NUMBER 13-12-00268-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
KIRK BALLARD, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Perkes
Memorandum Opinion by Justice Garza
Appellant, Kirk Ballard, was convicted of failure to comply with sex-offender
registration requirements, a third-degree felony, and was sentenced to two years’
imprisonment. See TEX. CODE CRIM. PROC. ANN. art. 62.102(b)(2) (West 2006). He
argues on appeal that there was an error in the jury charge which caused him to suffer
egregious harm. We affirm.
I. BACKGROUND
Ballard was charged by indictment on January 21, 2011. The indictment alleged
that Ballard was convicted of sexual assault of a child in 1992 and that, on or about
November 1, 2010, he “intentionally, knowingly, or recklessly failed to report in person
to the Corpus Christi Police Department and provide his anticipated move date and new
address not later than the seventh day before the intended change.” See id. art.
62.055(a) (West Supp. 2011) (“If a person required to register under this chapter
intends to change address, . . . the person shall, not later than the seventh day before
the intended change, report in person to the local law enforcement authority designated
as the person’s primary registration authority . . . and to the . . . parole officer
supervising the person and provide the authority and the officer with the person’s
anticipated move date and new address.”).1
At trial, the issue of whether Ballard had in fact changed his residence was hotly
contested. Trinidad Garcia, a non-resident landlord at an apartment building on 17th
Street in Corpus Christi, testified that Ballard rented an apartment in the building for
about eight months. She stated that Ballard lived at the apartment continuously until the
time he was arrested in April of 2011. However, Garcia previously executed an
affidavit, dated November 1, 2010, in which she stated that Ballard had not, to her
1
The Texas Court of Criminal Appeals described the policy underlying this statute:
The primary purpose of creating and maintaining a sex-offender registry is to give local
law enforcement officers a means of monitoring sex offenders who are living within their
jurisdiction in order better to thwart repeat offenses. Knowing where a sex offender lives
is arguably the simplest and best way to monitor him. By failing to report where he is
residing, the sex offender is subverting the objective of the registry. The community and
law enforcement want to know where the sex offender lives so they may take proper
precautions.
Young v. State, 341 S.W.3d 417, 426 (Tex. Crim. App. 2011) (internal quotations and citations omitted).
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knowledge, lived at the 17th Street apartment “for a period of at least 10 days.” 2 The
affidavit stated that Garcia had tried contacting Ballard by phone “for at least a week”
but that Ballard had not returned her calls. Garcia admitted signing the affidavit but
denied having written the words appearing therein. She reiterated that Ballard was at
the 17th Street apartment “all the time” during the end of 2010 and beginning of 2011.
Tracy Ballard, appellant’s wife, testified that the couple started dating in August
2010 and got married on May 3, 2011. At the time of trial, they were in the process of
divorcing. According to Tracy, she and her husband lived together in a hotel on
Leopard Street in Corpus Christi from November 2010 to February 2011, and in an
apartment on Texan Trail in Corpus Christi from February to April 2011. When the
prosecutor asked if she ever “visit[ed] Kirk Ballard at his place on 17th Street,” she said
yes, “[m]aybe ten times, 11 times.” The prosecutor then asked, “Why didn’t you just
move in with Mr. Ballard on 17th Street?” Tracy replied that her husband did not want
her to live at the 17th Street apartment because the apartment building was populated
by men only, and he “didn’t feel comfortable” with her being there by herself during the
day. She stated that her husband “was living with her continuously” during the time in
question. With respect to the Texan Trail apartment, she specified that he “had his
clothes there, he slept there, he ate there, he even had a piece of mail come to that
address at one time.”
Diane Berry testified that it is her job to register sex offenders for the Corpus
Christi Police Department. Berry stated that Ballard was required to register every year
around his birthday unless he changes his address, in which case he must update his
2
The affidavit, which was introduced into evidence, was prepared on a form promulgated by law
enforcement to report residency changes of convicted sex offenders.
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registration seven days prior to the address change. See id. Berry stated that Ballard’s
most recent address update occurred in October 2010.
Ballard’s parole officer at the time of trial, George Abella, testified that he started
supervising Ballard in April 2011. Abella stated that, according to his records, Ballard
failed to report to his parole officer from late October 2010 to April 2011.
Section one of the jury charge contained the following instruction, which tracks
section (a) of article 62.055 of the code of criminal procedure:
Our law provides that a person commits the offense of failure to comply
with registration requirements if the person is required to register and
intentionally, knowingly, or recklessly fails to comply with a requirement of
the sex offender registration program under Chapter 62 of the Code of
Criminal Procedure. Code of Criminal Procedure Article 62.055 provides:
(a) If a person required to register under this chapter intends to change
address, regardless of whether the person moves to another state, the
person shall, not later than the seventh day before the intended change,
report in person to the local law enforcement authority designated as the
person’s primary registration authority by the department and to the
juvenile probation officer, community supervision and corrections
department officer, or parole officer supervising the person and provide
the authority and the officer with the person’s anticipated move date and
new address. If a person required to register changes address, the
person shall, not later than the later of the seventh day after changing the
address or the first date the applicable local 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.
See id. (emphasis added). The charge also included, in section five, the following
application paragraph which tracks the indictment:
Now, if you find from the evidence beyond a reasonable doubt that on or
about November 1, 2010, in Nueces County, Texas, the defendant, KIRK
BALLARD, did then and there, while being a person required to register
with the local law enforcement authority in the municipality or county
where the defendant resided or intended to reside for more than seven
days, to-wit: Corpus Christi, Texas, because of a reportable conviction or
adjudication for Sexual Assault of a Child, on December 4, 1992, in Cause
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No. 92-CR-0555-H, in the 347th District Court of Nueces County, Texas,
intentionally, knowingly, or recklessly fail to report in person to the Corpus
Christi Police Department and provide his anticipated move date and new
address not later than the seventh day before the intended change, then
you shall find the defendant guilty of Failure to Comply with Registration
Requirements.
