Opinion
No. 11-07-00150-CR
Opinion filed September 11, 2008. DO NOT PUBLISH. See TEX. R. APP. P. 47.2(b).
On Appeal from the 35th District Court Brown County, Texas, Trial Court Cause No. CR17934.
Panel consists of: WRIGHT, C.J., McCALL, J., and STRANGE, J.
MEMORANDUM OPINION
The trial court convicted Tobin Barri Campbell of the state jail felony offense of failing to comply with sex offender registration requirements and assessed punishment at confinement for one year. We modify and affirm. Chapter 62 of the Texas Code of Criminal Procedure sets forth the reporting requirements for persons convicted of a sexual offense. TEX. CODE CRIM. PROC. ANN. ch. 62 (Vernon 2006 Supp. 2007). If a person who is required to register intends to change his or her address, "the person 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." Article 62.055(a). The indictment alleged that appellant was required to register with the local law enforcement authority in the City of Brownwood "because of a reportable conviction for indecency with a child" and that, on or about May 16, 2005, appellant "intentionally, knowingly, or recklessly fail[ed] to notify the said municipality of a change of address." In his sole issue on appeal, appellant contends that the evidence was legally and factually insufficient to support his conviction because the State failed to exclude every other reasonable hypothesis. The Court of Criminal Appeals has rejected the use of the reasonable-hypothesis construct in the evaluation of the legal sufficiency of the evidence. Wilson v. State, 7 S.W.3d 136, 141 (Tex.Crim.App. 1999); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled in part on other grounds by Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). The existence of alternative reasonable hypotheses may be relevant to, but is not determinative in, a factual sufficiency review. Wilson, 7 S.W.3d at 141. Therefore, we will apply the well-recognized standards of review for legal and factual sufficiency challenges. To determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex.Crim.App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex.Crim.App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex.Crim.App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. In a bench trial, the trial court, as the finder of fact, is the sole judge of the credibility of the witnesses and the weight to be given their testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); DeBolt v. State, 604 S.W.2d 164, 167 (Tex.Crim.App. 1980); Austin v. State, 794 S.W.2d 408, 412 (Tex.App.-Austin 1990, pet. ref'd). The evidence showed that, on March 4, 1996, appellant was convicted of the offense of indecency with a child. Based on this conviction, appellant was required to register as a sex offender. Appellant registered as a sex offender with the Brownwood Police Department. On March 19, 2004, appellant notified personnel at the Brownwood Police Department that he was moving to Fredericksburg, Texas. On October 12, 2004, appellant notified the Brownwood Police Department that he had moved back to Brownwood and that his new address was "1302-8 Brooks," Brownwood, Texas. On April 18, 2005, appellant signed a sex offender update form as part of an annual update. Appellant did not report a change of address on the update form. On May 14 or 15, 2005, Officer Zane Taylor of the Brownwood Police Department visited appellant's registered address on Brooks Street for the purpose of verifying that appellant lived at that address. Officer Taylor spoke with Elmer Bryan McFarland, a resident of that address. Officer Taylor asked to speak with appellant. McFarland told him that "[appellant] was not there, that he wasn't living there." On May 16, 2005, Officer Taylor went back to the residence. McFarland told him that he had spoken with appellant and had advised him that the police were looking for him and that appellant had responded that "he didn't care, that [the police] knew where to find him." The evidence showed that appellant's wife, Sharon Campbell, resided at 1206 Durham Street in Brownwood. Officer Taylor testified that he went to that address but did not make contact with anyone at the house. He said that he was unable to locate appellant. McFarland testified that he and appellant had both lived with David Dodd at the Brooks Street address. He said that appellant moved into the house during the fall of 2004 and, at that time, brought clothing and personal effects with him. McFarland testified that Dodd stayed in the bedroom of the house and that he and appellant shared the living room. He said that appellant frequently stayed overnight at the house but that, at times, appellant stayed overnight at Campbell's house. McFarland