Opinion
No. 05-06-00410-CR
Opinion Filed November 14, 2006. DO NOT PUBLISH. Tex.R.App.P. 47.
On Appeal from the 86th Judicial District Court, Kaufman County, Texas, Trial Court Cause No. 22967-86. Affirmed.
Before Justices BRIDGES, FITZGERALD, and LANG.
OPINION
Appellant brings this appeal from the trial court's judgment convicting him of failure to register as a sex offender and assessing his punishment at ten years of confinement. In two issues, appellant argues the trial court erred when it: (1) overruled his objections to the State's comments on his failure to testify, and (2) denied his motion for an instructed verdict on grounds that the State failed to prove venue was proper in Kaufman County, Texas. For the following reasons, we affirm the judgment of the trial court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 19, 2004, appellant pleaded guilty to sexual assault of a child and several sexually related charges. He was placed on community supervision and required to register as a sex offender pursuant to Chapter 62 of the Texas Code of Criminal Procedure. Shortly after his conviction, appellant met with his probation officer, Walter Wooten of the Kaufman County Police Department, and filled out a "Sex Offender Registration" form. On this form, appellant wrote he lived at 604 Phillips Street in Kaufman, Texas, an address he had also previously listed on his "Bond Intake" form. Wooten informed appellant he was required to complete registration within seven days of the date of his conviction, which was midnight February 26, 2004. At this meeting between appellant and Officer Wooten, Wooten made an appointment for appellant to meet with Lieutenant John Laney on February 23, 2004, in order to complete appellant's registration. Laney was in charge of the sex offender program in Kaufman County. Appellant returned to the Kaufman County Police Department for his appointment with Lieutenant Laney on February 23, 2004. He was informed that Laney was out of the office and unable to meet. Appellant was told he should return the following day, but he failed to do so. Then, appellant was arrested for failure to register as a sex offender. At trial, the evidence showed the Phillips Street address appellant provided on his "Bond Intake" and "Sex Offender Registration" forms was within 1,000 feet of a school, and as a sex offender he was prohibited from residing there. Appellant's father testified his son lived in Tarrant County with his grandparents, the Bermudas. However, the State introduced affidavits from the Tarrant County Sheriff's Office and Fort Worth Police Department showing the absence of any record regarding sex offender registration by the appellant. At the close of the State's case, appellant's counsel orally moved for an instructed verdict of not guilty arguing the evidence demonstrated appellant resided in Tarrant County, not Kaufman County. Appellant argued the State had not proven its case as to venue. The trial court denied appellant's motion for an instructed verdict. On February 28, 2006, a jury found appellant guilty of the offense of failure to register as a sex offender and assessed his punishment at ten years of confinement.II. JURY ARGUMENT
In his first issue, appellant argues the trial court erred when it overruled his objections to the State's comments on his failure to testify. According to appellant, the prosecutor made improper references to appellant's failure to testify during closing argument. The State responds the comments were not references to the appellant's failure to testify, but were used to demonstrate the father's testimony was not credible.A. Standard of Review and Applicable Law
Jury argument is proper in the following areas: (1) the summation of the evidence; (2) reasonable deductions from the evidence; (3) answers to opposing counsel's arguments; and (4) pleas for law enforcement. See, e.g., Shannon v. State, 942 S.W.2d 591, 597 (Tex.Crim.App. 1996) (en banc). To constitute reversible error, jury argument must be extreme or manifestly improper or inject new and harmful facts into evidence. Borjan v. State, 787 S.W.2d 53, 56-57 (Tex.Crim.App. 1990) (en banc). A comment on the failure of the accused to testify violates constitutional and statutory privileges against self-incrimination. See U.S. Const. amend. V; Tex. Const. art. I, § 10; Tex. Code Crim. Proc. art. 38.08 (Vernon 2006). To determine if an argument impermissibly referred to an accused's failure to testify, a reviewing court views the language from the jury's standpoint to determine if the comment was manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant's failure to testify. Bustamante v. State, 48 