Thomas v. State

• Decision Date: 24 September 2014
• Docket Number: No. PD–1326–13.,PD–1326–13.
• Citation: 444 S.W.3d 4
• Parties: Clister Ray THOMAS, Appellant v. The STATE of Texas.
• Court: Texas Court of Criminal Appeals

444 S.W.3d 4

Clister Ray THOMAS, Appellant

v.The STATE of Texas.

No. PD–1326–13.

Court of Criminal Appeals of Texas.

Sept. 24, 2014.

Tim Cone, Gilmer, for Appellant.

Stacey Goldstein, State Prosecuting Attorney, Austin, for the State of Texas.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, KEASLER, and ALCALA, JJ., joined.

We granted the State Prosecuting Attorney's petition for discretionary review to determine whether the court of appeals erred when it held that there was insufficient evidence to sustain Appellant's conviction for failure to register as a sex offender. After reviewing the evidence in this case, we will reverse the judgment of the court of appeals and remand this case to the court of appeals for consideration of whether Appellant was harmed by any error in the jury charge.

Background

Appellant is required to register under Chapter 62 of the Texas Code of Criminal Procedure as a sex offender due to a 1987 conviction for aggravated sexual assault. Appellant registered his address, 1900 South Green Street, Apartment 210, with the Longview Police Department, the local law-enforcement agency responsible for sex-offender registration. That apartment was leased by the daughter of Appellant's girlfriend, but Appellant and his girlfriend stayed at the apartment “off and on.”

On April 3, 2012, Officer Jeff Hall of the Longview Police Department contacted the property manager of the apartment complex to ask if she was aware that Appellant, a registered sex offender, was living on the premises. The manager told Hall that she was not aware of that, and she subsequently called the Longview Police Department to ask officers to issue a criminal-trespass warning to Appellant. When the officers arrived, the manager, Appellant's girlfriend, and her daughter were present. At that time, the manager told the daughter that she would be evicted if Appellant continued to reside with her and her mother. Ultimately, the officers issued Appellant a criminal-trespass warning and arrested him on other outstanding warrants. When Appellant was booked into the county jail, he told officers that he lived at a different address, 1703 Houston Street.

On June 13, 2012, an officer contacted Detective Brownlee of the Longview Police Department and told him that, when Appellant was arrested, he gave an address different than his sex-offender registration address. On June 25, Brownlee went to 1900 South Green to see if Appellant was still living there, but he was informed by the manager that Appellant no longer lived on the premises. Without going to the apartment located on South Green, Brownlee went to 1703 Houston Street looking for Appellant and found him. Once the detective made contact with Appellant, he asked him where he was staying, and Appellant responded that he was staying at 1703 Houston Street. Because the address Appellant gave Brownlee was different from Appellant's sex-offender registration address, Brownlee asked Appellant if he had updated his sex-offender registration address. Appellant stated that he had updated it by calling the Longview Police Department, but Brownlee testified that “it is impossible to change your address by calling in.” In addition, the detective's records indicated that Appellant was still registered at the South Green address. Consequently, Brownlee arrested Appellant for failure to comply with sex-offender registration requirements.

All three of Appellant's witnesses, including Appellant, testified that, even after Appellant received the criminal trespass warning, he continued to reside at the South Green address through October 2012. Appellant also testified that he began lying and giving police officers the Houston Street address when he was arrested on April 3 to protect his family because he did not want his girlfriend's daughter to be evicted from her apartment for allowing him to continue staying at the apartment.

Appellant was charged, and convicted of, failure to comply with sex-offender registration requirements. He was sentenced to two years' confinement. On appeal, the Texarkana Court of Appeals reversed the judgment of the trial court and rendered an acquittal after it held that there was a fatal variance between the indictment and the proof adduced at trial. See Thomas v. State, 411 S.W.3d 685, 690–91 (Tex.App.-Texarkana 2013, pet. ref'd). The court found that the State failed to prove, per the indictment, that Appellant intended to move from the South Green address to the Houston Street address and failed to report his anticipated new address at least seven days before moving. Id. In its analysis, the court noted that the State “presented no evidence that [Appellant] intended to change his address at least seven days before he was required to leave the apartment.” Id. at 693. The court of appeals went on to say in reference to the criminal-trespass warning that, “if anything, the evidence proves that [Appellant] had no expectation or intention to change his address....” Id. Thus, it appears the court of appeals did not reach the second issue of whether Appellant failed to report his new address in person at least seven days before his anticipated move date because it held that there was no evidence to prove the threshold issue that Appellant intended to move.

We granted the State Prosecuting Attorney's single ground for review asking

Did the court of appeals err to hold that the evidence was insufficient to prove that Appellant failed to register his intent to change his sex-offender registration address seven days before the intended change when evidence of Appellant's actual residence change necessarily establishes his underlying or subsumed intended change date?

Arguments of the parties

The State argues that the proper day from which to calculate the requisite seven-day period when Appellant was required to notify the local law-enforcement authority about his intended move was June 25, the day Appellant was arrested at the Houston Street address, not April 3, the day Appellant was arrested at the apartment complex and given a criminal-trespass warning. In addition, the State contends that, although that would mean that the date the crime was committed according to the indictment was different from the date proven at trial, that is of no consequence because caselaw from this Court allows the State to prove a date different than the one alleged in the indictment so long as it was before the indictment was returned and the date was within the limitations period. To support its argument regarding the “on or about” language in the indictment, the State cites Sledge v. State, 953 S.W.2d 253 (Tex.Crim.App.1997).

The State contends that the evidence was legally sufficient because the jury could have found that Appellant intended to move to Houston Street on June 25 when Appellant told Brownlee that he lived on Houston Street, but that intent was not followed up with the requisite in-person notification. Moreover, the State argues, if the jury believed that Appellant intended to move to Houston Street on June 25, then it reasonably could have inferred that Appellant had an obligation to report his intended change in address no later than June 18—seven days before his intended move—which he failed to fulfill.

Appellant responds that the State's assumption that Appellant actually moved to the Houston Street address is not supported by the record. Specifically, Appellant asserts that Appellant and his witnesses testified that Appellant lived “at the South Green Street apartment even after the criminal trespass warning and well past the date of the indictment.” Finally, Appellant cites Johnson v. State, 364 S.W.3d 292 (Tex.Crim.App.2012), for the proposition that there was a fatal variance between the allegations in the charging instrument and the evidence adduced at trial.

Discussion

To determine if there is sufficient evidence to support a criminal conviction, a reviewing court must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original); see Thornton v. State, 425 S.W.3d 289, 303 (Tex.Crim.App.2014). This standard of review allows a jury to resolve fact issues and to draw reasonable inferences from the evidence. Jackson, 443 U.S. at 319, 99 S.Ct. 2781 ; see Lucio v. State, 351 S.W.3d 878, 894 (Tex.Crim.App.2011). With respect to testimony of witnesses, the jury is the sole judge of the credibility and weight to be attached thereto, and when the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. See Jackson, 443 U.S. at 319, 99 S.Ct. 2781. “Each fact need not 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.” Hooper v. State, 214 S.W.3d 9, 13 (Tex.Crim.App.2007). When assaying the record for evidentiary sufficiency, we consider all of the admitted evidence, even if it was improperly admitted. Id.; see Sorrells v. State, 343 S.W.3d 152, 155 (Tex.Crim.App.2011).

To determine whether the State has met its burden under Jackson to prove a defendant guilty beyond a reasonable doubt, we compare the elements of the crime as defined by the hypothetically correct jury charge to the evidence adduced at trial. See Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim.App.1997). A 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. The “law as authorized by the...