Opinion
NO. 01-16-000574-CR
06-29-2017
JAWAID A. PARKER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 182nd District Court Harris County, Texas
Trial Court Case No. 1435056
MEMORANDUM OPINION
A jury found appellant, Jawaid A. Parker, guilty of failing to comply with sex offender registration, and the trial court assessed punishment at 2.5 years' confinement. In two issues on appeal, appellant argues that (1) shackling him during his pro se voir dire was a violation of his constitutional right to self-representation; and (2) the evidence was insufficient to prove a crucial element of the offense, i.e., his intent to change his residential address.
TEX. CODE CRIM. PROC. ANN. art. 62.102 (West 2006).
We affirm.
BACKGROUND
Appellant was required to register as a sex offender because of his prior conviction for sexual assault of a child. Officer Knockaert of the Houston Police Department explained to appellant that he was required to comply with the rules of the sexual offender registration, one of which was to notify the authorities of changes in his residential address.
Appellant was registered to reside at 2021 Eastex Freeway, a facility owned by Douglas Yost. Yost testified that on June 13, appellant paid the next two-weeks' rent, but failed to pay the rent for the week of June 28, or any time thereafter. Yost explained that if someone fails to pay rent, they are no longer considered a resident of the facility.
Appellant requested the Parole Division for permission to go visit his sister in Illinois from June 23 to July 5, but he was notified on June 19 that his request had been denied. Appellant was also required to report to Officer Knockaert before leaving his registered address for more than seven days, which appellant did not do.
On June 30, appellant called his parole supervisor, Wadella Murphy, expressing his concerns for not having been at Yost's facility for the past six days. Appellant told Murphy that he went to San Antonio to get his Pakistani citizenship papers, because he wished to move to Pakistan. Murphy then told the appellant to report to her office on July 2, which he failed to do.
On July 7, Yost reported to Nathan Garcia, appellant's parole officer, that appellant had been gone from the residence for more than seven days. He also said that appellant had placed all of his belongings in his car, which was eventually moved off the property.
Garcia visited appellant's registered address on July 7 and left instructions for appellant to report to his office on July 8; appellant never showed up.
After being informed that appellant was no longer at Yost's facility, Officer Black of the Houston Police Department Sex Offender Compliance Unit began to check several databases to see if appellant had registered somewhere else, or was dead, or in jail. When his searches failed to locate appellant, Black filed charges based on appellant's failure to register a change of address. The arrest warrant issued on July 16, and appellant was arrested at his sister's house in Illinois on July 24.
Appellant's sister and brother-in-law testified that appellant arrived in Chicago on June 23, stayed with them for a while, returned to Houston by bus, then came back to Illinois and stayed with them until he was arrested at their residence on July 24. Appellant's brother-in-law testified that when appellant returned to Houston, he did not stay at Yost's facility, but stayed with a friend, before returning to Illinois. Both appellant's sister and brother-in-law testified that appellant did not intend to move in with them.
Both appellant's sister and brother-in-law agree that appellant did not use his July 7 return plane ticket to Houston, but rode the bus, returning to Illinois sometime thereafter.
SUFFICIENCY OF THE EVIDENCE
In his second issue on appeal, appellant contends the evidence is insufficient to support his conviction. Specifically, appellant argues that "the State did not prove that appellant intended to change his address[.]" We address this issue first because it seeks rendition of a judgment of acquittal. See Price v. State, 502 S.W.3d 278, 281 (Tex. App.—Houston [14th Dist.] 2016, no pet.).
Standard of Review and Applicable Law
When reviewing the sufficiency of the evidence, we view all of the evidence in the light most favorable to the verdict to determine whether any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Adames v. State, 353 S.W.3d 854, 859 (Tex. Crim. App. 2011) (holding that Jackson standard is only standard to use when determining sufficiency of evidence). The jurors are the exclusive judges of the facts, the credibility of the witnesses, and the weight to be given to the testimony. See Bartlett v. State, 270 S.W.3d 147, 150 (Tex. Crim. App. 2008). A jury may accept one version of the facts and reject another, and it may reject any part of a witness's testimony. See Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986); see also Henderson v. State, 29 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2000, pet. ref'd) (stating jury can choose to disbelieve witness even when witness's testimony is uncontradicted). We may not re-evaluate the weight and credibility of the evidence or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). We afford almost complete deference to the jury's credibility determinations. See Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008). We resolve any inconsistencies in the evidence in favor of the verdict. See Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); see also Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) ("When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and therefore defer to that determination.").
