Christopher Harold Robinson v. State

IN THE TENTH COURT OF APPEALS No. 10-05-00360-CR Christopher Harold Robinson, Appellant v. The State of Texas, Appellee From the 18th District Court Johnson County, Texas Trial Court No. F37673 MEMORANDUM Opinion Appellant Christopher Harold Robinson was charged by indictment with failure to register as a sex offender. The indictment alleged that he was required to register because of a conviction for sexual assault of a child and that he failed to register with the Johnson County Sheriff’s Office. The jury returned a guilty verdict, and Robinson was sentenced to nine years in prison. He brings four issues on appeal. Sufficiency of the Evidence In his second issue, Robinson alleges that the evidence was insufficient to establish that he had a duty to register with the Johnson County Sheriff’s Department. Standard of Review When reviewing a challenge to the legal sufficiency of the evidence, we must determine whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979). We do not resolve any conflict of fact or assign credibility to the witnesses, as this was the function of the trier of fact. See Dewberry v. State, 4 S.W.3d 735, 740 (Tex. Crim. App. 1999); Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000); Matson, 819 S.W.2d at 843. The Court of Criminal Appeals articulated the standard of review for a factual sufficiency claim in Watson v. State, ___ S.W.3d. ___, ___ 2006 WL 2956272 (Tex. Crim. App. Oct. 18, 2006). We, as the reviewing court, ask whether a neutral review of all the evidence, though legally sufficient, demonstrates either that the proof of guilt is so weak or that conflicting evidence is so strong as to render the jury's verdict clearly wrong and manifestly unjust. Watson, ___ S.W.3d at ___, 2006 WL 2956272, at *8; Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). AThe court reviews the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compares it with the evidence that tends to disprove that fact.@ Johnson, 23 S.W.3d at 7 (quoting Jones v. State, 944 S.W.2d 642, 647 (Tex. Crim. App. 1996)). The appellate court Adoes not indulge in inferences or confine its view to evidence favoring one side of the case. Rather, it looks at all the evidence on both sides and then makes a predominantly intuitive judgment. . . .A Id. (quoting William Powers and Jack Ratliff, Another Look at ANo Evidence@ and AInsufficient Evidence,@ 69 Tex. L. Rev. 515, 519 (1991)). The nature of a factual sufficiency review authorizes an appellate court, although to a very limited degree, to act as the so-called “thirteenth juror” to review the fact finder=s weighing of the evidence and disagree with the fact finder=s determination. Watson, ___ S.W.3d at ___, 2006 WL 2956272, at *10 (citing Tibbs v. Florida, 457 U.S. 31, 42-3, 102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982), and Meraz v. State, 785 S.W.2d 146, 156 (Tex. Crim. App. 1990)). If an appellate court concludes that the evidence is factually insufficient, however, it must clearly state why it has reached that conclusion. Johnson, 23 S.W.3d at 7 (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). Legal Sufficiency Analysis Robinson was charged by indictment with failure to register as a sex offender. Tex. Code Crim. Proc. Ann. art. 62.102 (Vernon Supp. 2005). A person required to register as a sex offender must register with the local law enforcement authority in any municipality where the person resides or intends to reside for more than seven days. Id. art. 62.051 (Vernon Supp. 2005). If the person does not reside or intend to reside in a municipality, the person shall register in any county where the person resides or intends to reside for more than seven days. Id. At trial, Kimberly Wrenn, an investigator with the Johnson County Sheriff’s Office, testified that she received a phone call from Robinson on December 15, 2003. He told her that he had recently moved back to Johnson County from Arizona, had lived in Lillian, a rural area of Johnson County, for a couple of days, and needed to register. Wrenn advised Robinson that he was not in compliance with the registration requirements because he had failed to register in Arizona and that he needed to come to her office within ten days with an updated driver’s license. Wrenn did not have any further contact with Robinson until August 17, 2004. At that time, he was living in the city of Keene and would have been required to register with the Keene Police Department. June O’Neal and Vicki Moore are employed by the Johnson County Sheriff’s Office and assist Wrenn with sex offender registrations. Both testified that they never had any contact with Robinson. Dana Wilson of the Texas