Summary
holding that substantial similarity is question of law for court and that TDPS determination unnecessary for criminal conviction
Summary of this case from Crabtree v. StateOpinion
No. 05-10-00162-CR
03-28-2012
DERWIN TRISHON BROWN, Appellant v. THE STATE OF TEXAS, Appellee
AFFIRM and Opinion Filed March 28, 2012
On Appeal from the Criminal District Court 2
Dallas County, Texas
Trial Court Cause No. F08-56341-HI
OPINION
Before Justices Moseley, Fitzgerald, and Richter
Opinion By Justice Richter
A jury found appellant guilty of failure to register as a sex offender and assessed his punishment at sixteen years confinement and a $10,000 fine. Appellant raises five issues on appeal: 1) the evidence is legally insufficient to support the verdict; 2) the trial court failed to quash the indictment; 3) the trial court erred by instructing the jury as a matter of law the offense of sexual assault in Texas is substantially similar to the offense of sexual battery in Louisiana; 4) the trial court erred by submitting the second application paragraph to the jury as it failed to state an offense; and 5) the trial court erred by taking judicial notice of the similarity between the Louisiana offense and the Texas offense.
BACKGROUND
Appellant was convicted for sexual battery in Madison Parish, Louisiana, on November 8, 2007, as well as other convictions in Louisiana between 1997-2004. In March, 2008, appellant applied for a Texas Identification Card, indicating that he was residing in Dallas. After receiving a tip about appellant being a sex offender and having moved to Dallas, Texas, the Dallas police searched and found appellant in Dallas and arrested him. The investigating officer confirmed appellant had never registered with the Dallas police. Appellant was charged by indictment with Failure to Register as a Sex Offender based on a conviction in Louisiana for sexual battery. Appellant pled not guilty and a jury trial was conducted. During the trial, the State presented the judge with copies of the statutes defining sexual battery under Louisiana law and the statute defining sexual assault under Texas law and requested he take "judicial notice" of the substantial similarity between the two offenses. Appellant did not object to the judicial notice. During trial, counsel for the State and counsel for appellant agreed to the jury charge, also without objections. The jury returned a guilty verdict and set appellant's punishment at sixteen years confinement and a fine of $10,000. Appellant now appeals the trial court's judgment. DISCUSSION
Sufficiency of the Evidence
In appellant's first issue, he complains the evidence is legally insufficient to support the verdict. Specifically, he argues the State failed to prove appellant had a reportable conviction because they presented no evidence of the Department of Public Safety's determination that a conviction in Louisiana for sexual battery is substantially similar to a conviction for sexual assault in Texas. Appellant further complains the Texas and Louisiana statutes are not substantially similar, therefore the evidence of his prior Louisiana conviction is insufficient to support the verdict requiring him to comply with the sex offender registration program.
Standard of Review
In reviewing the legal sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational finder of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979); Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010).
The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge "accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the States burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant is tried." Id.
To support appellant's conviction for failure to comply with the sex offender registration program, the State's evidence had to show that appellant was required to register and that he failed to comply with that requirement. See Tex. Code Crim. Proc. Ann. art. 62.102(a) (West 2006). Appellant's complaint is based on article 62.003, Texas Code of Criminal Procedure, which charges the Department of Public Safety with determining, for purposes of chapter 62, whether an offense under the laws of another state, federal law, the laws of a foreign country, or the Uniform Code of Military Justice contains elements that are substantially similar to the elements of an offense under the laws of this state. Tex. Code Crim. Proc. Ann. art. 62.003(a) (West 2006). The Department is further charged with annually providing or making available to "each prosecuting attorney's office in this state" the criteria used to make that determination and any existing record or compilation of such offenses that the department has already determined to contain elements that are substantially similar to the elements of offenses under the laws of this state. Tex. Code Crim. Proc. Ann. art. 62.003(b) (West 2006).
Appellant would have us determine that no person convicted of an offense in a place other than Texas would have a duty to register in Texas until and unless the Department had determined that the offense for which the person was convicted was substantially similar to one of the enumerated Texas offenses. We disagree. While the statute obligates the Department to make such determinations, it does not condition statutes being substantially similar on such a determination.
We note the Appendix to the State's brief includes a determination by the Texas Department of Public Safety that was made prior to appellant's trial and shows the Louisiana offense in question to be substantially similar to the Texas offense in question. However, the State failed to produce this letter at trial and the record does not show the trial judge had the opportunity to review this letter when making his determination of the substantial similarity and taking judicial notice. See Seitz v. State, No. 05-92- 01951-CR, 1997 WL 644080 (Tex. App.-Dallas Oct. 20, 1997, pet. ref'd) (not designated for publication).
