Kelley v. State

• Court: Texas Court of Appeals
• Writing for the Court: MARC W. BROWN
• Citation: Kelley v. State, 429 S.W.3d 865 (Tex. App. 2014)
• Decision Date: 24 April 2014
• Docket Number: No. 14–12–01058–CR.,14–12–01058–CR.
• Parties: William David KELLEY, Appellant v. The STATE of Texas, Appellee.

429 S.W.3d 865

William David KELLEY, Appellant

v.The STATE of Texas, Appellee.

No. 14–12–01058–CR.

Court of Appeals of Texas, Houston (14th Dist.).

April 24, 2014.

Douglas M. Durham, Houston, for Appellant.

Jessica Akins, Houston, for the State.

Panel consists of Justices BOYCE, CHRISTOPHER, and BROWN.

OPINION

MARC W. BROWN, Justice.

Appellant William David Kelley was convicted for the felony offense of failure to comply with statutory sex offender registration requirements. The jury found one of two sentencing enhancements true and assessed punishment at 20 years. On appeal, he presents six issues, whether: (1) the evidence is legally insufficient to prove appellant intentionally and knowingly failed to timely report to law enforcement, (2) the trial court erred by not finding the evidence legally insufficient after hearing additional evidence in the motion for new trial, (3) the sex offender registration statute is void for vagueness as applied to appellant, (4) the trial court erred in excluding certain testimony, (5) the trial court erred in charging the jury on the defensive issue of statute of limitations, and (6) the fatal variance between notice and proof violated appellant's due process rights. We affirm.

I. Factual and Procedural Background

Appellant was charged by indictment with failure to register as a sex offender. The indictment alleged that:

• on or about September 1, 2011,

• while appellant had two reportable convictions for the offenses of sexual assault and indecency with a child, and

• while he was subject to registration under the Texas sex offender registration program,

• he intentionally and knowingly failed to timely report to the local law enforcement designated as his primary registration authority, the Harris County Sheriff's Office (HCSO),

• during a particular 90–day period following September 27, 2010, the date he first registered as a sex offender,

• in order to verify the information in the sex offender registration form maintained by that law enforcement authority,

• to-wit, appellant failed to report to said authority as required during the period beginning August 17, 2011 and ending August 31, 2011.

The indictment included two enhancement paragraphs alleging appellant's prior convictions for aggravated kidnapping in 1982 and 1991.

In August 2010, appellant was incarcerated in the Texas Department of Criminal Justice Institutional Division (TDCJID) and was scheduled for release. Tammy Sonsel, a TDCJID employee, reviewed appellant's records and determined that he was subject to the sex offender registration requirements of chapter 62 of the Texas Code of Criminal Procedure. Sonsel met with appellant on August 6, 2010, to discuss his registration requirements. Appellant acknowledged that he understood the requirements, which included registering for life, verifying that registration in person every 90 days, reporting to the primary registration authority in person prior to 7 days before moving to a new address, and reporting in person and registering with local law enforcement where the new residence is located within 7 days after the move.

Appellant was released from confinement. On September 27, 2010, he personally met with Houston Police Department (HPD) Officer Jerry McCollum, who was assigned to HPD's sex offender registration unit. McCollum went over the registration rules and notified appellant that his failure to comply could result in felony charges. Following appellant's registration on September 27, 2010, appellant again met with McCollum and verified his registration and status on December 6, 2010, which satisfied the 90–day period scheduled to end on December 9, 2010. Appellant's next 90–day verification period was scheduled to end on March 9, 2011.

Appellant moved to a new physical address—a room at an extended stay motel off the North Freeway. On February 21, 2011, appellant personally met with Deputy Santos Lopez, who was assigned to HCSO's sex offender registration unit, to transfer his verification from HPD's unit. Lopez went over the registration rules and the criminal penalties for failure to comply. Appellant acknowledged that he understood the requirements.

Appellant personally met with Lopez for his next 90–day verification on May 26, 2011. He again acknowledged his understanding of the registration requirements. Appellant's next 90–day verification period was scheduled to end on August 24, 2011. On August 4, appellant called Lopez and scheduled his next verification for September 1, 2011 at 9:00 a.m.¹ Appellant failed to appear for his September 1 appointment.

