PD-1534-14
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 12/29/2014 11:16:54 AM
Accepted 12/30/2014 10:03:50 AM
IN THE COURT OF CRIMINAL APPEALS ABEL ACOSTA
CLERK
NO. PD-1534-14
________________________________________
ROGER ALAN SCOTT,
Appellant.
v.
THE STATE OF TEXAS,
Appellee,
_______________
APPELLANT’S RESPONSE
TO STATE’S PETITION FOR DISCRETIONARY REVIEW
_______________
DON DAVIDSON
Attorney-at-Law
Forest Ridge Business Park, Suite 203
803 Forest Ridge Drive
Bedford, Texas 76022-7258
(817) 571-4940
FAX: (817) 571-4940
Cellular: (817) 343-8042
Email: donatty@flash.net
Texas Bar No. 05430840
Attorney for Appellant
ROGER ALAN SCOTT
________________________________________
December 30, 2014
TABLE OF CONTENTS
Table of Contents
TABLE OF CONTENTS ........................................................................................ i
TABLE OF AUTHORITIES ................................................................................. ii
FACTS ....................................................................................................................1
DISCUSSION .........................................................................................................4
A. Background ..........................................................................................4
B. The Supreme Court’s decision in Burks precludes retrial
of Mr. Scott, and thus it also bars the State’s petition
for discretionary review. .....................................................................6
C. This is not an appropriate case for review because its
statewide impact would be minimal. ..................................................7
D. The Court of Appeals correctly concluded that the
evidence was legally insufficient. .......................................................7
E. This is not an appropriate case to provide clarification
of Crabtree as requested by the State’s P.D.R. ................................11
CERTIFICATE OF SERVICE FOR RESPONSE ...............................................13
CERTIFICATE OF COMPLIANCE ....................................................................14
i
TABLE OF AUTHORITIES
CASES
Bender v. State, 758 S.W.2d 278 (Tex.Crim.App. 1988) 6
Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)
6
Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) 6
Byrd v. State, 336 S.W.3d 242 (Tex.Crim.App. 2011) 8
Crabtree v. State, 389 S.W.3d 820 (Tex.Crim.App. 2012) 7, 8, 11
Evans v. Michigan, --- U.S. ---, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2012) 7
Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007) 10
Scott v. State, No. 13-12-00671-CR (Tex.App.—Corpus Christi, Oct. 16,
2014, pet. filed) 3
Texas Association of Business v. Texas Air Control Board, 852 S.W.2d
440 (Tex. 1993) 11
STATUTES
720 Illinois Compiled Statutes 5/11-1.20 1
720 Illinois Compiled Statutes 5/12-13(a)(3) 1
Texas Code of Criminal Procedure, Article 62.001(5) 4
Texas Code of Criminal Procedure, Article 62.001(6) 5
Texas Code of Criminal Procedure, Article 62.003 4
Texas Code of Criminal Procedure, Article 62.051 4
Texas Code of Criminal Procedure, Article 62.101 5, 6, 9
Texas Code of Criminal Procedure, Article 62.401 5
ii
FACTS
On June 3, 1999, Mr. Scott was convicted in Illinois of the offense
of criminal sexual assault, in violation of 720 Illinois Compiled Statutes
(ILCS) 5/12-13(a)(3), 1 and was sentenced to confinement for four
years. (III:State’s Exhibit 1) Mr. Scott was admitted to the Illinois
Department of Corrections (IDOC) on June 16, 1999, and was
discharged out on November 18, 1999. (III:State’s Exhibit 1)
Mr. Scott moved to Texas in 2009. (II:62-63) On March 1, 2011,
Mr. Scott was living in Arlington, Texas. (III:State’s Exhibit 3) On that
date, Detective William Landolt of the Arlington Police Department
advised Mr. Scott in writing, using Department of Public Safety form
CR-32, that he was required to register for life in Texas as a sex
offender. (II:16-27; III:State’s Exhibit 3) The form also informed
Mr. Scott that, inter alia, he was required to notify the Arlington Police
Department, Sex Offender Unit, at least seven days prior to moving to
a new residence in Texas or in another state. (III:State’s Exhibit 3)
