AFFIRM; Opinion Filed January 29, 2013




                                               In The
                                    Qtourt of Z1ppea1
                           f iftj ttrict of !1cxa at t3afta
                                       No. 05-12-01510-CR

                             EX PARTE MICHAEL T. ROIERTS

                       On Appeal from the 422nd Judicial District Court
                                   Kaufman County, Texas
                              Trial Court Cause No. 86890-422

                               MEMORANDUM OPINION

                            Before Justices Moseley, Francis, and Lang
                                    Opinion by Justice Francis

       Michael T. Roberts filed a pretrial application for writ of habeas corpus asserting the

prosecution against him for violating the sex offender registration statute is barred by double

jeopardy. The trial court denied appellant the relief he sought. In one issue, appellant asserts the

“Double Jeopardy Clause precludes the State from this second prosecution for an alleged

criminal act of failure to report a change of address under the failure to register as a sex offender

statute that was previously litigated and submitted to the jury for their consideration to support a

conviction for failure to register/annually.” We affirm the trial court’s order.

       On June 9, 1997, appellant pleaded nob contendere to indecency with a child. The trial

court probated his sentence for five years. As part of his community supervision, appellant was

required to register as a sex offender. The State later charged appellant with failure to register as
a sex oftènder. A iurv convicted appellant of the olfense and the trial   court   assessed punishment

at imprisonment for two years. On direct appeal. this Court reversed appellants conviction and

rendered judgment of acquittal. concluding the evidence was insuflicient to support the

conviction under the   section   of the statute he was indicted fbr violating. Rohens      Saie. No.

05-1 1-00450-CR. 2012 WL 2362530 (Tex. App.—-Da1las June 22. 2012, no pet.) (mem. op.) (not

designated for publication).

        On September 25, 2012, the State filed a new indictment charging appellant with failure

to comply with sex offender registration requirements.          The indictment alleged appellant

intentionally or knowingly, not later than the seventh day before the intended change, failed to

report in person to the local law enforcement authority and provide the authority with

defendant’s anticipated move date and new address: or by residing for more than seven days at a

location to which a physical address had not been assigned by a governmental agency and

intentionally or knowingly not less than once in each 30-day period. failing to confirm

appellant’s location by reporting to the local law enforcement authority.           Appellant filed a

pretrial application for writ of habeas corpus contending this subsequent prosecution was barred

by double jeopardy. Following a hearing at which the previous and current indictments and this

Court’s opinion and judgment were admitted into evidence, the trial court denied appellant

habeas corpus relicE

        In reviewing the trial court’s decision to grant or deny habeas corpus relief. we view the

facts in the light most favorable to the trial judge’s ruling. Eparie Peterson. 117 S.W.3d 804.

819 (Tex. Crim. App. 2003) (per curiarn). overruled on other grounds by Ex pane Lewis. 219

S.W.3d 335 (Tex. Crim. App. 2007). We will uphold the trial courts ruling absent an abuse of

discretion.   Id.   In conducting our review, we afford almost total deference to the judges
determination of the historical lhcts that are supported by the record. especially when the fact

findinEs are based on an evaluation of credibility and demeanor. Id. We aflbrd the same amount

ot deference to the trial judge’s application of the law to the facts, if the resolution of the

ultimate question turns on an evaluation of credibility and demeanor. Id. If the resolution of the

ultimate question turns on an application of legal standards, we review the determination de

I1OVO.   Id.

         A defendant may not be twice put in jeopardy for the same offense. U.S. C0NsT. amend.

V: TEx. CONST. art. I.     § 14. In the context of successive prosecutions. the double jeopardy bar
applies if the two offenses for which the defendant is tried cannot survive the Biockburger same-

elements test. See United States v. Dtvon, 509 U.S. 688, 696 (1993); Blockburger v. United

States, 284 U.S. 299, 304 (1932).          The same-elements test inquires whether each offense

contains an element not contained in the other. Dixon. 509 U.S. at 696: Blockburger, 284 U.S. at

304. If not, they are the same offense and double jeopardy bars the successive prosecution. See

Dixon. 509 U.S. at 696.

         A person commits an offense if the person is required to register as a sex offender under

chapter 62 of the Texas Code of Criminal Procedure and fails to comply with any requirement of

the chapter. See TEx. CODE CIuM. P. ANN. art. 62.102(a) (West 2006).              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.       Young v. State. 341 S.W.3d 417, 425 (Tex. Crim. App.

