Conrad Keith Ramos v. State

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-05-00103-CR

______________________________

CONRAD KEITH RAMOS, Appellant

 

V.

 

THE STATE OF TEXAS, Appellee

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On Appeal from the Fifth Judicial District Court

Cass County, Texas

Trial Court No. 2004F00202

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Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

            Conrad Keith Ramos, having been convicted in 1988 of indecency with a child, was therefore a sex offender and, as such, was obligated to register with the local law enforcement authority in any jurisdiction in which he resided or intended to reside for more than seven days. He was also obligated to update that registration with the local law enforcement authority annually, within thirty days before and thirty days after his birthday. According to the State's evidence, Ramos failed to make the annual registration for 2002 within thirty days of his August 2nd birthday.

            On appeal, Ramos contends his conviction and sentence are not supported by legally or factually sufficient evidence. We disagree.

The Evidence Is Legally Sufficient

            Challenging the legal sufficiency of the evidence, Ramos argues that the State charged him with failure to register initially on establishing his current residence in Cass County, but that the State's proof addressed his failure to renew his registration on or about August 2, 2002. According to the record, Ramos' birthday was August 2nd. Therefore, Ramos was obligated to register annually, within thirty days before or after each 2nd day of August, with Connie Wise, who monitored sexual offender registrations for the sheriff's office of Cass County, Texas, the county of Ramos' residence. Ramos had properly registered with Wise in 1999, 2000, and 2001. In March and June 2002, Ramos properly registered changes of address with Wise. But, according to evidence presented by the State, Ramos failed to register with Wise within thirty days before or after August 2, 2002.

            In reviewing the legal sufficiency of the evidence, we examine the relevant evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). When legal sufficiency of the evidence is challenged based on a variance between the charge and the proof, the challenge here, we measure the sufficiency of the evidence against the indictment and the court's charge to the jury. Fisher v. State, 887 S.W.2d 49, 53 (Tex. Crim. App. 1994) (op. on reh'g); Smith v. State, 135 S.W.3d 259, 261–62 (Tex. App.—Texarkana 2004, no pet.); Cates v. State, 72 S.W.3d 681, 688 (Tex. App.—Tyler 2001, no pet.). We review the variance for materiality, because only a "material" variance will render the evidence insufficient. See Gollihar v. State, 46 S.W.3d 243, 257 (Tex. Crim. App. 2001); Smith, 135 S.W.3d at 262. That "materiality" inquiry requires us to determine whether the variance deprived Ramos of notice of the charges or whether the variance subjects him to the risk of later being prosecuted for the same offense. Fuller v. State, 73 S.W.3d 250, 253 (Tex. Crim. App. 2002); Smith, 135 S.W.3d at 262; see Gollihar, 46 S.W.3d at 257. This variance was not material; therefore, the evidence was not legally insufficient because of that variance.

            The indictment alleged that,

on or about the 2nd day of August, A.D. 2002, . . . CONRAD KEITH RAMOS . . . while being a person required to register with the local law enforcement authority in the municipality where the defendant resided or intended to reside for more than seven days, to-wit: Marietta, Texas, because of a reportable conviction for Indecency with a Child, intentionally, knowingly, or recklessly fail[ed] to register with the local law enforcement authority in said municipality, to-wit: Cass County Sheriff's Department, Cass County, Texas.

The indictment also referenced as the relevant statute Texas Code of Criminal Procedure Article "62.10(a)(b)(2)." At the time, Article 62.10(a) of the Texas Code of Criminal Procedure provided that a person who is required to register as a sex offender and who violates "any requirement of this chapter"—Chapter 62, "Sex Offender Registration Program"—commits an offense. Article 62.10(b)(2) provided the grade of the offense, which is not at issue in this appeal. Therefore, in citing to the statute, the indictment failed to explicitly point to either a violation of the obligation to register initially or a violation of the obligation to register annually.

