In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-15-00277-CR
NO. 09-15-00278-CR
___________________
CLIFTON LEON MUNDAY JR., Appellant
V.
THE STATE OF TEXAS, Appellee
__________________________________________________________________
On Appeal from the 258th District Court
Polk County, Texas
Trial Cause Nos. 23943 and 23414
__________________________________________________________________
MEMORANDUM OPINION
In two cases, which the trial court consolidated for trial, a jury convicted
Clifton Leon Munday Jr. of failing to comply with his duty to update his registration
as a convicted sex offender as required by the sex offender registration program. See
Chapter 62, Tex. Code Crim. Proc. Ann. art. 62.001-.408 (West 2006 & Supp.
2016). In two issues, Munday challenges the sufficiency of the evidence supporting
1
the jury’s findings that he failed to comply with his duty to update his registration.
We affirm.
Background
Based on Munday’s pleas of no contest in 1989, a Florida Circuit Court
convicted Munday on three separate counts of sexual battery, all of which were
based on crimes that occurred in August 1988. See FLA. STAT. ANN. § 794.011(1)(h)
(LexisNexis 2017) (defining the offense of sexual battery). Munday was sentenced
to five and one-half years in prison for each of the three offenses of sexual battery,
and he was ordered to serve his sentences concurrently. In 1991, the Florida
Department of Corrections released Munday from prison.
After he was released from prison in Florida, Munday moved to Polk County,
Texas. In 2007, based on conduct that occurred in Polk County, Munday was
charged and subsequently convicted of assaulting a public servant. In 2009, Munday
was paroled from the Texas Department of Corrections, who advised him that he
needed to register as a convicted sex offender as a condition of his parole. After he
was on parole, Munday registered as a convicted sex offender on a regular basis with
the Polk County Sheriff’s Office until December 2013. According to Gary Wright,
who testified in Munday’s trial, he is the deputy charged with the responsibility of
registering sex offenders living in Polk County. Deputy Wright testified that
2
according to records maintained by the Sheriff’s Office, Munday was required to
update his registration with the Sheriff’s Office every ninety days and to continue to
register as a convicted sex offender throughout his life.
In March 2014, Munday failed to appear in Deputy Wright’s office to update
his registration. Subsequently, Deputy Wright located Munday at an address that
was different from the address that Munday used the last time that he registered.
Deputy Wright indicated that when he located Munday, Munday told him that an
attorney had advised him that he was not required to update his registration.
According to Deputy Wright, Munday told him to leave, but before he left, he told
Munday that if Munday failed to come in and update his registration within seven
days, he would be arrested. When Munday failed to update his registration, Deputy
Wright executed an information and charged Munday with failing to comply with
his duty to register as a convicted sex offender.
In May 2014, a grand jury indicted Munday in Cause Number 23414, for
failing to update his registration in Polk County’s sex-offender records, alleging that
Munday failed to update his registration in April 2014. The indictment alleges that
Munday’s three convictions in Cause Number 8802885CFAWS in Florida for sexual
battery are sexually violent offenses that required Munday to update his registration
with the Polk County Sheriff’s Office quarterly for the remainder of his life.
3
In 2015, a second Polk County grand jury indicted Munday for failing to
update his registration, alleging that Munday failed to appear to update his
registration in December 2014. The second case was assigned Cause Number 23943,
and the indictment also alleged that Munday’s Florida convictions were convictions
of sexually violent offenses that required Munday to register quarterly as a sex
offender in Texas for the remainder of his life.
Subsequently, the trial court consolidated Cause Numbers 23943 and 23414
for trial. The cases were tried in June 2015. In the guilt-innocence phase of the trial,
the jury found Munday guilty of both offenses. In the punishment phase of Munday’s
trial, which was conducted without a jury, the trial court ordered Munday to serve
seven-year sentences, with the sentences running concurrently.
