Opinion
NO. 14-16-00103-CR
05-09-2017
BRIAN DAVID LEE, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 12th District Court Grimes County, Texas
Trial Court Cause No. 17634
MEMORANDUM OPINION
A jury convicted appellant Brian David Lee of failure to comply with registration requirements imposed on sex offenders. See Tex. Code Crim. Proc. arts. 62.055(a), 62.102(a), (b)(2). Appellant entered a plea of true to two enhancement paragraphs, the paragraphs were found true, and the trial court sentenced appellant to prison for forty years. In two issues, appellant challenges the sufficiency of the evidence to support his conviction. We affirm.
THE STATE'S ALLEGATIONS
The State alleged appellant was convicted of sexual assault of a child on June 27, 1990, and sentenced to prison for ten years. Upon his release, appellant was required to register his residence with local law enforcement. Appellant registered as a sex offender in Grimes County, Texas, on August 20, 2002. Appellant registered a change of address on May 26, 2009, to County Road 228 in Bedias, Texas (the "Bedias address"). On or about November 1, 2013, appellant ceased living at the Bedias address but failed to inform local law enforcement.
APPLICABLE LAW
An individual commits the offense of failure to comply with sex offender registration requirements if he "is required to register and fails to comply with any requirement of" chapter 62 of the Code of Criminal Procedure. Tex. Code Crim. Proc. art. 62.102(a); see Young v. State, 341 S.W.3d 417, 425 (Tex. Crim. App. 2011) ("Article 62.102 is a generalized 'umbrella' statute that criminalizes the failure to comply with any of the registration requirements set out in Chapter 62."); see also Varnes v. State, 63 S.W.3d 824, 829 (Tex. App.—Houston [14th Dist.] 2001, no pet.) ("If a convicted sex offender fails to meet any of his or her requirements under the statute, the statute imposes criminal liability on him or her for that failure.").
The conviction in this case was based upon an alleged failure to satisfy the requirements imposed under article 62.055(a). A sex offender who changes their address commits the offense of failing to register in violation of article 62.02 if he or she does not provide registration authorities with the anticipated move date and new address no later than seven days prior to moving. Tex. Code Crim. Proc. art. 62.055(a). Further, the sex offender is required to provide proof of identity and proof of residence to the new enforcement agency no later than seven days after moving, or the first day the agency allows them to report if later. Id.
THE EVIDENCE
Jake Cawthon, a game warden, was dealing with a landlord dispute between appellant and Terry Hail when he apparently learned of appellant's status as a registered sex offender. Appellant was living on property owned by Hail on FM 2019 in Anderson, Texas (the "Hail address"). Hail is the owner/operator of a trucking company and appellant had done work for him. According to Hail, around October 2013 he offered appellant a place to live on his property in an RV, which was connected to electricity and water.
Tamera Luther, appellant's girlfriend, agreed to pay the first month's rent. In order for Luther to receive money from the Choctaw Nation, Hail signed a Landlord/Renter Information Form providing Luther was a renter at Hail's address for $400 per month. The form is dated September 10, 2013. Hail testified Luther and appellant lived in the RV while waiting for the check and they paid the rent, but only once. Luther briefly received mail at Hail's house but he began returning it "to sender," even though she was still living there, because Luther was not authorized to be there after the first few weeks. In November, Hail asked Luther to leave and she did. Appellant then lived there alone for another month, until December 15, 2013.
Appellant did not receive mail at Hail's address and never paid rent. He did have some visitors. Because appellant did not have transportation, Hail took him to work. Appellant rarely left the residence. Hail testified that it was not his understanding that appellant was living anywhere other than the RV. Hail was unaware appellant was required to register as a sex offender and asked him to leave after he learned of it. Appellant left photographs at Hail's property when he stopped living in the RV.
Hail was cross-examined about his inconsistent statements as to when appellant began living in the RV. In a written statement given to Cawthon, Hail stated that date was October 2, 2013, but the Landlord/Renter Information Form was dated September 10, 2013. Hail explained the dates were not important to him and that he was just trying to help out appellant.
