IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL E
NOVEMBER 26, 2002
______________________________
TARA SHAREE JOHNSON, APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 320TH DISTRICT COURT OF POTTER COUNTY;
NO. 40,305-D; HONORABLE DON EMERSON, JUDGE
_______________________________
Before REAVIS and JOHNSON, JJ., and BOYD, S.J. (1)
On September 10, 2002, a copy of a Notice of Appeal in cause No. 40305-D in the 320th District Court of Potter County, Texas (the trial court), was filed with the clerk of this court (the appellate clerk). The document filed gives notice that appellant Tara Sharee Johnson desires to appeal from a conviction and sentence in such court and cause number. On September 16, 2002, an appellate docketing statement was filed which sets out that the appeal is from a judgment or order dated August 15, 2002.
On October 15, 2002, a request for extension of time for filing the clerk's record was filed with the appellate clerk. By such request, the District Clerk of Potter County (the trial court clerk) advised that the clerk's record had not been paid for and that appellant had made no arrangements to pay for the record. An extension of time was granted for filing the clerk's record until November 13, 2002. The clerk's record has not been filed.
On November 14, 2002, the appellate clerk received a notice from the trial court clerk that the clerk's record has not been paid for, and that the record will not be forwarded to the appellate court for filing. The appellate clerk's record reflects no other action by any party to the appeal to prosecute the appeal.
Accordingly, this appeal is abated and the cause is remanded to the trial court. Tex. R. App. P. 37.3(a)(2). Upon remand, the judge of the trial court is directed to immediately cause notice to be given of and to conduct a hearing to determine: (1) whether appellant desires to prosecute this appeal; (2) if appellant desires to prosecute this appeal, then whether appellant is indigent; (3) if appellant desires to prosecute this appeal, whether appellant is entitled to have the clerk's record and a reporter's record furnished without charge; and (4) what orders, if any, should be entered to assure the filing of appropriate notices and documentation to dismiss appellant's appeal if appellant does not desire to prosecute this appeal, or, if appellant desires to prosecute this appeal, to assure that the clerk's record and the reporter's record will be promptly filed and that the appeal will be diligently pursued.
The trial court is directed to: (1) conduct any necessary hearings; (2) make and file appropriate findings of fact, conclusions of law and recommendations, and cause them to be included in a clerk's record on remand; (3) enter any orders appropriate to the circumstances; (4) cause the hearing proceedings to be transcribed and included in a reporter's record; and (5) have a record of the proceedings made to the extent any of the proceedings are not included in the supplemental clerk's record or the reporter's record. In the absence of a request for extension of time from the trial court, the clerk's record on remand, reporter's record of the hearing and proceedings pursuant to this order, and any additional proceeding records, including any orders, findings, conclusions and recommendations, are to be sent so as to be received by the clerk of this court not later than December 31, 2002.
Per Curiam
Do not publish.
1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
tyle="font-size: 12pt">THE STATE OF TEXAS, APPELLEE
_________________________________
FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;
NO. 51,842-E; HONORABLE ABE LOPEZ, JUDGE
_______________________________
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
MEMORANDUM OPINION
Appellant Toby Dean Phillips appeals from his conviction by jury for failure to comply with sex offender registration requirements and the resulting sentence of seven years’ confinement. In his sole point of error, appellant challenges the legal sufficiency of the evidence to support his conviction. We affirm.
Appellant was charged by an indictment that alleged he was required to register with Amarillo law enforcement authority because of his “reportable conviction” for aggravated sexual assault of a child, and that he intentionally, knowingly or recklessly failed to “update his change of address as required by article 62.102 of the Texas Code of Criminal Procedure.” The indictment also alleged two prior convictions for sex offender registration violations.
At trial, appellant plead not guilty, and the State presented evidence that appellant failed to comply with the requirements set forth in article 62.055 of the Code of Criminal Procedure. The State’s evidence consisted of the testimony of two witnesses, an employee of an Amarillo motel and an Amarillo police detective, and a written statement appellant gave the detective. Appellant took the stand in his own defense.
Appellant’s sufficiency challenge on appeal focuses on the “time element” of the evidence. Specifically, appellant contends the State did not show beyond a reasonable doubt that appellant failed to take any action required by article 62.055 within the time period specified in that statute. We disagree.
Evidence showed that appellant had registered his address as that of the motel located on Amarillo Boulevard. He correctly notes that the motel employee testified she asked appellant to leave the motel after the first of September 2005, but was unsure of the exact date of his departure. We find, however, that the sufficiency of the State’s evidence does not depend on the establishment of the date appellant moved from the motel. The detective testified to a telephone conversation with appellant on September 30, in which appellant told him he was “moving in today at 905 South Mississippi.” Testimony also established that appellant did not report in person to provide proof of residence at that address until October 10, after the detective came to the residence on October 6.
Appellant testified to more frequent contact with Amarillo police department personnel than was reflected in the detective’s testimony, and described his efforts to maintain compliance with the sex offender registration requirements.
In conducting a legal sufficiency review, we must determine whether, after reviewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); McKinney v. State, 207 S.W.3d 366, 374 (Tex.Crim.App. 2006); Fowler v. State, 65 S.W.3d 116, 118 (Tex.App.–Amarillo 2001, no pet.). As fact finder, the jury is the exclusive judge of the credibility of witnesses and the weight to be afforded to their testimony. Chambers v. State, 805 S.W.2d 459 (Tex.Crim.App. 1991). The jury is free to accept one version of the facts, reject another, or reject all or any of a witness's testimony. Id. We must uphold the jury’s verdict against a legal sufficiency challenge unless it is irrational or unsupported by more than a mere modicum of evidence. Fowler, 65 S.W.3d at 118 (citing Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim. App. 1988)).
Article 62.055(a) provides, in relevant part, that a person required to register under Chapter 62 who changes address shall, not later than the later of the seventh day after changing the address or the first date the applicable law enforcement authority by policy allows the person to report, report in person to the local law enforcement authority in the municipality or county in which the person’s new residence is located and provide the authority with proof of identity and proof of residence. Tex. Code Crim. Proc. Ann. art. 62.055(a) (Vernon 2005) (emphasis added).
The detective testified the Amarillo police department allows registrants to make in-person reports each weekday. The seventh day after September 30, 2005, was Friday,
October 7. As noted, appellant reported in person and provided the required proof of
residence on October 10. Viewed in the light most favorable to the verdict, we conclude the
evidence would permit a rational trier of fact to find beyond a reasonable doubt that
appellant failed to comply with the requirements of article 62.055(a).
The evidence is
legally sufficient. Appellant’s issue is overruled, and the trial court’s judgment is affirmed.
James T. Campbell
Justice
Do not publish.