Whether or not the statutes are substantially similar is a question of law for the court to decide, not a question of fact for the jury. Courts regularly take judicial notice as to the substantial similarity between states' statutes. See Ex parte Warren, 353 S.W.3d 490, 496 (Tex. Crim. App. 2011) ; Prudholm v. State, 333 S.W.3d 590, 596-600 (Tex. Crim. App. 2011); Crabtree v. State, No. 12-09-00322-CR, 2011 WL 1204332, *6 - *9 (Tex. App.-Tyler 2011, pet. granted)(mem. op.)(not designated for publication); see also, Ex parte White, 211 S.W.3d 316, 318 (Tex. Crim. App. 2007); Hardy v. State, 187 S.W.3d 232, 236 (Tex. App.-Texarkana 2006, pet. ref'd) .
We next review the substantial similarity between the Louisiana offense, under which appellant had a prior conviction, and section 22.011 of the Texas Penal Code. When two offenses are substantially similar, the elements being compared must display a high degree of likeness, but may be less than identical. Warren, 353 S.W.3d at 496 (citing Prudholm, 333 S.W.3d at 593-94). This high degree of likeness must involve more than similarity in merely a general sense and the elements must be substantially similar with respect to the individual or public interests protected and the impact of the elements on the seriousness of the offenses. Id.
At the time of appellant's conviction, the Louisiana offense of sexual battery provided in part:
A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender: (1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender; orL A . R EV . S TAT . A NN . § 14:43.1 (2009).
(2) The touching of the anus or genitals of the offender by the victim using any instrumentality or any part of the body of the victim.
. . .
C. (1) Whoever commits the crime of sexual battery shall be punished by imprisonment, with or without hard labor, without benefit of parole, probation, or suspension of sentence, for not more than ten years.
(2) Whoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than ninety-nine years. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.
(3) Upon completion of the term of imprisonment imposed in accordance with Paragraphs (2) of this Subsection, the offender shall be monitored by the Department of Public Safety and Corrections through the use of electronic monitoring equipment for the remainder of his natural life.
. . . .
The Texas offense of sexual assault is defined in Penal Code Section 22.011 and provides in part:
(a) A person commits an offense if the person:T EX. P ENAL C ODE A NN . § 22.011(a) (West 2011). Sexual assault is a second degree felony and as such is punishable by up to 20 years imprisonment. T EX. P ENAL C ODE A NN . § 22.011(f) (West 2011).
(1) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of another person by any means, without that person's consent;
(B) causes the penetration of the mouth of another person by the sexual organ of the actor, without that person's consent; or
(C) causes the sexual organ of another person, without that person's consent, to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor; or (2) intentionally or knowingly:
(A) causes the penetration of the anus or sexual organ of a child by any means;
(B) causes the penetration of the mouth of a child by the sexual organ of the actor;
(C) causes the sexual organ of a child to contact or penetrate the mouth, anus, or sexual organ of another person, including the actor;
(D) causes the anus of a child to contact the mouth, anus, or sexual organ of another person, including the actor; or
(E) causes the mouth of a child to contact the anus or sexual organ of another person, including the actor.
We conclude the elements of the Louisiana offense are substantially similar to the elements of the Texas offense. The elements compared "display a high degree of likeness," even though some are less than identical. Prudholm, 333 S.W.3d at 599. Both offenses involve sexual acts. Both offenses require intentional behavior: in the Texas offense, "intentionally or knowingly;" in the Louisiana offense, "intentional engaging." Both offenses criminalize similar sexual conduct: the Texas offense, "causes the sexual organ [or anus or mouth] . . . to contact or penetrate the mouth, anus, or sexual organ of another person;" the Louisiana offense, "the touching of the . . . using any instrumentality or any part of the body of the offender [or victim]." While the elements of both statutes are not identical in every way, they are similar enough to indicate a high degree of likeness and thus satisfy the first part of the substantially similar test. The second part of the test is to determine the similarity in respect to the individual or public interest protected. Prudholm, 333 S.W.3d at 594. It is clear the individual and public interests protected by both statutes are substantially similar in this case. Both statutes criminalize the unwanted sexual "touching" or "contact" of a person by the offender. In respect to the impact of their elements on the seriousness of the offenses, violation of both statutes require similar registration of sex offenders. As for the applicable punishment range: the Texas offense is a second degree felony and punishable by up to 20 years imprisonment; the Louisiana offense "shall be punished by imprisonment, with or without hard labor, without the benefit of parole, probation, or suspension of sentence, for not more than ten years." There is clearly a difference in the range of punishment between the two offenses, however, neither offense has a minimum number of years to be assessed. Noting the lack of a minimum sentence, we conclude there is enough of a similarity between the two offenses with respect to the impact of their elements on the seriousness of the offenses. We conclude the Louisiana offense of sexual battery is "substantially similar" to the Texas offense of sexual assault.
