                               PD-0033-15
                                                                            January 22, 2015

                     NO. PD - [not yet assigned] - 15

                               IN THE
                     COURT OF CRIMINAL APPEALS
                             OF TEXAS


                                JOHNNY RUIZ,
                                 APPELLANT

                                         vs.

                           THE STATE OF TEXAS,
                                APPELLEE

         Seeking discretionary review of an opinion from the Court of Appeals
         for the Fifth District of Texas at Dallas in Cause No. 05-13-00918-CR


     STATE’S PETITION FOR DISCRETIONARY REVIEW


                                          Counsel of Record:

SUSAN HAWK                                PATRICIA POPPOFF NOBLE
CRIMINAL DISTRICT ATTORNEY                ASSISTANT DISTRICT ATTORNEY
DALLAS COUNTY, TEXAS                      STATE BAR NO. 15051250
                                          FRANK CROWLEY COURTS BUILDING
                                          133 N. RIVERFRONT BOULEVARD, LB-19
                                          DALLAS, TEXAS 75207-4399
                                          (214) 653-3634(o)
                                          Email: pnoble@dallascounty.org

                           Attorneys for the State of Texas
                 TABLE OF CONTENTS

INDEX OF AUTHORITIES…………………………………………………………iii

STATEMENT REGARDING ORAL ARGUMENT……………………………….1

STATEMENT OF THE CASE……………………………………………………….1

STATEMENT OF PROCEDURAL HISTORY…………………………………….2

QUESTION PRESENTED FOR REVIEW………………………………………..3

ARGUMENT……………………………………………………………………………3

PRAYER FOR RELIEF……………………………………………………………..13

CERTIFICATE OF SERVICE AND WORD COUNT ………………………….14




                         ii
                             INDEX OF AUTHORITIES

Cases

Clayton v. State,
  235 S.W.3d 772 (Tex. Crim. App. 2007) .............................. 12, 13

Geesa v. State,
 820 S.W.2d 154 (Tex. Crim. App. 1991) ................................. 9, 11

King v. State,
  29 S.W.3d 556 (Tex. Crim. App. 2000) ........................................ 9

Merritt v. State,
  368 S.W.3d 516 (Tex. Crim. App. 2012) .............................. 10, 11

Rabb v. State,
 434 S.W.3d 613 (Tex. Crim. App. 2014), Alcala, J., dissenting, .... 3

Ruiz v. State, No. 05-13-00918-CR, 2014 Tex. App. LEXIS 12095
 (Tex. App. – Dallas Nov. 5, 2014, no pet. h.) (mem. op.) (not
 designated for publication) .................................................. 1, 7, 9

Wise v. State,
 364 S.W.3d 900 (Tex. Crim. App. 2012) ............................... 11, 12

Statutes

TEX. CODE CRIM. PROC. ANN. arts. 62.102(a), 62.055(a) (West
 Supp. 2013) ................................................................................ 2

Rules

TEX. R. APP. P. 66.3(f) .................................................................... 4

TEX. R. APP. P. 68.......................................................................... 1




                                              iii
TO THE HONORABLE COURT OF CRIMINAL APPEALS OF

TEXAS:

     The State of Texas, pursuant to TEX. R. APP. P. 68, seeks

discretionary review of the opinion of the Court of Appeals for the

Fifth District of Texas at Dallas in Ruiz v. State, No. 05-13-00918-

CR, 2014 Tex. App. LEXIS 12095 (Tex. App. – Dallas Nov. 5, 2014,

no pet. h.) (mem. op.) (not designated for publication) (see

APPENDIX). In support of its petition, the State would show the

following:

               Statement regarding oral argument

     Only one question is presented. Its resolution relies on a few

facts in a brief record, and well-settled legal principles.    Oral

argument does not appear to be necessary, but the State will

provide it, if this Court so desires upon granting discretionary

review.

                   STATEMENT OF THE CASE

     After a bench trial, Appellant was convicted of the offense of

failing to comply with the sex offender registration requirements of

chapter 62 of the Texas Code of Criminal Procedure and sentenced



                                 1
to two years in prison. See TEX. CODE CRIM. PROC. ANN. arts.

62.102(a), 62.055(a) (West Supp. 2013).

              STATEMENT OF PROCEDURAL HISTORY

     On January 7, 2013, Appellant was indicted for failure to

comply with sex offender registration requirements.        (CR: 8).   On

June 28, 2013, Appellant proceeded to trial on his plea of Not

Guilty and waived his right to a jury trial.      (CR: 23; RR:6).     The

court found Appellant guilty and assessed punishment at two years’

confinement     in   the   Texas   Department    of   Criminal   Justice,

Institutional Division. (CR: 28-30; RR: 33).