1 This statute is now 720 ILCS 5/11-1.20(a).
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 1
(ROGER ALAN SCOTT v. State of Texas)
On March 10, 2011, Mr. Scott moved from Arlington, Texas to
Grand Prairie, Texas, and gave proper notice of the move. (II:32-33, 63)
On about July 7, 2011, Mr. Scott’s landlord told him he would have to
leave because of his sex offender status, so Mr. Scott left Texas and
travelled to Michigan. (II:63-68) Detective Josh Lovelace of the Grand
Prairie Police Department testified that Mr. Scott did not provide
notice of his anticipated move or his new address. (II:38, 46)
Mr. Scott was tried before the court (non-jury) on September 21,
2012. The State did not present any evidence to establish that the
Texas Department of Public Safety (DPS) had made a determination in
Mr. Scott’s case that his Illinois offense required him to register as a
sex offender in Texas, nor that DPS had made a determination that
Mr. Scott’s offense was “a sexually violent offense” requiring lifetime
registration. The only testimony in this regard was that of Detective
Lovelace, who was asked by the State’s attorney, “Do you know why he
had to register with your unit?” (II:33, 34) Mr. Scott’s attorney objected
to this question as calling for hearsay, and the trial court overruled the
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 2
(ROGER ALAN SCOTT v. State of Texas)
objection. (II:33-34) Detective Lovelace then testified as follows in
response to the question from the State’s attorney:
A. Yes. The records that I had in my file showed that he had
a conviction out of Illinois for a sexual crime against a child,
which would be equal to sexual assault of a child in the state
of Texas, which requires him to register through Chapter 62,
Code of Criminal Procedure.
Q. And how do you know it would be substantially -- or
would you say it was sub -- it's substantially similar to
sexual assault of a child?
A. Yes. Out-of-state convictions are reviewed by attorneys
with DPS for the State. They make the comparisons for a
conviction from out of state, and they match that up with a
conviction that would be in the state of Texas.
(II:34-35)
Upon completion of the evidence, the trial court found Mr. Scott
guilty as charged in the indictment and sentenced him to five years in
prison. (CR:23-24; II:75-76, 90)
Upon appellate review, the Thirteenth Court of Appeals reversed
Mr. Scott’s conviction, holding that the evidence was legally insufficient
to sustain his conviction. Scott v. State, No. 13-12-00671-CR
(Tex.App.—Corpus Christi, Oct. 16, 2014, pet. filed).
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 3
(ROGER ALAN SCOTT v. State of Texas)
DISCUSSION
A. Background
Article 62.051 of the Texas Code of Criminal Procedure requires a
person with a “reportable conviction or adjudication” to register “with
the local law enforcement authority in any municipality where the
person resides or intends to reside for more than seven days.” TEX.
CODE CRIM. PROC. Art. 62.051. A “reportable conviction or
adjudication” is defined as a conviction or adjudication for or based on
one of several enumerated offenses under the Texas Penal Code, or for
or based on
a violation of the laws of another state, federal law, the laws
of a foreign country, or the Uniform Code of Military Justice
for or based on the violation of an offense containing
elements that are substantially similar to the elements of
[one of the enumerated offenses], but not if the violation
results in a deferred adjudication.
TEX. CODE CRIM. PROC. Art. 62.001(5). The Texas Department of
Public Safety (DPS) is responsible for determining whether the
elements of an offense under the laws of another jurisdiction are
“substantially similar” to those of one of the enumerated Texas
offenses. TEX. CODE CRIM. PROC. Art. 62.003(a).
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 4
(ROGER ALAN SCOTT v. State of Texas)
If a person is required to register under Chapter 62, one of the
requirements with which the person must comply is to provide the local
law enforcement authority with the person’s anticipated move date and
new address at least seven days prior to any change of address. TEX.
CODE CRIM. PROC. Art. 62.055(a). This is the provision that Mr. Scott
was convicted of violating. (CR:5, 23-24; II:75-76, 90)
The sex offender registration requirement lasts until the person
dies, if his conviction is for one of the Texas offenses listed in Article
62.101(a)(2) through (5), or for a “sexually violent offense.” 2 TEX.
CODE CRIM. PROC. Art. 62.101(a). Otherwise, the requirement lasts
for ten years, unless the person requests and is granted an “early
termination” of his duty to register. TEX. CODE CRIM. PROC. Arts.
62.101(b) and (c), 62.401 et. seq. In a case involving a ten-year
registration requirement, the duty to register ends “on the 10 th
anniversary of the date on which . . . the person is released from a
2A “sexually violent offense” is defined as one of several enumerated offenses under
the Texas Penal Code, or as “an offense under the laws of another state, federal law,
the laws of a foreign country, or the Uniform Code of Military Justice if the offense
contains elements that are substantially similar to the elements of ” one of the
enumerated Texas offenses. TEX. CODE CRIM. PROC. Art. 62.001(6).
