Rios v. State

• Decision Date: 15 July 2004
• Docket Number: No. 13-02-732-CR.,13-02-732-CR.
• Parties: Enrique RIOS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

141 S.W.3d 750

Enrique RIOS, Appellant, v. The STATE of Texas, Appellee.

No. 13-02-732-CR.

Court of Appeals of Texas, Corpus Christi-Edinburg.

July 15, 2004.

Rehearing En Banc Overruled September 2, 2004.

Appeal from the 148th District Court, Nueces County, Rose Vela, J.

Joseph V. Collina, Corpus Christi, for appellant.

Carlos Valdez, Nueces County Dist. Atty., Douglas K. Norman, Asst. Dist. Atty., Corpus Christi, for appellee.

Before Justices HINOJOSA, YANEZ, and CASTILLO.

OPINION

Opinion by Justice YANEZ.

Following a bench trial, Enrique Rios was convicted of the third-degree felony offense of failure to comply with sex-offender registration requirements. See TEX.CODE CRIM. PROC. ANN. arts. 62.01, 62.03, 62.10 (Vernon Supp.2004). He was sentenced to two years imprisonment. In two issues, Rios challenges the legal and factual sufficiency of the evidence to support his conviction. We hold the evidence is legally insufficient to support Rios's conviction and reverse the trial court's judgment.

Background

On April 25, 2001, Rios registered as a sex offender living at his mother's residence, located at 2212 Mary Street in Corpus Christi, Texas. See TEX.CODE CRIM. PROC. ANN. arts. 62.03, 62.04 (Vernon Supp. 2004).

At trial, there was conflicting testimony as to whether Rios had lived continuously at the Mary Street address from the date of his registration in April 2001 through February 15, 2002, the date of the alleged violation.

Victor Ray Casares, Sr., a Corpus Christi police officer, testified that on February 15, 2002, he and officer Andrew Ybanez were conducting compliance checks on registered sex offenders. Upon arriving at 2212 Mary Street, the officers encountered Rios's mother, Natalia Petri, outside. Casares testified Petri told them she had lived at the address for twenty-two years. According to Casares, Petri said that Rios no longer lived there, that he was in Dallas, and that she had not seen him for a couple of months, since Christmas. The officers obtained Petri's signature on a form stating that Rios no longer lived at the address.

Officer Ybanez corroborated Casares's testimony. On cross-examination, Ybanez testified the officers did not search the house and admitted that it was possible Rios was there.

At trial, Petri testified that Rios had always lived with her. She said that when the officers came to her home, they told her they were patrolling the neighborhood to prevent burglaries and asked if she had seen any suspicious activities. She testified that the officers asked who lived with her, and she told them that Rios and her grandson lived there. According to Petri, she told the officers that Rios was inside the house, but was asleep. She stated that she offered to wake him, but the officers said it was not necessary. She denied that she said Rios was living in Dallas. She testified that the officer asked her to sign a document to prove they had been patrolling in the area. She specifically testified that Rios was living with her between December 2001 and February 15, 2002 and that he had lived with her at the Mary Street address "all the time."

Tami Weidenfeller, custodian of records at Christus Spohn Hospital, verified the introduction of Rios's hospital records. The records reflect that on February 19, 2002, four days after the officers' visit, Rios attempted to obtain a refill on prescription medication by visiting the hospital. The hospital records of Rios's February 19 treatment show his address as "2212 Mary Street." Weidenfeller testified that patients are asked to provide an address upon admission, but that no other information is requested to verify a patient's address.

Standard of Review

Claims of legal insufficiency of evidence are reviewed by examining the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App.2003).

In a criminal conviction, sufficiency of the evidence is determined by the elements of the crime as defined by the hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App. 1997). The correct charge "would be 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. In Malik, the court of criminal appeals provided that this standard can be applied to all trials, whether to the bench or to the jury. Id. at 240; see also Fuller v. State, 73 S.W.3d 250, 252 (Tex.Crim.App.2002) (evidentiary sufficiency should be measured against "elements of the offense as defined by the hypothetically correct jury charge for the case" in all sufficiency cases).¹ The court of criminal appeals has made clear that under Malik, "the indictment [is] the basis for the allegations which must be proved" and that the hypothetically correct jury charge for the case must be "authorized by the indictment." Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App.2001) (citing Planter v. State, 9 S.W.3d 156, 159, n. 5 & 6 (Tex.Crim.App.1999)).

