TABLE OF CONTENTS P183 V3 11045015
User Manual: TABLE OF CONTENTS P183 V3
Open the PDF directly: View PDF 
.
Page Count: 22
| Download | |
| Open PDF In Browser | View PDF |
.
,._
FILED IN
COURT OF APPEALS
ORAL ARGUMENT REQUESTED
AUG 3 1 20H
USA MATZ
CLERK, 5th 0\STR\CT
IN THE COURT OF APPEALS
FOR THE FIFTH JUDICIAL DISTRICT
DALLAS, TEXAS
RECEIVED IN
COURT OF APPEALS, 5th OIST.
AUG 3 0 20'1
LiSA MATZ
CLERK, 5th DISTRICT
05-11-00450-CR
MICHAEL TOWERY ROBERTS
Appellant
v.
THE STATE OF TEXAS
Appellee
On Appeal from the 422nd Judicial District Court
ofKaufman County, Texas
APPELLANT'S BRIEF
Taryn Davis
State Bar No. 00792449
109 N. Jackson
Kaufman, Texas 75142
Telephone (972) 962-0653
Fax (972) 962-0656
ATTORNEY FOR APPELLANT
IDENTITY OF PARTIES
Appellant:
Michael Towery Roberts
Trial Judge:
B. Michael Chitty
422nd Judicial District Judge
Kaufman County Courthouse
Kaufman, Texas 75142
Appellant's Counsel: Taryn Davis
SBN: 00792449
109 N. Jackson
Kaufman, Texas 75142
Trial Counsel:
Dennis Jones
SBN 1086980
201 W. Mulberry
Kaufman, Texas 7 5142
State's Attorney:
Michelle Sutton
SBN: 24027900
Assistant Criminal District Attorney
Mark Hasse
SBN: 09202000
Assistant Criminal District Attorney
Kaufman County Courthouse
Kaufman, Texas 7 5142
TABLE OF CONTENTS
Page(s)
NAMES OF PARTIES
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
n
PRELIMINARY STATEMENT ...................................... .
POINTS OF ERROR
............................................. .
STATEMENT OF FACTS
POINT OF ERROR NO. 1
10
Whether the evidence is sufficient to prove beyond a reasonable doubt that
Mr. Roberts failed to register as alleged in the indictment.
SUMMARY OF ARGUMENT.......................................
10
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
10
POINT OF ERROR NO.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
14
Whether the trial court erred in holding the evidence to be sufficient
when an element of the offense charged was not proved.
SUMMARY OF ARGUMENT.......................................
14
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
15
POINT OF ERROR NO.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
SUMMARY OF ARGUMENT.......................................
16
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Whether the trial court failed to properly instruct the jury on sex
offender registration as it applied to Mr. Roberts.
PRAYER OF RELIEF
•••••••••
CERTIFICATE OF SERVICE
•••
0
0
••
0
0.
0
0
0
••
0
••••
0.
0.
0.
0.
0
0
•••••
••
0
••
0
0
0
•••
0
0
••
0
0
0
0
••
••••••
0.
0
0.
0
••••
0
••
18
18
TABLE OF AUTHORITIES
STATUTES
Page(s)
Tex. Code Crim Proc. Ann. art. 36.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
Tex. Code Crim Proc. Ann. art. 36.19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,18
Tex. Code Crim Proc. Ann. art. 62.001... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
Tex. Code Crim Proc. Ann. art. 62.051. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
17
Tex. Code Crim Proc. Ann. art. 62.055... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13,17
Tex. Code Crim Proc. Ann. art. 62.058 ...................................... 11,17
Tex. Code Crim Proc. Ann. art. 62.059. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
Tex. Code Crim Proc. Ann. art. 62.101.......................................
11
Tex. Code Crim Proc. Ann. art. 62.102. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
CASES
Almanza v State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)
16
Armstrong v. State, 573 S.W.2d 813 (Tex. Crim. App. 1978) . . . . . . . . . . . . . . . . . . .
15
Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010) . . . . . . . . . . . . . . . . . . 10,11
Jackson v. Virginia, 443 U.S. 307,318-19 (1979) ............................ 10,11
Lockhart v. Nelson, 488 U.S. 33,41-42 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
McDaniel v. Brown, 130 S. Ct. 665,672 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
11
Roy v. State, 76 S.W.3d 87 (Tex. App-Houston [14th Dist.] 2002) . . . . . . . . . . . . . .
15
Simpkins v. State, 300 S.W.3d 860 (Tex. App.-Texarkana 2009) . . . . . . . . . . . . . . .
13
Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003) . . . . . . . . . . . . . . . .
