NUMBERS 13-11-00785-CR; 13-11-00786-CR;
& 13-11-00791-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
MICKEY BOSWELL, Appellant,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 319th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Justices Benavides, Perkes, and Longoria
Memorandum Opinion by Justice Perkes
Appellant Mickey Boswell appeals his convictions in three separate causes. In
cause number 13-11-00786-CR, a jury convicted appellant for failing to register as a sex
offender, enhanced to a first degree felony, and the trial court sentenced appellant to
twenty years’ imprisonment. On the basis of his indictment in that cause, the State
moved to revoke community supervision in: (1) cause number 13-11-00791-CR,
involving three counts of failure to register as a sex offender, enhanced to second degree
felonies; and (2) cause number 13-11-00785-CR, involving charges of theft and
unauthorized use of a motor vehicle, enhanced to first and second degree felonies,
respectively. 1 The trial court found the alleged violations to be true, adjudicated
appellant guilty, and sentenced him to fifty years’ imprisonment for theft, twenty years for
the unauthorized use of a mother vehicle, and twenty years for each failure to register
count. The trial court ordered all sentences to run concurrently.
By seven issues,2 appellant argues: (1) the receipt of other evidence by the jury
warranted mistrial; (2) the trial court committed reversible jury charge error; (3) application
of the quarterly registration statute constituted an ex post facto violation; (4) the theft
conviction was not supported by evidence; (5) his convictions for theft and unauthorized
use of a motor vehicle constituted double jeopardy; (6) his sentence for the theft
conviction was improperly enhanced; and (7) his convictions for three counts of violating
the registration requirements were improper. We affirm.
1 Appellate Cause No. 13-11-00785-CR is the appeal from trial cause number 09-CR-1082-G.
Appellate Cause No. 13-11-00786-CR is the appeal from trial cause number 10-CR-4228-G. Appellate
Cause No. 13-11-00791-CR is the appeal from trial cause number 09-CR-1006-G. The State’s motions to
revoke were carried with the case in trial cause number 10-CR-4228-G. Our analysis allows us to consider
them in a consolidated opinion.
2 The State asserts that many issues presented by appellant are multifarious. We agree. A
multifarious issue “is one that embraces more than one specific ground.” Stults v. State, 23 S.W.3d 198,
205 (Tex. App.—Houston [14th Dist.] 2000, pet. ref'd). “By combining more than one contention in a single
point of error, an appellant risks denial on the ground that the issue is multifarious and presents nothing for
review.” Prihoda v. State, 352 S.W.3d 796, 801 (Tex. App.—San Antonio 2011, pet. ref'd). We have
discretion to “refuse to review a multifarious issue or we may elect to consider the issue if we are able to
determine, with reasonable certainty, the alleged error about which the complaint is made.” Gilley v. State,
418 S.W.3d 114, 119 n. 19 (Tex. Crim. App. 2014) (quoting Prihoda, 352 S.W.3d at 801). To the extent
we can discern an issue in the brief, we will address the issue in the interest of justice.
2
I. BACKGROUND
In 1994, appellant was convicted of two counts of indecency with a child by contact,
second degree felonies. See TEX. PENAL CODE ANN. § 21.11(a)(1) (West, Westlaw
through Chapter 46 2015 R.S.). As a result of his conviction, appellant was required to
register as a sex offender. In 2004, appellant was convicted for failure to comply with
sex offender registration requirements and was sentenced to two years’ imprisonment.
In 2009, appellant was indicted for three counts of violating the sex offender
registration requirements. See TEX. CODE CRIM. PROC. ANN. art. 62.055, 62.057 (West,
Westlaw through Chapter 46 2015 R.S.). That same year, appellant was also indicted
for felony theft and unauthorized use of a motor vehicle. See TEX. PENAL CODE ANN. §§
31.03, 31.07. In each of the 2009 causes, appellant pleaded guilty pursuant to a plea
bargain agreement, and waived his right to appeal. The trial court deferred adjudication
in those cases and placed appellant on community supervision for concurrent periods of
ten years. The “Conditions of Community Supervision” provided that appellant must
commit no offense against the laws of this state, and required appellant to comply with all
sex offender registration requirements. Appellant was also required to serve 360 days
in the Nueces County Jail.
On March 22, 2010, upon his release from jail, appellant was notified by way of a
“Pre-Release Notification Form” that he was required to register annually as a sex
offender. When appellant registered with the Corpus Christi Police Department’s
(“CCPD”) Sex Offender Registration Division on March 29, 2010, a CCPD employee
informed appellant that he was required to register every ninety days or “quarterly.”
3
Appellant reported in person to CCPD on April 29 and June 22 because he did not have
a driver’s license to confirm his residence. On each occasion he reported to CCPD,
appellant signed a sex offender verification form stating he was required to register every
ninety days. Appellant was arrested on October 30 because he had not registered within
ninety days of June 22, 2010.