S.W.3d 761, 765 (Tex.Crim.App. 2001). A comment referencing the defendant's failure to testify must be clear. Id. An implied or indirect allusion is not considered a comment on the defendant's failure to testify. Id. In applying this standard, the context in which the comment was made must be analyzed to determine whether the language used was of such character. Id. The argument is improper if it directs the jury's attention to an absence of testimony only the defendant could supply. See Angel v. State, 627 S.W.2d 424, 426 (Tex.Crim.App. 1982). However, if the language used can be reasonably construed as referring to the appellant's failure to produce evidence other than his own testimony, it is not an improper remark. Nowlin v. State, 507 S.W.2d 534, 536 (Tex.Crim.App. 1974). The facts and circumstances of each case must be analyzed to determine whether the language directs the jury to the defendant's failure to testify. Dickinson v. State, 685 S.W.2d 320, 323 (Tex.Crim.App. 1984) (en banc).B. Application of the Law to the Facts
During trial, the State made the following closing argument, to which appellant objected:STATE: The defendant also argued that we didn't bring anybody in here to-neighbors to say, yeah, he lived at that house on Phillips Street. Well, we didn't have to. He admitted that he lived there. On two separate documents. One in July of 2003, he put it on there. One on February 14, 2004. There's your proof. He admitted he lived there. He gave that address as his residence. We don't need to go knock on neighbor's doors. This is evidence. What came from this witness stand and what was admitted as exhibits is the evidence. The only evidence you have heard to contest this is from his father. [Emphasis Added]
DEFENSE: Excuse me, Your Honor. Objection to counsel's comment on the defense failure to produce evidence and insinuating a duty to testify.
STATE: That was not my insinuation, Your Honor.
COURT: Overruled.
DEFENSE: Your Honor, I object to counsel's reference that the only evidence they heard from the defendant was thus-and-so. I object strongly. That is a comment on his failure to testify.
COURT: Overruled. Ladies and Gentlemen, you are instructed not to consider the defendant's failure to testify as a circumstance against him. Go ahead.
STATE: It was the father's testimony that he thought he knew that he was living in Fort Worth during this time. And he said he was living with the Bermudas. Where are the Bermudas?
DEFENSE: Objection, Your Honor. Defendant has no duty to call witnesses. To place a burden on the defendant to call witnesses is improper under the rules.
COURT: Overruled.
STATE: You know darn well if the Bermudas lived in Fort Worth where the defendant claims he lived, they would be in here testifying.
DEFENSE: Object again, Your Honor, to counsel's placing of a burden on the defendant to produce evidence. The instructions say just the opposite, Your Honor.
COURT: Overruled.
STATE: Can I get two minutes back from the objections?
COURT: Yes. Go ahead.
STATE: Thank you, Your Honor. They would darn well be here because if there's anything the defendant can do to clear his name, anything he would clear his name, he would do it. He has the right to subpoena power just like we do. [Emphasis Added]
DEFENSE: Your Honor, she said if defendant could do anything, he would do it. It imposes a burden and she's commenting on his failure to testify, Your Honor.
COURT: Objection overruled.Appellant argues the above italicized portions of the State's argument were impermissible comments on appellant's failure to testify. We disagree. Context is critical in determining whether the language used by the State constituted an impermissible comment on appellant's failure to testify. Bustamante, 48 S.W.3d at 765. If the language used can be reasonably construed as referring to the appellant's failure to produce evidence other than his own testimony, it is not an improper remark. Nowlin, 507 S.W.2d at 536. In this case, the context reveals the State's argument is about the father's testimony, that his son lived in Tarrant County with his grandparents the Bermudas. The State asserted the father's testimony was not credible without testimony from the Bermudas. Viewing the language from the jury's standpoint, in context, we cannot conclude that the State's comments were manifestly intended or were of such a character that the jury would necessarily and naturally take them as comments on the appellant's failure to testify. See Bustamente, 48 S.W.3d at 765. We conclude the trial court did not err in denying appellant's objections to the State's comments. Accordingly, appellant's first issue is decided against him.
