A Kaufman County conviction for Failure to Register as a Sex Offender was reversed last week for factual insufficiency. Basically, it appears the State indicted the defendant under the wrong section of the code of criminal procedure. Factual insufficiency reversals are pretty rare, so let’s walk through how the court reached it’s decision.
Today’s case of the day is- Roberts vs. State.
Roberts was required to register as a sex offender which, inter alia, includes an affirmative duty to notify law enforcement of the intent to move (see Code of Criminal Procedure 62.055).
Local law enforcement found out that Roberts intended to move, and hadn’t notified them. A warrant was issued and Roberts was arrested for failing to notify law enforcement of his intent to move. However, Roberts was indicted for intentionally and knowingly failing to register as a sex offender in Kaufman County, which is a violation under article 62.051 of the Code of Criminal Procedure.
You can probably see where this is going. At trial the defense lawyer moved for a directed verdict, which was denied. On appeal the Defendant attacked the factual sufficiency on the conviction, because he had always registered as a sex offender, he just hadn’t reported his intest to move.
Holding- The State indicted the Defendant for the wrong thing. Conviction reversed and Defendant acquitted. From the opinion-
Thus, the State had to prove (1) appellant’s status as a person with a reportable offense; (2) Kaufman County is where he resided or intended to reside for more than seven days; and (3) he intentionally or knowingly failed to register with local law enforcement in Kaufman County.
During trial, appellant twice urged a motion for instructed verdict in which he argued the gravaman of the offense against him was failing to notify Kaufman County authorities of a change in address. He argued there was no evidence he failed to register because he was in fact registered at the time of the arrest warrant and indictment. In response to appellant’s motions for instructed verdict, the State argued the failure to change addresses was a registration violation, “and that’s what he’s being prosecuted on is a registration violation.”
We disagree with the State. The State specifically indicted appellant for intentionally and knowingly failing to register as a sex offender in Kaufman County, which is a violation under article 62.051 of the code of criminal procedure. See Tex. Code Crim. Proc. Ann. art. 62.051. It did not allege appellant failed to notify authorities of a change in address, which is a separate violation under article 62.055. See Tex. Code Crim. Proc. Ann. art. 62.055 (West Supp. 2011). While we agree the arrest warrant issued for appellant was for failing to notify authorities of a change in address, that is not the offense specified in the indictment. The State was limited to, and required to prove, the method of violating article 62 as alleged in the indictment. See Fuller, 73 S.W.3d at 255; Rios, 141 S.W.3d at 752. This it failed to do.
The evidence shows appellant registered in Kaufman County in 2005 and continued to report annually for his verification appointment through 2009. Although appellant’s next scheduled verification was on September 7, 2010, he had until October 7, 2010 to meet his requirement. See Tex. Code Crim. Proc. Ann. art. 62.058(a). However, Kaufman County authorities issued an arrest warrant and arrested appellant before this date. Thus, when authorities arrested appellant on September 23, he was in fact still registered as a sex offender in Kaufman County. The State presented no evidence to the contrary. Accordingly, a rational jury could not have found the essential elements of the crime beyond a reasonable doubt.