     Appellant’s Motion for New Trial was overruled. (CR: 33). On

March 13, 2014, Appellant filed his brief on appeal raising eleven

alleged trial errors which included a challenge to the sufficiency of

the evidence.

     In an unpublished opinion, delivered November 5, 2014, the

Court of Appeals for the Fifth District of Texas at Dallas reversed

the trial court’s judgment and acquitted Appellant after finding the

evidence insufficient. On December 5, 2014, the court of appeals

denied the State’s Motion for Rehearing.        The State’s Petition for

Discretionary Review was due on January 5, 2015. This Honorable

                                    2
Court granted the State’s motion requesting an extension of time to

file its petition on or before February 4, 2015.

              QUESTION PRESENTED FOR REVIEW

Did the court of appeals err in finding that the State’s failure to
present more objective facts to support the inferences of guilt, and
to negate the existence of reasonable alternative hypotheses
favoring the not guilty plea, make the evidence insufficient?

                             ARGUMENT

     The State will demonstrate that through the opinion in this

case, the court of appeals circumvents the fact-finder’s decision,

calling the evidence “conclusory,” and, in the process, resurrects

“the long-dead reasonable-alternative-hypothesis analysis, which

permits an appellate court to find the evidence insufficient based on

the existence of scenarios in which the fact-finder’s verdict could

theoretically be wrong.”     As Judge Alcala has so wisely advised,

this Honorable Court should “keep the nail in the coffin of the

reasonable-alternative-hypothesis analytical construct.” Rabb v.

State, 434 S.W.3d 613, 619 (Tex. Crim. App. 2014), Alcala, J.,

dissenting, citing Geesa v. State, 820 S.W.2d 154, 156, 159 (Tex.

Crim. App. 1991) (rejecting reasonable hypothesis analytical

construct for evaluating sufficiency of evidence).      For all the


                                   3
following reasons, discretionary review of the opinion from the court

of appeals is appropriate under TEX. R. APP. P. 66.3(f) because the

court of appeals has so far departed from the accepted and usual

course of judicial proceedings as to call for an exercise of the Court

of Criminal Appeals’ power of supervision.

     Appellant, a convicted sex offender, was charged with violating

the sex offender registration statute by failing to report an intended

change of address and move date, and by not residing at his

registered address. (CR: 8). During trial, it appeared that the State

had abandoned the theory that the offense was committed by failing

to report an intended change of address and move date because the

State’s evidence was focused primarily on proving that Appellant

was not residing at his registered address.

     Evidence showed that on or about July 10, 2012, the date of

the offense, Appellant’s registered address was 525 Runstone in

Irving, Texas. (RR1: 9). The major portion of the State’s case was

presented through Irving Police Department Officer Steven Buesing

who testified that he received information that Appellant had a

parole violation “for drugs.” He went to Appellant’s registered

address on July 3, 2012 to execute a warrant for the parole

                                  4
violation, but Appellant was not there.           (RR1: 15-16).   Buesing

testified that he found no evidence that Appellant was living at the

registered address. Further, after Buesing spoke with Appellant’s

mother and sister, he concluded that Appellant had not been living

at the residence for at least two weeks. (RR1: 16-17).

       Buesing testified that he called and spoke to Appellant that

day.    Buesing confronted Appellant and told him that he knew

about his parole violation and that Appellant wasn’t living at the

registered location. Buesing told Appellant that because he wasn’t

living at the location, he had failed to comply with registration

requirements.     Appellant offered to turn himself in, and Buesing

replied that if Appellant would do that, the “the fail to comply”

would not be filed on Appellant. Appellant said that he would turn

himself in that day. That never happened. (RR1: 18-19).

       Officer   Dale   Gant   testified   that   he   made   numerous

unsuccessful attempts to locate Appellant at his registered address

over a period of months.          (RR1: 27).      In the course of his

investigation into Appellant’s whereabouts, Gant spoke with

Appellant’s known associates.        He got an anonymous tip that

Appellant was staying at a house located at 3314 Clymer Street.

                                    5
(RR1: 27-28).     Buesing was informed that another officer had

learned that Appellant was staying at the Clymer Street location.

On November 11, 2012, Buesing and other officers went there. The

house looked like an abandoned crack house.        (RR1: 22).    They

found Appellant hiding in the attic. (RR1: 20, 22, 24-25, 31).

     On appeal, the State argued that the evidence was sufficient to

show Appellant committed the offense by failing to reside at his

registered address, based on (1) the investigation which yielded

evidence that Appellant had not been residing there for weeks, and

(2) the fair inferences of guilt from Appellant’s admission that he

would “turn himself in” when an officer accused him of committing

the offense, and Appellant’s attempt to evade arrest for the offense.

