NUMBER 13-12-00254-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
HOMERO ERASMO GARZA JR., Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 206th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Benavides and Longoria
Memorandum Opinion by Justice Longoria
By one issue, appellant, Homero Erasmo Garza, Jr., appeals his conviction for
failure to register as a sex offender, a third-degree felony. See TEX. CODE CRIM. PROC.
ANN. art. 62.102(b)(2) (West 2006). We affirm.
I. BACKGROUND
On March 2, 2008, appellant was placed on deferred adjudication community
supervision for the offense of sexual assault of a child. See TEX. PENAL CODE ANN. §
22.011(a)(2) (West 2011). Thereafter, appellant was indicted for failing to register as a
sex offender. The indictment alleged that, on or about October 11, 2011, appellant was
required to but failed to register as a sex offender with officials of the City of Edinburg,
Texas. Appellant pled not guilty. At the conclusion of a jury trial, appellant was found
guilty as charged. This appeal ensued.
II. ANALYSIS
In one issue, appellant argues that the evidence was not sufficient to support the
jury’s verdict.
A. Standard of Review
In a sufficiency review, courts examine the evidence in the light most favorable to
the verdict to determine whether “any rational fact finder could have found guilt beyond
a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State,
323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson legal-sufficiency standard
is the only standard that a reviewing court should apply in determining whether the
evidence is sufficient to support each element of a criminal offense that the State is
required to prove beyond a reasonable doubt.”). This standard requires reviewing
courts to resolve any evidentiary inconsistencies in favor of the judgment, keeping in
mind that the jury is the exclusive judge of the facts, the credibility of the witnesses, and
the weight to give their testimony. Brooks, 323 S.W.3d at 899; see also TEX. CODE
CRIM. PROC. ANN. art. 38.04 (West 1979) (“The jury, in all cases, is the exclusive judge
2
of the facts proved, and of the weight to be given to the testimony. . . .”). Appellate
courts do not re-evaluate the weight and credibility of the evidence; they only ensure
that the fact finder reached a rational decision. Laster v. State, 275 S.W.3d 512, 517
(Tex. Crim. App. 2009).
Sufficiency of the evidence is measured by the elements of the offense as
defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327
(Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).
“Such a charge is one that accurately sets out the law, is authorized by the indictment,
does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the
State’s theories of liability, and adequately describes the particular offense for which the
defendant was tried.” Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.
B. Applicable Law
A person commits the offense of failure to comply with registration requirements
if the person “is required to register and fails to comply with any requirement” of chapter
62. TEX. CODE CRIM. PROC. ANN. art. 62.102. In relevant part, chapter 62 provides as
follows:
A person who has a reportable conviction or adjudication or who is
required to register as a condition of parole, release to mandatory
supervision, or community supervision shall register or, if the person is a
person for whom registration is completed under this chapter, verify
registration as provided by Subsection (f), with the local law enforcement
authority in any municipality where the person resides or intends to reside
for more than seven days. If the person does not reside or intend to
reside in a municipality, the person shall register or verify registration in
any county where the person resides or intends to reside for more than
seven days. The person shall satisfy the requirements of this subsection
not later than the later of:
(1) the seventh day after the person's arrival in the municipality or
county; or
3
(2) the first date the local law enforcement authority of the
municipality or county by policy allows the person to register or
verify registration, as applicable.
Id. art. 62.051(a) (West Supp. 2011).
Therefore, under a hypothetically correct jury charge, the State had to prove
beyond a reasonable doubt that (1) appellant was required to comply with the
registration requirements of chapter 62 of the code of criminal procedure (i.e., he was a
sex offender) and that (2) appellant intentionally, knowingly, or recklessly failed to report
to local law enforcement within the allotted time. See id.; TEX. PENAL CODE ANN. §
6.02(b)–(c) (West 2011) (stating that if an offense “does not prescribe a culpable mental
state, a culpable mental state is nevertheless required unless the definition plainly
dispenses with any mental element” and that “intent, knowledge, or recklessness
suffices to establish criminal responsibility”).