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 5
(ROGER ALAN SCOTT v. State of Texas)
penal institution, or the person discharges community supervision,
whichever date is later.” TEX. CODE CRIM. PROC. Art. 62.101(c)(2).
B. The Supreme Court’s decision in Burks precludes retrial of
Mr. Scott, and thus it also bars the State’s petition for
discretionary review.
The Supreme Court has held that the Double Jeopardy Clause of
the U.S. Constitution bars retrial of an accused after a Court of Appeals
has found the evidence to be legally insufficient and reversed his
conviction. Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct. 2141,
2149-2151, 57 L.Ed.2d 1 (1978). 3 The prohibition against double
jeopardy is applicable to the states. Bender v. State, 758 S.W.2d 278,
280 (Tex.Crim.App. 1988), citing Benton v. Maryland, 395 U.S. 784, 89
S.Ct. 2056, 23 L.Ed.2d 707 (1969). Since a second prosecution is barred,
the State’s attempt to appeal the decision of the Court of Appeals is
3 The Texas Court of Criminal Appeals has reversed a reviewing court’s legal
sufficiency determination when the court of appeals used the wrong legal standard
in determining that the evidence was legally insufficient. See, for example, Hooper
v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007). Appellant does not concede that such
cases were correctly decided, however, since they appear to be contrary to the
holding in Burks.
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 6
(ROGER ALAN SCOTT v. State of Texas)
similarly barred. See Evans v. Michigan, --- U.S. ---, 133 S.Ct. 1069,
1078, 185 L.Ed.2d 124, 137 (2012).
C. This is not an appropriate case for review because its
statewide impact would be minimal.
Mr. Scott was tried in September, 2012, shortly before this Court
issued its decision in Crabtree v. State, 389 S.W.3d 820, 824
(Tex.Crim.App. 2012) , in October, 2012. Thus, the prosecution in
Mr. Scott’s case did not have the benefit of the Crabtree decision. As
such, the unique facts of this case are unlikely to be repeated, and the
precedential value of this case is minimal or nonexistent.
D. The Court of Appeals correctly concluded that the
evidence was legally insufficient.
The standard of review for legal sufficiency of the evidence is as
follows:
In addressing a challenge to the sufficiency of the evidence,
a court must determine whether, after viewing 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. The essential elements of the
crime are determined by state law. “Under Texas state law,
we measure the sufficiency of the evidence ‘by the elements
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 7
(ROGER ALAN SCOTT v. State of Texas)
of the offense as defined by the hypothetically correct jury
charge for the case.’ ” The hypothetically correct jury 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.”
Crabtree v. State, supra, 389 S.W.3d at 824, quoting Byrd v. State, 336
S.W.3d 242, 246 (Tex.Crim.App. 2011).
In Crabtree, this Court ruled that “a DPS substantial-similarity
determination is an essential element of the offense of failure to comply
with [sex offender] registration requirements.” Id., 389 S.W.3d at 832.
Since the record in Crabtree failed to indicate whether or not DPS had
made a substantial-similarity determination, the Court held that the
evidence was legally insufficient to sustain the conviction. Id., at 833.
The record is similarly silent in Mr. Scott’s case. There is simply
no evidence that DPS made a determination that his Illinois offense
was “substantially similar” to a Texas offense which requires lifetime
sex offender registration. 4 Nowhere in Detective Lovelace’s testimony
4The State was required to prove a DPS substantial-similarity determination
requiring lifetime registration because a ten-year registration requirement under
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 8
(ROGER ALAN SCOTT v. State of Texas)
does he state that DPS attorneys made such a determination, or what
that determination was.
The State argues that Detective Lovelace’s testimony was legally
sufficient to satisfy this elemental requirement because the context of
the question and answer demonstrates that the detective “was referring
specifically to a finding by DPS that a substantial-similarity
determination had been made in this case – rather than, devoid of
context, a mere general statement about what DPS does.” (State’s PDR,
p. 7) However, a review of the actual wording of the question undercuts
this argument. The question by the prosecutor began as “how do you
know,” but changed mid-sentence to “would you say . . . it’s
substantially similar to sexual assault of a child?” (II:35) The question,
as finally asked, requested the detective’s personal opinion, not his
knowledge of a DPS determination.