The court of appeals disagreed. Why?

     The court found Buesing’s testimony was too “conclusory.”

Ruiz, 2014 Tex. App. LEXIS 12095 at *9. Buesing had failed to offer

objective facts which supported his conclusion.           The court

suggested there was better evidence, such as:

           But other than affirming that he learned this information
     “in the course of [his] investigation,” Buesing did not
     substantiate his testimony and ultimate conclusion that Ruiz
     was not living at the registered address with any objective
     facts. For example, Buesing did not testify to any surveillance

                                  6
      the officers did of the location. Nor did he testify that Ruiz had
      moved his belongings or no longer received mail at the
      registered address.

Id.

The court of appeals called for additional evidence to show where

Appellant was living, if not at the registered address, stating:

      In addition, the fact that the officers found Ruiz at the Clymer
      Street address does not suggest that Ruiz was not residing at
      his registered address. [Citation omitted]. There was no
      testimony or other evidence that gave the impression Ruiz was
      living at the Clymer Street address where he was found. . . .
      The officers did not testify to any surveillance done of the
      Clymer Street address to prove Ruiz was living there for a
      longer period of time.

Id. at *11.

      Further, the court did not agree that Appellant’s statement to

Buesing that he would turn himself was an admission of guilt for

the registration requirement violation; it might have been an

admission of guilt for the parole violation.     Moreover, it did not

agree that Appellant was trying to evade arrest for the registration

requirement violation; he might have been evading arrest for the

parole violation. The court rejected the inferences supporting the

fact-finder’s verdict not because they are fair ones.        But there




                                   7
existed different reasonable inferences which had not been

disproved.


           The State contends that Ruiz’s response “exhibited a
     consciousness of guilt” and that leads to an inference of his
     knowledge that Buesing’s accusation was true.
           But during the phone call, Buesing confronted Ruiz with
     more than just the accusation that Ruiz was not living at his
     registered address. Buesing testified that after not finding Ruiz
     at the Runstone Road address, he called Ruiz and told him
     that (1) he knew Ruiz was not living at his registered address
     and (2) that Ruiz had a parole violation. The record shows that
     the purpose of Buesing’s visit to the Runstone Road address
     (and his only involvement with Ruiz) was to arrest Ruiz for a
     parole violation. Although the State asserts that Ruiz’s
     response was an admission to Buesing that he violated the
     registration requirement, the response also could be an
     admission to Buesing that Ruiz knew he violated his parole.
     Buesing only testified that Ruiz told him “[t]hrough the
     conversation” that he was “gonna turn himself in.” Buesing
     also testified that he told Ruiz that if Ruiz would turn himself
     in, then Buesing would “not file the fail to comply” against
     Ruiz.
           We finally reject the State’s contention that “it may be
     logically concluded that [Ruiz] was hiding in the attic [at the
     Clymer Street address] because he was attempting to flee from
     the police and evade arrest for the offense he admitted he
     committed.” The evidence shows that Ruiz told Buesing he
     would turn himself in, Ruiz did not do so, and then he was
     found in an abandoned house on Clymer Street. These facts
     do not support a conclusion that Ruiz was hiding in the attic
     to avoid being prosecuted for the offense at issue in this case.
     Cf. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994)
     (noting that to support the admission of evidence of escape
     from custody or flight, “it must appear that the escape or flight
     have some legal relevance to the offense under prosecution”).


                                  8
Id. at *11-13.

     The evidence that Appellant was not living at the registered

address was entirely circumstantial.           Evidence can be legally

sufficient    to    support   a   conviction   even   if   it   is   entirely

circumstantial. See King v. State, 29 S.W.3d 556, 565 (Tex. Crim.

App. 2000). Since the State’s case was circumstantial, the court of

appeals had the duty to determine whether the necessary inferences

favoring the guilty verdict were reasonable. Reasonableness of the

inferences offered must be judged by the combined and cumulative

force of all the evidence. Geesa, 820 S.W.2d at 156 (holding that in

weighing the sufficiency of the evidence, a court should consider

only whether the inferences necessary to establish guilt are

reasonable based upon the cumulative force of all the evidence

when considered in the light most favorable to the verdict).

     The court of appeals conducted its sufficiency review by

speculating on what the State could have presented through direct

evidence.     Then it separately considered each circumstance the

State had used to allow an inference of guilt.        The court did not

decide that the inferences the State had relied upon were not

reasonable.        But, the court decided that there were alternate

                                     9
reasonable inferences from these circumstances favoring Appellant

which had not been disproved.             Thus, it found the evidence

insufficient.

