TABLE OF CONTENTS P183 V3 11045015

User Manual: TABLE OF CONTENTS P183 V3

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.

,._

FILED

IN

COURT

OF

APPEALS

AUG

3 1

20H

USA

MATZ

CLERK,

5th

0\STR\CT

ORAL ARGUMENT REQUESTED

IN

THE

COURT

OF

APPEALS

FOR

THE

FIFTH

JUDICIAL DISTRICT

DALLAS, TEXAS

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

RECEIVED

IN

COURT

OF

APPEALS,

5th

OIST.

AUG

3 0

20'1

LiSA

MATZ

CLERK,

5th

DISTRICT

State

Bar

No. 00792449

109

N.

Jackson

Kaufman, Texas 75142

Telephone (972) 962-0653

Fax (972) 962-0656

ATTORNEY

FOR

APPELLANT

Appellant:

Trial Judge:

IDENTITY OF PARTIES

Michael Towery Roberts

B. Michael Chitty

422nd

Judicial District Judge

Kaufman County Courthouse

Kaufman, Texas 75142

Appellant's Counsel: Taryn Davis

Trial Counsel:

State's Attorney:

SBN: 00792449

109 N. Jackson

Kaufman, Texas 75142

Dennis Jones

SBN 1086980

201

W.

Mulberry

Kaufman, Texas 7 5142

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

Whether the evidence

is

sufficient to prove beyond a reasonable doubt that

Mr. Roberts failed to register

as

alleged

in

the indictment.

10

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

•••••••••

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0 0 0

••••

0.

0

•••••

0 0

•••

0 0

••

0 0

••••••

CERTIFICATE OF SERVICE

•••

0

0.

0

••

0. 0.

0.

0

••

0

••

0 0 0

••

0.

0

0.

0

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18

18

TABLE OF AUTHORITIES

STATUTES

Page(s)

Tex. Code Crim Proc. Ann. art. 3 6.14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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)

11

10

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 1 00). 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 1 78).

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 self-

incrimination 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. V 4 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. V 4 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.

V 4 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 pre-

sentence 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 1 0). 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.

V 4 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). Appellant's last verification was made on September

16,

2009 (R.

V3

Roberts 05-11-00450-CR

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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, to-

wit: 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). Thereafter, Sgt. Cagle did a

compliance check at Appellant's residence (R.

V3

P112). 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

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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

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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. V 4 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

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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. V 4 P4, 69). Counsel specifically argued the variance (R. V 4 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

1

h 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

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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

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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, to-

wit: 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

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'.

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

--

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