Opinion
No. 01-03-01014-CR
Opinion issued February 17, 2005. DO NOT PUBLISH. Tex.R.App.P. 47.2(b).
On Appeal from the 21st District Court, Washington County, Texas, Trial Court Cause No. 13,808.
Panel consists of Chief Justice RADACK and Justices HIGLEY and BLAND.
MEMORANDUM OPINION
Don Basey, appellant, pleaded not guilty to failure to comply with sex offender registration. The jury found him guilty and the trial court assessed punishment at three-years' confinement. In two points of error, appellant contends that the trial court erred in (1) denying appellant's motion to set aside the indictment and (2) denying appellant's requests and overruling his objections to the jury charge. We affirm.
BACKGROUND
On June 22, 1989, appellant was convicted of the felony offense of indecency with a child in Travis County. Appellant then registered as a sex offender at the address of 12314 Hickory Street, Burton, Washington County, Texas. On or about January 13, 2003, appellant moved and "lived at" or "resided at" 817 Gay Hill Street, Brenham, Washington County. After he made this move, appellant did not register as a sex offender. A person commits a third-degree felony if the person is required to register and fails to comply with any requirement of the sex offender registration program ("SORP") statute. Tex. Code Crim. Proc. Ann. art. 62.10(a) (Vernon Supp. 2004-2005). Appellant was indicted for failure to comply with sex offender registration on February 13, 2003. Prior to trial, appellant filed a motion to set aside the indictment. In his motion, appellant argued that the indictment was defective because the indictment failed to allege all the essential acts or omissions by the defendant necessary to constitute a violation under the SORP statute. The trial court denied appellant's motion. This appeal followed.Motion to Set Aside the Indictment
In his first point of error, appellant asserts that the trial court erred in denying appellant's motion to set aside the indictment. Specifically, appellant contends the indictment fails (1) to state sufficient facts to constitute an offense by using an indictment that leaves it unclear as to whether the alleged date to notify law enforcement occurred within seven days before appellant allegedly changed his address or within seven days after he allegedly changed his address; and (2) to allege specific facts sufficient to give appellant notice of the charged offense. We review the trial court's ruling on a motion to set aside the indictment for an abuse of discretion. Thomas v. State, 621 S.W.2d 158, 163 (Tex.Crim.App. 1981) (op. on reh'g); State v. Goldsberry, 14 S.W.3d 770, 772 (Tex.App.-Houston [1st Dist.] 2000, pet. ref'd). A trial court abuses its discretion if it acts without reference to guiding rules and principles, or acts arbitrarily or unreasonably. Lyles v. State, 850 S.W.2d 497, 502 (Tex.Crim.App. 1993). An indictment must convey sufficient notice to allow the accused to prepare his defense. See Tex. Code Crim. Proc. Ann. art. 21.03 (Vernon 1989) (everything that the State must prove should be in the indictment); State v. Mays, 967 S.W.2d 404, 406 (Tex.Crim.App. 1998). The Texas Code of Criminal Procedure provides that "[t]he certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it in bar of any prosecution for the same offense." Tex. Code Crim. Proc. Ann. art. 21.04 (Vernon 1989). Article 21.11 of the Texas Code of Criminal Procedure provides, in pertinent part, that[a]n indictment shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment. . . .Tex. Code Crim. Proc. Ann. art. 21.11 (Vernon 1989). Thus, an indictment must allege, in plain and intelligible language, all the facts and circumstances necessary to establish all the material elements of the offense charged. See Tex. Code Crim. Proc. Ann. art. 21.02(7) (Vernon 1989) (requiring that "[t]he offense must be set forth in plain and intelligible words"); Garcia v. State, 981 S.W.2d 683, 685 (Tex.Crim.App. 1998) (holding that an indictment need not specify the precise date when the charged offense occurred because time usually is not a material element of an offense). Generally, an indictment that tracks the statutory language is legally sufficient, and it need not allege facts that are merely evidentiary in nature. Bynum v. State, 767 S.W.2d 769, 778 (Tex.Crim.App. 1989). The State's indictment alleged that Don Wayne Basey, defendant herein, . . . did then and there, while being a person required to register with the local law enforcement authority in the municipality where the defendant resided or intended to reside for more than seven days, to wit: Brenham County, Texas, because of a reportable conviction for Indecency With a Child, intentionally, knowingly, or recklessly fail to notify law enforcement of change of address within seven days as required by law. . . . (emphasis added). Article 62.04 of the SORP statute, in relevant part, states
(a) If a person required to register intends to change address, regardless of whether the person intends to move to another state, the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority . . . If a person required to register changes address, the person shall, not later than the seventh day after changing the address, report in person to the local law enforcement authority. . . .Tex. Code Crim. Proc. Ann. art. 62.04(a) (Vernon Supp. 2004-2005). Appellant argues that "[n]owhere does the applicable statute state that an accused must notify law enforcement `within seven days' of a change of address. . . ." Appellant, in his brief, outlines a number of hypothetical scenarios that the jury could possibly have considered in order to convict appellant on the indictment used at trial, but that would not have violated the statute. The language in the indictment regarding a statutory duty to register is derived from the SORP statute. See Tex. Code Crim. Proc. Ann. art. 62.02(a) (Vernon Supp. 2004-2005). The SORP statute prescribes a sex offender's duty to "satisfy the requirements of this subsection not later than the seventh day after the person's arrival in the municipality or county" where he intends to reside or resides for more than seven days. Tex. Code Crim. Proc. Ann. art. 62.02(a) (Vernon Supp. 2004-2005). Because the indictment stated the source of appellant's duty — the fact that he is a sex offender — and the timing within which he had to register — not later than the seventh day after changing an address — the indictment gives sufficient notice of the offense for which appellant was charged. Providing more detail about the manner in which one should register would involve alleging facts that are merely evidentiary. See Mays v. State, 967 S.W.2d 404, 406 (Tex.Crim.App. 1998) (The indictment "by carefully tracking the statutory definition of a manner or means of commission [of the offense], provided ample notice to appellee."); see also Moreno v. State, 721 S.W.2d 295, 300 (Tex.Crim.App. 1986) (holding that an indictment was not defective for failing to allege specific acts of victim, a peace officer, which constituted his acting in discharge of his duties). The trial court did not abuse its discretion in denying appellant's motion to set aside the indictment. Accordingly, we overrule appellant's first point of error.