Summary
holding that the State was limited to the charge of failure to report a change in an online identifier because that was the charge alleged in the indictment
Summary of this case from Herron v. StateOpinion
No. 11-14-00060-CR
03-31-2016
JONATHON BLAKE MARTIN, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 91st District Court Eastland County, Texas
Trial Court Cause No. 23103
MEMORANDUM OPINION
The jury convicted Jonathon Blake Martin of failure to comply with sex offender registration requirements. See TEX. CODE CRIM. PROC. ANN. art. 62.102(a) (West Supp. 2015). Appellant pleaded true to two enhancement paragraphs, and after finding both of the enhancement paragraphs to be true, the trial court assessed Appellant's punishment at confinement for a term of thirteen years. We reverse and render a judgment of acquittal.
In its indictment, the grand jury alleged, as pertains to the issues in this appeal, that "on or about March 11, 2013, [Appellant] did then and there . . . intentionally, knowingly, or recklessly fail to report a change in on-line identifiers within seven (7) days." Chapter 62 of the Texas Code of Criminal Procedure contains provisions that relate to the "Sex Offender Registration Program." In accordance with Article 62.102(a), "[a] person commits an offense if the person is required to register and fails to comply with any requirement of this chapter." Id.
TEX. CODE CRIM. PROC. ANN. ch. 62 (West 2006 & Supp. 2015).
Article 62.051 denotes those persons who are required to register as a sex offender. Id. art. 62.051(a). The article also details what must be included in the sex offender registration form. Id. art. 62.051(c), (d). One of the requirements is that a registrant must disclose "the identification of any online identifier established or used by the person." Id. art. 62.051(c)(7). Other requirements contained in Article 62.051 include:
(f) Not later than the seventh day after the date on which the person is released, a person for whom registration is completed under this chapter shall report to the applicable local law enforcement authority to verify the information in the registration form received by the authority under this chapter. The authority shall require the person to produce proof of the person's identity and residence before the authority gives the registration form to the person for verification. If the information in the registration form is complete and accurate, the person shall verify registration by signing the form. If the information is not complete or not accurate, the person shall make any necessary additions or corrections before signing the form.
(g) A person who is required to register or verify registration under this chapter shall ensure that the person's registration form is complete and accurate with respect to each item of information required by the form in accordance with Subsection (c).
. . . .Id. art. 62.051(f), (g), (k).
(k) A person required to register under this chapter may not refuse or otherwise fail to provide any information required for the accurate completion of the registration form.
If a person who is required to register should change "any online identifier included on the person's registration form or establishes any new online identifier not already included on the person's registration form," then that person is required to report the change or establishment to the appropriate authority. Id. art. 62.0551(a).
An "online identifier" is defined in Chapter 62 as:
[E]lectronic mail address information or a name used by a person when sending or receiving an instant message, social networking communication, or similar Internet communication or when participating in an Internet chat. The term includes an assumed name, nickname, pseudonym, moniker, or user name established by a person for use in connection with an electronic mail address, chat or instant chat room platform, commercial social networking site, or online picture-sharing service.Id. art. 62.001(12).
It is undisputed that on August 28, 2006, Appellant pleaded guilty to the offenses of possession of child pornography and sexual performance of a child. The trial court deferred adjudication of Appellant's guilt for those offenses and placed Appellant on deferred adjudication community supervision for a period of five years. The trial court found that Appellant was required to register as a sex offender under Chapter 62 of the Texas Code of Criminal Procedure.
Subsequently, on July 9, 2009, the trial court revoked Appellant's community supervision and sentenced him to confinement for five years for each offense, to be served concurrently. The trial court again noted that the registration requirements of Chapter 62 applied to Appellant.
There is also no dispute that Appellant was required to register as a sex offender after his release from prison. On April 30, 2012, before Appellant was released from the penitentiary, Lieutenant Roger Luecke, a corrections officer with the Texas Department of Criminal Justice, began the registration process with Appellant. During that process, Lieutenant Luecke gathered basic information from Appellant and instructed him on the registration responsibilities that he would have after his release; that information was also included on a pre-release form that Appellant signed. Because Appellant indicated that he would live in Cisco after his release, Lieutenant Luecke told Appellant that he was to register with the Cisco Police Department within seven days. He also told Appellant that Appellant "needed to disclose to the Cisco Police Department any e-mail addresses or usernames that he had." The pre-release form also contained the following language: "Change in On-Line Identifiers: Not later than the 7th day, I shall report any changes to online identifiers or establishment of any new online identifier not already included on my registration form to my primary registration authority in the manner prescribed by the authority."