Appellant was indicted in cause number 10-CR-4228-G for failing to register within
ninety days, see TEX. CODE CRIM. PROC. ANN. art. 62.058, and the State filed motions to
revoke community supervision in trial cause numbers 09-CR-1006-G and 09-CR-1082-
G, which were carried with the case. Following a jury trial, the jury returned a guilty
verdict. The trial court further found that appellant violated the terms of his community
supervision. This appeal followed.
II. JURY DELIBERATIONS
A. Receipt of Other Evidence
By his first issue, appellant argues “the trial court erred in denying [his] motion for
mistrial during the jury’s deliberations [in cause 10-CR-4228-G] after discovering a juror
became an unsworn witness against [appellant].” Specifically, appellant maintains that
the jury received “other evidence” detrimental to appellant during deliberations and that
he was deprived of his right to an impartial jury.
1. Pertinent Facts
The jury heard evidence regarding three separate addresses that appellant
reported as his residence. After retiring to deliberate, the jury sent four notes to the trial
judge. The second note read as follows:
4
One jury member owns property that [appellant] gave as his address. It is
a commercial property. This jury says it represents dishonesty on
[appellant’s] part. Are we to allow or dismiss this comment?
Appellant moved for a mistrial. The trial court denied the motion, but directed the jury in
writing “Do not consider anything not in evidence. Refer to paragraph 10, subpart 4 [of
the jury charge].” The referenced portion of the jury charge reads: “During
deliberations, the jury may not . . . consider or discuss matters not in evidence including
personal knowledge or information about any fact or person connected with the case.”
Appellant argues the jury note establishes that new evidence was received by the jury
and that no instruction could cure the error.
2. Standard of Review and Applicable Law
A mistrial is required only in extreme circumstances where the prejudice is
incurable. Ocon v. State, 284 S.W.3d 880, 884 (Tex. Crim. App. 2009). Prejudice is
incurable when it “is of such character as to suggest the impossibility of withdrawing the
impression produced on the minds of the jurors.” Ladd v. State, 3 S.W.3d 547, 567 (Tex.
Crim. App. 1999). We review the trial court's denial of a motion for mistrial for an abuse
of discretion, viewing the evidence in the light most favorable to the trial court's ruling,
and considering only those arguments before the court at the time of the ruling. Id. We
must uphold the ruling if it was within the zone of reasonable disagreement. Ocon, 284
S.W.3d at 884.
A mistrial is an extreme remedy, and should be granted “only when residual
prejudice remains” after less drastic alternatives are explored. Id. (quoting Barnett v.
State, 161 S.W.3d 128, 134 (Tex. App.—Fort Worth 2005), aff’d, 189 S.W.3d 272 (Tex.
5
Crim. App. 2006)). Less drastic alternatives include questioning the jury about the extent
of any prejudice if instructions alone do not sufficiently cure the problem. Id. at 885. If
the movant for mistrial does not first request a lesser remedy, we will not reverse the trial
court’s judgment if the problem could have been cured by the less drastic alternative. Id.
“A defendant is entitled to a mistrial if the jury, after retiring to deliberate, receives
other evidence adverse to the defendant.” Bustamante v. State, 106 S.W.3d 738, 743
(Tex. Crim. App. 2003).3 “In determining whether the evidence was ‘received’ by the
jury, a court may consider how extensively the evidence was considered by the jury and
whether the jury was given an instruction to disregard.” Id. If the trial court gives an
instruction to disregard that is found to be effective, “it is as though the evidence was
never ‘received’ by the jury.” Id. To determine whether evidence was detrimental or
adverse, we consider its character in light of the issue before the jury rather than its actual
effect. Garza v. State, 630 S.W.2d 272, 274 (Tex. Crim. App. [Panel Op.] 1981); Reed
v. State, 841 S.W.2d 55, 59 (Tex. App.—El Paso 1992, pet. denied).
3. Analysis
The jury timely sought guidance from the trial court concerning the juror’s
disclosure, and they were provided a proper instruction to disregard the information with
a reference to the appropriate section of the jury charge. There is no evidence in the
record indicating that the jury was unable to follow the trial court’s instruction. Under
3 In Bustamante v. State, 106 S.W.3d 738, 743 (Tex. Crim. App. 2003), the court of criminal
appeals applied Texas Rule of Appellate Procedure 21.3(f) and interpretive case law in its review of a
motion for mistrial. Rule 21.3(f) requires that a new trial be granted “when, after retiring to deliberate, the
jury has received other evidence.” TEX. R. APP. P. 21.3(f).
6
these facts, we conclude that the trial court’s curative instruction was an effective
alternative to the extreme remedy of a mistrial. Therefore, it is as though the evidence
was never “received” by the jury. See Bustamante, 106 S.W.3d at 745 (holding that
exhibit improperly submitted to the jury was not “received” by the jury where jurors
recognized a potential problem, sought guidance from the trial court, and received an
instruction to disregard the exhibit); Cuellar v. State, 943 S.W.2d 487, 492 (Tex. App.—
Corpus Christi 1996, pet. denied) (concluding “other evidence” of the defendant’s gang
affiliation was not received by the jury due to corrective instruction by another juror that
information should not be considered).