Appellant further complains the state failed to prove the appellant had a reportable conviction which would require him to register as a sex offender or notify authorities about a change of address as pled in the indictment. Next we review the sufficiency of the evidence of appellant's prior conviction as presented to the jury. Deputy Hamb testified as to the fingerprints and picture of appellant matching the fingerprints and picture on a certified copy of appellant's judgment and sentence out of Louisiana. We conclude, contrary to appellant's assertion, there was evidence before the jury of appellant's Louisiana conviction which we have already established to be substantially similar to a Texas offense that requires registration. Appellant's first issue is overruled.
Motion to Quash
In his second issue, appellant complains the trial court erred by failing to quash the indictment. Specifically, he complains the indictment failed to provide him with adequate notice as to the case number, court, county/parish where the alleged reportable conviction occurred.
Standard of Review
We review a trial court's ruling on a motion to quash de novo. Smith v. State, 309 S.W.3d 10, 14 (Tex. Crim. App. 2010). Indictments may suffer from a defect of substance or a defect of form. A defect of substance occurs when the indictment does not appear to charge an offense, when it appears on the face of the indictment that it is "barred by a lapse of time or that the offense was committed after the finding of the indictment," when "it contains matter which is a legal defense or bar to the prosecution," or if the indictment shows on its face that the trial court lacks jurisdiction. Tex. Code Crim. Proc. Ann. art. 27.08 (West 2006). A defect of form is present when the indictment fails to provide sufficient notice to the defendant of the offense charged and must be challenged prior to trial. See Tex. Code Crim. Proc. Ann. art. 21.19 (West 2009). A defect of form does not render an indictment insufficient unless the substantial rights of the defendant are prejudiced. See Olurebi v. State, 870 S.W.2d 58, 61 (Tex. Crim. App. 1994). To determine whether the defendant had adequate notice to prepare his defense, we must first determine whether the charging instrument failed to provide some requisite item of "notice." Id. (quoting Adams v. State, 707 S.W.2d 900, 901 (Tex. Crim. App. 1986)). If the indictment gave the defendant adequate notice, our inquiry ends. Id. Generally, an indictment that tracks the language of the statute will satisfy constitutional and statutory requirements. State v. Mays, 967 S.W.2d 404, 406 (Tex. Crim. App. 1998) (en banc). The State need not allege facts in the indictment that are merely evidentiary in nature. Id.
Analysis
The first paragraph of the indictment in this case states, in pertinent part:
Brown, Derwin Trishun, Defendant, On or about the 4th day of June A.D., 2008 in the County of Dallas and said State, did unlawfully then and there, while being a person who because of a reportable conviction or adjudication for Sexual Battery, an offense in the State of Louisiana, containing elements that are substantially similar to the elements of Sexual Assault, Texas Penal Code Section 22.011, is required to register with the local law enforcement authority in the municipality or county where the defendant resides for more than seven days, to-wit: Dallas Police Department, Dallas, Texas, intentionally, knowingly, and recklessly fail to register with said law enforcement not later than the seventh day after the defendant's arrival in Dallas, Texas as required by law.(emphasis added)
Here, the error complained of is not fundamental thus, a defect in form; details concerning the prior reportable conviction were merely evidentiary in nature. See Swope v. State, 805 S.W.2d 442, 444-45 (Tex. Crim App. 1991) (facts which make the defendant criminally responsible for the conduct of another are evidentiary and need not be pled); Duron v. State, 956 S.W.2d 547, 551 (Tex. Crim. App. 1997) (indictment was valid even though it contained factual allegations that may indicate innocence). Further, appellant filed his motion to quash the indictment on March 26, 2009, and on April 7, 2009, the State filed its notice of intent to introduce evidence of extraneous offenses which provided appellant with every detail he is complaining about not having: the case number, the court, and county/parish where the alleged reportable conviction occurred. Despite the fact the factual details of the Louisiana conviction were missing, there is no doubt from the face of the indictment that the State intended to accuse appellant of failing to register with local law enforcement and appellant received adequate notice of the charges. See Duron, 956 S.W.2d at 551. Appellant's second issue is overruled.
Jury Instructions
Appellant's third issue complains the trial court erred by instructing the jury that as a matter of law, sexual battery in Louisiana is substantially similar to sexual assault in Texas. Appellant's fourth issue complains the trial court erred as the second paragraph of the jury instruction, which tracked the language of the indictment, failed to state an offense. Since appellant's third and fourth issues are both based on the jury charge, we discuss them together.