Defense counsel made no objection to either jury charge instruction.
The jury found Ballard guilty and this appeal followed.
II. DISCUSSION
By a single issue on appeal, Ballard contends that the trial court committed
reversible error, causing him to suffer egregious harm, by “including an uncharged
theory of guilt in the jury charge.” In particular, he complains that section one of the jury
charge impermissibly set forth the entirety of code of criminal procedure article 62.055,
including the portions of that section requiring reporting after moving, even though the
indictment charged only that he failed to report before moving.
The Texas Court of Criminal Appeals recently considered a very similar issue in
Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). There, the appellant,
who was convicted of driving while intoxicated, claimed that the trial court erred in
submitting a jury charge that included both the subjective and per se definitions of
“intoxication,” see TEX. PENAL CODE ANN. § 49.01 (West 2011),3 even though the
3
The charge instruction at issue in Crenshaw, which precisely tracked subsection 49.01(2) of the
penal code, stated:
(1) “Intoxicated” means:
A. Not having the normal use of mental or physical faculties by reason of the
introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a
combination of two or more of these substances into the body; or
B. Having an alcohol concentration of 0.08 or more.
Crenshaw v. State, 378 S.W.3d 460, 463 (Tex. Crim. App. 2012); see TEX. PENAL CODE ANN. § 49.01(2)
(West 2011).
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charging instrument alleged only the subjective definition.4 Crenshaw, 378 S.W.3d at
462. The court of criminal appeals held that the inclusion of the uncharged, per se
definition of “intoxicated” in the jury charge instruction was not error because the
application paragraph of the jury charge mentioned only the charged, subjective
definition of that term. Id. at 466. The Court reasoned:
It is the application paragraph of the charge, not the abstract portion, that
authorizes a conviction. The abstract paragraphs serve as a glossary to
help the jury understand the meaning of concepts and terms used in the
application paragraphs of the charge. An abstract charge on a theory of
law that is not applied to the facts does not authorize the jury to convict
upon that theory. Generally, reversible error occurs in the giving of an
abstract instruction only when the instruction is an incorrect or misleading
statement of a law that the jury must understand in order to implement the
commands of the application paragraph.
Id. (citations omitted). The Court noted further that “[t]he two definitions of intoxication
set forth alternative means by which the State may prove intoxication, rather than
alternate means of committing the offense,” and that “the definitions of intoxicated are
purely evidentiary matters, and they need not be alleged in the information or indictment
to provide a defendant with sufficient notice—the State may simply allege that a person
was ‘intoxicated’ to satisfy the notice requirement.” Id. (internal quotations and citations
omitted).
Here, the two forms of conduct proscribed by section (a) of article 62.055—i.e.,
failing to report a change of address “not later than the seventh day before the intended
change” and failing to so report “not later than the . . . seventh day after changing the
4
The charging instrument alleged only that Crenshaw was intoxicated under part (A) of penal
code subsection 49.01(2); i.e., “by not having the normal use of his mental or physical faculties by reason
of the introduction of (1) alcohol or (2) alcohol, a controlled substance, a drug, a dangerous drug, or a
combination of two or more of these substances into his body.” Crenshaw, 378 S.W.3d at 462; see TEX.
PENAL CODE ANN. § 49.01(2)(A).
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address,” see TEX. CODE CRIM. PROC. ANN. art. 62.055(a)—are merely “alternative
manners and means of committing a single offense.” Young v. State, 341 S.W.3d 417,
427 (Tex. Crim. App. 2011) (noting that “[t]he focus of [article 62.055] is on giving
notification to law enforcement and not the means by which a sex offender failed to do
so”). And the application paragraph in the jury charge in the instant case, like the
application paragraph in Crenshaw, properly instructed the jury to convict only if it found
the facts alleged in the indictment to be true beyond a reasonable doubt. See
Crenshaw, 378 S.W.3d at 466. Moreover, it is undisputed that section one of the jury
charge stated the law correctly; it is not “an incorrect or misleading statement of a law
that the jury must understand in order to implement the commands of the application
paragraph.” See id. We conclude that the trial court did not err by including the entirety
of section (a) of article 62.055 in section one of the jury charge.
Even if we were to find error, such error would not be reversible because Ballard
cannot show that he was sufficiently harmed. When no objection is made to the jury
charge, as here, we may reverse on the basis of jury charge error only if the appellant
suffered “egregious harm” as a result of the error. Allen v. State, 253 S.W.3d 260, 264
(Tex. Crim. App. 2008) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (op. on reh’g)). An error is egregiously harmful only “if it affects the very basis of
the case, deprives the defendant of a valuable right, or vitally affects a defensive
theory.” Id. Here, ABallard complains that the abstract paragraph allowed the jury to
convict him of an offense—i.e., failing to report within seven days after he moved—that
was not charged in the indictment. However, Ballard’s defense at trial, which was
rejected by the jury, was based entirely on his contention that he never actually moved
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or changed his residence. He did not dispute that he never reported a change of
address, either before or after the alleged move. The jury rejected Ballard’s defensive
theory, implicitly finding that he did, in fact, change his residence. Therefore, even if
section one of the jury charge instructed the jury only on the offense of failing to report
prior to the move, the jury would have in all likelihood still found him guilty. We cannot
say that Ballard was egregiously harmed by any error. See id.
III. CONCLUSION
Having overruled Ballard’s issue, we affirm the judgment of the trial court.
________________________
DORI CONTRERAS GARZA,
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
15th day of August, 2013.
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