Further, appellant’s counsel did not pursue the alternative of questioning the jury.
The party alleging juror misconduct should initiate juror questioning. Ocon, 284 S.W.3d
at 886-87. “Questioning jurors who allegedly participated in misconduct is a less drastic
remedy than a mistrial.” Id. at 886. Because a less drastic remedy was available to
cure any prejudice that may have resulted from the juror’s disclosure, we will not reverse
the judgment of the trial court.
The trial court did not abuse its discretion in overruling appellant’s motion for
mistrial on the basis of the jury’s receipt of other evidence.
B. Impartial Jury
Appellant further argues under his first issue that the juror’s personal knowledge
regarding appellant’s residence deprived appellant of his right to an impartial jury. We
disagree.
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1. Applicable Law
An accused in a criminal prosecution has the right to a fair trial by an impartial jury.
See TEX. CONST. art. I, § 10. When a juror “‘withholds material information during the
voir dire process, the parties are denied the opportunity to exercise their challenges, thus
hampering their selection of a disinterested and impartial jury.’” Franklin v. State, 138
S.W.3d 351, 354 (Tex. Crim. App. 2004) (quoting Salazar v. State, 562 S.W.2d 480, 482
(Tex. Crim. App. 1978)). To obtain a new trial based on juror misconduct, the defendant
must show that the juror withheld material information during voir dire despite the
defendant’s due diligence. Id. at 355–56; see Armstrong v. State, 897 S.W.2d 361, 363–
64 (Tex. Crim. App. 1995). Diligence requires that counsel ask questions calculated to
bring out information that might indicate a juror’s inability to be impartial and truthful.
Armstrong, 897 S.W.2d at 363–64. In the absence of such questions, material
information that a juror fails to disclose is not really “withheld.” Id. at 364. Counsel must
ask specific questions, not rely on broad ones, to satisfy this obligation and must ask
follow-up questions after a potential bias is discovered. Gonzales v. State, 3 S.W.3d
915, 917 (Tex. Crim. App. 1999).
2. Analysis
In reviewing the voir dire record, we find no instance where appellant’s counsel
questioned the venire panel concerning their knowledge of appellant’s address.
Appellant cannot demonstrate that the juror “withheld” information because appellant's
counsel did not ask questions calculated to reveal the information appellant claims
indicates impartiality or bias. See id. at 917–18 (holding that juror did not “withhold”
8
information where “defense counsel did not ask any oral questions in an effort to verify
whether prospective jurors who returned juror questionnaires had been involved in
criminal cases as that question was meant to be understood”). Therefore, there exists
no misconduct warranting a reversal. See id. The cases cited by appellant are
inapposite, because they each involve a juror’s failure to disclose material information in
response to specific questions posed in voir dire. See Franklin, 138 S.W.3d at 352 (after
stating that she knew none of the parties involved in trial, juror informed court that she
was the assistant leader of victim's Girl Scout troop and that her daughter was also in the
victim's troop); Von January v. State, 576 S.W.2d 43, 44 (Tex. Crim. App. 1978) (juror
failed to disclose that he knew the deceased victim's family although asked directly during
voir dire); Salazar, 562 S.W.2d at 481–82 (when asked whether he had been a witness
in a criminal case, juror failed to disclose that he had been a prosecution witness in a
criminal proceeding where he was eyewitness to sexual assault of his daughter).
C. Summary
Viewing the evidence in the light most favorable to the trial court’s ruling, we
conclude the trial court’s failure to declare a mistrial was not an abuse of discretion. See
Ocon, 284 S.W.3d at 884. We overrule appellant’s first issue.
III. JURY CHARGE ERROR
By his second issue, appellant argues that the trial court “committed reversible jury
charge error.” Under two sub-issues, appellant maintains he was entitled to (1) a jury
determination of the “applicability of the quarterly verification requirement” and (2) an
affirmative defense instruction on mistake of law.
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A. Standard of Review
Appellate review of alleged jury charge error involves a two-step process. Abdnor
v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). Initially, we determine whether
error occurred, and, if so, we evaluate whether sufficient harm resulted from the error to
require reversal. Id. at 731-32. Where a timely objection is made at trial, jury charge
error requires reversal if the error was “calculated to injure the rights of defendant,” which
means there must be “some harm” to the accused. TEX. CODE CRIM. PROC. ANN. art.
36.19; see also Abdnor, 871 S.W.2d at 731–32. But when the error is not so preserved,
the harm must be “egregious” before reversal is proper. Id. An egregious harm is one
that goes to the “very basis of the case.” Druery v. State, 225 S.W.3d 491, 504 (Tex.