A fact finder’s conclusions may not be based upon mere
speculation or factually unsupported inferences or presumptions.
Article 62.101(b) would have expired on November 18, 2009, almost two years
before the date of offense in this case.
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 9
(ROGER ALAN SCOTT v. State of Texas)
Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App. 2007). To accept the
State’s argument that Detective Lovelace’s testimony is sufficient, this
Court would have to rely upon mere speculation, rather than evidence
or reasonable inferences from the evidence. 5 Specifically, the Court
would have to speculate about how the detective interpreted a
potentially ambiguous question (as discussed above), whether the
detective actually knew whether or not DPS had made such a
determination, 6 whether or not he correctly understood that
determination, and whether or not he accurately conveyed the
substance of that determination in his testimony.
For these reasons, the decision of the Court of Appeals was correct
and there is no need for this Court to intervene.
5 In Hooper, supra, this Court noted that “an inference is a conclusion reached by
considering other facts and deducing a logical consequence from them. Speculation
is mere theorizing or guessing about the possible meaning of facts and evidence
presented. A conclusion reached by speculation may not be completely
unreasonable, but it is not sufficiently based on facts or evidence to support a
finding beyond a reasonable doubt.” Hooper v. State, supra, 214 S.W.3d at 16.
6 As noted in the Statement of Facts, Mr. Scott objected to Detective Lovelace’s
testimony in this regard as hearsay, and the trial court overruled his objection. This
was Mr. Scott’s fourth issue in the Court of Appeals, which the Court did not reach.
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 10
(ROGER ALAN SCOTT v. State of Texas)
E. This is not an appropriate case to provide clarification of
Crabtree as requested by the State’s P.D.R.
Finally, the State asserts that Crabtree leaves questions
unanswered which this Honorable Court should clarify, such as what
evidence would suffice to prove the DPS determination, and whether or
not an accused can attack the DPS determination at a subsequent trial
for violating sex offender registration requirements. (State’s P.D.R., pp.
9-11) However, under the facts of this case, such clarification would
amount to an advisory opinion rather than determination of an issue in
the case. See Texas Association of Business v. Texas Air Control Board,
852 S.W.2d 440, 444 (Tex. 1993) (issuance of advisory opinions is not a
proper judicial function).
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 11
(ROGER ALAN SCOTT v. State of Texas)
CONCLUSION
For the reasons set out herein, this Honorable Court should deny
the State’s petition for discretionary review.
Respectfully submitted,
/s/ Don Davidson
DON DAVIDSON
Attorney-at-Law
Forest Ridge Business Park, Suite 203
803 Forest Ridge Drive
Bedford, Texas 76022-7258
(817) 571-4940
Cell: (817) 343-8042
FAX: (817) 571-4940
Email: donatty@flash.net
Texas Bar No. 05430840
Attorney for Appellant
ROGER ALAN SCOTT
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 12
(ROGER ALAN SCOTT v. State of Texas)
CERTIFICATE OF SERVICE FOR RESPONSE
As Attorney for the Appellant, ROGER ALAN SCOTT, I certify
that a true and correct copy of the foregoing response was mailed via
first-class U.S. mail to the counsel listed below, at the address
indicated, on December 29, 2014.
Counsel for the State of Texas
Mr. James Gibson
Assistant Criminal District Attorney
Tarrant County District Attorney's Office
Tarrant County Justice Center
401 West Belknap
Fort Worth, TX 76196-0201
Hon. Lisa McMinn
State’s Attorney
P.O. Box 13046
Capitol Station
Austin, TX 78711
/s/ Don Davidson
DON DAVIDSON
Attorney for Appellant,
ROGER ALAN SCOTT
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 13
(ROGER ALAN SCOTT v. State of Texas)
CERTIFICATE OF COMPLIANCE
Per Rule 9.4 of the Texas Rules of Appellate Procedure, I certify
that the foregoing response contains 2,201 words (exclusive of those
portions which are excludable, per Rule 9.4(i)(1) of the Texas Rules of
Appellate Procedure), based on the word count of Microsoft Word word-
processing software, which was used to prepare this document. I
further certify that the document uses the Century Schoolbook 14-point
font, except for footnotes which use the Century Schoolbook 12-point
font.
/s/ Don Davidson
DON DAVIDSON
Attorney for Appellant,
ROGER ALAN SCOTT
APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 14
(ROGER ALAN SCOTT v. State of Texas)