Standard of Review
We review allegations of charge error using a two-step process: first, we determine whether error actually exists in the charge, and second, we determine whether sufficient harm resulted from the error to require reversal. See Young v. State, 311 S.W.3d 711 (Tex. App.-Austin 2010) aff'd, 341 S.W.3d 417 (Tex. Crim. App. 2011).When the defendant has failed to preserve error, the appropriate harm analysis for a jury charge requires "egregious harm" for reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).
Analysis
Appellant's third issue complains the jury was instructed to find that sexual battery in Louisiana and sexual assault in Texas were substantially similar when no evidence was presented that the Texas Department of Public Safety had made that determination as mandated by statute. Appellant concedes the question of substantial similarity of the Louisiana and Texas offenses is a question of law and thus outside the province of the jury. However, he complains the Department of Public Safety witness should have testified as to the similarity of the statutes. Appellant insinuates the statutory methodology for determination, by the Texas Department of Public Safety, of substantial similarity was required to prevent error but fails to cite to any legal authority for this premise. While appellant complains he has suffered egregious harm by the jury charge, he fails to provide any case authority in support of his contention that the particular instruction was error.
Having already determined the substantial similarity between the Texas and Louisiana offenses, we conclude the trial court did not err by taking judicial notice of the substantial similarity between the Louisiana and Texas statutes.
Appellant's fourth issue complains the jury should not have been instructed on the alternate theory as stated in the indictment because it failed to state an offense. The charge's "alternate theory" in pertinent part follows:
OR
if you unanimously find from the evidence beyond a reasonable doubt that on or about June 4, 2008, in Dallas County, Texas the defendant Derwin Trishon Brown, did unlawfully then and there, being a person who is required to report a change of address with the local law enforcement authority in the municipality or county in which the defendant's new residence is located, namely: the Dallas Police Department, by reporting in person to said authority and providing the said authority with proof of identity and proof of residence, intentionally, knowingly, or recklessly fail to report a change of address to said authority not later than the seventh day after the defendant changed address, as required by law,
. . . .
Again, appellant has failed to cite any legal authority to support his claim of error in the jury charge and appellant failed to object to any part of the jury charge during the trial. Appellant contends the second paragraph failed to state an offense, and is not merely a secondary method of arguing manner and means of appellant's alleged violation, so it must sufficiently charge an offense. We disagree, the second paragraph alleged a second means by which appellant failed to comply with the statutory reporting requirements. See Robertson v. State, No. 11-07-00098-CR, 2008 WL 4684680, at *5 (Tex. App.-Eastland Oct. 23, 2008, pet. ref'd) (not designated for publication) ("Again, if a person who is required to register fails to comply with any one of the registration requirements of Chapter 62, the person commits an offense."). The second paragraph is an alternative manner and means to complying with the sex offender registration requirement. The record shows appellant moved to Dallas and had multiple addresses in Dallas between the time of his arrival from Louisiana and the time of his arrest. It would have been possible for the jury to find appellant failed to comply with the sex offender registration requirements by failing to report a change of address within Dallas, Texas. In light of the entire jury charge, we conclude there was no error in the jury charge. Appellant's third and fourth issues are overruled.
Ju dicial Notice
In appellant's fifth issue, he complains the trial court erred by taking judicial notice that the offense of sexual battery in Louisiana is substantially similar to the offense of sexual assault in Texas. To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling. Tex. R. App. P. 33.1(a)(1); Saldano v. State, 70 S.W.3d 873, 886-87 (Tex. Crim. App. 2002). Failure to do so results in waiver of the complaint. Because the record reflects appellant failed to object to the trial court's taking judicial notice of the similarity of the Louisiana sexual battery statute and the Texas sexual assault statute when they were offered into evidence, appellant has presented nothing for our review. See Nguyen v. State, 982 S.W.2d 945, 948 (Tex. App.-Houston [14th Dist.] 1998, pet, ref'd).Appellant's fifth issue is overruled. CONCLUSION
Having overruled each of appellant's five issues, we affirm the trial court's judgment.
MARTIN RICHTER
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100162F.U05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DERWIN TRISHON BROWN, Appellant
V.
THE STATE OF TEXAS, Appellee
No. 05-10-00162-CR
Appeal from the Criminal District Court No. 2 of Dallas County, Texas. (Tr.Ct.No. F08- 56341-HI).
Opinion delivered by Justice Richter, Justices Moseley and FitzGerald participating.
Based on the Court's opinion of this date, the judgment of the trial court is AFFIRMED.
Judgment entered March 28, 2012.
MARTIN RICHTER
JUSTICE