Febus v. State

• Decision Date: 14 February 2018
• Docket Number: NO. PD–1369–15,PD–1369–15
• Citation: 542 S.W.3d 568
• Parties: Albert Junior FEBUS, Appellant v. The STATE of Texas
• Court: Texas Court of Criminal Appeals

542 S.W.3d 568

Albert Junior FEBUS, Appellant

v.The STATE of Texas

NO. PD–1369–15

Court of Criminal Appeals of Texas.

Filed: February 14, 2018

Jerald K. Graber, Houston, TX, for Appellant.

Eric Kugler, Assistant District Attorney, Houston, TX, Stacey Soule, Austin, TX, for The State.

Newell, J., delivered the opinion of the Court in which Keller, P.J., Keasler, Hervey, Yeary and Keel, JJ., joined.

Appellant is a registered sex offender. As part of his duty to register he went to the local police and filled out a change of address form. He voluntarily signed the form listing his new address as an apartment at "6110 Glenmont" even though he never intended to live there. Months later, when police went to that apartment at "6110 Glenmont" to check on Appellant, Appellant was not living there. At his trial for failure to comply with his duty to register as a sex offender, Appellant claimed he had actually told the police he was moving to an apartment at "6100 Glenmont." According to Appellant, the police had gotten the apartment number correct, but they had placed the wrong street address in their registry. We granted review to address whether the evidence was legally sufficient to support the jury's determination that Appellant failed to notify the local police regarding his change of address in violation of his duty to register as a sex offender. We hold that the evidence was legally sufficient and affirm the court of appeals' opinion.

Background

Though there is some dispute, the facts of this case are relatively straightforward. Appellant was required to register as a sex offender as a result of his past conviction for indecency with a child. Upon his release from prison for this offense, he was required to sign and initial forms indicating his understanding of the registration rules. He was also required to do so on every occasion in which he re-registered or changed his address. Up until this offense, Appellant had complied with the registration program for six years without any issues.

Prior to the offense, Appellant had registered his address as 6110 Glenmont Drive, Apt. # 57, in the La Hacienda Apartment complex.¹ In March 2013, Appellant obtained a new driver's license from the Texas Department of Public Safety (DPS) in order to obtain a new CR–14 registration identification, also known as a "blue card." He then went to the Houston Police Department to register a prospective change of address. There, he filled out the "Sex Offender Update Form" with the assistance of a registration officer. During this face-to-face meeting, Appellant told the registration officer that his new address was "6110 Glenmont Drive, Apt. # 45." All three of the registration documents (the temporary license, the blue card, and the Sex Offender Update Form) listed Appellant's new address as "6110 Glenmont Drive, Apt. # 45." Appellant signed all three of these documents; he never suggested that the address he had provided was incorrect.

In October 2013, Officer C.R. Black did a compliance check on Appellant. He first went to the apartment manager's office to verify that the apartment was not vacant. The manager took Officer Black to 6110 Glenmont Drive, Apt. # 45. The resident of that apartment, Marcus Arevalo, had never met Appellant and verified that Appellant did not live at that address. Appellant was not listed as a resident of that apartment on the lease, either.

Based upon this information, the State charged Appellant with intentionally and knowingly failing to comply with his duty as a registered sex offender by failing to provide his new address to the local police. At trial, Appellant advanced the theory that the incorrect address was not the result of Appellant's conduct; it was, instead, the result of a clerical error. Appellant testified that he told law enforcement that the street address for his new apartment was "6100 Glenmont" and not "6110 Glenmont." According to Appellant, he told the officer that he planned to live at "6100 Glenmont Drive" and he gave DPS the same information. He explained that he knew the La Hacienda Apartment complex was divided into two buildings, one with a "6110 Glenmont" street address and the other with a "6100 Glenmont" street address. Appellant explained that he had planned to move into the 6100 building rather than into the 6110 building.² Moreover, Appellant claimed that he had received his permanent driver's license from DPS at the "6100 Glenmont" street address, and the plastic license card reflected his correct address of "6100 Glenmont Drive, Apt. # 45." Appellant introduced a photocopy of this license into evidence, but he admitted that he had lost the original two days prior to trial.³