Sex-Offender Registration Requirements
In his appeal, Munday contends that the sex offender registration program did
not require that he register as a convicted sex offender in Texas because the State
failed to prove that he had a “reportable conviction” from another state that contained
elements substantially similar to the elements of Texas offenses requiring sex
offenders to register with local law enforcement. Under Chapter 62 of the Code of
Criminal Procedure, persons convicted on or after September 1, 1970, of sexually
related offenses in states other than Texas who have “reportable convictions” have
4
a duty to register with local law enforcement should they reside in Texas. See Tex.
Code Crim. Proc. Ann. arts. 62.002(a) (West 2006); 62.001(5)(H) (West Supp.
2016)1 (defining “reportable conviction” to include violations of the laws of another
state that are substantially similar to the elements of various specifically listed
crimes). Under the Code of Criminal Procedure, a person with a duty to register
under the sex offender registration program commits a crime by failing to comply
with his duty to update the information in his registration as required by Chapter 62.
See Tex. Code Crim. Proc. Ann. art. 62.102(a) (West Supp. 2016); Young v. State,
341 S.W.3d 417, 425 (Tex. Crim. App. 2011); Varnes v. State, 63 S.W.3d 824, 829
(Tex. App.—Houston [14th Dist.] 2001, no pet.).
Individuals convicted of “sexually violent offenses” are required to renew
their registrations for life. Tex. Code Crim. Proc. Ann. art. 62.101(a)(1) (West Supp.
2016) (creating lifetime obligation to register for persons convicted of sexually
violent offenses). The list of offenses the sex offender registration program labels as
“sexually violent offenses” specifically includes the crime of sexual assault as that
crime is defined by the Texas Penal Code. Tex. Code Crim. Proc. Ann. art.
1
Although the Legislature amended section 62.001 of the Code of Criminal
Procedure in 2015, after the commission of the offenses involved in Munday’s cases,
the changes in the section are not pertinent to his appeal. For convenience, we cite
the current version of the statute.
5
62.001(6)(A) (West Supp. 2016) (defining “sexually violent offense” to include
sexual assault). After initially registering with local law enforcement officials as a
sex offender, a person who has been convicted of two or more sexually violent
offenses must report to local law enforcement every ninety days “to verify the
information in the registration form maintained by the authority for that person.”
Tex. Code Crim. Proc. Ann. art. 62.058(a) (West Supp. 2016).2
The Texas sex offender registration program was originally enacted in 1991.
See Act of May 26, 1991, 72nd Leg., R.S., ch. 572, § 1, art. 6252-13c.1, sec. 8, 1991
Tex. Gen. Laws 2029, 2030 (creating a sex offender registration program requiring
those with reportable convictions dating to September 1, 1991, register with local
law enforcement). Based on the language in the sex offender registration program as
enacted in 1991, Munday did not have a “reportable conviction” that related to his
1989 convictions in Florida when he moved to Texas in 1991. Id. However, in 2005,
the Legislature amended the statute to expand the definition of “reportable
convictions” to include individuals with convictions incurred on or before
September 1, 1970. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, art.
2
Unless otherwise noted, we cite the current version of the statutes relied on
in the opinion unless changes were made to the statute that are relevant to the issues
in Munday’s appeal.
6
62.002, 2005 Tex. Gen. Laws 3385, 3388 (current version at Tex. Code Crim. Proc.
Ann. art. 62.002 (West 2006)) (providing that the chapter applies to reportable
convictions occurring on or after September 1, 1970); Act of May 26, 2005, 79th
Leg., R.S., ch. 1008, art. 4, sec. 4.01(a), 2005 Tex. Gen. Laws 3385, 3422 (providing
that the changes to article 62.002 apply to offenses committed before, on or after
September 1, 2005, the effective date of the Act) (emphasis added). While Munday
has not raised an ex post facto challenge to the sex offender registration program in
his appeal, we note that courts have held that the retroactive application of sex
offender registration statutes do not violate the Ex Post Facto Clause. See Smith v.
Doe, 538 U.S. 84, 105-06 (2003) (rejecting ex post facto challenge to Alaska’s Sex
Offender Registration Act); Rodriguez v. State, 93 S.W.3d 60, 79 (Tex. Crim. App.