     The court’s use of this analytical method was error.         Id.

(holding the State need not disprove all reasonable alternative

hypotheses that are inconsistent with the defendant’s guilt);

Merritt v. State, 368 S.W.3d 516, 526 (Tex. Crim. App. 2012)

(finding that the court of appeals improperly used a “divide-and-

conquer” approach, separating each piece of evidence offered to

support the conviction, followed by speculation on the evidence the

State did not present).     In Merritt, an arson case, the court of

appeals reversed the jury’s verdict after finding the evidence

insufficient because it did not establish the defendant’s identity as

the person who set his vehicle on fire. The court of appeals had

considered separately, and rejected, each piece of evidence relied on

by the State for an inference of guilt.

     For example, the court observed that trash bags found in

Merritt’s garage contained items commonly found in a vehicle’s

glove box. But, it decided that a reasonable inference that Merritt

committed arson could not be drawn from that fact. The court also

                                   10
noted that matches were found at the scene.           But, it believed

nothing in the record linked the matches to Merritt’s possession.

Finally, the court recognized that Merritt was in possession of both

sets of keys to the subject vehicle at the time that it was allegedly

stolen. But, it discounted that fact because although there was no

evidence that the car was towed to the location by a wrecker, there

was also no evidence that the car was not towed to the location by a

wrecker. Id.

     This Court found that the court had improperly engaged in

speculation on the evidence State did not present. Giving proper

deference to the jury’s verdict, this Court found the evidence

sufficient to sustain Merritt’s conviction. Id. at 526.

     Similarly, in Wise v. State, 364 S.W.3d 900 (Tex. Crim. App.

2012), a computer-pornography case, the court of appeals had

reversed the conviction, holding that the State had failed to prove

that Wise knowingly or intentionally possessed the images.         On

discretionary review, the State argued that the court of appeals had

erroneously    applied    the   “reasonable    hypothesis    analytical

construct,” which this Court had rejected in Geesa.         This Court

criticized the court of appeals for crediting Wise’s suggestion that

                                   11
viruses on his computer could have placed the images there

because   the   jury   could   have    reasonably   disregarded   that

explanation. Id. at 904-06. The court of appeals had erroneously

focused on two alternative hypotheses to reverse the conviction

based on insufficient evidence. Id. at 905.

     Likewise, in Clayton v. State, 235 S.W.3d 772, 778-79 (Tex.

Crim. App. 2007), Clayton testified that he discovered the murder

victim in the backseat of a car covered in blood and that he left after

trying, but failing, to move the car. Clayton’s bloody prints were

found inside the car. Considering Clayton’s bloody prints first, the

court of appeals stated that the bloody prints “are not evidence that

[Clayton] was with the victim before the shooting. Id. at 777. The

court concluded that the prints only proved that Clayton was at the

crime scene after the victim was shot and that Clayton’s presence

after the murder was not enough to prove guilt. However, on

discretionary review, this Court held that the court of appeals

incorrectly failed to consider that there were more bloody prints

than were justified by Clayton’s explanation, and that supported an

inference that he was lying. It also failed to consider the cumulative

force of other incriminating circumstances which supported an

                                  12
inference that Clayton was with the victim at the time of the

shooting. Id. at 779-82.

     In the present case, Appellant’s conviction was reversed

because the court of appeals speculated on what other evidence

could have been presented in his trial.         It reasoned that there

existed   scenarios    in   which   the    fact-finder’s   verdict   could

theoretically be wrong. It improperly focused its attention on the

failure of the evidence       to disprove these existing alternate

reasonable hypotheses other than guilt. Had the court of appeals

given the proper deference to the verdict, it would have found the

evidence sufficient.

                        PRAYER FOR RELIEF

     The State prays that this Honorable Court will grant the

State’s Petition for Discretionary Review, and after conducting its

review, reverse the opinion of the court of appeals and affirm the

trial court’s judgment. Respectfully submitted,



                                         /s/Patricia Poppoff Noble

SUSAN HAWK                               PATRICIA POPPOFF NOBLE
District Attorney                        Assistant District Attorney
Dallas County, Texas                     State Bar No. 15051250

                                    13
                                      Frank Crowley Courts Building
                                      133 N. Riverfront Blvd., LB-19
                                      Dallas, Texas 75207-4399
                                      (214) 653-3634
                                      pnoble@dallascounty.org




         CERTIFICATE OF SERVICE AND WORD COUNT

      I hereby certify that a true copy of the foregoing petition was
served on Assistant Public Defender Julie Woods, attorney for
Appellant by TexFile.Gov and by hand delivery on January 21,
2015. I hereby certify that a true copy of the foregoing petition was
served on the State’s Prosecuting Attorney, Lisa McMinn, by
eFile.Gov and by United States mail on January 21, 2015.
      I hereby further certify that the length of this petition, with
authorized exclusions, is 2,219 words using Microsoft Word 2010.

