Kellogg v. State

• Docket Number: 06-21-00058-CR
• Decision Date: 02 March 2022
• Parties: JOHNNY LEN KELLOGG, Appellant v. THE STATE OF TEXAS, Appellee
• Court: Texas Court of Appeals

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JOHNNY LEN KELLOGG, Appellant
v.
THE STATE OF TEXAS, Appellee

No. 06-21-00058-CR

Court of Appeals of Texas, Sixth District, Texarkana

March 2, 2022

Do Not Publish

On Appeal from the 124th District Court Gregg County, Texas Trial Court No. 51825-B

Submitted: December 10, 2021

Before Morriss, C.J., Stevens and Carter, ^[*] JJ.

MEMORANDUM OPINION

SCOTT E. STEVENS JUSTICE

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A Gregg County jury convicted Johnny Len Kellogg of failure to register as a sex offender^[1] and, after his punishment was enhanced by two prior felony convictions, ^[2] assessed him ninety-nine years' imprisonment. In this appeal, Kellogg (1) challenges the sufficiency of the evidence supporting his conviction and (2) asserts that the trial court erred (a) in its charge to the jury, (b) in admitting certain photographic evidence during the punishment hearing, and (c) in assessing time payment fees in its judgment. Because we find that sufficient evidence supported the conviction, that any jury-charge error did not cause egregious harm, and that any error in admitting photographic evidence was harmless, we affirm the trial court's judgment. However, we modify the judgment by deleting the time payment fees and to correct the statute of offense.

I. Sufficient Evidence Supports Kellogg's Conviction

In his first issue, Kellogg challenges the sufficiency of the evidence supporting his conviction. "In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt." Williamson v. State, 589 S.W.3d 292, 297 (Tex. App.-Texarkana 2019, pet. ref'd) (citing Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.); Jackson v. Virginia, 443 U.S. 307, 319 (1979); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.-Texarkana 2010, pet. ref'd)). "Our rigorous legal sufficiency review focuses on the quality of the evidence presented." Id. (citing

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Brooks, 323 S. W3d at 917-18 (Cochran, J, concurring)). "We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury 'to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.'" Id. (quoting Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007); citing Jackson, 443 U.S. at 318-19; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007)).

"In our review, we consider 'events occurring before, during and after the commission of the offense and may rely on actions of the defendant which show an understanding and common design to do the prohibited act.'" Williamson, 589 S.W.3d at 297 (quoting Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d 107, 111 (Tex. Crim. App. 1985))). "It is not required that each fact 'point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is sufficient to support the conviction.'" Id. (quoting Hooper, 214 S.W.3d at 13). "Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone." Id. (citing Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004))). "Further, 'we must consider all of the evidence admitted at trial, even if that evidence was improperly admitted.'" Id. (quoting Fowler v. State, 517 S.W.3d 167, 176 (Tex. App.-Texarkana 2017), rev'd in part by 544 S.W.3d 844 (Tex. Crim. App. 2018), (citing Moff v. State, 131 S.W.3d 485, 489-90 (Tex. Crim. App. 2004))).

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"Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge." Id. at 298 (quoting Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). "The 'hypothetically correct' jury 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.'" Id. (quoting Malik, 953 S.W.2d at 240).

Under the statute and the indictment, the State was required to prove beyond a reasonable doubt that, on or about April 30, 2018, Kellogg (1) knew that he was required to register under Chapter 62 of the Texas Code of Criminal Procedure because of a reportable conviction for sexual battery/indecency with a child by contact, (2) resided or intended to reside in the City of Longview for more than seven days, (3) and failed to register with the local law enforcement authority in Longview by the seventh day after he arrived in Longview. See Tex. Code Crim. Proc. Ann. arts. 62.051(a)(1), 62.102(a), (b)(2). Kellogg only challenges the sufficiency of the evidence supporting the finding that he resided or intended to reside in Longview for more than seven days.^[3]

Article 62.051(a) of the Texas Code of Criminal Procedure requires a person with a reportable conviction to register with the local law enforcement authority in any municipality or county "where the person resides or intends to reside for more than seven days." Tex. Code