14
Taylor v. State, 332 S.W.3d 483,490 (Tex. Crim. App. 2011) . . . . . . . . . . . . . . . . . .
18
Williams v. State, 937 S.W.2d 479,482 (Tex. Crim. App. 1996)
10
11
THE HONORABLE JUSTICES OF THE COURT OF APPEALS:
Comes now Appellant and submits this brief pursuant to the Texas Rules of Appellate
Procedure specifying error of which Appellant complains on appeal.
PRELIMINARY STATEMENT
Appellant, Michael Towery Roberts, was charged by indictment with Failure to Register
as a Sex Offender, third degree felony. On March 21,2011, a jury was selected, empanelled, and
Appellant pled not guilty (R. V3P84). Appellant was convicted of failing to register. On April
6, 2011, punishment was assessed by the judge, at two (2) years confinement in the Texas
Department of Criminal Justice - Institutional Division. Appellant gave timely written notice of
appeal.
POINTS OF ERROR
POINT OF ERROR Number 1- Whether the evidence is sufficient to prove beyond a
reasonable doubt that Mr. Roberts failed to register as alleged in the indictment.
POINT OF ERROR Number 2 - Whether the trial court erred in holding the evidence to be
sufficient when an element of the offense charged was not proved.
POINT OF ERROR Number 3- Whether the trial court failed to properly instruct the jury on
sex offender, registration as it applied to Mr. Roberts.
STATEMENT OF FACTS
Preliminarily Counsel for Appellant moved for a continuance based on his inability to
receive subpoenaed phone records, which ultimately received and not used (R. V3 P25). The
Court denied (R. V3 P26). Appellant was admonished and elected the judge the access
punishment in the event of a conviction (R. V3 P26).
Roberts 05-11-00450-CR
Page 1 of 18
Testimony began with the State calling Sergeant Susan Monroe, certified peace officer
with the Kaufman County Sheriffs Department and resident fingerprint expert (R V3 P88). She
made a comparison of Appellant's prints, State's Exhibit No. 1, which was a fingerprint card that
was generated at the jail from Mr. Roberts (R. V3 P93). The prints were taken by Deputy
Dickens and observed by Sgt. Monroe (R. V3 P93). Appellant was identified (R. V3 P94).
State's Exhibit No.2, Judgment from Kaufman County Cause No. 18654 containing Appellant's
fingerprint, which was confirmed by the witness' comparison of the two exhibits (R. V3 P95).
State's Exhibit No. 2 is then admitted, without objection (R. V3 P96).
On cross, trial counsel emphasizes that State's Exhibit No.2 is not actually a conviction
(R. V3 P98).
The State next called Sergeant Joseph Cagle. He testified that he is an investigator and
certified peace officer with Kaufman County Sheriffs Office and that his current duties include
sex offender registration (R. V3 P 100). He identified Appellant as one of the 151 registered sex
offenders that he works with (R. V3 P101). He identified State's Exhibit No.2 as a document
that would trigger sex offender registration (R. V3 P103). He explained how the Kaufman
County sex offender registration works. He testified that Appellant's address was 1606
Warrington Way in Forney, within Kaufman County and that that address was covered by his
registration authority (R. V3 P1 08). He testified that Appellant was personally interviewed and
provided with the required notices under Chapter 62 of the Code of Criminal Procedure (R. V3
P1 08). He testified that he was alerted Appellant was not residing at his specified location due to
Sgt. Cagle's May 3, 2010, letter to Appellant being returned to sender May 28, 2010 (R. V3
P111-112). Thereafter, Sgt. Cagle did a compliance check at Appellant's residence (R. V3
Roberts 05-11-00450-CR
Page 2 of 18
P112). The only time Sgt. Cagle knew Appellant had been in Alabama was when he was
arrested there (R. V3 P122).
On cross, Sgt. Cagle testified that Appellant missed his annual verification appointment
on September 7, 2010 (R. V3 P 126). And, his last verification was made on September 16, 2009
(R. V3 P126). Sgt. Cagle testified that Appellant's record's indicated that he continuously
registered from 1997 to 2009 (R. V3 P128). Trial counsel questioned Sgt. Cagle about his
compliance letter and his two physical compliance check, which is the alleged offense date in the
indictment versus his failure to comply with the annual registration date of September. Sgt.
Cagle went on to say that the house was listed for sale that that he contacted Coldwell Banker on
September 13, 2010, and was informed by Aden Flores that Appellant was the owner and had the
residence currently listed for sale (R. V3 P133). Sgt Cagle testified that on May 28,2010, he
wrote a report noting that he went to Roberts' residence for a compliance check and observed the
house was listed for sale, the yard was un-kept, and there was a numeric key lock on the front
door. The residence appeared vacant and he took photographs evidencing that fact. He found a
letter sent by the post office in Roberts' mailbox informing the owner that the residence was
notated as a vacant residence. He testified that on May 28, 2010, he tried to contact Appellant's
wife, Rhonda Stephens and had left a voice message with no return call (R. V3 Pl35).
