Opinion issued August 9, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-15-00666-CR
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ROBERT LEE BURNETT, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 506th District Court
Grimes County, Texas
Trial Court Case No. 17685
OPINION
A jury convicted appellant, Robert Lee Burnett, of failure to comply with
sex-offender registration requirements.1 The trial court found two enhancement
paragraphs true and assessed appellant’s punishment at sixty years’ confinement.
1
See TEX. CODE CRIM. PROC. ANN. art. 62.102 (West 2015).
In his sole issue on appeal, appellant argues that the State’s evidence was legally
insufficient to establish that he moved or intended to move residences, thus
triggering his duty to report his new address at least seven days before the
anticipated move date.
We affirm.
Background
Appellant is required to register as a sex offender for his lifetime under Code
of Criminal Procedure chapter 62 due to a 1981 conviction for burglary of a
habitation with intent to commit rape. In 2014, appellant had filed a notice with the
Grimes County Sheriff’s Department registering his address as 4789 FM 1696,
Iola, Texas (“Iola address” or “Iola property”). Following an investigation of
whether he still resided at the Iola address, appellant was arrested and indicted for
failure to comply with registration requirements. The indictment, in relevant part,
provided that
on or about JULY 2, 2014 [appellant] did then and there, while being
a person required to register with the local law enforcement authority
in the county where the defendant resided or intended to reside for
more than seven days, to-wit: Grimes, because of a reportable
conviction [for] BURGLARY OF A HABITATION [TO] COMMIT
RAPE, intentionally or knowingly fail to change address by failing to
report in person to the local law enforcement authority designated as
defendant’s primary registration authority to wit: Grimes County
Sheriff’s Department, with the person’s anticipated move date and
new address within seven (7) days before the intended change.
2
At trial, Investigator M. Fiaschetti testified that he was responsible for the
Sex Offender Program in Grimes County, having taken over those duties from
Lieutenant J. Wren. Appellant’s brother owned the Iola property that appellant
listed as his address. Investigator Fiaschetti testified that appellant’s brother
contacted him and informed him that appellant did not live at the Iola address.
Appellant’s brother gave Investigator Fiaschetti and another investigator access to
the Iola property on July 2, 2014. Investigator Fiaschetti described the Iola
property as a single-wide mobile home that seemed abandoned: the yard was full
of overgrown grass, there were dead rodents inside the mobile home, the skirting
around the mobile home had been removed, there was no running water, the
kitchen cabinets were all open, there was no furniture in the living room or dining
area, and the bedrooms were sparely furnished. Investigator Fiaschetti took
photographs showing the exterior and interior of the home on that day and the
State offered them into evidence. Based on his observations, Investigator Fiaschetti
decided that the home was abandoned and left the Iola property to secure a
warrant.
Investigator Fiaschetti further testified that he returned to the Iola address,
accompanied by Deputy K. Pittman, on July 14 and taped a business card between
the door and the doorframe. He also took additional photographs, including one of
the kitchen. This photograph showed that various cabinets were open and that there
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were no dishes near the sink. The State offered this picture into evidence. Deputy
Pittman testified that, on July 14, there were no fresh tracks along the cattle trail
that led to the property and that he thought the property looked abandoned.
Investigator Fiaschetti further testified that the business card he had left on July 14
was undisturbed when he returned to check on the home on July 21. Appellant was
arrested in August 2014 and charged with failure to comply with sex-offender
registration requirements.
Lieutenant J. Wren testified at trial that, after his arrest, appellant handwrote
a “Request for Service” to Lieutenant Wren in order to “try to resolve this
misunderstanding,” because Wren had previously been the officer in charge of sex-
offender registration for the Grimes County Sheriff’s Department. Lieutenant
Wren went to the jail and met with appellant. Appellant waived his Miranda rights
and spoke with Wren during a recorded interview. At trial, this recording was
played for the jury. On the recording, appellant explained the circumstances
surrounding his absence from the Iola property but never admitted that he no
longer lived at the Iola address. He described his relationship with his brother,
which Lieutenant Wren characterized as “love/hate,” and explained that he had
lived in a tent for some amount of time before his arrest. He admitted that he
probably should have “called in” to the sheriff’s office. Appellant also
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acknowledged that he and Lieutenant Wren had previously discussed what he
should do if he were kicked out of the Iola residence and became transient.