Based upon Cawthon's information, Investigator Michael Fiaschetti and Officer J.J. Jones went to the Bedias address in February 2013. Appellant registered the Bedias address on his most recent Texas Department of Public Safety Sex Offender Update Form ("CR-39 form"), dated August 14, 2013. At the Bedias address, they encountered appellant's parents, James and Rebecca Lee. Fiaschetti testified that he interviewed James, who told him that appellant had not been living there since October 2013. The property at the Bedias address contained multiple buildings. According to James, his daughter, Deana Deason, lived in the front mobile home. Appellant had been staying in a red building characterized as a barn or cabin. Fiaschetti did not search the property. Based on what James and Rebecca said, Fiaschetti knew appellant was not living there. Jones testified that he heard appellant's parents say appellant was not living there and had not lived there for some time. Fiaschetti subsequently issued a warrant for appellant's arrest. Following a traffic stop in Montgomery County, Texas, where he fled on foot, appellant was eventually arrested.
Rebecca Lee testified that appellant had not ceased to live at the Bedias address. She stated, "he always lived on it. . . . He gets his mail there, he's got clothes there, he comes and goes." Further, Rebecca said, "He may not be there every — all day long, 24 hours a day, but he comes and goes." Rebecca did not recall having said otherwise. Rebecca testified appellant lived in the red cabin on her property and testified that she answered "yes" when Fiaschetti asked if appellant lived there. From approximately September 2013 to February 2014, the red cabinn had a bed, a toilet but no shower, a refrigerator and a stove. During that time, Rebecca drove appellant places "[m]aybe once or twice a week, sometimes." Rebecca saw appellant about five or six times a week with his sister. Rebecca testified that he might have stayed with his girlfriend, Luther, who "was buying some sort of trailer . . . from the guy that he was working with." Luther lived at the cabin with appellant "for quite awhile" and Rebecca could not recall when she moved out. Rebecca testified that on the day the investigators came out, she told them appellant was living there, but she did not know where he was. Rebecca explained that he was not "living" but "just staying," "here and there and everywhere." Rebecca testified that she told the investigators that she had last seen appellant a few days ago. When questioned about the fact that a recording of the interview reflected she said "October," Rebecca said she did not know, "maybe I said 'October.'" She also said appellant "was out there after that." Rebecca did not recall whether she told him that he needed to contact the police.
Appellant's sister, Deana Deason, lived next door to her parents on County Road 228. Deason testified appellant was living on the property with her parents in November 2013. When asked what property appellant owned that was there, she said clothes and personal belongings. At least once a week, according to Deason, they had a family dinner, usually at her house. Deason testified that she had seen appellant at the property after October 2013. It was her testimony that although appellant might have been there infrequently, he lived there.
The State introduced into evidence a "pen packet" containing a judgment of conviction for Brian David Lee for the offense of sexual assault of a child in trial court cause number 20585 in Brazoria County, Texas, on June 27, 1990. Lee was sentenced to prison for ten years. The pen packet contained two photographs of Lee, gave his date of birth as July 16, 1969, and described him as a white male, 5 feet 10 inches, 181 pounds, with brown eyes and hair. A "ten print" fingerprint card is contained in the pen packet.
Jones testified he personally recorded appellant's fingerprints and compared it against the fingerprints in the pen packet. Jones determined the fingerprints were from the same person. However, Jones conceded that it appeared the fingerprints in the pen packet were not taken contemporaneously with the judgment of conviction for sexual assault, but were from a subsequent arrest.
Lieutenant John Wren was in charge of the Sex Offender Registration Program during most of the time appellant was required to register. Wren registered appellant off and on since 2002 and had met with him a number of times. Wren testified that appellant has an annual duty to register because he has been convicted of a sexual offense that requires registration. Wren identified appellant at trial. Wren's signature was on appellant's latest CR-39 form, dated August 14, 2013. A number of CR-39 forms were admitted into evidence. They reflect the same date of birth as the pen packet. An "offender" identification card was also admitted into evidence. It has a picture of Brian David Lee and well as the same birthdate as the pen packet. Moreover, Deason testified that she knew her brother had a conviction in Brazoria County for sexual assault of a child and was required to register as a sex offender.
A PRIOR REPORTABLE CONVICTION
In his first issue, appellant claims the State failed to prove that he had previously been convicted of a reportable offense. To support his claim, appellant points to the evidence that the fingerprints in the pen packet for the sexual assault were not taken contemporaneously, thus Jones could not link appellant to the pen packet. Appellant's argument is that the State failed to establish he was the same Brian David Lee convicted of sexual assault of a child in Brazoria County, Texas, in trial court cause number 20585.