Sgt. Cagle was questioned about his possession of any follow-up papers where a case was
dismissed or discharged from probation; and he responded that he had a polygraph (R. V3 Pl44).
Trial counsel approached; and the jury was excused to take up a matter outside their presence (R.
V3 P144). Trial counsel objected to Sgt. Cagle's response as being nonresponsive, and that he
mentioned the word "polygraph". The results being not allowed and thereby there being no way
Roberts 05-11-00450-CR
Page 3 of 18
to clear up (R. V3 P145). The Court sustained the objection (R. V3 P145). Trial counsel moved
for a mistrial, which the Court denied (R. V3 P145).
Then trial counsel, still outside the presence of the jury asks that he be allowed to go into
the results of the polygraph with the jury and withdraws his nonresponsive objection (R. V3
Pl49). The Judge would not allow the defense to go into the polygraph results (R. V3 P149).
As a result of the Court's rulings, he reasserted the nonresponsive objection and
requested an instruction for the jury to disregard (R. V3 Pl50). The Court instructed the jury to
disregard the comment and not to give it any consideration for any purpose and noted for the
record that the jury is all nodding in agreement (R. V3 P 151 ).
On redirect, State's Exhibit 21, September 16,2009, CR39 form, is admitted without
objection (R. V3 Pl60). State's Exhibit 23, notification of registrant's duty to register, is
admitted, without objection (R. V 3 Pl61). State's Exhibit 22, a letter signed acknowledging
that the sex offender has received a copy of the CCP, is admitted, without objection (R. V3
Pl63). State's Exhibit 24, another form given to sex offender to be signed, is admitted, without
objection (R. V3 Pl64).
On recross, Sgt. Cagle testified that the warrant was put out for Appellant's arrest on
September 14,2010 (R. V3 P166).
The State called Sergeant Phillip Stewart, certified peace officer with Kaufman County
Sheriffs Office assigned to criminal investigations (R. V3 Pl67). Sgt. Stewart testified that he
made visits to 1606 Warrington Way, Forney, Texas with Sgt. Cagle. He identified State's
Exhibits 3,4,5,6,7,8, and 9; photographs ofthat location taken on May 28, 2010 (R. V3 Pl69).
Sgt. Stewart testified that the house appeared vacant although it also appeared that there were
some renovations going on inside the residence (R. V3 Pl72). State's Exhibits 3-9 were
Roberts 05-11-00450-CR
Page 4 of 18
admitted, without objection (R. V3 P169).
Sgt. Stewart identified State Exhibits 10 through 15,
pictures taken of the residence on August 30, 2010. They were admitted, without objection (R.
V3 P173).
On cross, Sgt Stewart testified that he did not check the mailbox, did not knock on the
door or windows, and did not check with any neighbors (R. V3 P176). And, upon further
inspection of the exhibits, Sgt. Stewart agreed that the grass appeared to have been cut or did not
grow between the taking of the pictures (R. V3 P 178).
The State called Brandi Fernandez, Kaufman County Assistant Criminal District
Attorney. The jury was excused on the request of the State to take up matters outside their
presence. State's Exhibit 16, transcript of testimony from a bond hearing, is offered; and without
objection is admitted for record purposes only (R. V3 P183). The Court granted the State's
Motion in Limine as to an Order discharging Appellant from probation (R. V3 P 185).
Brandi Fernandez testified that she was present during a hearing held on November 23,
2010, involving Mr. Roberts. She went on to identify Appellant (R. V3 P 186). She identified
State's Exhibit 2, a community supervision judgment placing the defendant on community
supervision out of the 86 111 Judicial District Court for the offense of indecency with a child. Ms.
Fernandez is asked to explain the effect of the document; and over a "editorializing" and a
relevance objection she is allowed to explain the judgment (R. V3 P188). Trial counsel objects
to Ms. Fernandez summarization of what the law is as it relates to Chapter 62 of the Code of
Criminal Procedure and further asserts that the law comes from the Court. The Judge excuses
the jury to clarify the objection (R. V3 P190). The Judge instructs the witness to just read the
law if she is going to testify about it (R. V3 P 191 ).