2002) (rejecting ex post facto challenge to Chapter 62).
Munday’s convictions are based on his alleged failure to satisfy the ninety-
day reporting requirements in article 62.058 of the Code of Criminal Procedure. See
Tex. Code Crim. Proc. Ann. art. 62.058(a). Under section 62.058, a convicted sex
offender with two or more convictions for sexually violent crimes is required to
update his sex offender registration with local law enforcement quarterly, based on
a date that is calculated so that it falls within a fourteen-day window from the date
the sex offender last updated the information maintained on him by local law
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enforcement officials in its registry of convicted sex offenders. Id. Under the sex
offender registration program, a convicted sex offender must provide information to
local law enforcement that includes his current address. See Tex. Code Crim. Proc.
Ann. art. 62.051(c) (West Supp. 2016). In Munday’s cases, the indictments alleged
that Munday failed to update the information that was on file about him with local
law enforcement officials in April 2014 and in December 2014.
Standard of Review
In Munday’s appeal, he argues the State failed to prove that he had “reportable
convictions” as that term is defined in article 62.001(5)(H) of the Code of Criminal
Procedure. Tex. Code Crim. Proc. Ann. art. 62.001(5)(H). Essentially, Munday
contends the State failed to prove that prior to his arrests, the Department of Public
Safety had compared the version of the sexual battery statute under which Munday
was convicted with the elements required to prove sexual assault in Texas.
To resolve the questions Munday raises in his appeal, we must determine
whether, after viewing the evidence in the light most favorable to the verdict, any
rational trier of fact could have found that he violated the requirements of the sex
offender registration program based on a standard of beyond reasonable doubt. See
Jackson v. Virginia, 443 U.S. 307, 318 (1979). Under the sex offender registration
program, a person commits an offense by failing to comply with the program’s
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registration requirements if the person (1) has a reportable conviction or
adjudication, (2) is required to register, (3) fails to comply with that requirement,
and (4) his duty to register has not expired. See Crabtree v. State, 389 S.W.3d 820,
825 (Tex. Crim. App. 2012).
Article 62.001(5) defines “reportable conviction” to include sexual assault.
See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A) (West Supp. 2016); Tex. Penal
Code Ann. § 22.011 (West 2011). Under Chapter 62, a “reportable conviction”
includes violations of the laws of another state, if the offense as defined by the laws
of the other state contains “elements that are substantially similar to the elements of
an [enumerated list of offenses that include sexual assault].” Tex. Code Crim. Proc.
Ann. art. 62.001(5)(H). Under Chapter 62, the Department of Public Safety is
responsible for determining if offenses in other states contain elements that are
substantially similar to the elements of the offenses qualifying as reportable
convictions that are listed in Chapter 62. Tex. Code Crim. Proc. Ann. art. 62.001(1)
(West Supp. 2016) (defining “Department” as the Department of Public Safety), art.
62.003 (West 2006) (delegating the responsibility of making substantially similar
determinations regarding the laws of other states to the Department). When the State
is relying on convictions of crimes in other states to prove a violation of the sex
offender registration program, the State must prove that the Department of Public
9
Safety has compared the elements of crimes defined by statutes in other states with
those found in the list that is in Chapter 62, which by definition are reportable
convictions, to prove that an individual has a “reportable conviction” under the sex
offender registration program. See Crabtree, 389 S.W.3d at 828, 832.
On appeal, the question of whether sexual battery, as sexual battery is defined
by Florida’s law, satisfies the requirements of article 62.001(5)(H) is a matter that is
reviewed as a question of law. See id. at 832. However, the question of whether the
State presented evidence to show that the Department of Public Safety determined
that sexual battery and sexual assault are crimes that contain substantially similar
elements is reviewed as a question of fact under the Jackson standards. See id. at
832-33.