                                      /s/Patricia Poppoff Noble
                                      PATRICIA POPPOFF NOBLE




                                 14
APPENDIX
                             2014 Tex. App. LEXIS 12095, *


            JOHNNY RUIZ, Appellant v. THE STATE OF TEXAS, Appellee

                                   No. 05-13-00918-CR

           COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

                              2014 Tex. App. LEXIS 12095


                             November 5, 2014, Opinion Filed

NOTICE: PLEASE CONSULT THE TEXAS RULES OF APPELLATE PROCEDURE
FOR CITATION OF UNPUBLISHED OPINIONS.

PRIOR HISTORY: [*1] On Appeal from the Criminal District Court No. 4, Dallas
County, Texas. Trial Court Cause No. F-1235122-K.


CASE SUMMARY

OVERVIEW: HOLDINGS: [1]-The evidence was legally insufficient to support

defendant's conviction under Tex. Code Crim. Proc. Ann. art. 62.102 (Supp. 2013) for

failure to comply with the sex offender registration requirements; [2]-There was no

evidence presented that defendant intentionally, knowingly, or recklessly failed to report

an intended change of address seven days before the intended change; [3]-The fact that

the police officers found defendant at another address did not suggest that defendant was

not residing at his registered address; [4]-That defendant was found in the attic of an

abandoned house did not support a conclusion that defendant was hiding in the attic to

avoid being prosecuted for the offense at issue in this case.

OUTCOME: The judgment of the trial court was reversed, and defendant was acquitted.
CORE TERMS: registered, registration requirements, sex offender, phone call, fact
finder, residing, reside, arrest, attic, insufficient to support, required to register,
registration, locate, hiding, parole violation, law enforcement authority, failing to comply,
failure to comply, fail to comply, abandoned, annual, intends, execute, evidence
presented, reasonable inferences, intentionally, surveillance, electricity, anticipated,
recklessly


LexisNexis® Headnotes                                                      Hide


Criminal Law & Procedure > Appeals > Standards of Review > Deferential Review >
General Overview

Criminal Law & Procedure > Appeals > Standards of Review > Substantial Evidence >
Sufficiency of Evidence

Evidence > Procedural Considerations > Burdens of Proof > Proof Beyond Reasonable
Doubt

Evidence > Inferences & Presumptions > Inferences

Evidence > Procedural Considerations > Weight & Sufficiency


HN1 An appellate court reviews a sufficiency challenge by considering all the
    evidence in the light most favorable to the verdict; based on that evidence and
    any reasonable inferences, it must determine whether a rational fact finder could
    have found the essential elements of the offense beyond a reasonable doubt.
    Under this standard, the fact finder has full responsibility for resolving conflicts
    in the testimony, weighing the evidence, and drawing reasonable inferences
    from basic facts to ultimate facts. The appellate court presumes the fact finder
    resolved any conflicts in the evidence in favor of the verdict and defers to that
    determination. More Like This Headnote




Criminal Law      &    Procedure >    Postconviction    Proceedings >     Sex     Offenders >
Registration
HN2 A person commits the offense of failing 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 Texas Code of Criminal Procedure. Tex. Code
    Crim. Proc. Ann. art. 62.102(a) (Supp. 2013). One requirement is that a person
    with a reportable conviction must register with the local law enforcement
    authority in any municipality where the person resides or intends to reside for
    more than seven days. Tex. Code Crim. Proc. Ann. art. 62.051(a). Another
    requirement is that if a person who is required to register intends to change his
    address, he must report in person to the local law enforcement authority and
    provide at least seven days' notice of the intended move. Tex. Code Crim. Proc.
    Ann. art. 62.055(a). More Like This Headnote


Criminal Law     &    Procedure >   Postconviction   Proceedings >   Sex   Offenders >
Registration


HN3 A registered sex offender is not required to spend every spare moment and every
    night at his or her registered address. More Like This Headnote




Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Fleeing &
Eluding > General Overview


Evidence > Relevance > General Overview



HN4 To support the admission of evidence of escape from custody or flight, it must
    appear that the escape or flight have some legal relevance to the offense under
    prosecution. More Like This Headnote


COUNSEL: For Appellants: Julie Woods, Katherine Drew , Lynn Richardson                  ,
Dallas, TX.
For Appellees: Patricia Poppoff Noble , Michael Casillas , Craig Watkins                ,
Dallas, TX.