Roberts 05-11-00450-CR
Page 5 of 18
Trial counsel believes the State has opened the door to allowing him to introduce Defendant's
Exhibit 1, the Order discharging Mr. Roberts from community supervision (R. V3 P191). Trial
counsel argues that under two theories, one being a mistake of fact and secondly, mitigation he
should be allowed to introduce this exhibit (R. V3 P194). The Judge overruled the State's
objection (R. V3 P196). On cross examination, Defense Exhibit No. 1, Order discharging Mr.
Roberts from community supervision is offered, and without objection here is admitted (R. V3
P205).
Ms. Fernandez went on to testify that Mr. Roberts had a reportable adjudication that
required sex offender registration for life because it was an indecency by contact (R. V3 P197).
Ms. Fernandez referred to State's Exhibit No. 16, and testified about her eliciting testimony from
Mr. Roberts during a writ hearing. She testified that when Mr. Roberts was question about
where he resided prior to his arrest and he replied, Mobile, Alabama for 28 days (R. V3 P199).
And, when asked where he lived prior to that, Mr. Roberts responded that he lived in Pascalooga,
Mississippi (R. V3 P200). According to her, he further testified during this writ hearing that the
last time he lived in Kaufman County was June or July of2010 (R. V3 P200). Additionally, Mr.
Roberts testified during that hearing that he had been in Arkansas, Tennessee, California,
Mississippi, and Alabama since being in Texas (R. V3 P203).
The State rests (R. V3 P206).
The defense is reurging its Motion for Continuance due to their inability receiving
subpoenaed phone records (R. V3 P208). The court recessed the case until the following
morning. Appellant is put back on the record with regards to him testifying and again he
indicated it was his desire to testify (R. V3 P21 0). The Court further admonished Mr. Roberts
Roberts 05-11-00450-CR
Page 6 of 18
(R. V3 P212). Appellant elected to testify and seemingly waived his privilege against selfincrimination freely, voluntarily and knowingly (R. V3 P213 ).
On March 22, 2011, the defense began by moving for an instructed verdict of not guilty
based on the indictment alleging that Mr. Roberts had a "reportable conviction." (R. V4 P5).
The evidence was such that Mr. Roberts received a deferred adjudication, which was in essence
not a conviction. Trial counsel argued the State alleged the wrong wording and that they are
"stuck" with proving a reportable conviction, which they did not. They proved a reportable
adjudication (R. V 4 P5). There is a variance between the proof and the indictment. The Court
denied the Motion asserting the indictment puts the defendant on notice of what he's charged
with (R. V 4 P7).
Trial counsel's second Motion for Instructed Verdict had to do with the evidence
showing Mr. Robert's failed to notify Kaufman County of his move versus actually proving that
he failed to register in another jurisdiction (R. V4 P8). The actual evidence was that he failed to
notify Kaufman County of a change of address again not that he failed to register. The Court
denied the Motion (R. V4 P12).
The defense began with no opening and called Lacy Smith, Kaufman County Adult
Probation Officer. She identified State's Exhibit No.2, a letter written by her. It was offered
and admitted without objection (R. V 4 P15). Defense Exhibit No.2, this letter merely confirms
Order discharging Mr. Roberts from community supervision and acknowledges that he was not
convicted of the charge and was addressed to Transportation Securities Administration.
Trial Counsel recalled Sergeant Joseph Cagle (R. V 4 P21 ). Sgt. Cagle testified that Mr.
Roberts was due to verify on September 16, 2010, and had a 30 day window before or after that
date to schedule this appointment (R. V4 P23). Sgt. Cagle identified Defense ("State's") Exhibit
Roberts 05-11-00450-CR
Page 7 of 18
No. 3, the Probable cause affidavit for the warrant for Mr. Roberts' arrest. Defendant's Exhibit
No. 3 is offered; and without objection, admitted (R. V4 P27).
Appellant took the stand. He testified his birthday is September 7 (R. V 4 P29). Mr.
Roberts testified that he was a truck driver who was not in Kaufman County very often and that
he believed Kaufman County was aware of his situation. When he went into Alabama DMV to
renew his commercial driver's license during the time of his birthday, he was attempting to
establish his residence there and then would have needed to notify Kaufman County Sheriffs
Department of the change (R. V4 P40). The Court sustained the State's leading objection (R. V4
P41 ). Mr. Roberts testified that he was instructed by Mobile Metro Police that he had to first
establish of residence then register (R. V4 P43). Mr. Roberts testified that he was further
instructed to get his license first and then come back to register (R. V 4 P43). Mr. Roberts was
not able to get his license renewed until his $7 40 log-book ticket was paid in Maine, which took
until September 17,2010 (R. V4 P44). Mr. Roberts testified that his long-time girlfriend and he
had broke-up in August 2009, and that when she left she took most of the furnishings (R. V4
P48). Mr. Roberts testified that Sgt. Cagle was mistaken about any belongings being in the
house because the only view he had into his home was from the front window where he took
pictures (R. V4 P50). He testified he had a bed in his bedroom and clothes there. Mr. Roberts
testified the house in Forney was his residence until he got an apartment, was attempting to
renew his driver's license in Alabama and register there as instructed (R. V4 P51). The Defense
rests (R. V4 P64).