Department of Criminal Justice testified that she informed Robinson of the registration requirements and had him sign a Pre-Release Notification form indicating that he understood his obligation to register before he was released from prison. She testified that she instructed him to initially register in Jefferson County because he was released to a half-way house in Beaumont and then informed him that he would be required to register within seven days of leaving Beaumont. Emily Blackstock, Robinson’s fiancée, testified that he returned to Texas in December 2003 and they moved to Keene. However, she admitted that before they moved to Keene, Robinson stayed with his family in Lillian and he did not change his address to Keene until January 26, 2004. In viewing all the evidence, we cannot say that a rational trier of fact could not have found guilt beyond a reasonable doubt or that the jury was not rationally justified in finding guilt. Robinson expressed his intent to reside in Johnson County on December 15, 2003 when he contacted Wrenn and asked about registering. The evidence established that he lived in Lillian for some time before he moved to Keene and he didn’t change his address until over a month after he first contacted Wrenn. Further, both Wilson and Wrenn testified that they informed Robinson of his obligation to register. In viewing the evidence in the light most favorable to the verdict, we find that the evidence is legally sufficient to support the conviction. Factual Sufficiency Analysis Considering all of the evidence in a neutral light, we find that the jury was justified in finding Robinson guilty. Watson, 2006 WL 2956272, at *8. The record shows that Robinson lived in Lillian before moving to Keene with his fiancée. Robinson was informed of the registration requirements and was told to register with Johnson County within ten days of December 15, 2003. However, he failed to register. We find that the evidence was factually sufficient, and we overrule Robinson’s second issue. Voir Dire In his first issue, Robinson argues that remarks made by prospective jurors during voir dire were egregious and reasonably calculated to prejudice other members of the jury panel. Defense counsel questioned the prospective jurors concerning their ability to be fair and impartial considering the nature of the offense. Several responded that they could be fair and would not consider Robinson’s prior conviction; others admitted they could not be impartial. Robinson challenges comments made by several prospective jurors, including the following: Defense Counsel: Mr. Jolly, what about you? Mr. Jolly: I don’t know. He broke the law in my estimation when he didn’t sign up. Defense Counsel: He broke the law? Mr. Jolly: Your client. Defense Counsel: How do you know that? Mr. Jolly: Because he was already convicted of a prior offense and during that conviction part of that release is that he signs up with the police department and since she (sic) didn’t sign, he broke the law. Defense Counsel: Well, you understand that as Mr. Robinson sits here right now he is innocent. Do you understand that? Mr. Jolly: No, I don’t. Defense Counsel: You think he is guilty right now? Mr. Jolly: I think he’s guilty because he didn’t sign. If he wanted to come to court, he could’ve signed and then come to court. Defense Counsel: Does anybody else–Let me–if you don’t feel that way raise your hand. Mr. Burke: Let me say something here. So far all you’ve done is talk about his rights. Okay. Now, I don’t know what the background is in this. I don’t know what he did, but what about the rights of that little individual girl? See, that’s where I want to come in right there and get ahold of him and just bust him one. Because I have two grandkids …. They always talk about the crook’s rights and that irritates me to the gall. At that time, defense counsel approached the bench and stated: “Judge, this is exactly what I’m talking about, the facts of the prior case and allegations against him. I don’t believe I—especially after that speech … I’m not sure anybody here can give my client a fair trial from this panel right here.” The trial court indicated that its previous ruling on Robinson’s motion in limine allowing the parties to mention the underlying conviction for sexual assault still stood. Defense counsel continued to question Mr. Burke and asked if he could be fair to Robinson. He replied: Mr. Burke: It would be hard to because I would be thinking about the kid or the little girl or the little boy, whatever. What kind of future do they have now? It’s hard to go to sleep at night and all this. And then you’re telling me about he should’ve reported. Yes, he should’ve reported. That’s just like coming here this morning. 