After Appellant was released from the penitentiary, he moved to Cisco. On May 7, 2012, Appellant reported to an investigator with the Cisco Police Department as required. The investigator also discussed the sex offender registration documents that Appellant was required to sign. As required, Appellant read and initialed the sex offender registration forms when he reported to the investigator.
Appellant again went to the Cisco Police Department on January 22, 2013, to verify and update his sex offender registration; he listed "NONE" in the "Internet Identifier" field and again initialed the paragraph that required him to report any changes to the identifiers. The investigator was the same investigator who had interviewed Appellant originally, and he asked Appellant whether he had any e-mail addresses or internet identifiers. Appellant responded that, because he was on parole, he was "not allowed to have those things."
The evidence shows, however, that Appellant had a Facebook account when he left the online identifier portions of his sex offender registration forms blank. On March 11, 2013, the investigator received information that Appellant did indeed have a Facebook account under the name of "Jeff Parker." The investigator testified that the Facebook account for "Jeff Parker" was verified as belonging to Appellant. Once the Facebook account was verified as Appellant's, officers searched Appellant's home and computer and located information relating to four separate e-mail accounts that belonged to Appellant. They also discovered a smartphone, a chat session that appeared on Appellant's computer, and numerous pornographic downloads.
The investigator testified that he did not know when any of the e-mail accounts were established and did not know whether Appellant had made any changes to any of them. He also did not know whether any of the accounts were established after January 22, 2013. Additionally, the investigator testified that he did not know the e-mail address associated with the "Jeff Parker" Facebook account and that he had no evidence that would show that the Facebook account was changed or established after January 22, 2013. In fact, the investigator determined that the Facebook account had been in existence since 2008. It was made clear to the trial court that "[t]he offense date in this case is March 11th, 2013 [the date of the search], and the offense arises from registration occurring after January 22nd, 2013 [the last report date]."
In Appellant's first issue, he argues that the evidence is insufficient to demonstrate that he failed to report either a change in any online identifier included on his sex offender registration form or the establishment of any new online identifier not already included on his registration form within seven days thereof. In Appellant's second issue, he argues that the trial court erred when it denied his motion for instructed verdict on the basis that there was insufficient evidence to support his conviction.
The standard of review applicable to an insufficiency claim and to a motion for a directed verdict is the same. Pollock v. State, 405 S.W.3d 396, 401 (Tex. App.—Fort Worth 2013, no pet.). We review the sufficiency of the evidence, whether denominated as a legal or as a factual sufficiency claim, under the standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288-89 (Tex. App.—Eastland 2010, pet. ref'd). Under the Jackson standard, we examine all of the evidence in the light most favorable to the verdict and determine whether, based on that evidence and any reasonable inferences from it, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Evidence is insufficient under this standard in four circumstances: (1) the record contains no evidence probative of an element of the offense; (2) the record contains a mere "modicum" of evidence probative of an element of the offense; (3) the evidence conclusively establishes a reasonable doubt; and (4) the acts alleged do not constitute the criminal offense charged. Brown v. State, 381 S.W.3d 565, 573 (Tex. App.—Eastland 2012, no pet.) (citing Jackson, 443 U.S. at 314, 318 n.11, 320).
The positions of the parties can be succinctly stated. Appellant maintains that there is no evidence to show that Appellant, at any relevant time, made any changes to his online identifiers. In its brief, the State takes the position that Appellant "made a 'change' because it [was] a change in his online status. Appellant was not using the online identifier [while in prison], but now he is using that identifier [when out of prison]." The State argued at trial that a change occurred because internet identifiers existed and should have been listed but were not.
But the changes that a registrant is required to report under Article 62.0551 are any "changes [in] any online identifier included on the person's registration form." CRIM. PROC. art. 62.0551(a) (emphasis added). No online identifiers were ever included by Appellant on any of his registration forms. As far as online identifiers that were not included on the registration form, Article 62.0551(a) speaks to that situation only when a person who is required to register establishes a new online identifier not already included on the registration form. In summary, a registrant is required to report (1) changes in online identifiers shown on the report and (2) the establishment of new online identifiers not shown on the report. The State did not charge Appellant with failing to report a change resulting from the establishment of a new online identifier not included on the registration form, only with the failure to report a change in an online identifier that was included on the registration form.
