Court of Appeals of Texas,Texarkana. Tim Cone, for Clister Ray Thomas. Zan Colson Brown, for State of Texas. Thomas had previously been convicted of aggravated sexual assault in Gregg County in and was sentenced to fifteen years' imprisonment for that offense. As a result of that previous conviction, Thomas was required to register as a sex offender and to annually verify his registration information for life. On appeal, Thomas contends the evidence is insufficient to support his conviction.
We reverse and enter a judgment of acquittal. Jimerson's mother, Pamela Epsy, lived with her in the apartment. The arrangement was temporary. Thomas was present in Jimerson's apartment only when Epsy was there.
Hall presented the apartment manager with paperwork documenting Thomas' sex-offender status. On receipt of this information, the manager asked that a criminal trespass warning be issued to Thomas. The manager explained that she did not know Thomas was living in the apartment and that he did not have permission to reside there with Jimerson and Epsy.
Apartment policy requires that any person who resides with a tenant must submit to a background check. The policy also prohibits registered sex offenders from residing in the apartment complex. Thomas was issued a criminal trespass warning, whereby he was prohibited from returning to the property. Epsy is listed on the book-in sheet as an emergency contact. Thomas listed Epsy's address as South Green Street, apartment She was present when Thomas was given the criminal trespass warning.
Even though he was given this warning, Thomas continued to stay in the apartment until he was arrested on June 13, Jimerson acknowledged that Thomas lived in her apartment on South Green Street. She testified that Thomas continued to live in the apartment on South Green Street after he was given the criminal trespass warning. Thomas would arrive at the apartment at night, spend the night, and leave early in the morning. Brownlee checked the jail records on the Gregg County Sheriff's Department website and found Thomas listed his address as Houston Street in Longview.
Thomas' registered address was South Green Street, Apartment Brownlee attempted to locate Thomas at the Green Street address; he did not, however, check at apartment Instead, Brownlee spoke with the apartment manager, who indicated Thomas was not permitted on the apartment property.
Brownlee then proceeded to the book-in address Thomas provided, Houston Street. He located Thomas at this address at approximately 8: Brownlee spoke with Thomas, who told Brownlee that he lived at Houston Street. Thomas testified that on June 13, , he was still living in the apartment on South Green Street where he was properly registered.
Thomas conceded that he told Brownlee he lived at the Houston Street address, explaining that he did not want his family referring to Epsy and Jimerson to be evicted from their apartment for letting him stay there while he was subject to a criminal trespass warning. Thomas testified that he lied on two occasions when he was arrested on April 3 and June 13 by indicating that he lived on Houston Street.
He felt it was necessary to provide this address to protect his family. When Thomas listed Houston Street as his address, he had already been given the warning to stay away from the apartment on South Green Street. Thomas was arrested in Upshur County after June He provided the Houston Street address to the Upshur County arresting officer as well.
He was unable to change his registration because the owner of the Houston Street property refused to provide a written statement indicating he resided there. Thomas concedes that he never changed his registration from South Green Street. He claims, however, that he never moved from the South Green Street address, even though he was trespassing. Thomas is not currently registered anywhere that shows he has any other address other than South Green Street.
The Evidence is Insufficient to Support the Judgment In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of failure to comply with sex-offender registration requirements beyond a reasonable doubt. Under the indictment, Thomas was only charged with failing to comply with this specific requirement.
The indictment does not allege that Thomas failed to provide proof of his new address within seven days after changing the address. Rather, the jury charge read, You must decide whether the state has proved, beyond a reasonable doubt, four elements.
The elements are that— 1. You must all agree on elements 1, 2, 3, and 4 listed above. The case was tried on the theory that Thomas moved from his apartment and subsequently failed to notify the registration authority of the move within seven days.
Thomas thus complains the indictment sets out one offense and the evidence at trial attempts to prove another offense. In sum, Thomas seeks an acquittal because the indictment alleged that the failure to register was committed by failing to advise authorities seven days beforehand, but no evidence of such failure was proved.
In addressing a claim of evidentiary insufficiency, we are to determine whether any rational jury could have found the essential elements of failure to comply with sex-offender registration requirements beyond a reasonable doubt.
The essential elements of this offense are to be determined by the hypothetically correct jury charge. The hypothetically correct jury charge need not, however, incorporate allegations that give rise to immaterial variances. Conversely, a material variance must be included within the hypothetically correct charge. As explained by the high criminal court in Johnson v.