2011). Chapter 62 contains numerous distinct requirements in its various statutes. Id         Article

62.055 provides:

               (a) If a person required to register under this chapter 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
              designated by the department. and to the juvenile probation ollicer.
              community supervision and corrections department, or parole officer
              supervising the person and provide the authority and the oflicer with the
              persons anticipated move date and new address.


              (i) If a person required to register under this chapter resides lbr more
              than seven days at a location or locations to which a physical address has
              not been assigned by a governmental entity, the person. not less than
              once in each 30—day period, shall confirm the person’s location or
              location by:

                (1)    reporting to the local law enforcement authority in the
              municipality where the person resides or, if the person does not reside in
              a municipality, the local law enforcement authority in the county in
              which the person resides; and

                 (2) providing a detailed description of the applicable location or
              locations.

TEx.     CODE CRI1.   P. ANN. art. 62.055(a). (i) (West Supp. 2012).

          Appellant contends double copardy bars prosecution under the current indictment

because the State is relying on the same evidence that was submitted to the jury during the first

trial. Appellant asserts the State mistakenly believed it was justified in proving a failure to   report


an address change to support a conviction for the indicted offense of failure to verify annual

registration. The State responds that double jeopardy does not bar this subsequent prosecution

for an offense this Court held was not included in the previous indictment. We agree with the

State.

          in the previous prosecution, appellant was charged with violating article 62.05 1, failure

to register or verify registration as a sex offender. We concluded the State’s case during that trial

“focused on evidence that appellant had abandoned his residence and moved to Alabama without

notifying the proper authorities,” which would be a violation of article 62.055.           We further

concluded that violation of the two statutory provisions constituted separate offenses. An alleged



                                                    4
violation o article 62.055 is not included in the indictiiient alleging a violation of article 62.051.

and the Court would not consider evidence that may support a registration violation not included

in the indictment. Roberts, 2012 WL 2362530, at      **
                                                          35.

         The elements of an offense under article 62.051, as alleged in the earlier indictment, are:

(I) appellant’s status as a person with a reportable offense; (2) Kaufman County is where

appellant resided or intended to reside fbr more than seven days: and (3) appellant intentionally

or knowingly failed to register with local law enforcement in Kaufman County. TEx. CODE

CRI!u.   P. ANN. art. 62.05 1 (West Supp. 2012).

         The elements of an offense under article 62.05 1(a), as alleged in the current indictment,

are: (1) appellanfs status as a person with a reportable offense; and (2) appellant intentionally or

knowingly not later than the seventh day before the intended change failed to report in person to

the local law enforcement authority designated as appellant’s primary registration authority by

the department and provide the authority and the officer with appellant’s anticipated move date

and new address.

         The elements of an offense under article 62.05 1(i), as alleged in the current indictment,

are: (1) appellant’s status as a person with a reportable offense; (2) appellant resided for more

than seven days at a location or locations to which a physical address has not been assigned by a

governmental agency; and (3) appellant intentionally or knowingly not less than once in each 30-

day period failed to confirm his location or locations by reporting to the local law enforcement

authority in the municipality where appellant resides, or if appellant did not reside in a

municipality. the local law enforcement authority in the county in appellant resided, and provide

a detailed description of the applicable location or locations.
       Each otlense al leed       in   the current indictment contains an element not contained in the

offense charged in the earlier indictment. And, we previously concluded a violation of article

62.055 was   not   included in the indictment alleging a violation of article 62.051. Roberts. 2012

WL 2362530. at       **
                          3—5. Therefore, the offenses alleged in the current indictment are not the

same offense alleged in the earlier indictment and double jeopardy does not bar the successive

prosecution. See Dixon, 509 U.S. at 696. We overrule appellant’s issue.

       We affirm the trial court’s order denying appellant the relief sought by his application for

writ of habeas corpus.




                                                          MOLLY F       NCIS
                                                          JUSTICE

Do Not Publish
TEX. R. App. P. 47
12151 OF.U05




                                                     6
                                  (ourt of Ztppeat
                         ifultb ttrtct of Z!tcxa at afta
                                      JUDGMENT

EX PARTE MICHAEL T. ROBERTS                      Appeal from the 422nd Judicial District
                                                 Court of Kaufman County, Texas (Trial
No. 05-12-01 51 0-CR                             Court No. 86890-422).
                                                 Opinion delivered by Justice Francis,
                                                 Justices Moseley and Lang participating.

       Based on the Court’s opinion of this date, we AFFIRM the trial court’s order denying
appellant the relief sought by his application for writ of habeas corpus.



Judgment entered January 29, 2013.

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