"Proof of a prior conviction for a reportable offense is an essential element of failing to register in violation of article 62.02." Banks v. State, 158 S.W.3d 649, 653 (Tex. App.—Houston [14th Dist.] 2005, pet. ref'd) (citing Tex. Code Crim. Proc. art. 62.02). In order to establish a defendant has been convicted previously, the State must prove the fact of the conviction and then link the defendant to that conviction. Id. at 651-52. "It is incumbent on the State to go forward and show by independent evidence that the defendant is the person so previously convicted." Beck v. State, 719 S.W.2d 205, 210 (Tex. Crim. App. 1986) (en banc); see also Fontenot v. State, 704 S.W.2d 126, 127 (Tex. App.—Houston [1st Dist.] 1986) (listing four methods of proving "a defendant is the same person previously convicted").
No specific document or mode of proof is required to prove a prior conviction. Flowers v. State, 220 S.W.3d 919, 921-22 (Tex. Crim. App. 2007). The State may prove a prior conviction by various types of evidence, documentary or testimonial. If the evidence, taken as a whole, establishes the defendant on trial is one and the same person that is named in an alleged prior criminal conviction, then it is legally sufficient to prove a prior conviction. Id. at 923 (discussing Human v. State, 749 S.W.2d 832 (Tex. Crim. App. 1988)).
From the pen packet, the jury had a photograph of the Brian David Lee who was convicted of sexual assault of a child in Brazoria County, Texas, in trial court cause number 20585. That Brian David Lee was born on July 16, 1969. The "offender" identification card admitted into evidence had a photograph of Brian David Lee with a birthdate of July 16, 1969. Wren identified appellant at trial as the Brian David Lee that he had registered as a sex offender for sexual assault of a child in Brazaoria County, Texas, in trial court cause number 20585 since 2002.
The pen packet is evidence of the fact of the conviction. Linking appellant to that conviction was the photograph in the pen packet, the photograph on the "offender" identification card, and the testimony of Wren and Deason. Accordingly, we conclude a rational trier of fact could have found appellant was the same Brian David Lee convicted of sexual assault of a child in Brazoria County, Texas, in trial court cause number 20585 and that he had previously been convicted of a reportable offense. Appellant's first issue is overruled.
CHANGE OF ADDRESS
Appellant's second issue claims the evidence was legally insufficient for a rational jury to find that he lived anywhere other than at the Bedias address. A legal sufficiency review requires us to view the relevant 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. Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011); see Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). We do not sit as a thirteenth juror and may not substitute our judgment for that of the fact-finder by re-evaluating weight and credibility of the evidence. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Rather, we defer to the responsibility of the fact-finder to fairly resolve conflicts in testimony, weigh the evidence, and draw reasonable inferences from basic facts to ultimate facts. Id. Our duty as the reviewing court is to ensure the evidence presented actually supports a conclusion that the defendant committed the crime. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).
The jury heard testimony that appellant was living at Hail's address for at least three months. The jury also heard testimony that appellant had not lived at the Bedias address for approximately five months. While there was evidence to the contrary, the jury was free to reject it. See, e.g., Wyatt v. State, 23 S.W.3d 18, 30 (Tex. Crim. App. 2000) (jury may believe some testimony and disbelieve other testimony); Adams v. State, 502 S.W.3d 238, 242 (Tex. App.-Houston [14th Dist.] 2016, pet. ref'd) ("The jury may choose to believe or disbelieve any portion of the witnesses' testimony."). Consequently, we determine a rational trier of fact could have found appellant changed his address. Appellant's second issue is overruled.
CONCLUSION
Considering all of the evidence in the light most favorable to the verdict, we conclude a rational trier of fact cold have found appellant was required to register as a sex offender by reason of a prior reportable conviction and that appellant failed to notify local law enforcement of his change of address. See Gear, 340 S.W.3d at 746. We affirm the trial court's judgment.
/s/ John Donovan
Justice Panel consists of Justices Christopher, Jamison, and Donovan.
Do Not Publish — Tex. R. App. P. 47.2(b).