All registered sex offenders are required to give notice in person to local law enforcement when they intend to change their address and again after they have done so. Young v. State, 341 S.W.3d 417, 420 (Tex. Crim. App. 2011) (citing TEX. CODE CRIM. PROC. ANN. art 62.055(a)). Texas Code of Criminal Procedure article 62.055(a) requires, in part, that if any person who is required to register as a sex offender "intends to change address, . . . [he] shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority designated as the person's primary registration authority . . . and provide the authority . . . with the person's anticipated move date and new address." TEX. CODE CRIM. PROC. ANN. art. 62.055(a) (West Supp. 2015). A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2015); see Harris v. State, 364 S.W.3d 328, 335-36 (Tex. App.—Houston [1st Dist.] 2012, no pet.).
Appellant contends that the State failed to prove that he intended to change his address.
Analysis
The Court of Criminal Appeals has held that evidence a defendant was living at a new address as of a particular day was sufficient for a jury to have reasonably concluded that he intended to change addresses on that date. Thomas v. State, 444 S.W.3d 4, 10-11 (Tex. Crim. App. 2014). In Gilder v. State, the Fourteenth Court of Appeals, applying Thomas, concluded that evidence that the apartment listed as the defendant's registered address had been vacated as of January 3, 2013, constituted evidence that he had intended to move on that date. 469 S.W.3d 636, 640-41 (Tex. App.—Houston [14th Dist.] 2015, pet. ref'd).
Looking at the actions of appellant as a whole, the jury in this case found circumstantial evidence sufficient to show appellant's intent to change his address. He not only failed to pay rent for the registered address after June 28; he also stopped residing at the address, packed his belongings in his car, and never returned to his registered address.
Although he was asked multiple times to come by and talk to officers and his parole supervisor about the change in residence, he failed to report every single time. Perhaps the strongest evidence of appellant's intent to move his residence is the fact that he told his parole supervisor that he wished to move to Pakistan. Although this statement does not prove that appellant intended to change his residential address to his sister's in Illinois, and ultimately Pakistan, it does show that he intended to change his residential address to a place that is different from that approved. The State was not required to prove where appellant was actually residing; it was sufficient for the State to establish that appellant had moved from his registered address without informing the proper authorities in a timely manner. See Thomas, 444 S.W.3d at 10-11.
Although appellant's family testified that he did not "move in" with them, the jury could have disbelieved their testimony, especially in light of the fact that that there was no definite end date to his "visit," and he had already overstayed the return date on his return airline ticket to Houston. The jury, as a trier of fact, has the authority to decide whether certain evidence has more or less weight in reaching a verdict, and the role of this Court is not to analyze whether that decision was right or wrong, but merely to assess whether the decision was made rationally. Here, the jury could have rationally concluded that, after June 28 when appellant stopped paying rent, subsequently removed his belongings, and never returned to Yost's facility, appellant intended to change his residence.
Accordingly, we overrule appellant's second issue on appeal.
SHACKLING
In his first point issue on appeal, appellant argues that "[t]he trial court violated appellant's constitutional rights by forcing the pro se defendant to wear shackles while conducting his voir dire of the jury." More specifically, appellant contends the shackling violated his right of self-representation and deprived him of the presumption of innocence.
Generally, a defendant has a right to be tried without shackles because restraining a defendant in the courtroom implicates the fundamental legal principles of the presumption of innocence, the right to counsel and ability to communicate with counsel, and the dignity of the judicial process. Yglesias v. State, 252 S.W.3d 773, 776-77 (Tex. App.—Houston [14th Dist.] 2008, pet. ref'd); Davis v. State, 195 S.W.3d 311, 315 (Tex. App.—Houston [14th Dist.] 2006, no pet.); see Deck v. Missouri, 544 U.S. 622, 630 (2005). However, the trial court has discretion to order restraints if there is a showing of a manifest need or exceptional circumstances, such as when a defendant poses a threat to himself or others. Yglesias, 252 S.W.3d at 777; Davis, 195 S.W.3d at 315. The need for restraints must be assessed on a case-by-case basis. Yglesias, 252 S.W.3d at 777; Davis, 195 S.W.3d at 315. A trial court abuses its discretion when it requires a defendant to be shackled during trial without first finding a particular reason for shackling that is specific to the defendant. Yglesias, 252 S.W.3d at 777; Davis, 195 S.W.3d at 316.