In addition to his own testimony, Appellant called Javier Ayala, the tenant in apartment 45 at "6100 Glenmont" to testify on his behalf. Ayala told the jury that Appellant had lived with him in the "6100 Glenmont" apartment for approximately eight months (from March 2013 until Appellant was arrested), and that Appellant had received mail at that address. However, Ayala did not go so far as corroborating Appellant's testimony that DPS had mailed Appellant's driver's license to that address. Appellant's name was not on the lease at that apartment.

The State introduced testimony from Lindsay Ulloa, the apartment manager at the La Hacienda Apartment complex. She explained that her office was located in the "6100 Glenmont" building, and she had never seen Appellant around the complex. She further explained that La Hacienda Apartments was a small complex where everyone knew everyone. She described Ayala as a man that everyone in the apartment complex knew because he picked up cans to live, even collecting cans from the various residents.

According to Ulloa, Ayala would have let her know if someone were living with him "just in case." As she stated, "he's pretty good letting me know, because like, his condition, so." Yet, Ayala had never mentioned to her that someone was sharing his apartment with him. She did agree that she would not have seen someone come and go from Ayala's apartment outside the hours of 9:00 in the morning and 6:00 in the afternoon. According to Ayala, Appellant was only in the apartment outside of those hours.

The trial court charged the jury that it was required to find not only that Appellant knew his duty to register as a sex offender, but also that he had intentionally or knowingly failed to comply with that duty. Appellant argued that he had actually complied with his duty to register a change of address and that he was living with Javier Ayala in his apartment at "6100 Glenmont." The failure to register was a clerical error on the part of law enforcement and not the result of Appellant intentionally supplying incorrect information. The State argued that Appellant did not live with Ayala at "6100 Glenmont," but allowed that if the jury believed that he did, Appellant had still failed to register because he provided the wrong address to law enforcement.

The jury found Appellant guilty. At punishment, Appellant pleaded true to two enhancement allegations that he had previously been convicted in Los Angeles of both robbery and possession of a firearm as a felon. The State also introduced evidence that Appellant had changed his name multiple times in his life as he moved from New York to Los Angeles to Houston. The jury found both enhancement allegations to be true and sentenced Appellant to thirty-five years in prison.

On appeal, Appellant argued that the evidence was legally insufficient to support a determination that Appellant had intentionally or knowingly failed to provide his new address to the Houston Police Department. Specifically, Appellant argued that the failure was due to a negligent mistake on either the part of the registering authority or Appellant himself. The court of appeals rejected this argument, simply holding that under this Court's opinion in Robinson v. State , the State was not required to prove that Appellant had a culpable mental state when failing to provide the correct address.⁴ The court of appeals affirmed the conviction, holding that the evidence was legally sufficient to support the jury's verdict. We granted review to determine the propriety of that holding. We will affirm.

Analysis

When addressing a challenge to the sufficiency of the evidence, we determine whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.⁵ We may not re-weigh the evidence or substitute our judgment for that of the factfinder.⁶ A jury may accept one version of the facts and reject another, and it may reject any part of a witness's testimony.⁷ We presume that the factfinder resolved any conflicting inferences from the evidence in favor of the verdict, and we defer to that resolution.⁸ This is because the jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony.⁹

The essential elements of an offense are determined by state law.¹⁰ Under Texas state law, we measure the sufficiency of the evidence by the elements of the offense as defined by the hypothetically correct jury charge for the case.¹¹ Such a charge is one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried.¹²

We recently analyzed the elements of the offense of failure to comply with the requirements of registering as a sex offender under Chapter 62 of the Code of Criminal Procedure.¹³ In Robinson , we held that this offense is a "circumstances of the conduct" type of offense.¹⁴ The "circumstance" at issue is the duty to register and the culpable mental state of "knowledge and recklessness" applies only to the...