Trial counsel had objected to the charge (R. V4 P66). He asserted that the indictment
charges Appellant with failing to register. The Charge is allowing for a conviction by failing to
notify the proper authority of the change of address. The objection was overruled (R. V 4 P68).
Roberts 05-11-00450-CR
Page 8 of 18
Trial counsel moved again for instructed verdict being that there was no evidence that Mr.
Roberts failed to register because the State had not proved he had actually changed his address
for the purpose of triggering the duty to register at anytime other than his annual verification (R.
V4 P69). The Court overruled the objection (R. V 4 P69).
The Jury is brought in and the Charge is read. After deliberations, the jury found Mr.
Roberts guilty.
The jury is excused. Court is reconvened the following day for testimony from Sergeant
Susan Monroe for a prove-up on more prints from two judgments out of California. On March
23,2011, the punishment phase of the trial began with Sgt. Monroe.
Sgt. Monroe testified that State's Exhibit No. 20 was a document that she examined for
the purpose of doing a fingerprint comparison (R. V5 P4). This document is offered; and
without objection, admitted (R. V5 P6). State's Exhibit No. 18 was another document that she
examined. State's Exhibit No. 18 is offered; and without objection, admitted (R. V5 P10).
The case is recessed until April 6, 2011, for the completion of the PSI. During the
punishment phase the Court takes judicial notice of both the original and supplemental presentence investigation report (R. V6 P5).
Mr. Roberts testified that he had been registering since 1997 (R. V6 P8). Trial counsel
requested State's Exhibit No. 20, judgment with someone else's name on it, but linked to Mr.
Roberts, which he attempted to explain the error to dispel any belief that Mr. Roberts was
purposely using an alias, be admitted for all purposes at this time (R. V 6 P 10). Defense Exhibit
No.4, a copy of State's 20, was offered; and without objection, admitted. Mr. Roberts is
requesting probation from the Court. Both sides closed (R. V 6 P31 ). The Court accessed
Roberts 05-11-00450-CR
Page 9 of 18
punishment at two years in the Texas Department of Criminal Justice- Institutional Division (R.
V6 P37).
POINT OF ERROR Number 1- Whether the evidence is sufficient to prove beyond a
reasonable doubt that Mr. Roberts failed to register as alleged in the indictment.
SUMMARY OF ARGUMENT
The indictment charged the defendant with failure to register. The State failed to prove
beyond a reasonable doubt that Mr. Roberts had established residence anywhere other than
Kaufman County. The State failed to prove that Mr. Roberts' address of 1606 Warrington Way,
Forney, Texas was even located within rural Kaufman County. His annual registration was not
due at the time alleged in the indictment (May 28, 201 0). And, if there was no move, then Mr.
Roberts was registered and in good standing with Kaufman County.
ARGUMENT
Mr. Robert's indictment in said cause fails to state an offense to which Appellant can be
held criminal responsible.
The trial counsel specifically argued this point in support of his
Motion for Instructed Verdict (R. V4 P8).
An appellate court reviews a challenge to the denial
of a motion for instructed verdict as a challenge to the sufficiency of evidence. Williams v.
State, 937 S.W.2d 479,482 (Tex. Crim. App. 1996).
Under the proper sufficiency standard of review, an appellate court considers all the
evidence in the light most favorable to the verdict to determine whether the jury was rationally
justified in finding guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19
(1979); Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). Appellate courts are
required to determine whether any rational juror could have found the essential elements of the
Roberts 05-11-00450-CR
Page 10 of 18
offense beyond a reasonable doubt. See Jackson, 443 U.S. at 319; Brooks, 323 S.W.3d at 902 n.
19. An appellate court is required to defer to the jury's credibility and weight determinations
because the jury is the sole judge of the witnesses' credibility and the weight to be given to their
testimony.
See Jackson, 443 U.S. at 319, 326; Brooks, 323 S.W.3d at 899. All evidence,
whether properly or improperly admitted, will be considered when reviewing the sufficiency of
th~::
evidence. See McDaniel v. Brown, 130 S. Ct. 665, 672 (2010); Lockhart v. Nelson, 488 U.S.
33, 41-42(1988); Jackson, 443 U.S. at 319.
