Mickey Boswell v. State

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.

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 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.”

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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:

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 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.

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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”

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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).

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 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.

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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.

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 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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