Crim. App. 2007).
B. Quarterly Verification Requirement
By his first sub-issue, appellant argues that he was “entitled to a jury determination
of the applicability of the quarterly verification requirement.” Specifically, appellant
maintains there was a fact issue regarding whether he was subject to supervision or
confinement on September 1, 1999, which impacts whether the 1999 amendments
excused him from the quarterly registration requirement. This issue presents a matter
of statutory construction.
1. Applicable Law
When this court interprets statutes, “we seek to effectuate the ‘collective’ intent or
purpose of the legislators who enacted the legislation.” Reynolds v. State, 423 S.W.3d
377, 382 (Tex. Crim. App. 2014) (citations omitted). We first look at the language of the
10
statute to discern the fair, objective meaning of the text at the time of its enactment. Id.
Where the statute is clear and unambiguous, we give effect to its plain meaning, unless
doing so would lead to absurd results that the legislature could not have intended. Id.
If the statute is ambiguous, we may then look beyond the plain text and consider
additional factors. Id.
2. Analysis
The 1999 amendments to the sex offender registration statute extended the
quarterly registration requirement to those persons who have “been convicted two or
more times” of a sexually violent offense. Act of Sept. 1, 1999, 76th Leg., ch. 1415, §
15, 1999 Tex. Gen. Laws 4838. The “savings clause” to the 1999 amendments limited
the Act’s application to those who were confined or under supervision as of September
1, 1999. Act of Sept. 1, 1999, 76th Leg., ch. 1415, § 29, 1999 Tex. Gen. Laws 4842.
Appellant argues there was a fact issue concerning whether he was subject to the
quarterly registration requirement because there was conflicting evidence regarding
appellant’s discharge date. However, we conclude the 2001 amendments4 extended
the quarterly registration requirement to appellant, regardless of his discharge date. See
Act of Sept. 1, 2001, 77th Leg., ch. 211, § 19, 2001 Tex. Gen. Laws 405.
The plain language of the transition clause in the 2001 amendments provides for
application of the law to those persons required to register as a sex offender “before, on,
or after” September 1, 2001. Id. Appellant, who was required to register as a sex
4 The 2001 amendments further clarified that the quarterly registration requirement applies to
offenders with two or more qualifying convictions regardless of whether the convictions were entered on
different dates or whether the offenses arose out of the same criminal transaction. Act of Sept. 1, 2001,
77th Leg., ch. 211, § 9, 2001 Tex. Gen. Laws 401.
11
offender before September 1, 2001, is clearly within the class of persons identified by the
legislation. The 2005 amendments merely renumbered article 62.06 as 62.058. See
Act of September 1, 2005, 79th Leg., ch. 1008, art. 1, § 1.01, 2005 Tex. Gen. Laws 3402.
Therefore, there is no fact issue concerning the application of article 62.058’s quarterly
reporting requirement, and the trial court did not err in refusing to submit the issue to the
jury. See Reynolds, 423 S.W.3d at 382 (interpreting similar language in the 2005
reenactment of Chapter 62, the court of criminal appeals noted “[t]here is no language
within the statute that indicates the [earlier] ‘savings clause’ was to be retained. The
plain language of the statute also does not indicate that ‘person[s] subject to Chapter 62’
means only those individuals who had been subject to it prior to the amendments . . . and
we see no reason to read this meaning into it.”)
C. Mistake of Law Instruction
By his second sub-issue, appellant argues that “the changes in the law and
resulting confusion established a bona fide ‘mistake of law.’” During the charge
conference, appellant’s counsel requested a mistake of law defense because of
appellant’s reliance on statements from various agencies “including the probation
department from Nueces County [telling appellant] that he was an annual registrant.”
The trial court denied the request.
1. Applicable Law
A defendant is entitled to a mistake of law instruction if the defendant reasonably
believed the conduct charged did not constitute a crime, and he acted in reasonable
reliance upon:
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(1) an official statement of the law contained in a written order or grant of
permission by an administrative agency charged by law with responsibility
for interpreting the law in question; or
(2) a written interpretation of the law contained in an opinion of a court of
record or made by a public official charged by law with responsibility for
interpreting the law in question.
TEX. PENAL. CODE ANN. § 8.03(b). The defendant has the burden of producing sufficient
evidence to raise a defensive issue. Riddle v. State, 888 S.W.2d 1, 6 (Tex. Crim. App.
1994). The instruction is not required if the evidence viewed in the light most favorable
to the defendant does not raise the issue. Dyson v. State, 672 S.W.2d 460, 463 (Tex.
Crim. App. 1984).
2. Analysis
The record reflects appellant may have been notified by law enforcement agencies
that he was required to report annually, including upon his release from jail on March 22,
2010. The uncontroverted testimony at trial, however, further reflects that, on the
following three occasions appellant reported to CCPD, he was expressly notified by
CCPD personnel that he was required to register every ninety days, including June 22,
2010, the last day he reported prior to his arrest. Appellant did not testify at trial;
therefore, there is no evidence in the record concerning whether he relied upon prior
agency representations.