            While the indictment could be read as charging a failure to register initially on establishing his residence, it merely charges Ramos with failing to register on or about August 2, 2002. And, from the record, the significance of August 2, 2002, is no mystery. It was his birthday, and therefore the date marking his obligation to register annually. The charge to the jury essentially tracked the indictment's language.

            Ramos does not claim surprise based on the variance, and in fact defended at trial on the basis that his failure to register on or about August 2, 2002, was justifiably based on permission not to report. There was no surprise to Ramos.

            Ray Copeland, investigator for the Cass County Sheriff's Office, interviewed Ramos about Ramos' failure to register. Ramos gave a written statement, which was introduced into evidence. In the statement, Ramos says that a "blue warrant" alleging a parole violation had issued for him because Ramos was arrested for driving while intoxicated (DWI) in Mount Pleasant, Texas. In his statement, Ramos said that he found out about this warrant on "7-02," which caused him not to report to the sheriff's office on "8-02-02." Knowing he would be arrested, Ramos wrote, "I just left and worked else where [sic] then moved back here to Grand Saline, TX[,] worked for 6 mths [sic] and waited for Cass Co. or who ever to come get me. . . . " Ramos concludes the written statement by saying that the blue warrant is the reason he did not register on his birthday, August 2, 2002, as he had done "every year."

            Craig Biggar, Ramos' parole officer, testified that, when Biggar took over supervision of Ramos' parole, Biggar was told that Ramos had a pending DWI charge. Biggar's predecessor and supervisor discussed the matter and "had decided to let Mr. Ramos go to court before they did anything about it." Biggar was told of this arrangement when he took over supervision of Ramos' parole. In July 2002, Biggar's supervisor changed. The new supervisor instructed Biggar to obtain a warrant for Ramos. Biggar spoke to Ramos in July 2002, and advised Ramos of the blue warrant. According to Biggar, Ramos promised to turn himself in to authorities in August, when he had an appearance in court, presumably for the DWI. Biggar said to Ramos, "Okay, that's fine." Ramos did not present himself to any court during August and was listed as an absconder with the parole authorities. Biggar stated that he never told Ramos that Ramos did not have to register as a sex offender.

            From Ramos' written statement it is clear he (a) knew he was obligated to report thirty days before or after August 2, 2002, and (b) consciously chose not to. Wise, the officer in charge of sex-offender registrations for Ramos' jurisdiction, testified Ramos had regularly reported for three years before the date in question, including two registrations of address changes within about six months before August 2002.

            Ramos was obligated to register with local law enforcement officials, as a result of his final conviction for indecency with a child. See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A) (Vernon Supp. 2005). He was required to report to the appropriate local law enforcement agent within thirty days of his birthday each year. See Tex. Code Crim. Proc. Ann. art. 62.058(a). A rational jury could have found, beyond a reasonable doubt, the elements of failure to register annually as a sex offender. And there was no material variance between the indictment and the proof. The evidence is legally sufficient.

The Evidence Is Factually Sufficient

            Ramos next challenges the factual sufficiency of the evidence. In our review of the factual sufficiency of the evidence concerning matters where the State has the ultimate burden of proof or persuasion, we employ the standards set forth in Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004). We view all the evidence in a neutral light and determine whether the evidence supporting the verdict is too weak to support the finding of guilt beyond a reasonable doubt or if evidence contrary to the verdict is strong enough that the beyond-a-reasonable-doubt standard could not have been met. Threadgill v. State, 146 S.W.3d 654, 664 (Tex. Crim. App. 2004) (citing Zuniga, 144 S.W.3d at 486). If the evidence is factually insufficient, we must reverse the judgment and remand for a new trial. Clewis v. State, 922 S.W.2d 126, 135 (Tex. Crim. App. 1996).

            In his case-in-chief, Ramos presented only one witness, his former parole officer, who supervised Ramos in 1999. Officer David Montgomery testified that, when he supervised Ramos, Ramos had complied with the terms of his parole, including timely reporting and wearing a leg monitor. That evidence does not contradict the evidence of the violation here.