A person is subject to the sex-offender registration program if he has a reportable
conviction or adjudication. For purposes of CCP ch. 62, a "reportable conviction or adjudication
means of conviction or an adjudication, including a deferred adjudication. Depending on the
offense, there are two types of registration: a duty to register for life or a duty to register for ten
years after disposition or discharge. See CCP arts. 62.001(5), 62.101. Then, an adult who has a
lifetime registration for CCP art. 62.101(a) offense and who fails to verify registration once each
year as required by CCP art. 62.058. Failure to register as such shall be punished as a third
degree felony. Code of Crim. Proc. Ann. art. 62.1 02(b)(2). The indictment is specifically titled
and charged Mr. Roberts with an offense for failing to register for "life/annually" alleged to have
been committed on or about May 28, 2010, and mistakenly cites Texas Penal Code sec. 62.1
versus same article number under Texas Code of Criminal Procedure (Clerk's R. P7).
The testimony is uncontroverted that Mr. Roberts' annual reporting was due in
September 2010. Mr. Roberts testified his birthday is September 7 (R. V4 P29). On cross, Sgt.
Cagle testified that Appellant missed his set annual verification appointment on September 7,
2010 (R. V3 P126). Sgt. Cagle testified that he obtained a warrant for Appellant on September
14, 2010 (R. V3 Pl66).
Roberts 05-11-00450-CR
Page 11 of 18
Appellant's last verification was made on September 16, 2009 (R. V3
P 126). Sgt. Cagle testified that Appellant's records indicated that he had continuously registered
from 1997 to 2009 (R. V3 P128). Sgt. Cagle also testified that annual registration is required 30
plus or minus days of Mr. Roberts' September 7 birthday (R. V3 Pl30). Code Crim. Proc. Ann.
art. 62.058(a). Thus, the evidence was insufficient to prove Appellant failed to register annually.
Appellant further asserts the State has failed to properly charge Appellant.
The
indictment alleges ... :
"while being a person required to register with the local law enforcement authority in the
county where the defendant resided or intended to reside for more than seven days, towit: Kaufman County, because of a reportable conviction for Indecency with a Child,
intentionally or knowingly fail to register with the local law enforcement authority in said
county," (Clerk's R. P7) ....
Sgt. Cagle even testified that sex offenders are obligated to report seven day before or
after, just within seven days of the move. He testified, "Okay, here's the deal, they've got to
notify me seven days, within seven days of their move. Ifthey're going to move next week, they
can contact me and say hey, we're moving next week. That's plenty of time. But ifthey move
that next week, they have seven days to notify the next jurisdiction, you see." (R. V3 P119). The
evidence is insufficient as to Appellant intentionally or knowingly violating the law when State's
own witness is incorrectly testifying and relaying to the jury the law as he believed it applied to
Appellant.
The State put on testimony from Sgt. Cagle who testified that he was alerted Appellant
was not residing at his specified location due to Sgt. Cagle's May 3, 201 0, letter to Appellant
being returned to sender May 28, 2010 (R. V3 P111-112).
compliance check at Appellant's residence (R. V3 P112).
Thereafter, Sgt. Cagle did a
Sgt. Cagle testified that 1606
Warrington Way in Forney is an address that's within Kaufman County (R. V3 P108). The
Roberts 05-11-00450-CR
Page 12 of 18
State's evidence is insufficient here because the State failed to prove-up that if Appellant failed
to register, registration was even required in Kaufman County and not within the City of Forney.
Evidence was held to be insufficient where the State's evidence failed to prove that one's
residence was located in rural area of a County and not within the municipality. Simpkins v.
State, 300 S.W.3d 860 (Tex. App.--Texarkana 2009).
The Statute is such that any intended change of address must be reported seven days prior
to the change. Code Crim. Proc. Ann. art. 62.055(a). The Statute is such that if the person
moves to another state that has a registration requirement for sex offenders, the person shall, not
later than the 1oth day after the date on which the person arrives in the other state, register ....
Code Crim. Proc. Ann. art. 62.055(c). The Statute is such that if a person intended to regularly
visit other locations for more than 48 consecutive hours on 3 or more occasions during a month
other registration guidelines are triggered. Code Crim. Proc. Ann. art. 62.059.
Although, Sgt
Cagle again testified incorrectly. He testified the window is 72 hours at another location for
more than 3 times per month requires a report. (R. V3 Pl20). Nevertheless, the State did not
charge Mr. Roberts with that violation.
The trial court erred when it failed to grant Appellant's Motion for Instructed Verdict (R.