Viewing the evidence in the light most favorable to appellant, we conclude
appellant failed to produce sufficient evidence that he reasonably believed the conduct
charged did not constitute a crime. See TEX. PENAL. CODE ANN. § 8.03(b); Riddle, 888
S.W.2d at 6; Dyson, 672 S.W.2d at 463. Further, appellant presented no evidence that
13
he relied on an official statement of the law by an administrative agency charged with the
responsibility for interpreting the law. See id. The trial court did not err in denying a
mistake of law instruction.
D. Summary
We conclude the trial court did not commit jury charge error; therefore, we need
not determine whether sufficient harm resulted requiring reversal. See Abdnor, 871
S.W.2d at 731. We overrule appellant’s second issue.
IV. EX POST FACTO PROHIBITION
By his third issue, appellant argues the retroactive application of the quarterly
verification requirement violates the ex post facto prohibition of the state and federal
constitutions. Specifically, appellant maintains “the quarterly verification requirement
. . . increas[es] the punishment for his prior [indecency with a child] convictions.” We
disagree.
A. Standard of Review and Applicable Law
We review the constitutionality of a criminal statute de novo, as a question of law.
Moloney v. State, 294 S.W.3d 613, 626 (Tex. App.–Houston [1st Dist.] 2009, pet. ref'd).
We presume the statute is valid and the legislature did not act unreasonably or arbitrarily.
Rodriguez v. State, 93 S.W.3d 60, 69 (Tex. Crim. App. 2002). The party challenging the
statute has the burden to establish its unconstitutionality. Id. We must uphold the
statute if we can apply a reasonable construction that will render it constitutional. Ely v.
State, 582 S.W.2d 416, 419 (Tex. Crim. App. [Panel Op.] 1979).
14
Both the United States and Texas Constitutions prohibit Texas from applying any
ex post facto law. U.S. CONST. art. I, § 10, cl. 1; TEX. CONST. art. I, § 16. Texas interprets
the proscription against ex post facto laws in the Texas Constitution to have the same
meaning as the proscription against ex post facto laws found in the United States
Constitution. Grimes v. State, 807 S.W.2d 582, 586 (Tex. Crim. App. 1991); Young v.
State, 358 S.W.3d 790, 805 (Tex. App.—Houston [14th Dist.] 2012, pet. ref'd). “An ex
post facto law: (1) punishes as a crime an act previously committed which was innocent
when done; (2) changes the punishment and inflicts a greater punishment than the law
attached to a criminal offense when committed; or (3) deprives a person charged with a
crime on any defense available at the time the act was committed.” Rodriguez, 93
S.W.3d at 66 (citing Collins v. Youngblood, 497 U.S. 37, 42–44 (1990)).
We apply the “intent-effects” test to determine whether the application of a statute
constitutes punishment. Id. at 67. A court must first determine whether the legislature
intended the statute to impose a criminal punishment. Id. (citing Hudson v. United
States, 522 U.S. 93, 99 (1997)). If it is the legislature’s intent to establish a civil remedy,
we look to the factors articulated in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–
69 (1963), to determine whether the effects of a statute are criminally punitive. Id. at 67–
68. Under Kennedy, we consider whether the regulation: (1) involves an affirmative
disability or restraint; (2) has been traditionally regarded as punishment; (3) applies only
on a finding of scienter; (4) promotes the traditional aims of punishment; (5) applies to
behavior that is already a crime; (6) has a rational connection to a non-punitive purpose;
and (7) appears excessive in relation to this purpose. 372 U.S. at 168–69.
15
B. Analysis
The State does not contest the retroactive application of the quarterly registration
requirement, and appellant does not argue that the legislature intended for the
requirement to be criminal punishment. Therefore, we must determine whether the
effects of the statute are criminally punitive.
The court of criminal appeals has held on two occasions that the sex offender
registration statute is non-punitive in effect. See Rodriguez, 93 S.W.3d at 79; Ex Parte
Robinson, 116 S.W.3d 794, 798 (Tex. Crim. App. 2003). However, those cases did not
involve the application of the quarterly registration requirement.
In Rodriguez, the court thoroughly analyzed the annual reporting requirement of
the 1997 amendments to the sex offender registration statute utilizing the seven Kennedy
factors and concluded that the statute was non-punitive. 93 S.W.3d at 69–79. The
court reviewed the frequency of the in-person reporting requirements and public
notification provisions in relation to whether the statute was an “affirmative disability or
restraint,” and concluded that “although registration and notification impose a burden
upon those required to register, it does not impose an affirmative disability or restraint as
the term is commonly understood.” Id. at 71.