C. Discussion
The record reflects that, after appellant received deferred adjudication, he
registered with the proper authorities in Edinburg, Texas, indicating that he was residing
at 1015 Manana Street. The record also reflects that appellant’s wife and children
reside at 1015 Manana Street. Approximately six months after appellant’s initial
registration, appellant was required to relocate because the residence located at 1015
Manana Street was within the child-safety-zone distance from a day-care center in
violation of condition 12 of appellant’s terms of community supervision. Subsequently,
on June 14, 2010, appellant registered with the Pharr Police Department, indicating that
he was living at a residence with his father in Pharr, Texas.
4
Appellant contends that the evidence was not sufficient to support the jury’s
verdict because the State failed to prove that, in or about October 2011, appellant “had,
in fact, moved to his wife’s house at 1015 Manana Street in Edinburg, and resided or
intended to reside at that residence for more than seven days.” Thus, according to
appellant, he was not required to register with the authorities in Edinburg.
At trial, the State offered the testimony of six witnesses to establish that, at the
time of the offense in October 2011, appellant had resided or intended to reside at his
wife’s residence in Edinburg for more than seven days. Two neighbors testified that
they had seen appellant at the Edinburg residence on a “consistent” basis. One of the
neighbors testified that he believed appellant had been living at the residence for twenty
or more consecutive days. This witness observed appellant engaging in day-to-day
activities consistent with those of a resident, such as checking the mail and taking out
the trash. The second neighbor also believed appellant was living at the residence, but
he did not know how long appellant had been living there. This witness observed
appellant’s wife throwing clothes out on the street, arguing with appellant, and
demanding that appellant leave the premises.
Another witness for the State was Marcus Ramirez, an officer with the Pharr
Police Department who was involved in overseeing the sex offender registration
program. Ramirez testified that he went to appellant’s address of record in Pharr on a
number of occasions and discovered that appellant was not there. Ramirez testified
that he obtained information from appellant’s father indicating that appellant would go to
Edinburg to stay with his wife for several days at a time. According to Ramirez,
appellant’s last update on October 27, 2011 indicated that appellant continued to reside
5
at the Pharr residence with his father; however, based on his experience and
observations, Ramirez believed that appellant was no longer residing in Pharr.
The State also relied on the testimony of Leticia Trevino Garcia, appellant’s
probation officer from March 2008 through June 2011. Garcia testified that she found
appellant at the Edinburg address between five and ten times. Garcia also testified that
she went to the Pharr residence several times and confirmed that appellant’s
belongings remained at that location. Based on her experience and observations,
Garcia believed appellant was residing in Edinburg, not Pharr.
Another witness called by the State was Anna Maria Wittenberg. Wittenberg
began working as appellant’s probation officer in June 2011. Wittenberg testified that
she made several visits to the Pharr residence, but she was not able to contact
appellant at that location because he was never there. She suspected that appellant
was residing in Edinburg.
Finally, the State relied on the testimony of Officer Arturo Montemayor of the
Edinburg Police Department. Montemayor testified that he was assigned the case after
appellant’s probation officer and the Pharr Police Department expressed concerns that
appellant was no longer residing in Pharr with his father, where he was registered with
local authorities, but was in fact residing with his wife in Edinburg. Montemayor
conducted an investigation, which included interviews with appellant, appellant’s father,
and neighbors who lived in the Edinburg neighborhood where appellant’s wife lived, all
of whom stated that they had seen appellant at the residence over the course of several
weeks. In addition, Montemayor testified that he discovered appellant at the Edinburg
6
residence. Based on the information gathered during the course of his investigation,
Montemayor concluded that appellant was in violation of the reporting statute.
We conclude that the foregoing evidence is sufficient to prove that appellant
resided or intended to reside in Edinburg for more than seven days and failed to register
as required by article 62.102. Accordingly, appellant’s issue is overruled.
III. CONCLUSION
The judgment of the trial court is affirmed.
_______________________
NORA L. LONGORIA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
14th day of March, 2013.
7