Analysis
Munday presents three arguments to support the two issues that he raises in
his appeal. First, Munday argues that the State failed to meet its burden to prove that
the Department of Public Safety had determined, prior to his arrest, that the crime of
sexual battery contains elements that are substantially similar to those required to
prove sexual assault. Compare FLA. STAT. ANN. § 794.011(1)(h) (Sexual Battery),
with Tex. Penal Code Ann. § 22.011 (Sexual Assault). Second, Munday argues that
the evidence is legally insufficient to prove that he was notified by the Department
10
of Public Safety prior to his arrest that the sex offender registration program applied
to him. Third, Munday argues that the evidence admitted in his trial was insufficient
to prove that sexual battery is a “sexually violent offense” as defined by Chapter 62.
See Tex. Code Crim. Proc. Ann. art. 62.001(6) (West Supp. 2016) (defining
“sexually violent offense”).
First, we address Munday’s insufficiency arguments claiming the State failed
to prove that the Department of Public Safety had evaluated the similarities between
the sexual battery statute under which Munday was convicted and sexual assault. In
Munday’s trial, Randy Ortega was the only witness who addressed when the
Department of Public Safety first compared Florida’s sexual battery statute with the
offense of sexual assault. Compare FLA. STAT. ANN. § 794.011(1)(h) (Sexual
Battery), with Tex. Penal Code Ann. § 22.011 (Sexual Assault). Ortega indicated
that he is the managing attorney for the crime records service at the Texas
Department of Public Safety, and he explained that his current duties include
evaluating whether the laws of other states are substantially similar to the
enumerated list of sex-offender offenses described in Chapter 62. See Tex. Code
Crim. Proc. Ann. art. 62.003. According to Ortega, “as far back as 2006[,]” the
Department had determined that Florida’s sexual battery statute contained elements
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substantially similar to the elements required to prove sexual assault. Ortega
indicated that he was not employed with the Department in 2006.
Ortega also testified that in November 2014,3 he was asked to determine
whether the elements of Florida’s sexual battery statute as it existed in 1988
contained elements substantially similar to those required to prove any of the
offenses that qualify as reportable convictions based on the sex offender registration
program. Ortega explained that he determined that the version of the sexual battery
statute applicable to Munday’s 1988 offenses include elements substantially similar
to those required to prove the offense of sexual assault. Ortega indicated that after
he made his determination regarding the similarity between sexual battery and
sexual assault, the Department of Public Safety updated its list of Florida offenses
in due course in March 2015 and sent the updated list to Texas law enforcement
authorities so they would be aware that the Department considered sexual battery to
be similar to sexual assault based on versions of Florida’s sexual battery statute
dating to October 1, 1982.4 The Department’s March 2015 memo was admitted
3
During his testimony, Ortega clarified that on November 17, 2014, he
personally determined that the elements required to prove sexual battery under
Florida’s law were substantially similar to the elements required to prove sexual
assault under Texas law.
4
During Ortega’s testimony, the trial court admitted nine Department of
Public Safety memos. The memos indicate that the Department had determined that
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during the trial, and it memorialized Ortega’s determination that sexual battery based
on the defendant’s use of force not likely to cause a serious personal injury contains
elements substantially similar to the elements required to prove sexual assault as
described by section 22.011(a)(1) of the Texas Penal Code. Compare FLA. STAT.
ANN. § 794.011(5) (describing sexual battery using force not likely to cause serious
injury), with Tex. Penal Code Ann. § 22.011(a)(1) (describing sexual assault to
require proof that the defendant contacted or penetrated the victim’s sexual organ or
mouth without the victim’s consent).
At the request of Munday’s attorney, the trial court admitted eight memos
from the Department dating from June 2006 reflecting that the Department had made
a determination regarding various Florida crimes that the Department considered to
contain elements that were substantially equivalent to those listed in Chapter 62 that
make convictions in Florida of those crimes reportable convictions under Texas’ sex
offender registration program. These memos reflect that as of June 2006, the
Department of Public Safety had determined that sexual battery, by use of force not
likely to cause serious personal injury, contains elements that are substantially
similar to those required to prove sexual assault. For instance, the Department’s June
sexual battery contained elements substantially similar to sexual assault. Eight of the
nine exhibits predate the Department’s March 2015 memo, and the earliest of the
memos in evidence addressing Florida statutes is dated June 26, 2006.