            In challenging the factual sufficiency of the evidence, Ramos contends that Biggar gave his permission to Ramos to turn himself in in August and that, therefore, Ramos did not have the necessary intentional, knowing, or reckless state of mind in failing to register. Ramos offers no authority or analysis of this point and does not argue mistake of law or fact. Regardless, the State proffered testimony that, in 2002, Ramos did not report to the proper authorities within thirty days of his birthday. As stated above, Ramos' written statement demonstrates he was obligated to report. Whether he thought he had Biggar's permission to delay his annual report is not relevant to the inquiry. And there was no evidence which would have precluded a finding of guilt beyond a reasonable doubt. The evidence is factually sufficient to demonstrate that Ramos intentionally, knowingly, or recklessly failed to register within thirty days of August 2, 2002.

            We affirm the trial court's judgment.

 

                                                                                    Josh R. Morriss, III

                                                                                    Chief Justice

Date Submitted:          March 27, 2006

Date Decided:             May 4, 2006

Do Not Publish

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In The

  Court of Appeals

                        Sixth Appellate District of Texas at Texarkana

 

                                                ______________________________

 

                                                             No. 06-10-00221-CR

                                                ______________________________

 

 

                                        BROCK JERNIGAN, Appellant

 

                                                                V.

 

                                     THE STATE OF TEXAS, Appellee

 

 

                                                                                                  

 

 

                                         On Appeal from the 5th Judicial District Court

                                                             Bowie County, Texas

                                                       Trial Court No. 05F0226-005

 

                                                                                                   

 

 

 

                                          Before Morriss, C.J., Carter and Moseley, JJ.

                                              Memorandum Opinion by Justice Carter

 

 

                                                      MEMORANDUM OPINION

 

            Brock Jernigan was placed on deferred adjudication community supervision for five years after pleading guilty to the offense of evading arrest with a vehicle.  Capias issued prior to the expiration period pursuant to the State’s motion to adjudicate guilt based upon an alleged “Battery First Degree” committed by Jernigan in Arkansas.  The trial court found Jernigan failed to abide by the condition of community supervision that he “commit no offense against the law of this or any State,” adjudicated him guilty of evading arrest with a vehicle, and sentenced him to two years’ confinement.  Jernigan appeals the judgment adjudicating guilt on grounds that the trial court erred in:  (1) denying a motion to suppress his confession in the Arkansas case; (2) not awarding Jernigan “his back time”; and (3) denying Jernigan an appellate bond.  We affirm the trial court’s judgment because:  (1) we find that the trial court properly overruled the motion to suppress; (2) the record does not reveal the amount of time Jernigan spent in jail entitling him to the specific credit he seeks; and (3) we lack jurisdiction over the order denying the appeal bond.

I.         Jernigan’s Motion to Suppress Was Properly Overruled

 

            The State called Officer Wayne Easley with the Texarkana, Arkansas Police Department, who testified that Jernigan’s fifteen-month-old stepdaughter was admitted to a Little Rock Hospital for “massive head injuries.  The back of her skull was busted and caved in.”  Easley brought Jernigan in for questioning.  After advising him of his rights, Easley obtained Jernigan’s signature stating that he understood the Miranda^[1] warnings that were issued and that he wished to waive his rights.^[2] 

            The State sought to introduce Jernigan’s confession during the interrogation.  Contending “that in the middle of the interview [Jernigan] invoked his right to counsel,” Jernigan’s counsel asked “that any statement that Brock Jernigan made that day be suppressed.”  Counsel’s voir dire examination of Easley produced the following transcript:

            Q         At some point in the interview, did Mr. Jernigan say, “Do I need to get a lawyer?”

 

            A         He asked, “Do I need a lawyer?”

 

            Q         Okay.  And what was your response?

 

            A         I said, “It’s up to you.  If you want a lawyer, you can have one.  You’ve got the right to talk to me and you’ve got the right to stop talking to me.”

 

            Q         Okay.  And then, along these same lines, did he say, “Can I talk to one?”