0900 hours you’re supposed to report here 0900 hours. That‘s what I did. That’s the law. Somebody told him to report when he moved here, yes, he should have. Defense counsel continued a similar line of questioning with the rest of the panel and found five others who indicated they could not be fair to Robinson. He successfully challenged each of these prospective jurors. The remainder of the panel stated they could give Robinson a fair and impartial trial. The Court of Criminal Appeals has held that a defendant should object to a venire member’s allegedly prejudicial comments and move the trial court for a curative instruction. Young v. State, 137 S.W.3d 65, 71 (Tex. Crim. App. 2004). Robinson’s discussion with the court indicates that he was challenging its ruling on the motion in limine and not specifically objecting to the comments of the prospective jurors. Further, following the meeting at the bench, Robinson’s trial counsel continued the line of questioning with Mr. Burke and other prospective jurors and elicited similar responses. He did not object to the additional comments made by Mr. Burke or other venire members. Accordingly, he did not preserve this issue for review. Regardless, Robinson cannot invite a prejudicial comment from a prospective juror and then rely on that comment on appeal. See Russell v. State, 146 S.W.3d 705, 716 (Tex. App.—Texarkana 2004, no pet.). We overrule Robinson’s first issue. Effective Assistance of Counsel Robinson contends in his fourth issue that he received ineffective assistance of counsel because trial counsel failed to object to the comments made by potential jurors during voir dire. To prevail on an ineffective assistance claim, the familiar Strickland v. Washington test must be met. Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 2535, 156 L.Ed.2d 471 (2003) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)). Under Strickland, an ineffective assistance claim will be sustained if it is determined that: (1) counsel’s performance was deficient, and (2) the defense was prejudiced by counsel’s deficient performance. Wiggins, 539 U.S. at 521, 123 S.Ct. at 2535; Strickland, 466 U.S. at 687, 104 S.Ct. at 2064. This means that the appellant must show a reasonable probability that, but for his counsel’s unprofessional errors, the result of the proceeding would have been different. Mitchell v. State, 68 S.W.3d 640, 642 (Tex. Crim. App. 2002). A “reasonable probability” is one sufficient to undermine confidence in the outcome. Id. We begin with a “strong presumption” that counsel provided reasonably professional assistance, and an appellant bears the burden of overcoming this presumption. Andrews v. State, 159 S.W.3d 98, 101 (Tex. Crim. App. 2005). Generally, the appellate record is insufficient to satisfy this burden. Scheanette v. State, 144 S.W.3d 503, 510 (Tex. Crim. App. 2004). “[I]n the majority of cases, the record on direct appeal is simply undeveloped and cannot adequately reflect the failings of trial counsel.” Id. (quoting Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002)). In the absence of evidence of trial counsel’s reason for the challenged conduct, we assume a strategic reason for trial counsel’s conduct, if one can be imagined. McNeil v. State, 174 S.W.3d 758, 760 (Tex. App.—Waco 2005, no pet.) (citing Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). But, if nothing in the record reveals trial counsel’s reason, it is improper for us to speculate on it. See Thompson, 9 S.W.3d 808, 814 (Tex. Crim. App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex. Crim. App. 1994). Robinson’s trial counsel did not object to the comments made by prospective jurors however he did challenge those who allegedly made prejudicial comments, to ensure they were stricken for cause. We assume that defense counsel had a strategic reason for failing to object during voir dire. We overrule the fourth issue. Due Process In his third issue, Robinson argues that his due process rights were violated because there was no evidence that he had a duty to register as a sex offender with the Johnson County Sheriff’s Department. Having determined that the evidence was legally sufficient to support the conviction, we find that Robinson’s due process rights were not violated. Accordingly, we overrule his third issue. Conclusion The judgment of the trial court is affirmed. BILL VANCE Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs in the judgment affirming Robinson’s conviction and sentence but does not join this opinion. No separate concurring opinion will be issued.) Affirmed Opinion delivered and filed November 29, 2006 Do not publish [CR25]