If the trial court abuses its discretion, we then conduct a harm analysis. In the absence of harm, any error by the trial court is not reversible. See Yglesias, 252 S.W.3d at 778. Whether the error is of a constitutional dimension that it deprived appellant of his presumption of innocence requiring analysis under rule 44.2(a) or of a nonconstitutional nature requiring analysis under rule 44.2(b) depends on "whether the record shows a reasonable probability that the jury was aware of the defendant's shackles." Bell v. State, 415 S.W.3d 278, 283 (Tex. Crim. App. 2013); see TEX. R. APP. P. 44.2(a) (providing constitutional errors subject to harmless-error review), 44.2(b) (providing other errors not affecting substantial rights must be disregarded). Whether a shackling error rises to the level of a constitutional violation also depends on whether there is a reasonable probability that the restraints interfered with appellant's ability to communicate with counsel or undermined the dignity of the judicial process. See Bell, 415 S.W.3d at 283.
Here, the alleged shackling error did not rise to the level of a constitutional violation. There was affirmative evidence that the jury could not see the defendant's shackles. The trial court record establishes that the positioning of shackles— covered up by long pants worn by the defendant, who was standing behind an enclosed podium facing the jury—made it impossible for the jury to see the shackles. Furthermore, the record shows that the court specifically ordered the defendant to stay behind the podium and not move back and forth so that the shackles would not be visible to the jury. When the trial judge took specific measures to prevent the jury from viewing the defendant in shackles, and there exist no record that the shackles were visible to the jury, shackling has been held to be harmless error. Grant v. State, 255 S.W.3d 642, 650 (Tex. App.—Beaumont, 2007, no pet.). Because the record shows no reasonable possibility that the jury was aware of appellant's shackles, error, if any, was not of a constitutional dimension. See Bell, 415 S.W.3d at 283. Thus, we apply the non-constitutional standard for harmless error, see id., and conclude that, because the jury was unaware of appellant's shackles, appellant cannot show that the shackling affected his substantial rights. TEX. R. APP. P. 44.2(b).
The trial court stated on the record:
And for the record, I want to make it clear that what I'm saying is that before the jury is brought back into the courtroom, you will be behind that podium with—which is fully enclosed, and they cannot see your legs. The only thing I would instruct you to do is not move back and forth to where they can see that you have the shackles on. Because I do not want to jury seeing you with shackles on.
The prosecutor stated on the record:
So that the—any reviewing courts are award of the layout of the courtroom right now, while the defendant conducted his voir dire, he was standing behind a podium that was sandwiched between three tables that made a U-shape. The front of the U is where—facing out towards where the jurors are. I have walked the length of the courtroom from the corners in the back all the way to the front as the defendant was standing behind the podium. At no time was I able to see his feet, much less them being shackled.
I would also like to state for the record that as he conducted his voir dire, he was able to shift backwards and at times very slightly from side to side so that it did not appear as though he was having to remain in one single place. A lack of movement that would suggest being shackled was not present.
Additionally, when Your Honor brought in members of the venire for this individual questioning, the State, Ms. Wallace, and myself stood up by our tables so that it did not draw attention to the fact that the defendant was also standing up while questioning.
The trial court overruled appellant's objection to the shackling, stating:
Overruled. And I would also note for the record that I'm at the bench and [appellant] had his back to me, and I will say that I had a hard time seeing the shackles without actually looking for them because his pants are long and covered the shackles. So they were hard to see, even for me, and I was looking for them. And he had his back to me and, of course, I'm in front of the courtroom at the bench. The jury, I don't feel, had an opportunity to—or did see his shackles in any way.
We overrule appellant's first point of error.
CONCLUSION
We affirm the trial court's judgment.
Sherry Radack
Justice Panel consists of Chief Justice Radack and Justices Keyes and Massengale. Do not publish. TEX. R. APP. P. 47.2(b).