JUDGES: Before Justices O'Neill , Lang-Miers , and Brown. Opinion by Justice
Brown.
OPINION BY: ADA BROWN
OPINION




MEMORANDUM OPINION

Opinion by Justice Brown

After a bench trial, the trial court convicted Johnny Ruiz of the offense of failing to

comply with the sex offender registration requirements of chapter 62 of the Texas Code

of Criminal Procedure1 and sentenced him to two years in prison. In his first four issues,

Ruiz challenges the sufficiency of the evidence to support his conviction and contends

the trial court erred when it overruled his objections to hearsay testimony, violated his

constitutional right to confrontation when it allowed the State's witness to testify as to

what other people told him, and failed to invoke the Rule after defense counsel's request.

In seven additional issues, Ruiz complains of inaccuracies in the trial court's judgment.

We agree that the evidence is legally insufficient to support Ruiz's conviction.

Accordingly, we reverse his conviction and render a judgment of acquittal.

FOOTNOTES

1 See Tex. Code Crim. Proc. Ann. art. 62.102(a) (West Supp. 2013); id. art. 62.055(a)

(ChangeofAddress).



I.

Ruiz was convicted of an [*2] offense that required him to register as a sex offender. See
Tex. Code Crim. Proc. Ann. art. 62.001(5)(A); see also Tex. Penal Code Ann. §

22.021(a) (West Supp. 2014). On January 26, 2011, Ruiz registered the following address

with the City of Irving Police Department: 525 Runstone Road, Irving, Texas. He

completed his annual registration at that same address on February 6, 2012. See Tex.

Code Crim. Proc. Ann. art. 62.058(a).

In July 2012, Irving police officers Steven Buesing and Dale Gant went to Ruiz's

registered address to execute a warrant for a parole violation. Buesing testified that when

they arrived at the residence, "lots" of Ruiz's family were there, including Ruiz's mother,

sister, nieces, and nephews, but that Ruiz was not there. Buesing then testified to his

investigation at Ruiz's residence, answering just four questions about his investigation

and offering two conclusions that Ruiz was not living at 525 Runstone Road:

       Q. During the course of your investigation while you were at the location on 525
       Runstone, did you have any evidence that the defendant Johnny Ruiz was living
       there?

       A.No.

       Q. Did you develop evidence, in fact, that he was not living there?

       A.Yes.

       Q.   And      that   he   hadn't   been   living   there   for   quite   some   time?

       A.Yes. [*3]

       .                                          .                                        .

       Q. Let me move on. In the course of your investigation, you were able to
       determine  that    this    Defendant    was      not     living   there?

       A. Yes.
Buesing also said he spoke with Ruiz over the telephone on July 3, 2012. Buesing

testified to that phone call as follows:

       I explained to [Ruiz] that I knew that he wasn't living at the location and that
       [Ruiz] had a parole violation, and I also told [Ruiz] that because he wasn't living at
       the location that he was in violation for his failure to comply for the registration.
       Through the conversation, [Ruiz] told me that he was gonna turn himself in.

Buesing added that despite telling Ruiz that Buesing would not "file the fail to comply"

charge if Ruiz turned himself in, Ruiz did not do so. Buesing reported a registration

violation to detective Scott Teien with the department's sex offender registration unit.

Teien verified that the Runstone Road address was Ruiz's registered address and that

Ruiz was in compliance with his annual registration requirement. Teien testified that in

July 2012, Ruiz had not changed his registered address or informed Teien that he was

moving.

Gant continued to visit Ruiz's registered address "over the course of a couple [of]

months." [*4] Gant testified that he "made numerous attempts" to locate Ruiz at the

Runstone Road address but that Ruiz was not at the location each time Gant went there.

Buesing testified that Gant learned through the investigation that Ruiz "was supposed to

be staying at a house" located at 3314 Clymer Street in Dallas. On November 11, 2012,

Buesing went with Gant and another officer to the Clymer Street address. Buesing said

the house at that address looked like an abandoned "crack house" with boarded-up

windows. The house was in very poor repair and did not appear to have electricity. After
knocking on the front door for fifteen to twenty minutes, a woman answered the door.

The officers then conducted a search of the house and found Ruiz hiding in the attic.

Buesing testified that Ruiz told the officers he hurt his back and "had been in the attic for

two days because no one knew he was up there." Buesing also said that there was no

record of Ruiz registering as a sex offender for the Clymer Street address.

The State argued that this evidence showed that Ruiz was not living at the Runstone Road

address and he was not registered or supposed to be living at the Clymer Street address

where he was [*5] found. After hearing this evidence, the trial court found Ruiz guilty of

the offense and sentenced him to two years in prison.

II.