 

            A         Yes.  And we told him, “Yes, he can.  He had the right to stop.  He had the right to stop talking to us at any time.  It was his choice.  I explained the Miranda warning as we read it to him at the beginning of the deal. . . . he told me he wanted to talk to me, he’s continued to talk.  He never did break down from not talking or in any way indicate that he did not want to talk to me.”

 

            We review a trial court’s decision to admit or exclude evidence for an abuse of discretion. De La Paz v. State, 279 S.W.3d 336, 343 (Tex. Crim. App. 2009); McDonald v. State, 179 S.W.3d 571, 576 (Tex. Crim. App. 2005).  Under this standard, an appellate court should not disturb the trial court’s decision if the ruling was within the zone of reasonable disagreement.  De La Paz, 279 S.W.3d at 343–44; Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim. App. 2008).  If a suspect requests counsel at any time during a custodial interview, “he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation.”  Davis v. United States, 512 U.S. 452, 459 (1994).  This secondary Miranda right to counsel is “designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights.”  Id. at 458.  “A suspect who has invoked the right to counsel cannot be questioned regarding any offense unless an attorney is actually present.”  Id.  However, in the context of invoking the Miranda right to counsel, a suspect must do so “unambiguously.”  Berghuis v. Thompkins, __U.S.__, 130 S. Ct. 2250, 2259–60 (2010).  “[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel,” the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights.  Davis, 512 U.S. at 459.

            The trial court reviewed the following conversation between Jernigan and the interrogating officers which transpired after Jernigan was asked to take a polygraph examination:

            BJ^[3]:      Do I need to get a lawyer?  I mean?

 

            WE^[4]:    Well that is you’re [sic] choice.

 

            BJ:      I mean I don’t know.

 

            WE:    That is you’re [sic] choice; you got the right as we read in these right[s] you got the right to stop this thing at any time.  You understand?

 

            BJ:       I mean I am telling you the truth, I don’t think I need one but, I mean.

 

            CL^[5]:     Okay you don’t need one then is that what you think?

 

            WE:     Yeah, it is totally up to you.

 

            BJ:       Can I talk to one first?

 

            WE:     First before what?

 

            BJ:      Before anything else happens I mean, I am telling yall [sic] the truth I am just scared.  I am real scared right now and I have been the whole time.

 

            WE:    So you don’t want to talk to us no more or you do want to talk to us?

 

            CL:      Are you talking about the polygraph?

 

            BJ:      I don’t, I don’t know. . . . Just in general right now, I mean I am scared I don’t.  I didn’t do it on purpose.  I didn’t do it on purpose, I am scared right now.

           

Jernigan proceeded with the interview and confessed to the details of the battery. 

 

            In Davis the defendant stated, “Maybe I should talk to a lawyer,” and the United States Supreme Court found that was not an unambiguous request for counsel.  Id. at 462.   The Texas Court of Criminal Appeals has likewise required an unambiguous assertion of the right to counsel.  Davis v. State, 313 S.W.3d 317 (Tex. Crim. App. 2010) (defendant’s statement during police interview, “I should have an attorney” did not expressly invoke the right to counsel).  Here, the trial court found that there was “not a clear, unambiguous invocation of the right to counsel.”  We  agree with the trial court’s ruling.

             The transcript of the interrogation reveals that Jernigan first asked “do I need to get a lawyer, I mean?”  The officers explained that was his right and that he could “stop this thing at any time.”  Jernigan then stated, “I don’t think I need one, but, I mean,” and finally asked, “Can I talk to one first?”  The first statement merely asked about his right to counsel or asked the officers their opinion on whether he should obtain counsel, and thereafter Jernigan stated he did not think he needed counsel.  Finally, he asked if he “could talk to one [lawyer] first.”  Jernigan never expressly stated that he wanted a lawyer.  We are to evaluate whether Jernigan’s right to counsel was invoked based on the totality of the circumstances surrounding the statement.  Id. at 339.  Based on precedent from the United States Supreme Court and the Texas Court of Criminal Appeals, we find that Jernigan did not clearly and unambiguously invoke his right to counsel and that a reasonable officer in light of the circumstances would have understood only that Jernigan “might be invoking the right to counsel.”  Davis, 512 U.S. at 459.  Because Jernigan did not unambiguously request counsel, the trial court properly overruled the motion to suppress.