When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller v. State, 73 S.W.3d 250, 255 (Tex.Crim.App. 2002) (Keller, P.J., concurring) (citing Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim. App.2000)); Gollihar, 46 S.W.3d at 255.

Questions concerning the credibility of witnesses and the weight to be given their testimony are to be resolved by the trier of fact. Mosley v. State, 983 S.W.2d 249, 254 (Tex.Crim.App.1998). Evidence is not rendered insufficient when conflicting evidence is introduced. Matchett v. State, 941 S.W.2d 922, 936 (Tex.Crim.App.1996). The reviewing court must assume that the fact finder resolved conflicts, including conflicting inferences, in favor of the verdict, and must defer to that resolution. Id.

We also measure the factual sufficiency of the evidence in a non-jury trial by the elements of the offense as defined by a hypothetically correct jury charge for the case. See Adi v. State, 94 S.W.3d 124, 131 (Tex.App.-Corpus Christi 2002, pet. ref'd) (discussing application of "hypothetically correct jury charge" analytical construct in context of factual-sufficiency review in case tried to jury). In reviewing the factual sufficiency of the elements of the offense on which the State carries the burden of proof, we impartially examine all of the evidence and set aside the verdict only if "proof of guilt is so obviously weak as to undermine confidence in the [fact-finder's] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by the contrary proof." Swearingen v. State, 101 S.W.3d 89, 97 (Tex.Crim.App.2003) (citing Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App. 2000)). We are also required to accord due deference to the fact-finder's determinations on the weight and credibility of the evidence and may not merely substitute our own judgment for that of the fact-finder. Id.; Johnson, 23 S.W.3d at 7; see Mosley, 983 S.W.2d at 254 (questions concerning credibility of witnesses and weight given their testimony are resolved by the trier of fact).

Analysis

The indictment charges Rios with "failure to comply with registration requirements" and cites articles 62.01,² 62.03,³ and 62.10⁴ of the code of criminal procedure. See TEX.CODE CRIM. PROC. ANN. arts. 62.01, 62.03, 62.10 (Vernon Supp.2004). Specifically, the indictment alleges that Rios:

on or about February 15, 2002, in Nueces County, Texas, was required to register because of a reportable conviction for Indecency with a Child, and did then and there intentionally, knowingly and recklessly fail to verify the information in the completed registration form by failing to report no later than the seventh day after his arrival in the municipality where he resided and intended to reside for more than seven days, to wit: Corpus Christi, to the local law enforcement authority, namely the Corpus Christi Police Department, who had received said registration form.

In brief, the indictment thus alleged: (1) Rios's status as a person with a reportable conviction; (2) that he intentionally, knowingly, and recklessly failed to verify the information in his registration form; and (3) by failing to report to the Corpus Christi Police Department no later than seven days after his arrival in Corpus Christi.

The State alleged Rios failed to comply with the registration requirements because:

(1) on April 25, 2001, he registered with the Corpus Christi police department as a sex offender living at 2212 Mary Street in Corpus Christi;

(2) pursuant to a visit by Corpus Christi police officers on February 15, 2002, Rios's mother signed a statement that he had not lived at 2212 Mary Street since "December 2001," a period of approximately six to eight weeks;

(3) Rios returned to Corpus Christi sometime between February 15, 2002 and February 19, 2002 because his medical records show he was admitted to the hospital in Corpus Christi on February 19, 2002; and

(4) when he returned to Corpus Christi, he failed to report "no later than the seventh day after his arrival" to the Corpus Christi police department.

In proving Rios failed to comply with registration requirements, the State was therefore limited to the allegation in the indictment: that he failed to report within seven days of his "arrival in" — or return to — Corpus Christi.

At trial, however, the State relied on Petri's statement as evidence that Rios "was no longer living at 2212 Mary Street." (emphasis added). The State argued:

[Prosecutor]: ... We...