In Ex Parte Robinson, the defendant argued that the registration requirements
constituted cruel and unusual punishment. 116 S.W.3d at 797. Relying on its decision
in Rodriguez, the court of criminal appeals concluded the 1999 version of the statute was
non-punitive, and, therefore, did not constitute cruel and unusual punishment. Id. at 798.
16
In Smith v. Doe, the United States Supreme Court considered for the first time
whether a sex offender registration law violated the ex post facto clause of the federal
constitution. 538 U.S. 84, 92 (2003). Applying the Kennedy factors, the Court reviewed
the Alaska sex offender registration statute which, like the Texas statute, required an
offender who was convicted two or more times to verify information quarterly (although
not in person). Id. at 97–105. In analyzing whether the reporting requirements
constituted an “affirmative disability or restraint,” the Court rejected the argument that the
registration system is parallel to probation or supervised release. Id. at 101. The Court
explained:
[O]ffenders subject to the Alaska statute are free to move where they wish
and to live and work as other citizens, with no supervision. Although
registrants must inform the authorities after they change their facial features
. . . borrow a car, or seek psychiatric treatment, they are not required to
seek permission to do so. A sex offender who fails to comply with the
reporting requirement may be subjected to a criminal prosecution for that
failure, but any prosecution is a proceeding separate from the individual’s
original offense . . . It suffices to say the registration requirements make a
valid regulatory program effective and do not impose punitive restraints in
violation of the Ex Post Facto Clause.
Id. at 101–02. The Court concluded that “[t]he Act is non-punitive, and its retroactive
application does not violate the Ex Post Facto Clause.” Id. at 105–06.
The only difference between the statute before the court of criminal appeals in
Reynolds and the statute as applied to appellant is the frequency of the reporting
requirement—quarterly vs. annually. However, like the Alaska statute, an individual
subject to quarterly registration in Texas may choose where to live and work without
supervision. Id. at 101–02. We conclude that the quarterly reporting requirement does
not constitute an “affirmative disability or restraint,” and, in light of Texas precedent, we
17
conclude that the sex offender registration statute is non-punitive in effect. See
Rodriguez, 93 S.W.3d at 79; Ex Parte Robinson, 116 S.W.3d at 798. As a result, the
retroactive application of the quarterly reporting requirement does not violate the ex post
facto clause of the state and federal constitutions. We overrule appellant’s third issue.
V. PLEA PROCEEDINGS
By issues four through seven, appellant alleges error concerning the original plea
proceedings in trial cause numbers 09-CR-1006-G and 09-CR-1082-G. Specifically,
appellant argues: (1) his conviction for theft is not supported by the evidence; (2) his
conviction of theft and unauthorized use of a motor vehicle violates the double jeopardy
clause of the federal constitution; (3) his sentences in trial cause number 09-CR-1082-G
are void because they were improperly enhanced; and (4) his convictions for three counts
of violating the registration requirements is not supported by sufficient evidence and
constitutes double jeopardy. We conclude appellant has waived these issues, but we
will review the judgments to determine whether they are void or a double jeopardy
violation is clearly apparent from the face of the record.
A. Waiver
A defendant must raise issues relating to the original plea proceeding, including
evidentiary sufficiency, only in a timely appeal taken when deferred-adjudication
community supervision is first imposed. Perez v. State, 424 S.W.3d 81, 86 (Tex. Crim.
App. 2014); Manuel v. State, 994 S.W.2d 658, 661–62 (Tex. Crim. App. 1999); see also
Wiley v. State, 410 S.W.3d 313, 319 (Tex. Crim. App. 2013) (“An appellant will not be
permitted to raise on appeal from the revocation of his community supervision any claim
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that he could have brought on an appeal from the original imposition of that community
supervision.”). There are two limited exceptions to the general rule that the original plea
cannot be attacked on an appeal of the revocation proceedings: the “void judgment”
exception; and the “habeas corpus” exception. See Nix v. State, 65 S.W.3d 664, 667
(Tex. Crim. App. 2001).
Further, a “defendant in a criminal prosecution for any offense may waive any
rights secured him by law.” TEX. CODE CRIM. PROC. ANN. art. 1.14. “A waiver of the right
to appeal made voluntarily, knowingly, and intelligently will prevent a defendant from
appealing without the consent of the trial court.” Ex parte Broadway, 301 S.W.3d 694,
697 (Tex. Crim. App. 2009).
B. Sufficiency Challenge
Appellant was required to raise the issue of sufficiency of the evidence supporting
his plea in a timely appeal following the original plea proceedings. See Perez, 424
S.W.3d at 86. Because appellant failed to do so, our inquiry is limited to determining
whether the judgments are void because of a complete lack of evidence to support the
conviction. See Nix, 65 S.W.3d. at 668 (“For the judgment to be void, the record must
show a complete lack of evidence to support the conviction, not merely insufficient
evidence.”). Appellant’s guilty pleas in trial cause numbers 09-CR-1006-G and 09-CR-
1082-G were accompanied by a judicial confession covering all of the elements of the
charged offenses. See TEX. CODE CRIM. PROC. ANN. art. 1.15. This evidence is
sufficient to support the convictions. See Menefee v. State, 287 S.W.3d 9, 13 (Tex. Crim.