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2006 memo states that the elements of sexual battery under Florida Statute section
794.011(5) “are substantially similar” to the elements of sexual assault in section
22.011 of the Texas Penal Code. While the Department’s memo does not reflect the
exact version of section 794.011(5) that it reviewed when it made its determination
in 2006, the evidence before the jury does not show any of the elements that are
material to the offense of sexual battery changed between 1988 and the dates the
State alleged that Munday failed to comply with his duty to update his registration.
In his appeal, Munday has not argued that the Florida legislature made
material changes to its sexual battery statute between 2008 and 2014 that are relevant
to the State’s claim that Munday failed to update his registration. In our review, we
have compared Florida’s current sexual battery statute with respect to sexual battery
committed by force not likely to cause a serious personal injury with the elements
required to prove that same offense under the language used in the sexual battery
statute in 1988. Based on our review of the elements of the offenses, we conclude
that the record does not show that the State of Florida made any changes in the statute
material to Munday’s convictions for failing to update his registration as a convicted
sex offender. See FLA. STAT. ANN. § 794.011 (LexisNexis 2017).
When viewed in the light most favorable to the verdict, we hold that the
evidence presented in Munday’s trial allowed the jury to find, beyond reasonable
14
doubt, that the Department of Public Safety had determined before April 2014 that
the crime of sexual battery by use of force not likely to cause serious personal injury
contains elements substantially similar to those required to prove sexual assault. See
Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (noting that in
determining whether the evidence is sufficient to support a conviction, a reviewing
court must consider all of the evidence in the light most favorable to the verdict)
(citing Jackson, 443 U.S. at 318-19). We conclude that Munday’s claim asserting
the State failed to present legally sufficient evidence to prove that the Department of
Public Safety had issued a determination finding the crime of sexual battery under
Florida law contains elements substantially similar to those required to prove sexual
assault is without merit.
Next, we address Munday’s argument that the evidence fails to show that he
was notified before he was arrested that he was required to register in Polk County
as a convicted sex offender. At the outset, we note that Chapter 62 does not prescribe
a culpable mental state for the offense of violating the duties imposed by the sex
offender registration program. See Tex. Code Crim. Proc. Ann. art. 62.102 (West
Supp. 2016). Nonetheless, Chapter 62 does not plainly indicate that the Legislature
intended to dispense with all mens rea requirements. Id. Given that the sex offender
registration program does not plainly dispense with all mens rea requirements, we
15
conclude that the State was required to prove that Munday intentionally, knowingly,
or recklessly failed to comply with his duty to update his registration. See Tex. Penal
Code Ann. § 6.02(c) (West 2011); Harris v. State, 364 S.W.3d 328, 335 (Tex.
App.—Houston [1st Dist.] 2012, no pet.).
In Munday’s case, the jury was asked to determine whether Munday
“intentionally or knowingly” failed to comply with the requirements of the sex
offender registration program. Because the case was submitted to the jury on this
basis, we will review the record to determine if the State presented sufficient
evidence to prove that Munday intentionally or knowingly failed to renew his
registration without deciding whether the evidence would also support a finding that
his failure to update his registration was reckless. See Harris, 364 S.W.3d at 335;
Ballard v. State, 149 S.W.3d 693, 695 & n.1 (Tex. App.—Austin 2004, pet. ref’d);
Varnes, 63 S.W.3d at 832.
Munday suggests that evidence proving that he intentionally or knowingly
failed to register is insufficient because the State failed to prove that the Department
of Public Safety notified him before he was charged that he was required to register
under the program. Chapter 62 does not expressly require the State to prove that the
defendant was notified by the Department that he was under an obligation to register.