            We overrule Jernigan’s first point of error.

 

II.       The Record Does Not Support Jernigan’s Claim to Additional Credit

 

            The trial court granted Jernigan “credit for any time that he’s served since his date of arrest on the motion to revoke probation in this matter.”  Jernigan claims that the trial court erred when it only gave him a twenty-six-day credit in the final written judgment.  He complains that the officer’s return on the capias was executed on September 16, 2010, that the trial was held “on or about November 10, 2010,” and that therefore he should be entitled to a credit of fifty-seven days.  The record contained an “order modifying bond and conditions of bond” signed on October 13, 2010.  Aside from these documents, there is no other indication from the record as to the actual number of days Jernigan spent in jail. 

            It was Jernigan’s burden to bring forward a record on appeal sufficient to show that the trial court erred in assessing the credit to be applied.  See Amador v. State, 221 S.W.3d 666, 675 (Tex. Crim. App. 2007); Guajardo v. State, 109 S.W.3d 456, 462 n.17 (Tex. Crim. App. 2003) (“It is . . . the appealing party’s burden to ensure that the record on appeal is sufficient to resolve the issue he presents.”).  Recognizing this, Jernigan asks this Court to

order the trial court to require the District Attorney for Bowie County, Texas, to present it with the full and correct assessment of all time Defendant has served in this case, and thereafter ensure that the trial court judgment award [sic] proper credit for all prior time incarcerated as presented therein.

 

            We decline to issue this request for production of documents.  Since the record does not support Jernigan’s claim to relief requested, his second point of error is overruled.^[6]

III.      Jernigan Failed to Separately Appeal Denial of Appeal Bond

 

             The trial court entered an order denying Jernigan’s motion for the court to set bail pending appeal on May 11, 2011.  Article 44.04(g) of the Texas Code of Criminal Procedure, entitled “Bond pending appeal,” provides that “[t]he right of appeal to the Court of Appeals of this state is expressly accorded the defendant for review of any judgment or order made hereunder, and said appeal shall be given preference by the appellate court.”  (West 2006).  This statute “provides a separate, expedited appeal of such orders.” Ortiz v. State, 299 S.W.3d 930, 932 (Tex. App.—Amarillo 2009, no pet.).  Because an Article 44.04 appeal is separate “from the appeal of the conviction and punishment,” “it must be perfected by a separate notice of appeal.”  Davis v. State, 71 S.W.3d 844, 845 (Tex. App.—Texarkana 2002, no pet.); Ortiz, 299 S.W.3d at 933.

             “An appellate court lacks jurisdiction to consider an appeal absent a timely filed notice of appeal.”  Ortiz, 299 S.W.3d at 933.  Here, Jernigan failed to separately appeal from this order denying appellate bond.  Therefore, we lack jurisdiction over Jernigan’s last point of error, which we dismiss. 

IV.      Conclusion

 

            We affirm the trial court’s judgment.

 

 

 

                                                                                    Jack Carter

                                                                                    Justice

 

Date Submitted:          October 18, 2011       

Date Decided:             October 19, 2011

 

Do Not Publish          

 

 

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^[1]Miranda v. Arizona, 384 U.S. 436 (1966).

 

^[2]It was not asserted that the Miranda warnings were improper or that Jernigan did not understand them and thereafter voluntarily consented to an interrogation. 

^[3]Refers to Jernigan.

^[4]Refers to Easley.

^[5]Refers to Detective Lee.  Lee’s first name is not mentioned in the record.

^[6]“Pre-sentence time credit claims typically must be raised by a motion for judgment nunc pro tunc filed with the clerk of the convicting trial court.”  Ex parte Florence, 319 S.W.3d 695, 696 (Tex. Crim. App. 2010).