A variance in pleading and proof can occur in two different ways. First, a variance can involve the statutory language that defines the offense. This can happen when a statute specifies alternate methods by which an offense could be committed, the charging instrument pleads one of those alternate methods, but the State proves, instead, an unpled method.
Second, a variance can involve a non-statutory allegation that is descriptive of the offense in some way. Or the charging instrument pleads the offense was committed with a knife, but the State proves at trial that a baseball bat was used. Here, the variance between the pleading and the proof is of the first type described in Johnson, and is, therefore, material. The statute simply describes alternate methods by which an offense can be committed.
Here, the State alleged a specific duty to report a change of address. The State alleged only one specific failure to fulfill that duty—the duty to report an intended change of address before the intended move. In sum, Thomas was indicted for a single offense of failing to report a change of address, and the State alleged he committed this offense in one specific way.
In that case, Geick was indicted for theft of a bulldozer by deception. On appeal, the Fourteenth Court of Appeals acquitted Geick because there was no evidence of deception. See also Cada v. Here, the State was not required at the indictment stage to plead a narrowed method in which the duty to report a change of address could be violated.
Accordingly, the State was required to prove, beyond a reasonable doubt, that Thomas violated his reporting requirements by failing to notify the authorities of his anticipated move date and new address seven days in advance of his intended change. A failure to prove such allegation renders the evidence legally insufficient to support the conviction. The State acknowledges that it was required to prove Thomas failed to give seven days' advance notice of an intended move.
It maintains, however, that the evidence indeed proved such failure, analogizing this case to that of Walmer v. Walmer was found guilty of the offense of failure to comply with sex-offender registration requirements. Walmer claimed it was impossible to comply with this requirement because his mother unexpectedly threw him out of the house. The evidence showed that Walmer registered, using his mother's address.
Walmer's mother testified that Walmer never lived with her after his release from prison. In affirming the conviction, the court found this evidence supported a finding that Walmer failed to provide his primary registration authority of his anticipated move date and new address seven days before the intended change. Walmer is distinguishable from the present case, as there was no claim in that case of a material variance between the indictment and the evidence presented at trial.
In discussing the elements of proof, in Walmer, the Texas Court of Criminal Appeals reviewed both methods of failing to report failing to notify of intended change of address seven days beforehand and failing to report the new residence within seven days after changing residence.
The State apparently had not limited itself to only one manner or means of violating the registration requirement as occurred here. Consequently, Walmer is inapposite to the issue presented here. Further, the case is factually different from the case at hand.
Although Walmer testified that he was unexpectedly thrown out of his mother's house, that evidence was disputed. Walmer's mother testified that he never lived with her; Walmer testified that he lived with his mother and his brother at various times.
Here, the evidence is undisputed that Thomas was served with a criminal trespass warning to stay away from the apartment where he had been living—the address registered with the appropriate authorities. In fact, notification of Thomas' residence at the subject address was provided to the apartment manager by law enforcement authorities, resulting in the criminal trespass warning. In light of these circumstances, there is no evidence that Thomas ever intended to move from the apartment where he was appropriately registered.
Thomas relies on Green v. In that case, Hunt Green's wife moved from the couple's Highland Avenue residence the address appropriately registered with the authorities taking all of Green's belongings with her while Green was out of town working. Hunt was unaware of when Green found out she had moved their belongings from the Highland Avenue address.
Green was found guilty of failing to report his intended move not later than the seventh day before the anticipated move date. Green challenged his conviction, claiming the evidence was insufficient to prove he intended to move. Under the indictment, Green was charged with failing to notify local law enforcement of a change in address seven days before the intended change.
As in this case, Green was not charged with the failure to notify law enforcement of his new address within seven days after changing the address.
The testimony at trial showed that law enforcement and the prosecuting attorney both believed that a registered sex offender must give at least seven days advance notice before any change in address. The court recognized that There are various situations in which a registered sex offender's address may change without the offender having any intent to change address prior to the actual change of address.
The offender may be barred from his current residence without warning or someone else may move the offender's property out of the residence and to another address without the offender's knowledge. The court determined that there was no evidence that Green intentionally, knowingly, or recklessly failed to comply with his reporting requirements.