Herron v. State

• Decision Date: 30 June 2021
• Docket Number: NO. PD-0853-19,PD-0853-19
• Citation: 625 S.W.3d 144
• Court: Texas Court of Criminal Appeals
• Parties: Robert HERRON, Appellant v. The STATE of Texas

625 S.W.3d 144

Robert HERRON, Appellant

v.The STATE of Texas

NO. PD-0853-19

Court of Criminal Appeals of Texas.

DELIVERED: June 30, 2021

Raquel Lopez, for State.

Robert Herron, Pro Se.

Renan Kenneth Del Valle, for Appellant.

OPINION

Slaughter, J., delivered the opinion of the Court in which Hervey, Richardson, Yeary, Newell, Keel, Walker, and McClure, JJ., joined.

Appellant Robert Herron, a sex offender, was released on parole after signing pre-release paperwork reflecting that upon release he would reside in a halfway house in El Paso County. The pre-release paperwork also indicated that Appellant should register as a sex offender with the Horizon City Police Department upon establishing his residence at the halfway house. But instead of going to El Paso County, Appellant absconded to another county where he was apprehended a few weeks later. Appellant was subsequently charged with and convicted of failure to register as a sex offender in El Paso. The question we must resolve is, can Appellant be convicted of that offense when the uncontested evidence showed that Appellant never went to El Paso following his release? The answer is no. The evidence failed to establish that Appellant resided or intended to reside in El Paso County for more than seven days. Therefore, pursuant to Code of Criminal Procedure Article 62.051(a),¹ Appellant was not statutorily obligated to register as a sex offender in El Paso as alleged in the indictment. Accordingly, as a matter of law, he cannot be guilty of the failure-to-register offense as alleged. We affirm the judgment of the court of appeals holding the evidence insufficient to support Appellant's conviction and rendering a judgment of acquittal.

I. Background

Appellant has a prior conviction for a sexual offense and is required to register as a sex offender.² In June 2016, Appellant was in custody at a Texas Department of Criminal Justice (TDCJ) Intermediate Sanctions Facility (ISF)³ in Brownfield because of a parole violation.⁴ Appellant was set to be re-released on parole after serving his sanction at ISF, and per the terms of his release, he was required to reside at a halfway house for a period of time. The halfway house was located within El Paso County, but it is unclear from the record whether it lies within an unincorporated area of El Paso County, within the El Paso city limits, or within the municipality of Horizon City.

Several days before being released from ISF, Appellant signed a statutorily-required form notifying him of his sex offender registration obligations.⁵ The form lists the location where Appellant "expect[ed] to reside" upon his release as "1700 Horizon Blvd North, El Paso, Texas 79928," the address of the halfway house. On the next line, Appellant signed his initials next to the following fill-in-the-blank section of the form:

Chapter 62, Code of Criminal Procedure, requires me to register as a sex offender. I understand that:

Initial Verification of Registration upon Release: Not later than the 7th day after 6/27/2016 (date of release/placement on community supervision or juvenile probation), I must personally appear at the following local law enforcement authority to verify and complete my registration:

Local Law Enforcement Agency Name: Horizon City Police Department

Agency Address/City/State/Zip: 14999 Darrington Rd Unit 7, Horizon City, TX 79928.

Appellant also initialed a portion of the form which stated, "If I have a ... parole officer and I do not move to an intended residence, I must report to my supervising [parole] officer not later than the 7th day after the date I was released." Below this, Appellant placed his initials next to several paragraphs addressing his general statutory registration obligations, including that he must register with the local law enforcement authority in any location where he "reside[s] or intend[s] to reside for more than seven days" within seven days of his arrival, and that he must inform his "primary registration authority" and parole officer before changing his address.⁶ The form was signed at the bottom by both Appellant and a TDCJ official.