App. 2009) (“[S]o long as such a judicial confession covers all of the elements of the
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charged offense, it will suffice to support the guilty plea.”). Therefore the original
judgments are not void.
We also observe that appellant specifically waived his right to appeal in trial cause
numbers 09-CR-1006-G and 09-CR-1082-G. In both causes, appellant signed a written
waiver of his right to appeal. Appellant also signed acknowledgments of receipt of a
copy of the “Trial Court's Certification of Defendant's Right of Appeal,” which noted that
this “is a plea-bargain case, and the defendant has NO right of appeal.” (emphasis in
original). Appellant does not challenge whether his waiver was made voluntarily,
knowingly, and intelligently. Therefore, appellant may not now raise issues concerning
the original judgments.
C. Double Jeopardy
Appellant raises his double jeopardy challenge for the first time on appeal. In
general, a defendant must preserve a double jeopardy objection at or before the time the
issue of his guilt is submitted to the finder of fact. See Gonzalez v. State, 8 S.W.3d 640,
642 (Tex. Crim. App. 2000); King v. State, 161 S.W.3d 264, 267 (Tex. App.—Texarkana
2005, pet. ref'd). A defendant is excused from the preservation requirement only when
(1) the undisputed facts show the double jeopardy violation is clearly apparent on the face
of the record, and (2) enforcement of the usual rules of procedural default serves no
legitimate state interest. Langs v. State, 183 S.W.3d 680, 687 (Tex. Crim. App. 2006).
The protection against double jeopardy includes the protection against multiple
punishments. Ex parte Benson, 459 S.W.3d 67, 71 (Tex. Crim. App. 2015). “In the
multiple-punishment context, the double-jeopardy clause prevents a court from
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prescribing greater punishment than the legislature intended.” Id. “Where two distinct
statutory provisions are at issue, the offenses must be considered the same under both
an ‘elements’ analysis and a ‘units’ analysis for a double-jeopardy violation to occur.” Id.
Under the elements analysis, the question is “‘whether each provision requires proof of a
fact which the other does not.’” Id. at 72 (quoting Blockburger v. United States, 284 U.S.
299, 304 (1932)). Under Texas law, the same-elements test is governed by the cognate-
pleadings approach which requires “comparing the elements of the greater offense as
pleaded to the statutory elements of the lesser offense.” Id. If the two offenses have
different elements, “the judicial presumption is that the offenses are different for double-
jeopardy purposes and that cumulative punishment may be imposed.” Id. This
presumption is rebutted by a showing that the legislature clearly intended only one
punishment. Id. (citing Ex Parte Ervin, 991 S.W.2d 804, 814 (Tex. Crim. App. 1999)
(setting out non-exclusive list of factors to consider in determining whether legislature
intended only one punishment)).
The elements analysis is a legal question and does not depend on evidence
offered at trial. Hall v. State, 225 S.W.3d 524, 535 (Tex. Crim. App. 2007). If the
elements are legally the same, we must then review whether they are factually the same
by determining the allowable unit of prosecution. Ex Parte Benson, 459 S.W.3d at 73–
74. The allowable unit of prosecution of an offense turns on statutory construction and
usually requires ascertaining the gravamen of the offense. Id.
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1. Theft and Unauthorized Use of a Motor Vehicle
Appellant argues that a double jeopardy violation is clearly apparent on the face of
the record, because he was sentenced for the same act for Theft and Unauthorized Use
of a Motor Vehicle. We disagree.
Because appellant was sentenced under two distinct statutory provisions, we must
first determine whether the offenses have the same elements using the cognate-
pleadings approach. Ex Parte Benson, 459 S.W.3d at 72. The theft indictment alleged
that appellant unlawfully appropriated a boat by acquiring or otherwise exercising control
over the boat without the effective consent of the owner and with the intent to deprive the
owner of the property. See TEX. PENAL CODE ANN. § 31.03. A person commits the
lesser offense of unauthorized use of a motor vehicle if “he intentionally or knowingly
operates another’s boat, airplane, or motor-propelled vehicle without the effective consent
of the owner.” See TEX. PENAL CODE ANN. § 31.07.
Theft requires an appropriation of some property, while the latter offense requires
the operation of a motor vehicle. Therefore, each offense requires proof of a fact which
the other does not. Id. at 73. For instance, a defendant might steal a boat or automobile
by having it towed, without ever operating the motor vehicle. On the other hand, one
could operate a motor vehicle without the consent of the owner, and later return it, without
having committed theft. See State v. Houth, 845 S.W.2d 853, 869 (Tex. Crim. App.