Ruiz contends in his first issue that the evidence is insufficient to support his conviction

for failure to comply with the sex offender registration requirements. HN1 We review

Ruiz's sufficiency challenge by considering all the evidence in the light most favorable to

the verdict; based on that evidence and any reasonable inferences, we must determine

whether a rational fact finder could have found the essential elements of the offense

beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979); Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014).

Under this standard, the fact finder has full responsibility for resolving conflicts in the

testimony, weighing the evidence, and drawing reasonable inferences from basic facts to

ultimate facts. Jackson, 443 U.S. at 319. We presume the fact finder resolved any

conflicts in the evidence in favor of the verdict and defer to that determination. See id. at

326. We do not reassess witness credibility. Thornton, 425 S.W.3d at 303.
HN2 A person commits the offense of failing 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. [*6] Ann. art.

62.102(a); 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."). One requirement is that a person with a

"reportable conviction" must register with "the local law enforcement authority in any

municipality where the person resides or intends to reside for more than seven days."

Tex. Code Crim. Proc. Ann. art. 62.051(a). Another requirement is that if a person who is

required to register intends to change his address, he must report in person to the local

law enforcement authority and provide at least seven days' notice of the intended move.

Id. art. 62.055(a). Ruiz does not dispute that he was required to register as a sex offender

and that his status as a registered sex offender mandated compliance with the registration

requirements governing a change of address.

The State charged Ruiz with violating his registration requirements in two ways.

Specifically, the State alleged in the indictment that Ruiz committed the offense by

intentionally, knowingly, and recklessly (1) failing to report in person an intended change

of address and move date to his local law enforcement authority at least seven days

before Ruiz changed his address [*7] and (2) not residing at his registered address.

Regarding the State's first allegation, Ruiz contends that the evidence is legally

insufficient to support his conviction because the State provided no evidence that he

intended to move from his registered address. He claims that Buesing's testimony that
Ruiz was not at the Runstone Road address on the July 2012 date does not prove that

Ruiz intended to move from that location. He also contends that Buesing's assessment

that Ruiz no longer lived at the registered address was not supported by any facts and

Buesing's conclusory statement that he did not believe Ruiz resided there was not enough

to establish Ruiz intended to change his address. We agree with Ruiz's contentions.



The first registration requirement the State charged Ruiz with violating is triggered only

"[i]f a person required to register under this chapter intends to change address . . . ." Id.;

see also Green v. State, 350 S.W.3d 617, 623 (Tex. App.—Houston [14th Dist.] 2011,

pet. ref'd). None of the evidence presented at trial, however, established that Ruiz

intended to change his registered address or anticipated a move from that address. See

Green, 350 S.W.3d at 623. Teien testified that Ruiz had twice registered the Runstone

Road address as his residence and that Ruiz was in compliance [*8] with his annual

registration requirement. Teien confirmed that Ruiz was required to give Teien seven

days' notice before moving if Ruiz was no longer going to be living at the registered

address and testified that Ruiz had not reported an anticipated move or otherwise notified

Teien he was changing his address in July 2012. Buesing testified that he determined in

the course of his investigation that Ruiz was not living at the Runstone Road address. But

Buesing's testimony did not supply any information about whether Ruiz had an intention

to move from the Runstone Road address. Gant's testimony revealed only that Ruiz was

not there when Gant tried to locate Ruiz at the Runstone Road address and that Ruiz was

later found at the Clymer Street address.
In its appellate brief, the State focuses its argument on the second allegation—that Ruiz

failed to reside at his registered address. The State claims that based on Buesing's

investigation which yielded "positive evidence" that Ruiz had not been living at the

address, Ruiz's admission that he would "turn himself in" on the phone call with Buesing,

and Ruiz's "attempt to evade arrest for the offense" by hiding in the attic of the house

on [*9] Clymer Street, it is "clear" Ruiz failed to reside at his registered address. We

disagree with the State.

Buesing offered only conclusory testimony that Ruiz was not residing at the Runstone

Road address. Buesing's testimony showed that he went to the Runstone Road address

with Gant to execute an arrest warrant for a parole violation. Buesing testified that he

found no evidence that Ruiz was living at the location and that he had "develop[ed]

evidence" that Ruiz had not been living at the address for some time. But other than

affirming that he learned this information "in the course of [his] investigation," Buesing

did not substantiate his testimony and ultimate conclusion that Ruiz was not living at the

registered address with any objective facts. For example, Buesing did not testify to any

surveillance the officers did of the location. Nor did he testify that Ruiz had moved his

belongings or no longer received mail at the registered address. When asked about his

"further efforts" to locate Ruiz, Buesing spoke only of the phone call, which Buesing said

happened the same day he tried to execute the arrest warrant at Ruiz's registered address

in July 2012.

