Enrique Rios v. State

NUMBER 13-02-732-CR COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG ENRIQUE RIOS, Appellant, v. THE STATE OF TEXAS, Appellee. On appeal from the 148th District Court of Nueces County, Texas. DISSENTING OPINION Before Justices Hinojosa, Yañez, and Castillo Dissenting Opinion by Justice Castillo I respectfully dissent. I would find the evidence legally and factually sufficient to support Rios's conviction. I. The Evidence of Rios's Noncompliance Rios is a convicted sex offender. He was required to verify his registration as a sex offender on an annual basis with local law enforcement authorities in the municipality where he resided. Records introduced by the State through John Thomas Hornsby, custodian of sex-offender registration records for the Corpus Christi Police Department, showed that Rios verified his registration on April 25, 2001. He reported 2212 Mary Street, Corpus Christi, Texas, as his place of residence. In February of 2002, Victor Ray Casares, Sr., an officer with the Corpus Christi Police Department, was contacting convicted sex offenders to ensure compliance with the sex-offender registration laws. Casares visited the address Rios had registered in April 2001 as his place of residence. Casares spoke with Rios's mother, Natalia Petri. Casares testified, without objection, that Petri told him Rios did not live there. She said she had not seen Rios since Christmas 2001. Casares testified, also without objection, that Petri specifically told him Rios was in Dallas. The State introduced a written statement, again without objection, signed by Petri and acknowledging that Rios had not lived at 2212 Mary Street since December 2001. The statement also included Petri's phone number. At trial, however, Petri testified that Rios had lived with her since his release from prison and was living with her at 2212 Mary Street on February 15, 2002. She said the officers came to her home and told her they were patrolling the area for burglars. The officers did not ask her about Rios's whereabouts. She believed that the statement she signed simply acknowledged that the officers were patrolling the area. Andrew Ybanez, an officer with the Corpus Christi Police Department, testified he was on duty with Casares on February 15, 2002. Ybanez testified Petri appeared to understand Casares's questions. Ybanez stated neither he nor Casares spoke to Petri about burglars. Ybanez added that Casares explained the contents of the written statement to Petri before she signed it. Rios introduced medical records from Christus Spohn Memorial Hospital, located in Corpus Christi, Texas. The records showed that the hospital provided medical services to Rios on February 19, 2002. As noted by the majority, Rios provided his address at admission, giving 2212 Mary Street as his current address. He also provided the same telephone number as Petri had provided in her written statement. The medical records included a copy of Rios's Nueces County Hospital District health care card and showed a policy number and Corpus Christi address listed under "insurance" on Rios's patient registration form. The dates of coverage shown on the card are "From 10-31-01 to 4-31-02." Further, the arrest warrant contained in the clerk's record of this case reflects an officer's return showing that Rios was arrested by a Nueces County deputy in Nueces County, Texas on May 31, 2002. Rios raises two issues challenging the legal and factual sufficiency of the evidence to support his conviction. I turn to the scope and standards of review. II. SUFFICIENCY SCOPE AND STANDARDS OF REVIEW I agree that the analytical construct defined by the Texas Court of Criminal Appeals in reviewing legal- and factual-sufficiency challenges in jury trials applies equally to nonjury trials. See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). I disagree that Malik mandates grafting the language "hypothetically correct jury charge" into nonjury sufficiency analyses. Mechanical repetition of the term has no place in the context of a bench trial such as that under review in this case. The court of criminal appeals coined the term "hypothetically correct jury charge" as shorthand for Malik's cure for a specific ill: a defendant's acquittal on sufficiency grounds for charge error. See id. ("Moreover, the standard we formulate today ensures that a judgment of acquittal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted."). The mischief began, not with the standard announced in Malik, but with one sentence: Hence, sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Such a charge would be one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried. This standard can uniformly be applied to all trials, whether to the bench or to the jury, whether or not the indictment is facially complete, and regardless of the specific wording of the jury charge actually given. Id. (emphasis added) (footnote omitted). This single statement should not be read in a vacuum. After Malik, the court of criminal appeals refined what it meant by the term "authorized by the indictment." Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). Curry held that "authorized by the indictment" means "that a sufficiency review must encompass 'the statutory elements of the offense . . . as modified by the charging instrument.'" Fuller v. State, 73 S.W.3d 250, 255 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry, 30 S.W.3d at 404). I conclude that in jury and nonjury cases alike, we measure the sufficiency of the evidence against the statutory elements of the offense as modified by the charging instrument. See Curry, 30 S.W.3d at 404. When reviewing the evidence presented to a jury, we refer to this analytical construct as a "hypothetically correct jury charge." In reviewing the sufficiency of the evidence presented in a nonjury trial, however, I would not use the term "hypothetically correct jury charge." The reference is unnecessary, given the fact that there is no jury charge in the case, hypothetical or otherwise. It would make as much sense to refer to the fact finder in a nonjury trial as the jury. The role is the same, but the name is different. I do not believe Malik mandates reference to a jury in the sufficiency analysis, either. A. Legal Sufficiency A legal-sufficiency challenge calls for appellate review of the relevant evidence in the light most favorable to the prosecution. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000). We consider all the evidence that sustains the conviction, whether properly or improperly admitted or whether introduced by the prosecution or the defense, in determining the legal sufficiency of the evidence. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). Similarly, in reviewing the legal sufficiency of the evidence, we look to all of the evidence introduced during either stage of the trial. De Garmo v. State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985). I would measure the legal sufficiency in this case against the statutory elements of the offense as modified by the indictment. See Fuller, 73 S.W.3d at 254 (Keller, P.J., concurring). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404. We then determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319; Johnson, 23 S.W.3d at 7. In performing a legal-sufficiency review, we are mindful that the fact finder is the exclusive judge of the credibility of witnesses and the weight to be given testimony. Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Adelman v. State, 828 S.W.2d 418, 423 (Tex. Crim. App. 1992); Butts v. State, 835 S.W.2d 147, 151 (Tex. App.–Corpus Christi 1992, pet. ref'd). The fact finder may believe some witnesses and refuse to believe others. Esquivel v. State, 506 S.W.2d 613, 615 (Tex. Crim. App. 1974). It also may accept portions of a witness's testimony and reject others. Id.; Butts, 835 S.W.2d at 151. If we reverse a criminal case for legal insufficiency, we vacate the judgment of conviction for legal insufficiency. Swearingen, 101 S.W.3d at 95. We then order a judgment of acquittal. Id. B. Factual Sufficiency I also would measure the factual sufficiency of the evidence in this case against the elements of the offense as modified by the indictment. We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson, 23 S.W.3d at 6. In determining the factual sufficiency of evidence of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998). In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony. Id. We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id. Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. When an appellant challenges the factual sufficiency of the elements of the offense, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the [fact finder's] determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003) (quoting Johnson, 23 S.W.3d at 11); see Swearingen, 101 S.W.3d at 97. In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice. Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97. III. APPLICABLE LAW A. The Sex-Offender Registration Statute Article 62.10(a) of the Texas Code of Criminal Procedure provides that it is an offense if a person required to register as a sex offender fails to comply with any requirements in chapter 62. Tex. Code Crim. Proc. Ann. art. 62.10(a) (Vernon Supp. 2004). Chapter 62 sets out a number of situations under which a convicted sex offender must register. Specifically, article 62.04(a) provides: If a person required to register intends to change address, regardless of whether the person intends to move to another state, the person shall, not later than the seventh day before the intended change, report in person to the local law enforcement authority with whom the person last registered and to the juvenile probation officer, community supervision and corrections department officer, or parole officer supervising the person and provide the authority and the officer with the person's anticipated move date and new address. If a person required to register changes address, the person shall, not later than the seventh day after changing the address, report in person to the local law enforcement authority in the municipality or county in which the person's new residence is located and provide the authority with proof of identity and proof of residence. Tex. Code Crim. Proc. Ann. art. 62.04(a) (Vernon Supp. 2004). B. "On or About" Allegation of Date of Offense Unless the date is a material element of an offense, it is not necessary for an indictment to specify the precise date on which the charged offense occurred. See Garcia v. State, 981 S.W.2d 683, 685-86 (Tex. Crim. App. 1998). The primary purpose of specifying a date in the indictment is not to notify the accused of the date of the offense. Id. Rather, the purpose of providing a date is to show that the prosecution is not barred by the statute of limitation. Id. When an indictment alleges that a crime occurred "on or about" a certain date, the State may prove an offense "with a date other than the one specifically alleged so long as the date is anterior to the presentment of the indictment and within the statutory limitation period and the offense relied upon otherwise meets the description of the offense contained in the indictment." Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997) (quoting Sledge v. State, 953 S.W.2d 253, 256-57 (Tex. Crim. App. 1997)). C. Contents of Court's File A trial court is presumed to know the contents of its own file. Cobb v. State, 851 S.W.2d 871, 873 (Tex. Crim. App. 1993). An appellate court may take judicial notice of an official document as part of the record and presume that the "trial court did as well." Id. (citing Fleming v. State, 502 S.W.2d 822, 823 (Tex. Crim. App. 1973). IV. THE INDICTMENT The indictment alleged that Rios: on or about February 15, 2002, in Nueces County, Texas, was required to register because of a reportable conviction for Indecency with a Child, and did then and there intentionally, knowingly and recklessly fail to verify the information in the completed registration form by failing to report no later than the seventh day after his arrival in the municipality where he resided and intended to reside for more than seven days, to wit: Corpus Christi, to the local law enforcement authority, namely the Corpus Christi Police Department, who had received said registration form. In its legal-sufficiency analysis, the majority confuses what the State alleged in the indictment with the arguments the prosecutor made at trial. I would confine my legal-sufficiency review to weighing the actual evidence presented against the elements of the offense as modified by the indictment, not against the offense the prosecutor argued the State had proved. V. SUFFICIENCY ANALYSES A. Legal Sufficiency Viewing the evidence in the light most favorable to the prosecution, the record shows that Rios properly verified his registration on April 25, 2001 but does not show that he verified his registration at any time thereafter. The absence of a record indicating verification of Rios's registration after April 25, 2001 is sufficient proof that Rios failed to do so. See Tex. R. Evid. 803(10); see also Hampton v. State, 109 S.W.3d 437, 441 n.3 (Tex. Crim. App. 2003) (absence of public record may be evidence where one would expect to find document within repository if it existed). Further, I find evidence in the record in the form of Petri's written statement and the officers' testimony regarding the information she provided that Rios moved away from Nueces County in December 2001 and was in Dallas on February 15, 2002. The record also reflects that Rios claimed his mother's phone number as his and her home as his address on the hospital's patient registration form on February 19, 2002. Other information in the hospital's records in the form of Rios's health care coverage also showed a connection to Nueces County during the relevant time period. Finally, I take judicial notice in my sufficiency analysis that the arrest warrant in the court's record shows that a Nueces County deputy arrested Rios in Nueces County on May 31, 2002. See Cobb, 851 S.W.2d at 873. I presume the trial court knew the contents of its own file. See id. Thus, when viewed in the light most favorable to the State, the State introduced direct evidence that Rios lived outside Nueces County from December 2001 through at least February 15, 2002. The evidence also supports four inferences: (1) Rios returned to and lived in Nueces County beginning no later than February 19, 2002; (2) at the time he returned, he intended to live in Nueces County more than seven days; (3) he continued to live in Nueces County more than seven days, through the date of his arrest there on May 31, 2002; and (4) he did not register his address again after his initial registration on April 25, 2001. The offense alleged and proved by the State – that Rios did not report within seven days of his return between February 15 and February 19, 2002 to Nueces County, where he resided and intended to reside for more than seven days– conformed with the allegations in the indictment, remained within the statute of limitations, and occurred before the presentment of the indictment. See Yzaguirre, 957 S.W.2d at 39. I disagree that the State was required to prove the exact date on which Rios returned to Corpus Christi. Every fact need not point directly and independently to Rios's guilt. See Vanderbilt, 629 S.W.2d at 716. Given the combined and cumulative force of all the incriminating circumstances, however, I would hold the evidence legally sufficient to establish that Rios was required to but failed to register with local law enforcement authority within seven days of his return to Corpus Christi in February 2002. See id. Thus, I also would address Rios's factual-sufficiency arguments. B. Factual Sufficiency In addition to the evidence recited above in my legal-sufficiency analysis, the record shows that Petri testified at trial that Rios had lived with her continuously since his release from prison and was living with her at 2212 Mary Street on February 15, 2002. Petri further testified that the police officers never inquired about Rios's whereabouts and misled her into signing a document stating her son no longer lived with her. Faced with a record of historical facts that supports conflicting inferences, I presume that the trier of fact resolved any conflicts in favor of the prosecution. See Jackson, 443 U.S. at 326. I would defer to the fact finder's resolution of conflicting evidence. See id.; see also Johnson, 23 S.W.3d at 9. I cannot conclude that the State's proof of Rios's guilt is so obviously weak as to undermine confidence in the fact finder's determination. See Zuliani, 97 S.W.3d at 593. Viewing the evidence neutrally, I would hold the evidence factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 6. VI. CONCLUSION Having overruled Rios's sufficiency challenges on appeal, I would affirm the judgment of the trial court. Publish. ERRLINDA CASTILLO Justice Dissenting Opinion delivered and filed this 15th day of July, 2004.