testified that Officer Taylor visited the house in May 2005. He said that Officer Taylor was looking for appellant. He told Officer Taylor that appellant was not at the house. Appellant had taken his clothing and had moved out of the house about a week before Officer Taylor's visit, but he had left some items at the house when he moved out. At that time, McFarland believed that appellant was going to Fredericksburg because appellant's father had died, that appellant would stay in Fredericksburg for a while, and that appellant would then go to Campbell's house. During questioning by the prosecutor, McFarland said that appellant did not return to the house after he moved out. However, during questioning from appellant's counsel, McFarland said that he believed that, sometime in June 2005, appellant picked up the items that he had left at the house. However, McFarland was not at the house when the items were taken. McFarland did not know where appellant lived after he left the Brooks Street house. Campbell testified that she lived at 1206 Durham. Her daughter, Christina Sonstegard, and Sonstegard's two children lived with her; Campbell was married to appellant. At times, appellant stayed at her house overnight, but he had not lived at her house. She had not lived with appellant since 1997. Campbell did not want to live with appellant because he was an alcoholic and needed help. Appellant lived at 1302 Brooks and, at some point, moved to Fredericksburg. Campbell did not know when he moved to Fredericksburg. Sonstegard testified that appellant did not work during May 2005 and that, if appellant had been at the house on Brooks Street, she would have expected someone who lived there to see him. She also said that appellant's sister, Renee, came to Brownwood twice in May 2005 to see appellant. Renee arrived in Brownwood for the second visit between May 24 and May 26. When Renee arrived for both visits, appellant had to be picked up from Dodd's house (the Brooks Street house). Sonstegard further testified that appellant's father died on March 10, 2005. On May 19, 2005, appellant and Renee went to visit their brother, who was in prison in Tulia or Amarillo, to talk with him about their father's death. Sonstegard later changed her testimony and said that appellant and his sister left on the trip to see their brother between May 25 and May 27. Appellant and Renee picked up some of appellant's clothes from Dodd's house before they left on the trip; they returned to Brownwood on May 28, 2005. Sonstegard said that, on about May 30, 2005, appellant told personnel at the Brownwood Police Department he was moving to Fredericksburg and that he then left for Fredericksburg. The evidence showed that, on June 1, 2005, appellant notified personnel at the Brownwood Police Department that he was moving to 1747 North U.S. Highway 87 in Fredericksburg. Sonstegard testified that, during June, she and Campbell went to Dodd's house to pick up a number of items that belonged to appellant, including clothes, a blanket, and a shaving kit. As the sole judge of the credibility of the witnesses, the trial court was free to believe or disbelieve any part of the testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex.Crim.App. 1986). We have set out the standards of review. When we apply those standards, we conclude that the evidence was legally and factually sufficient to support appellant's conviction. We overrule appellant's issue. The trial court's judgment inadvertently reflects that appellant pleaded guilty to the offense and that the place of appellant's confinement would be the Institutional Division of the Texas Department of Criminal Justice. The record shows that appellant pleaded not guilty to the offense. We modify page one of the trial court's judgment to reflect the following:
PLEA TO OFFENSE: Not Guilty
PUNISHMENT AND PLACE OF CONFINEMENT: One (1) year in the State Jail Division-TDCJ
We modify page two of the trial court's judgment to reflect that appellant "entered a plea of not guilty to the offense."As modified, the judgment of the trial court is affirmed.
By Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005 Tex. Gen. Laws 3385, 3386, effective September 1, 2005, the legislature reenacted Chapter 62, renumbered the articles, and amended some provisions. A prior version of Chapter 62 applies in this case because the conduct at issue occurred before September 1, 2005. See Act of May 30, 2003, 78th Leg., R.S., ch. 347, 2003 Tex. Gen. Laws 1505. Because the amendment does not affect our analysis, we will refer to the current statute in the body of the opinion.
See former Article 62.04(a) at Act of May 30, 2003, 78th Leg., R.S., ch. 347, § 7, 2003 Tex. Gen. Laws 1505, 1509.