Likewise, Gant's testimony provided nothing [*10] that would lead a reasonable fact

finder to conclude that Ruiz was not residing at his registered address. Gant testified that
he went to the Runstone Road address on multiple occasions to locate Ruiz and that Ruiz

was not there on any of those occasions. But the fact that Ruiz was not present at the

location when the officers visited the address does not suggest that Ruiz was not still

living and residing at the registered address. See Silber v. State, 371 S.W.3d 605, 613

(Tex. App.—Houston [1st Dist.] 2012, no pet.) (HN3 "A registered sex offender is not

required to spend every spare moment and every night at their registered address."). In

addition, the fact that the officers found Ruiz at the Clymer Street address does not

suggest that Ruiz was not residing at his registered address. See id. at 612 (noting that

bodily presence at a place alone is insufficient to create a residence). There was no

testimony or other evidence that gave the impression Ruiz was living at the Clymer Street

address where he was found. To the contrary, Buesing testified that the house looked

abandoned and that it did not appear to have electricity. Neither officer testified that

Ruiz's clothes or other belongings were at that house, and the State offered no evidence

of a possessory interest Ruiz [*11] had in the Clymer Street house. Further, the only

evidence of how long Ruiz had been at the Clymer Street address was Buesing's

testimony that Ruiz said he had been there for two days. The officers did not testify to

any surveillance done of the Clymer Street address to prove Ruiz was living there for a

longer period of time.

The State emphasizes the testimony about the phone call Buesing had with Ruiz on July

3, 2012. The State argues that when Buesing accused Ruiz of not living at his registered

address during the phone call, Ruiz said he would turn himself in. The State maintains

that when guilt must be inferred from circumstances in evidence, "additional evidence of
the defendant's admission is sufficient to support a conviction." The State contends that

Ruiz's response "exhibited a consciousness of guilt" and that it leads to an inference of

his knowledge that Buesing's accusation was true.

But during the phone call, Buesing confronted Ruiz with more than just the accusation

that Ruiz was not living at his registered address. Buesing testified that after not finding

Ruiz at the Runstone Road address, he called Ruiz and told him that (1) he knew Ruiz

was not living at his registered [*12] address and (2) that Ruiz had a parole violation.

The record shows that the purpose of Buesing's visit to the Runstone Road address (and

his only involvement with Ruiz) was to arrest Ruiz for a parole violation. Although the

State asserts that Ruiz's response was an admission to Buesing that he violated the

registration requirement, the response also could be an admission to Buesing that Ruiz

knew he violated his parole. Buesing only testified that Ruiz told him "[t]hrough the

conversation" that he was "gonna turn himself in." Buesing also testified that he told Ruiz

that if Ruiz would turn himself in, then Buesing would "not file the fail to comply"

against Ruiz.

We finally reject the State's contention that "it may be logically concluded that [Ruiz]

was hiding in the attic [at the Clymer Street address] because he was attempting to flee

from the police and evade arrest for the offense he admitted he committed." The evidence

shows that Ruiz told Buesing he would turn himself in, Ruiz did not do so, and then he

was found in an abandoned house on Clymer Street. These facts do not support a

conclusion that Ruiz was hiding in the attic to avoid being prosecuted for the offense at

issue in this [*13] case. Cf. Bigby v. State, 892 S.W.2d 864, 883 (Tex. Crim. App. 1994)
(noting that HN4 to support the admission of evidence of escape from custody or flight,

"it must appear that the escape or flight have some legal relevance to the offense under

prosecution").

III.

After reviewing the record in this case, we conclude that there was no evidence presented

that Ruiz intentionally, knowingly, or recklessly failed to report an intended change of

address seven days before the intended change. We also conclude that even when we

review the evidence in the light most favorable to the verdict, a rational fact finder could

not have found beyond a reasonable doubt that Ruiz failed to reside at his registered

address. See Jackson, 443 U.S. at 319. We resolve Ruiz's first issue in his favor. Based on

our resolution of Ruiz's first issue, we do not address Ruiz's ten remaining issues. Tex. R.

App. P. 47.1.

Because the evidence is legally insufficient to support the judgment, we reverse Ruiz's

conviction for failing to comply with his sex offender registration requirements and

render judgment acquitting Ruiz of that charge.

/Ada Brown/

ADA BROWN JUSTICE

Do Not Publish

Tex. R. App. P. 47

JUDGMENT

Based on the Court's opinion of this date, the judgment of the trial court is REVERSED

and the appellant [*14] is hereby ACQUITTED.
Judgment entered this 5th day of November, 2014.