See Tex. Code Crim. Proc. Ann. art. 62.102. Nevertheless, the State was required to
16
prove that Munday knowingly or intentionally failed to comply with his duty to
register, and there is evidence from which the jury could reasonably determine that
Munday knew he was required to register and chose not to. For example, the
evidence showed that Munday began registering as a convicted sex offender in Polk
County after he was released from the Texas Department of Corrections and that he
continued to register on a regular basis through December 2013. The evidence before
the jury included several Texas Department of Public Safety Sex Offender Update
Forms that Munday signed between October 2010 and December 2013. These forms
contain language stating: “In accordance to Chapter 62, Texas Code of Criminal
Procedure, you are required to verify your registration as a sex offender with local
law enforcement. Failure to verify your registration with law enforcement will result
in criminal penalties being filed against you and may result in the revocation of any
community supervision, parole or juvenile probation.” The jury was entitled to infer
that Munday read these forms, and the language in them provides ample evidence to
support the jury’s conclusion that Munday knew he was required to register as a
convicted sex offender. Additionally, the jury heard Deputy Wright explain that he
told Munday when he found him before he was charged that he needed to update the
information that he had on file with the Sheriff’s Office. In our opinion, the fact that
Munday registered as a sex offender in 2010, that he continued to register on a
17
quarterly basis until December 2013, that the forms he signed in updating his
registration have language in them indicating that Munday was obligated to register,
and Deputy Wright’s testimony that he told Munday he was required to update his
registration are all circumstances that allowed the jury to conclude that Munday
intentionally and knowingly failed to comply with his duties under the sex offender
registration program. See Gollihar v. State, 46 S.W.3d 243, 252 (Tex. Crim. App.
2001) (indicating that appellate courts are to measure the sufficiency of the evidence
in a case against a hypothetically correct charge); Varnes, 63 S.W.3d at 833. To the
extent that Munday argues in his appeal that there is insufficient evidence to prove
that he intentionally or knowingly failed to update his registration, his issues are
overruled.
Last, we address Munday’s argument that the evidence failed to show that
sexual battery as defined by Florida’s law is a “sexually violent offense” under
Chapter 62. See Tex. Code Crim. Proc. Ann. art. 62.101(a)(1) (imposing a duty to
register for life if the person has a reportable conviction for a “sexually violent
offense”). The term “sexually violent offense” is defined in section 62.001(6) to
include offenses under the laws of other states if the offense in the other state, as
defined by the laws of that state, contains elements substantially similar to the
elements of certain enumerated sexual offenses in Chapter 62. Id. art. 62.001(6). The
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enumerated offenses in Chapter 62 specifically include sexual assault. Id. art.
62.001(6)(E).
We have previously explained that the evidence in Munday’s trial established
that in 2006, the Department determined that the offense of sexual battery by use of
force not likely to cause serious personal injury contains elements that are
substantially equivalent to those required to prove sexual assault. Compare FLA.
STAT. ANN. § 794.011(5), with Tex. Penal Code Ann. § 22.011(a)(1). Because the
evidence showed that the Department compared sexual battery by use of force not
likely to cause serious personal injury and sexual assault in 2006 and determined the
offenses have substantially similar elements, the evidence shows that he had
previously been convicted of committing sexually violent offenses for the purposes
of the sex offender registration program.5
5
We note that article 62.001 also required the State to prove that Munday was
seventeen or older when he committed the sexual batteries in Florida for those
offenses to be considered sexually violent offenses under the sex offender
registration program. See Tex. Code Crim. Proc. Ann. art. 62.001(6) (West 2016).
While Munday has not argued that the evidence failed to show that he was seventeen
or older when he committed the sexual batteries in Florida in 1988, the evidence
admitted in Munday’s trial demonstrates that Munday was twenty-four years old in
1988 when he committed those crimes.
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We conclude that Munday has not presented any arguments that persuade us
that his convictions should be reversed. We overrule all of Munday’s issues, and we
affirm Munday’s convictions in Trial Court Cause Numbers 23943 and 23414.
AFFIRMED.
___________________________
HOLLIS HORTON
Justice
Submitted on April 24, 2017
Opinion Delivered July 19, 2017
Do Not Publish
Before McKeithen, C.J., Horton and Johnson, JJ.
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