On June 27th, Appellant was transported by ISF personnel to a Greyhound bus station in Lubbock where he was scheduled to take a bus to El Paso. At the bus station, while the personnel were acquiring a bus ticket for him, Appellant absconded. Several weeks later, Appellant was apprehended in Aransas County and charged for the instant offense. In its indictment, the State alleged:

[T]hat on or about 6^th day of July, 2016 ... in the County of El Paso and State of Texas, [Appellant] ... while being a person required to register with the local law enforcement authority, to-wit: El Paso County Sheriff, in the county where the defendant resided or intended to reside for more than seven days, to-wit: El Paso, because of a reportable conviction for Aggravated Sexual Assault of a Child, intentionally or knowingly fail[ed] to register with the local law enforcement authority in said El Paso County

At Appellant's bench trial, the State presented the testimony of Laura Spink, a unit supervisor with the TDCJ Parole Division. Spink described the events leading up to Appellant's failure to appear at the halfway house, including his absconding at the bus station and his subsequent arrest. She confirmed that Appellant never appeared at the halfway house following his release from custody in June, nor did he notify anyone from the halfway house of any change of address or that he was residing outside of El Paso County. Spink also discussed the contents of the pre-release notification form that Appellant signed. She indicated that the form constitutes an acknowledgment by the individual of "where they're supposed to go" to register and "who they're supposed to report to." Asked to confirm where Appellant was supposed to register based on his expected address at the halfway house, Spink replied, "Here in El Paso, it's the El Paso County Sheriff's Office." Spink also referred to the halfway house as being "in Horizon City."

The State also presented the testimony of Eduardo Gutierrez, Jr., an El Paso County Sheriff's detective with the sex offender registration and tracking unit. Gutierrez testified that the pre-release notification is "the rules and stipulations that every sex offender within the state of Texas has to comply with under chapter 62." He opined that upon Appellant's release in June, "according to the documents," Appellant "ha[d] to report to the El Paso County Sheriff's Office or local law enforcement authority no later than seven days after he's released[.]" Gutierrez confirmed that Appellant never came to the Sheriff's Office to register following his release. When asked whether Appellant was required to report to the El Paso County Sheriff's Office even if he failed to go to his expected residence in El Paso (e.g., the halfway house) and instead went to another city, Gutierrez replied "yes" because "that's what it says on the [pre-release notification] form, that if he intends or does not intend to move to his address, he notifies us. He has to let us know. ‘Us’ [being] the sheriff's office and/or parole probation officer." Gutierrez also stated that Appellant was required to register with the Sheriff's Office as opposed to the El Paso Police Department because the Sheriff's Office "has jurisdiction at the halfway houses in Horizon." Gutierrez acknowledged that he did not know where Appellant went after absconding from the bus station, but stated that as far as he knew, Appellant never went to El Paso. Gutierrez testified that to his knowledge, Appellant did not register in any other county after his release, but Gutierrez further acknowledged that he would not know if Appellant registered anywhere else after that point in time.

The State also introduced into evidence a prior pre-release notification form Appellant had signed in February 2016 upon his initial release from prison to parole. The form stated that Appellant would reside at the same halfway house listed on the June 2016 form, but instead of designating the Horizon City Police Department as the applicable "local law enforcement authority" as it did on his June 2016 pre-release notification form, the February 2016 form designated the El Paso County Sheriff's Office as the agency with which Appellant was required to register. Spink testified that two days after Appellant's release to parole in February 2016, he did in fact register with the El Paso County Sheriff as he was instructed to do on the form. But, because he had already violated the terms of his parole by taking an unauthorized detour to a hotel en route to the halfway house, he was arrested at the Sheriff's Office on a parole violation warrant and sent to ISF for several months. Appellant's subsequent release and failure to complete sex offender registration requirements in El Paso following his June 2016 release from ISF gave rise to the instant charges.

After the close of evidence, the trial court found Appellant guilty of failing to comply with his sex offender registration obligations and sentenced him to twenty-five years’ imprisonment as a habitual felon.

Court of Appeals’ Opinion

On direct appeal, the court of appeals reversed Appellant's conviction by concluding that the State failed to prove an essential element of the offense—that Appellant was required to register with the El Paso County Sheriff's Office, as opposed to the Horizon City Police Department as indicated on the pre-release form. Herron v. State , No. 08-17-00239-CR, 2019 WL 3451031, at *3-4 (Tex. App.—El Paso July 31, 2019) (not designated for publication). The court looked to the provisions in Code of Criminal Procedure Chapter 62 and noted that the Code provides for three possible entities with which an individual must register—with the office of the chief of police of a municipality if he resides in such municipality, with a county sheriff's office if he lives in an unincorporated area of...