V4 P4, 69). The evidence at best showed Mr. Robert's failed to notify Kaufman County of his
intended move seven days prior to an intended move versus actually proving that he failed to
register because it is undisputed he was registered in Kaufman County, Texas.
If there was a move, as the evidence may suggest to Alabama, then registration would
have been required there.
However, residency never was established, nor proved to be,
anywhere else that would have allowed Mr. Roberts to basically, un-register in Kaufman County.
Roberts 05-11-00450-CR
Page 13 of 18
Mr. Roberts testified that Sgt. Cagle was mistaken about any belongings being in the
house because the only view he had into his home on the two trips he made there, was from the
front window where he took pictures (R. V4 P50). He testified he had a bed in his bedroom and
clothes there. Mr. Roberts testified the house in Forney was his residence (R. V4 P51). The
State failed to prove Mr. Roberts had established residence anywhere other than Kaufman
County. Sgt. Cagle testified that the house at 1606 Warrington Way in Forney, Texas was listed
for sale that that he contacted Coldwell Banker on September 13, 2010, and was informed by
Aden Flores that Appellant was the owner and had the residence currently listed for sale (R. V3
P133).
The State's never proved Mr. Roberts intentionally or knowingly failed to register
anywhere because he was in fact registered in Kaufman County. A reasonable fact-finder would
necessarily entertain reasonable doubt about Mr. Robert's guilt as charged; due process requires
a reversal and order of judgment of acquittal. Swearingen v. State, 101 S.W.3d 89, 95 (Tex.
Crim. App. 2003)
POINT OF ERROR Number 2 - Whether the trial court erred in holding the evidence to be
sufficient when an element of the offense charged was not proved.
SUMMARY OF ARGUMENT
The indictment alleged that Mr. Roberts had a "reportable conviction." The indictment
says nothing about the alternative mechanism for triggering sex offender registration, which was
having a "reportable adjudication." Mr. Roberts was placed on deferred probation, not
convicted, for indecency with a child. That is a fatal variance, which requires reversal and an
acquittal.
Roberts 05-11-00450-CR
Page 14 of 18
ARGUMENT
Should the Court believe that the State actually correctly charged Mr. Roberts with
failing to register; then, Appellant refers you to the indictment, which alleges that Mr. Roberts
had a "reportable conviction" (Clerk's Record P7). The evidence of the deferred community
supervision definitely does not support a "reportable conviction" element (State's Exhibit No. 2
and Defendant's Exhibit No. 1). Again, the trial court erred when overruled Appellant's Motion
for Instructed Verdict (R. V4 P4, 69). Counsel specifically argued the variance (R. V4 P5).
A fatal variance existed as to an aggravated assault offense where the indictment charged
that a defendant "did then and there unlawfully, while a public servant ... intentionally and
knowingly threaten J.B. Easthagen." However, the evidence did not show the defendant was a
public servant. The evidence was such that Easthagen was the public servant. Because of this
fatal variance between indictment and the proof, reversal for acquittal was required. Roy v.
St~ 76 SW3d 87 (Tex. App-Houston [14 1h Dist.] 2002).
Additionally, a trial court erred in holding the evidence sufficient to sustain a conviction
when there was a material and fatal variance between the instrument set out in the indictment by
its tenor and the instrument offered in evidence to support such description. This referenced case
had to do with a check appearing in the indictment bearing a 2-19-74 date and a bank transit
number appearing as 88-135; and when the check was introduced into evidence it bore the date
2-19-74 and bank transit number was 88-1135, the Criminal Court of Appeals held that was a
variance fatal to conviction. Armstrong v. State, 573 S.W.2d 813 (Tex. Crim. App. 1978).
In our case, the State alleged a "reportable conviction" and they proved a
"reportable adjudication." The evidence is insufficient to sustain the conviction.
Roberts 05-11-00450-CR
Page 15 of 18
POINT OF ERROR Number 3- Whether the trial court failed to properly instruct the jury on
sex offender registration as it applied to Mr. Roberts.
SUMMARY OF ARGUMENT
The State was allowed to include language associated with a failure to register violation
when a person fails to report an intended move, which absolutely has nothing to do with Mr.
Roberts' alleged violation. It would appear they were trying to include additional violations of
the Statute that might apply to Appellant, and give some credence to their application paragraph,
while confusing the already confusing issues.
ARGUMENT
Article 36.19 of the Texas Code of Criminal Procedure establishes the standard for
reversal on appeal when the requirements of Article 36.14, which relates to the charge of the
court, have been disregarded: "the judgment shall not be reversed unless the error appearing
from the record was calculated to injure the rights of the defendant, or unless it appears from the
record that the defendant has not had a fair and impartial trial." Tex. Code Crim. Proc. Ann. art
36.19.