Appellant's phone records reflect calls placed to HCSO's sex offender registration unit at 9:54 p.m. on August 30, 2011, and at 3:27 p.m., 3:29 p.m., and 4:25 p.m. on August 31, 2011; and calls placed to HPD's sex offender registration unit at 9:55 p.m. on August 30, 2011 and at 3:25 p.m. on August 31, 2011. According to Lopez, appellant did not talk to anyone to explain why he could not make his appointment or to reschedule it. McCollum did not recall receiving a phone call from appellant in late August 2011.

HPD Officer Michelle Burroughs replaced McCollum at HPD's sex offender registration unit in August 2011. Appellant “walked in” without an appointment and attempted to register with Burroughs on September 22, 2011. He indicated that he was unemployed, homeless, and “moving from place to place” within the city of Houston, and provided a new telephone number. According to Burroughs, she did not register appellant because the law requires a definite address, even “a geographical location, 45 under the bridge.” Burroughs advised appellant to come back within 7 days, by September 29, 2011, to provide a stable address, and continue to come back every 7 days until he could provide a stable address. Burroughs was out of the office on September 29, 2011. Appellant's name appears on HPD's unit's September 29, 2011 sex offender registration sign-in sheet. Appellant's phone records reflect 8 telephone calls placed to Burroughs' office number from September 26, 2011 to October 3, 2011. Burroughs did not meet with appellant again after September 22, 2011.

Margarette Dempsey, a supervisor with the Texas Health and Services Commission, testified that agency records indicate appellant listed an address on Shepherd Drive when applying for food stamps on September 30, 2011. Appellant reported a change of address to the food stamp program on October 25, 2011, to a location on Lanibeth Street.

Terry Smith, a licensed chemical dependency counselor working at a residential treatment facility located at the address on Shepherd, identified appellant as a former client and resident. According to Smith, appellant was referred to the program from the VA hospital, checked into the facility on August 30, 2011, and remained in the program until September 16, 2011; appellant was asked to leave for breaking a program rule. Although VA patients sent to the facility were not supposed to leave for the first 30 days, Smith indicated there are exceptions to take care of medical and legal issues.

Officer Edward Barnot, a detective with HCSO's sex offender registration unit, began investigating appellant on January 13, 2012. Barnot learned that appellant had registered with HPD's sex offender registration unit on September 27, 2010; appellant timely reported his move outside of Houston and began reporting to HCSO's unit on February 21, 2011; appellant timely reported for his next 90–day verification with HCSO's unit on May 26, 2011; appellant was scheduled to report for his next 90–day verification with HCSO's unit on September 1, 2011,² and failed to appear for that appointment; and appellant had walked into HPD's unit in September 2011 but the registry did not reflect that and no new address was identified in the database. Barnot attempted to locate appellant at his last registered North Freeway address; appellant was not there.

At trial, Barnot testified regarding records showing that appellant changed his address with DPS to a location on Lanibeth ³ as of September 29, 2011. Also, appellant's Tenaris employment records showed appellant changed his address to the Shepherd address as of September 15, 2011, for purposes of 2011 benefits enrollment, and appellant changed his address with human resources to the Lanibeth addressas of November 23, 2011. Appellant also submitted a leave of absence form to human resources at Tenaris for personal medical/FMLA leave starting August 3, 2011, scheduled to end November 4, 2011.

On January 20, 2012, Barnot filed charges against appellant for failing to comply with the sex offender registration requirements based on appellant's failure to show up in person for the September 1 appointment with HCSO's unit and appellant's absence from his last registered address. Law enforcement located and arrested appellant at the Lanibeth address on January 26, 2012.

The jury convicted appellant of failure to comply with sex offender registration requirements, as charged in the indictment. The jury found the allegations in enhancement paragraph one true, the allegations in enhancement paragraph two not true, and assessed appellant's punishment at 20 years' confinement. This timely appeal followed.

II. Analysis

A. The evidence is legally sufficient to support appellant's intent or knowledge.

At the close of the State's evidence, appellant moved for an instructed verdict of not guilty based on lack of intent or knowledge in failing to timely comply, which the trial court denied. In his first issue, appellant attacks the legal sufficiency of the evidence to prove beyond a reasonable doubt that he intentionally and knowingly failed to timely report to local law enforcement. We conclude that this argument lacks merit.

“In determining whether the evidence is legally sufficient to support a conviction, a reviewing court must consider all of the evidence in the light most favorable to the verdict and...