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Crim. Proc. Ann. art. 62.051(a). As Kellogg correctly points out, the Texas Court of Criminal Appeals has held that the "resides" language in Article 62.051(a) "clearly envisions a person's physical presence and his establishment of a domicile." Herron v. State, 625 S.W.3d 144, 155 (Tex. Crim. App. 2021) (citing Reside, Merriam-Webster's New Collegiate Dictionary (9th ed. 1986) ("to dwell permanently or continuously"; "occupy a place as one's legal domicile"); Reside, Webster's New International Dictionary (3d ed. 1981) (to "have a settled abode for a time: have one's residence or domicile")).

The evidence at trial relevant to Kellogg's residing in or intending to reside in Longview for seven or more days showed that, on July 6, 2017, Kellogg was arrested by Longview police. Although the arrest records identified the arrestee as "George Purland, Jr.," Captain Luke Whitehead and Detective Kirby DeLoach of the Longview Police Department (LPD) testified that the fingerprints of the arrestee taken at the time matched Kellogg's fingerprints. Also, a photograph of the arrestee taken by the LPD at the time was identified as Kellogg. At the time of the arrest, Kellogg told the arresting officer that his residence was the Globe Inn in Longview.

Kellogg was arrested a second time by the LPD on October 31, 2017, at which time he identified himself as "George W. Purland, Jr." Based on the fingerprints of the arrestee and a photograph taken at the time by the LPD, Kellogg was identified as that arrestee also. Kellogg gave his residence address at the time of that arrest as 1300 East Marshall Avenue in Longview.^[4]

On June 16, 2018, Kellogg was again arrested by the LPD and identified himself as "George Purland." Based on his fingerprints and a photograph taken at the time by the LPD,

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Kellogg was identified as the arrestee. At the time of his third arrest, Kellogg gave his residence address as 1300 East Marshall Avenue in Longview.^[5]

The State also introduced a text message extracted from a cell phone associated with Kellogg that was sent on February 10, 2018, from Kellogg (using the alias "Skool") in which he stated that he was leaving McDonald's and was "gonna walk down toward the globe." Detective Chris Bethard testified that he believed that the text referenced the McDonald's on East Marshall and the Globe Inn, which was east of the McDonald's. The evidence also showed that there were people who lived at the Globe Inn for long periods of time.

Kellogg argues that this evidence only shows that he was staying at the Globe Inn on the days that he was arrested but does not show that he resided there for any seven-day period. However, the jury is allowed "to draw reasonable inferences from basic facts to ultimate facts." Williamson, 589 S.W.3d at 297 (quoting Hooper, 214 S.W.3d at 13). Because Kellogg consistently identified the address of the Globe Inn in Longview as his place of residence over a period of months, the jury could reasonably infer that he had continuously dwelt there during that time. See Herron, 625 S.W.3d at 155. For that reason, we find that sufficient evidence supported the jury's finding that Kellogg resided in Longview for seven or more days and that he failed to register with the LPD. See Thomas v. State, 444 S.W.3d 4, 10-11 (Tex. Crim. App. 2014) (evidence that defendant told police officer he had moved to an address different from his registered address was sufficient to show that he intended to and did reside at the new address on

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that date); Rollings v. State, No. 13-02-384-CR, 2004 WL 1124471, at *3 (Tex. App.-Corpus Christi May 20, 2004, no pet.) (mem. op., not designated for publication)^[6] (holding evidence that defendant had identified his residence as an address in Ingleside in loan documents and on police reports dating from October 2001 sufficient to show that he resided in Ingleside for seven or more days). We overrule Kellogg's first issue.

II. Jury-Charge Error

In his second and third issues, Kellogg asserts that the trial court submitted erroneous instructions in its jury charge. "We employ a two-step process in our review of alleged jury-charge error." Murrieta v. State, 578 S.W.3d 552, 554 (Tex. App.-Texarkana 2019, no pet.) (citing Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Id. (quoting Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.-Texarkana 2012, no...