Under Almanza, jury charge error requires reversal of the judgment when the defendant
has properly objected to the charge and the appellate court finds "some harm" to his rights.
Almanza v State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
Trial counsel objected to the
charge and argued that the indictment charges Appellant for specifically "failing to register;" and
that the Charge is allowing for a conviction by "failing to notify the proper authority of the
change of address." (R. V4 P66). The objection was overruled (R. V4 P68) (Clerk's R. P118).
The change of address, in midstream so to speak, and failure to annually register are
Roberts 05-11-00450-CR
Page 16 of 18
controlled by two different Code of Criminal Procedure Articles. Tex. Code Crim. Proc. arts.
62.055, 62.058 (respectively).
After a review of the indictment, the trial court's jury charge on the law; and then, the
application paragraph, harm is shown.
The indictment alleged ... :
"while being a person required to register with the local law enforcement authority in the
county where the defendant resided or intended to reside for more than seven days, towit: Kaufman County, because of a reportable conviction for Indecency with a Child,
intentionally or knowingly fail to register with the local law enforcement authority in said
county," (Clerk's R. P7) ....
The Charge mixed CCP Arts. 62.051(a) and 62.055(a) thereby g1vmg irrelevant
instructions that pertained to a person failing to notify law enforcement of an intended change of
address, which Mr. Roberts was surprisingly not accused of.
The application paragraph tracks the indictment (Clerk's R. P120). The indictment by
itself is confusing enough with the title referring to one violation and the body referring to
Appellant's failure to basically un-register. The harm is evident with the conviction.
The State alleged it would prove a reportable conviction, but did not. The State alleged a
failure to register in Kaufman County, although Mr. Roberts was registered in Kaufman County.
The State seemingly may have proved Mr. Roberts failed to notify Kaufman County of an
intended change of address seven days before any potential change (and was allowed to have this
law in the charge). However, it is what is accused in the indictment that must be proved.
The insertion of the following paragraph in the Court's Charge:
"If a person required to register under this chapter intends to change address, regardless
of whether the person intends to move to another state, the person shall, not later than the
seventh day before the intended change, report in person to the local law enforcement
Roberts 05-11-00450-CR
Page 17 of 18
'.
authority designated as the person's primary registration authority by the department ...
."(Clerk's R. P118),
makes a case for conviction clearly and significantly more persuasive. Taylor v. State, 332
S.W.3d 483,490 (Tex. Crim. App. 2011). Appellant was harmed by the insertion of law that did
not apply to Mr. Roberts as he was indicted when the jury returned its verdict of guilty. Trial
counsel properly made the objection to the jury charge. The inclusion of the law as it related to
individuals who failed to notify law enforcement of any intended change in address seven days
prior to the change was irrelevant to the accusations made in Mr. Roberts' indictment. And, with
that charge being improperly included, reversal is required with "some harm" being shown. Tex.
Code Crim. Proc. art. 36.19.
PRAYER OF RELIEF
WHEREFORE, PREMISES CONSIDERED, Appellant prays this
rev~ewmg
court
reverse the trial court's judgment and enter a judgment of acquittal.
Respectfully submitted,
Law Office ofTaryn Davis, PLLC
109 N. Jackson
Kaufman, Texas 75142
Telephone 97 962-0653
Fax
2-0 6\
BY:
n Davis
State Bar No. 00792449
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I, hereby, certify that a true and correct copy of Appellant's brief was hand-delivered to
the Kaufman County Criminal District Attorney, Kaufman County Courthouse, Kaufman, Texas
75142, on this 7:0-fu day of August, 2011.
.--------;-i::L·
~-~ --~'
~
--
Taryn Dav1s
Roberts 05-11-00450-CR
Page 18 of 18
Source Exif Data:
File Type : PDF File Type Extension : pdf MIME Type : application/pdf PDF Version : 1.6 Linearized : Yes Create Date : 2011:09:01 10:30:11-05:00 Creator : FUJITSU fi-6670dj + sipc Modify Date : 2011:09:01 10:31:33-05:00 XMP Toolkit : Adobe XMP Core 5.2-c001 63.139439, 2010/09/27-13:37:26 Metadata Date : 2011:09:01 10:31:33-05:00 Creator Tool : FUJITSU fi-6670dj + sipc Format : application/pdf Document ID : uuid:8a876585-5a6e-4939-9dec-66d4de7b6e82 Instance ID : uuid:a6938314-0713-48e5-88c6-bac19044be6f Producer : Adobe Acrobat 10.1 Paper Capture Plug-in Page Count : 22EXIF Metadata provided by EXIF.tools