The date of the alleged offense in this case was March 11, 2013. As we have said, under the indictment here, the State was required to prove that "on or about March 11, 2013, [Appellant] did then and there . . . intentionally, knowingly, or recklessly fail to report a change in on-line identifiers within seven (7) days." The State's position is that Appellant failed to report, within seven days, a change in online identifiers that occurred between January 22, 2013, and March 11, 2013. Although law enforcement officers found four e-mail accounts, among other things, belonging to Appellant, there was no evidence as to when the e-mail accounts were created or if they had been changed in some other way on or about March 11, 2013. In fact, the investigator testified that he did not know when any of the accounts were established or whether there were any changes in the accounts during the relevant time period. Further, it is clear that the four e-mail accounts, as well as the Facebook account, were not included on the registration form as provided for in Article 62.0551(a).
The State argues that to read the statutes in this way leads to absurd results. The result, according to the State, is that, "[i]f appellant does not disclose already established on-line identifiers on the initial sex offender registration form, then that can never be corrected."
We believe this case to be an example of how the opposite is true. Article 62.051(c)(7) contains a requirement that the sexual offender registration form shall contain provisions by which a person is required to set out "the identification of any online identifier established or used by the person." CRIM. PROC. art. 62.051(c)(7). Article 62.051(k) provides that "[a] person required to register under this chapter may not refuse or otherwise fail to provide any information required for the accurate completion of the registration form." Id. art. 62.051(k). Article 62.102(a) provides: "A person commits an offense if the person is required to register and fails to comply with any requirement of this chapter." Id. art. 62.102(a). These provisions encompass a situation wherein a registrant either gives false or incomplete answers during the registration or verification process. That is quite a different offense than the one with which Appellant has been charged in this case, and it is one with which, at least to our knowledge, Appellant has not yet been charged. Stated another way, Appellant was charged with an offense under Article 62.0551, not an offense under Article 62.051.
We agree with Appellant's position that the evidence in this case is insufficient to prove the offense as charged under Article 62.0551: that "on or about March 11, 2013, [Appellant] did then and there . . . intentionally, knowingly, or recklessly fail to report a change in on-line identifiers within seven (7) days." While the State may have been able to prove that Appellant violated his sex offender registration duty to provide complete and accurate information, the charge against Appellant in the case before us is for a failure to update a change in provided information. First, there are no online identifiers listed on the sex offender registration form; therefore, there could be no change, as required by statute, in listed online identifiers. Second, there is no evidence that any online identifiers did in fact change during the applicable period. Further, the indictment and the instructions to the jury did not include a charge that Appellant established any new identifiers not included on the form; thus, the State was limited to a charge of failure to report a change in an included online identifier within seven days. When viewed in the light most favorable to the verdict, a rational trier of fact could not have found beyond a reasonable doubt that Appellant was guilty of the offense with which he was charged. Because we find that the evidence is insufficient to support the verdict, we sustain Appellant's first and second issues.
Because we have found that the evidence is insufficient, we must decide whether the conviction should be reformed to reflect a conviction for a lesser included offense. See Thornton v. State, 425 S.W.3d 289, 300 (Tex. Crim. App. 2014). A conviction should be reformed when (1) every element necessary to prove the lesser included offense was found when the appellant was convicted of the greater offense and (2) the evidence is sufficient to support a conviction for the lesser included offense. Id. If the evidence does not support reformation of the conviction, we must reverse the judgment of the trial court and render a judgment of acquittal. See Burks v. United States, 437 U.S. 1, 18 (1978); see also Tibbs v. Florida, 457 U.S. 31, 41 (1982). This is a case of first impression, but we fail to see how there could be a lesser included offense that would apply to the facts of this case. Therefore, this is not a case in which we must reform the conviction.
We reverse the judgment of the trial court and render a judgment of acquittal.
JIM R. WRIGHT
CHIEF JUSTICE March 31, 2016 Do not publish. See TEX. R. APP. P. 47.2(b). Panel consists of: Wright, C.J.,
Willson, J., and McCall. Bailey, J., not participating.
Terry McCall, Retired Justice, Court of Appeals, 11th District of Texas at Eastland, sitting by assignment. --------