III. MOTION FOR INSTRUCTED VERDICT
In his second issue, appellant argues the trial court erred in denying his motion for an instructed verdict because the State failed to prove venue was proper in Kaufman County, Texas. Specifically, he argues because he resided in Tarrant County, his obligation to register was with that county, and any prosecution for failing to register arose there, rather than in Kaufman County. Further, he argues he would have violated his probation if he lived at the Phillips Street address, because of its proximity to a school. The State responds the jurors were neither required to accept appellant's father's testimony, that appellant lived in Tarrant County, nor the condition of appellant's probation as a basis for concluding that appellant did not reside or intend to reside in Kaufman County.A. Standard of Review
A complaint about a trial court's failure to grant a motion for instructed verdict is treated as attack on the legal sufficiency of the evidence. See Williams v. State, 937 S.W.2d 479, 482 (Tex.Crim.App. 1996). The legal sufficiency of the evidence will be viewed in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Sanders v. State, 119 S.W.3d 818, 820 (Tex.Crim.App. 2003); Young v. State, 14 S.W.3d 748, 753 (Tex.Crim.App. 2000). A review of the evidence for legal sufficiency does not involve a reweighing of the evidence or a substitution of the fact finder's judgment. King v. State, 29 S.W.3d 556, 562 (Tex.Crim.App. 2000). The fact finder is the exclusive judge of witness credibility, the determiner of the weight accorded to witness testimony, and the reconciler of conflicts in the evidence. See Jones v. State, 944 S.W.2d 642, 647 (Tex.Crim.App. 1996). In addition, when reviewing the evidence for legal sufficiency, the evidence is not weighted as favorable and nonfavorable, nor is the appellant's version of the facts adopted. See Margraves v. State, 34 S.W.3d 912, 917 (Tex.Crim.App. 2000) (en banc). Further, all evidence, whether properly or improperly admitted, will be considered when reviewing the evidence for legal sufficiency. See Lockhart v. Nelson, 488 U.S. 33, 41-42 (1988); Johnson v. State, 967 S.W.2d 410, 412 (Tex.Crim.App. 1998).B. Applicable Law
A conviction for sexual assault of a child is defined as a" reportable conviction" under Chapter 62 of the Texas Code of Criminal Procedure. Tex. Code. Crim. Proc. art. 62.01(5) (Vernon 2004) (current version at Tex. Code. Crim. Proc. art. 62.001(5)). A person with a "reportable conviction," such as a convicted sex offender, must register in the municipality or county where they reside or intend to reside for more than seven days. Id. art. 62.02 (current version at Tex. Code. Crim. Proc. art. 62.051). An offense is committed by failure to comply with any provision of Chapter 62. Id. art. 62.10 (current version at Tex. Code. Crim. Proc. art. 62.102). Since no state of mind is specified for article 62 offenses, proof that the defendant acted intentionally, knowingly, or recklessly is sufficient. See Tex. Pen. Code §§ §§ 6.02(b) and (c), 6.03(a), (b), and (c).C. Application of the Law to the Facts
Appellant argues the State failed to prove venue was in Kaufman County, because appellant resided in Tarrant County. However, we construe appellant's argument to assert that the State did not prove at least one element of the offense of failure to register. We review appellant's argument under a legal sufficiency standard. In this case, appellant was convicted of sexual assault of a child, a "reportable conviction," requiring registration under Chapter 62 of the Texas Code of Criminal Procedure. Tex. Code. Crim. Proc. art. 62.01(5); art. 62.02(a). Appellant failed to register as a sex offender within the required time period and violated the statutory registration requirements. At trial, the applicable law in the jury charge read:"A person commits the offense of Failure to Register if he, being a person required to register, fails to comply with a requirement of the sex offender registration program under Chapter 62, of the Code of Criminal Procedure, namely, register with the local law enforcement authority in the municipality in any location in which he lives or intends to live for more than seven days upon being placed on community supervision probation."The record reflects appellant stated in writing on his "Sex Offender Registration" form, he resided at the Phillips Street address in Kaufman County. Appellant informed his probation officer, Wooten, he intended to reside there. Then, appellant failed to complete his registration in Kaufman County within seven days as required by Chapter 62 of the Texas Code of Criminal Procedure. Appellant's father testified that appellant lived in Tarrant County with his grandparents. However, the State introduced affidavits from the Tarrant County Sheriff's Office and Fort Worth Police Department showing the absence of any record regarding sex offender registration by the appellant. Applying the proper standard of review, we conclude there is legally sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that appellant committed the offense of failure to register in Kaufman County, Texas. The trial court did not err in denying appellant's motion for an instructed verdict. Accordingly, appellant's second issue is decided against him.