Two individuals—Rachel Jean Morris, who had known appellant for many
years, and Robbie Lynn Brooks, appellant’s sister—testified on his behalf. They
explained that appellant’s brother owned the Iola property and confirmed the
“love/hate” relationship appellant had with his brother. They both testified that
appellant’s brother would frequently become angry at appellant and threaten to
evict him or to notify the sheriff’s office that appellant was no longer living at the
Iola property. They both testified that the mobile home was filthy, even while
appellant resided there, and described the house as sparsely furnished. Morris
noted that, when appellant lived there, the kitchen sink was usually filled with dirty
dishes, the dining room had a table and chairs, and there was a sofa in the living
room. Brooks testified that, at one point, appellant’s brother had turned off the
power to the Iola property, but appellant continued to live there even though it was
“almost uninhabitable.” Brooks also testified that appellant had a table and chairs,
a sofa, and a stuffed bobcat in the living room. Morris testified that she had last
seen appellant at the Iola address on June 25, 2014; Brooks testified that she had
taken gas to appellant at the Iola property on July 5 and 6, 2014. She stated that, at
that time, appellant was working on the property to help his brother with his cows
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and with some mowing and other tasks, but he was “trying to stay away” from his
brother, who was “really mad” at him.
The jury convicted appellant of failure to comply with registration
requirements. The trial court found two enhancement paragraphs true and assessed
appellant’s punishment at sixty years’ confinement. Appellant appealed the
conviction.
Sufficiency of the Evidence
The sole issue on appeal is whether the State’s evidence was legally
sufficient to establish that appellant intended to change his address.
A. Standard of Review
In conducting a legal sufficiency review, we view all of the evidence in the
light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Lucio v.
State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We defer to the factfinder to
resolve conflicts, weigh the evidence, and draw reasonable inferences. Hooper v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as
probative as direct evidence in establishing the guilt of an actor, and circumstantial
evidence alone can be sufficient to establish guilt. Id. Evidence is insufficient when
(1) the record contains no evidence, or merely a “modicum” of evidence, probative
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of an element of the offense, (2) the evidence conclusively establishes a reasonable
doubt, or (3) the acts that the State alleges, if true, do not constitute the charged
crime. Kiffe v. State, 361 S.W.3d 104, 107–08 (Tex. App.—Houston [1st Dist.]
2011, pet. ref’d); see Jackson, 443 U.S. at 314–19, 99 S. Ct. at 2786–89; Williams
v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
Code of Criminal Procedure article 62.102 provides that a person who is
required to register as a sex offender and fails to comply with the requirements of
chapter 62 commits an offense. See TEX. CODE CRIM. PROC. ANN. art. 62.102
(West 2015). Code of Criminal Procedure article 62.055(a) requires, in part, that if
any person who is required to register as a sex offender “intends to change
address, . . . [he] 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 provide the authority . . . with the person’s
anticipated move date and new address.” Id. art. 62.055(a) (West Supp. 2015). A
person acts intentionally, or with intent, with respect to the nature of his conduct or
to a result of his conduct when it is his conscious objective or desire to engage in
the conduct or cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2015); see
Harris v. State, 364 S.W.3d 328, 336 (Tex. App.—Houston [1st Dist.] 2012, no
pet.).
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Here, based on the indictment, the State had to prove that appellant was
required to register as a sex offender under Code of Criminal Procedure chapter 62
and that he failed to comply with article 62.055(a) by failing to notify the proper
authorities of the new address within seven days of the intended move date. See
Thomas v. State, 444 S.W.3d 4, 9–10 & n.1 (Tex. Crim. App. 2014) (addressing
legal sufficiency of evidence based on indictment essentially identical to that in
present case).
B. Analysis
Appellant does not dispute that he was required to register as a sex offender
under chapter 62. Rather, he argues that the State failed to prove his
noncompliance with article 62.005(a) because it provided no evidence that he
intended to move. Appellant argues that the State presented evidence
demonstrating only that he was not at the Iola address on three days in July.
In 2014, the Court of Criminal Appeals held that evidence that a defendant
was living at a new address as of a particular day was sufficient for a jury to have
reasonably concluded that he intended to change addresses on that date. See id. at
10–11. In Gilder v. State, the Fourteenth Court of Appeals applied the reasoning in
Thomas and concluded that evidence that the apartment listed as the defendant’s
registered address had been vacated as of January 3, 2013, constituted evidence
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that he had intended to move on that date. 469 S.W.3d 636, 640–41 (Tex. App.—
Houston [14th Dist.] 2015, pet. ref’d).
