim. Proc. Ann. art. 62.102(b)(3). In his sole point of error on appeal, Barnes argues that the trial court erred by rejecting his affirmative defense of mistake of law.[1]
Barnes's defense was based on the United States Supreme Court's ruling in Packingham v. North Carolina, which held that the First Amendment protects sex offenders from laws that "suppress lawful speech" by "foreclosing] access to social media altogether." Packingham v. N. Carolina, 137 S.Ct. 1730, 1732, 1737-38 (2017) (quoting Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255 (2002)). Packingham does not apply to Barnes's case because he was never prevented from using social media and was instead required only to report his social media use
but failed to do so. See Ex parte Odom, 570 S.W.3d 900, 909 (Tex. App -Houston [1st Dist] 2018, pet. ref d). As a result, we find that the trial court properly rejected Barnes's mistake-of- law defense. We affirm the trial court's judgment.
If a registered sex offender
changes any online identifier included on the person's registration form or establishes any new online identifier not already included on the person's registration form the person, not later than the later of the seventh day after the change or establishment or the first date the applicable authority by policy allows the person to report, shall report the change or establishment to the person's primary registration authority in the manner prescribed by the authority
Tex. Code Crim. Proc. Ann. art. 62.0551(a). The State alleged that Barnes failed to register or report online identifier information.
At trial, it was shown that Barnes had been convicted of two counts of sexual assault and had twice before been jailed for failure to comply with sex-offender registration requirements. Cynthia Simmons, a sergeant with the Jefferson Police Department, testified that Barnes was considered a high risk and was required to register every ninety days. In writing, Barnes acknowledged the following sex-offender registration requirement by signing his initials: "I shall report any changes to online identifiers, including establishing any new online identifier not already included on my registration form, to my primary registration authority in the manner prescribed by the authority no later than the 7th day after the change." Simmons testified that Barnes had read and acknowledged this term explaining his duty to register and report online identifiers on January 14, 2020, but that Barnes reported no online identifiers.
Thereafter, a Brookshire's grocery employee testified that she was approached in May 2020 by Barnes while working and was invited to and did follow him on TikTok. She later
became uncomfortable with Barnes's contact, and a criminal trespass warning was issued against him in June. Simmons testified that, even though Barnes had a social media account, he failed to report it when registering in July 2020. When Simmons moved Barnes to the interview room, Barnes admitted that he had a TikTok account and was arrested. Simmons testified that her investigation revealed that Barnes posted the first of 293 TikTok videos on May 2, 2020, and that he had violated his sex-offender registration requirements by failing to register or report the account within seven days.
Barnes, who testified in his defense, said he had no social media account until 2020, when he was introduced to TikTok. Barnes claimed that he believed he had a right to be on social media because "they came out with a law." He continued, "Some Supreme Court said something against it. It's against our first amendment rights, and that's something that we don't have to register. I've never been on anything else because I figured I had to register." Barnes said he received his information about the United States Supreme Court opinion from his employer, Eric Roberts, who had since passed away. Barnes also claimed that he made an appointment to register as soon as he discovered that Roberts was wrong and that he still had a duty to register any online identifiers.
The trial court rejected Barnes's mistake-of-law argument and found him guilty of the offense....
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