1992) (Benavides, J., concurring) (explaining that “crimes of Theft and Unauthorized Use
of a Motor Vehicle are different inasmuch as the former requires an appropriation of some
property, not necessarily a vehicle, while the latter specifically requires operation of a
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motor vehicle”); see also Brady v. State, 14-98-00424-CR, 2001 WL 459719, at *3 (Tex.
App.—Houston [14th Dist.] May 3, 2001, pet. dism’d) (mem. op.) (“The gravamen of
unauthorized use is operating someone else's vehicle without consent, regardless of
intent to deprive. In contrast, the gravamen of theft is intent to deprive, regardless of
whether the vehicle is operated.”)
Unauthorized use of a motor vehicle might be legally the same under the cognate-
pleadings approach if the pleadings indicate that the manner of the motor vehicle’s
appropriation includes its operation. See Ex Parte Jefferson, 681 S.W.2d 33, 34 (Tex.
Crim. App. 1984) (holding conviction of theft and unauthorized use of a motor vehicle
constituted double jeopardy violation where defendant stole a truck and was later arrested
for driving the same truck). However, the indictments in this case do not indicate the
manner of appellant’s appropriation of the boat. Because the offenses have different
elements under the cognate-pleadings approach, a double jeopardy violation is not clearly
apparent on the face of the record. See Ex Parte Denton, 399 S.W.3d 540, 544 (Tex.
Crim. App. 2013) (“A double-jeopardy claim is apparent on the face of the trial record if
resolution of the claim does not require further proceedings for the purpose of introducing
additional evidence in support of the double-jeopardy claim.”).
2. Sex Offender Registration Requirements
Appellant argues that his convictions for three counts of violating the registration
requirements constitutes a double jeopardy violation.
In trial cause number 09-CR-1006-G, appellant was indicted for three counts of
failure to comply with sex offender registration requirements. Specifically, appellant was
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charged with: (1) failing to report in person his anticipated moving date or change of
address in the registration form; (2) failing to report a change of employment or a change
of address in person and verify registration information; and (3) failing to report a change
of employment, job status, or a change of work location within a seven day period after
the date of the change.
Each of the counts in the indictment constitute separate violations of Chapter 62
of the Texas Code of Criminal Procedure. A person required to register must: report
an anticipated change of address, TEX. CODE OF CRIM. PROC. art. 62.055(a); report within
seven days after the move, id.; and report a change in job status within seven days, id. at
art. 62.057. Because the offenses do not involve the same elements, we conclude the
record does not clearly reflect a double jeopardy violation. Further, we note that the
legislature has clearly expressed its intent that each violation be punished separately.
See id. 62.102(a) (“[A] person commits an offense if the person is required to register and
fails to comply with any requirement under this chapter.”).
D. Sentence Improperly Enhanced
Appellant argues that his sentences in trial cause number 09-CR-1082-G were
improperly enhanced using his prior convictions for indecency with a child and failure to
comply with registration requirements, because the conviction of the former was an
element of the latter conviction.
A sentence outside the prescribed punishment range is void. Baker v. State, 278
S.W.3d 923, 926 (Tex. App.—Houston [14th Dist.] 2009, pet. ref'd). A defect which
renders a sentence void may be raised at any time. Ex parte Beck, 922 S.W.2d 181,
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182 (Tex. Crim. App. 1996). “The use of a prior conviction to prove an essential element
of an offense bars the subsequent use of that prior conviction in the same indictment for
enhancement purposes.” Musgrove v. State, 425 S.W.3d 601, 614 (Tex. App.—Houston
[14th Dist.] 2014, pet. ref’d) (citing Wisdom v. State, 708 S.W.2d 840, 845 (Tex. Crim.
App.1986)). This would prohibit the use of appellant’s indecency conviction both as an
element of failure to register and as a punishment enhancement for the same offense.
However, this is not what occurred.
While the indecency conviction was an element of appellant’s first conviction for
failure to register, neither conviction was an element of the offenses of theft and
unauthorized use of a motor vehicle. Therefore, appellant’s sentences were not
improperly enhanced. See Steels v. State, 858 S.W.2d 636, 638 (Tex. App.—Houston
[1st Dist.] 1993, pet. ref’d) (holding it was permissible for conviction used for enhancement
to have been an element of another conviction used for that purpose).
E. Summary
We conclude that appellant waived issues four through seven by not timely
appealing from the judgments imposing community supervision-deferred adjudication,
and that he has voluntarily, knowingly, and intelligently waived his right to appeal the
judgments. The judgments are not void, and a double jeopardy violation is not clearly
apparent on the face of the record. We overrule issues four through seven.
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VI. CONCLUSION
We affirm the trial court’s judgment in each cause.
GREGORY T. PERKES
Justice
Dissenting Memorandum Opinion
by Justice Gina M. Benavides.
Do not publish.
TEX. R. APP. P. 47.2(b).
Delivered and filed the
24th day of September, 2015.
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