In the present case, the State presented evidence of more than just
appellant’s absence from the Iola address on three days in July. Investigator
Fiaschetti testified that, when he visited the Iola address on July 2, 2014, it
appeared uninhabited—the yard was full of overgrown grass, there were dead
rodents inside, there was no running water, the kitchen cabinets were all open, and
there was no furniture in the living room or dining area. The photographs he took
of the unfurnished and unkempt house also supported an inference that appellant
no longer lived at the Iola address. Deputy Pittman testified that, on July 14, there
were no fresh tracks leading to the Iola residence. Investigator Fiaschetti testified
that, when following up at the Iola residence on July 21, he found the business card
he had placed in appellant’s doorway on July 14 still undisturbed. Thus, the State’s
evidence was sufficient to establish that appellant was no longer residing at the Iola
address as of July 2, and it permitted an inference that appellant intended to change
his address as of that date. See Thomas, 444 S.W.3d at 10–11; Gilder, 469 S.W.3d
at 640–41.
Appellant does not dispute that he never notified the sheriff’s office of any
change in his residence. He told Lieutenant Wren that he had been living in a tent
for some amount of time before his arrest in August, and he acknowledged in this
9
conversation that he was aware of his registration obligations in the event he
became homeless or transient. Therefore, the evidence is sufficient for a rational
jury to reasonably conclude that appellant was not living at his registered address
as of July 2, 2014, and that he was not registered at any other address.
Appellant argues that Morris’s and Brooks’s testimony indicated that he had
resided at the Iola address “throughout the summer.” Morris testified that she had
last seen appellant at the Iola address on June 25, 2014, and Brooks testified that
she had taken gas to appellant at the Iola property on July 5 and 6. Contrary to
appellant’s assertion in his brief, this testimony does not establish that he was
actually residing at the Iola address throughout the summer. Moreover, while
Morris and Brooks testified that the house was usually filthy and sparsely
furnished when appellant lived there, they also testified that appellant had dishes, a
table and chairs, a sofa, and a stuffed bobcat in the home. These items were not
present when Investigator Fiaschetti visited and took photographs on July 2.
Finally, the jury, as the finder of fact, was the sole judge of the credibility of
witnesses and the weight to be given to testimony and evidence. See Thomas, 444
S.W.3d at 10. It was within the jury’s discretion to believe Investigator Fiaschetti’s
testimony and photographs demonstrating that appellant had moved out of the Iola
property as of July 2.
10
The fact that the evidence demonstrating that appellant had moved from the
Iola address was largely circumstantial is irrelevant. The circumstantial evidence
discussed above is sufficient to support a conclusion that appellant was no longer
residing at the Iola address as of July 2, which was all that the State needed to
prove. See Hooper, 214 S.W.3d at 13 (holding that circumstantial evidence is as
probative as direct evidence, and circumstantial evidence alone can establish guilt).
Finally, appellant misconstrues the State’s burden in arguing that the
evidence was insufficient because the State provided no evidence of the address
that he should have registered pursuant to chapter 62. Under the language of the
indictment, the State was not required to prove where appellant was actually
residing in July; it was sufficient for the State to establish that appellant had moved
from his registered address without informing the proper authorities in a timely
manner. See Thomas, 444 S.W.3d at 10–11.
Appellant’s reliance on Rios v. State, 141 S.W.3d 750 (Tex. App.—Corpus
Christi 2004, pet. ref’d), is misplaced. In Rios, the State was limited by its
indictment to proving that the appellant had “failed to report within seven days of
his ‘arrival in’ . . . Corpus Christi.” Id. at 753. In other words, the indictment in
Rios required the State to prove the date that Rios “arrived” in Corpus Christi at a
new, unregistered address in order for the jury to conclude that Rios failed to report
within seven days of that date. See id. Here, by contrast, the indictment alleged that
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appellant failed to report an intended change in address at least seven days before
his move date. See Thomas, 444 S.W.3d at 10 (concluding, under nearly identical
indictment, that evidence that Thomas was living at unregistered address on
alleged move date was sufficient to support conclusion that he had intended to
move by that date); Gilder, 469 S.W.3d at 640–41 (holding that evidence Gilder
had vacated registered address by January 3 was sufficient to establish that he
intended to move as of that date); see also Dotie v. State, 477 S.W.3d 482, 488
(Tex. App.—Texarkana 2015, no pet.) (describing “typical” failure to register case
as requiring State to prove that defendant has moved from his last reported address
and contrasting that “typical” case with indictment in Rios).
We conclude that the evidence was sufficient to support the jury’s
conclusion that appellant failed to comply with the sex-offender registration
requirements.
We overrule appellant’s sole issue on appeal.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Brown, and Huddle.
Publish. TEX. R. APP. P. 47.2(b).
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