Opinion filed February 27, 2014




                                        In The


        Eleventh Court of Appeals
                                     __________

                                  No. 11-12-00049-CR
                                      __________

                     NIKOLAI NIKOLAEV, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 39th District Court
                            Haskell County, Texas
                          Trial Court Cause No. 6483

                                     OPINION
      After a bench trial, the trial court convicted Nikolai Nikolaev of failure to
comply with the sex offender registration requirements of Chapter 62 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 62.102 (West
Supp. 2013). The trial court assessed Appellant’s punishment at confinement for
twenty years. We reverse and render a judgment of acquittal.
                                   Issue on Appeal
      In his sole issue on appeal, Appellant challenges the sufficiency of the
evidence to support his conviction.
                              Sufficiency of the Evidence
      We review a sufficiency of the evidence issue 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 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). In a bench trial, the trial court, as the trier of fact, is the exclusive judge of
the credibility of the witnesses and the weight to be given to their testimony.
Joseph v. State, 897 S.W.2d 374, 376 (Tex. Crim. App. 1995).
                                The Evidence at Trial
      The evidence showed that, in 1999, Appellant was convicted in Florida for
performing a lewd or lascivious act in the presence of a minor under the age of
sixteen. Upon Appellant’s release from prison, he was required to register as a sex
offender.
      In 2006, Appellant moved to Haskell County and registered as a sex
offender with the sheriff’s office. On his registration form dated August 18, 2010,
Appellant listed his residence as 200 North Sixth, Haskell, Texas.
      In December 2010, the Haskell County Sheriff’s Office received notice from
the Department of Public Safety that Appellant had failed to comply with a recent
change in the law that required him to register every ninety days instead of
annually.    Sheriff David Halliburton went to 200 North Sixth, which was
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Appellant’s registered residence, to notify Appellant about his noncompliance with
the law. When Sheriff Halliburton arrived at the residence, Appellant was not
there.
         For a few months, Sheriff Halliburton checked the house at 200 North Sixth
on a weekly basis but never encountered Appellant. Appellant did not have his
mail delivered to the house but, instead, received it at the post office. Sheriff
Halliburton went to the post office and was informed there that Appellant checked
his mail only once every three or four months. Sheriff Halliburton believed that
Appellant did not actually live at the house and that, therefore, Appellant was in
violation of his sex offender registration requirements.          Sheriff Halliburton
procured an arrest warrant for Appellant, and Appellant was subsequently arrested.
         After the arrest, Sheriff Halliburton obtained a warrant to search Appellant’s
registered residence. Sheriff Halliburton and other officers searched the house.
Sheriff Halliburton testified that, at that time, the house appeared unoccupied and
was surrounded by weeds.          Inside the house, Sheriff Halliburton found no
cookware or dishes. The house did not have water, gas, or electricity service, and
the bedroom had a large hole in the roof. The house contained minimal furniture.
Sheriff Halliburton said that a couch in the house had a sheet and a blanket on it.
Clothing was found in the house, but Sheriff Halliburton described the clothing as
“old.” Sherriff Halliburton testified that Appellant “could’ve been staying there.”
         Appellant testified that he bought the house located at 200 North Sixth in
1996 and that he had lived there ever since. Appellant said that the house was the
only property he owned and that he was current on the payment of taxes on the
property.
         Appellant testified that his occupation as a truck driver required him to be
away from Haskell for long periods of time. Thus, he only stayed overnight at his
house about twice a month. Appellant said that he was an independent contractor
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and that he drove trucks that were leased temporarily from other parties. Appellant
explained that, because he never stayed in one place for more than a couple of
days, he slept in each truck’s overhead compartment during his cross-country trips.
      Appellant explained that the wiring and pipes in his house needed to be
repaired before utility services could be restored. Although he had little time to
work on the house, Appellant said that he planned to do the repairs himself. He
said that he used camping equipment to cook food and that he used containers to
bring water to the house. Appellant testified that he took sponge baths when he
stayed at the house. Appellant explained that, when he was on the road, he
showered in truck stops.
                                     Analysis
      Appellant contends that the evidence was insufficient to establish that he
failed to comply with the sex offender registration requirement to notify law
enforcement of a change of residence because there was no evidence that he
changed his residence. If a person who is required to register under the sex
offender registration program intends to change addresses, he must report the
change in person to the local law enforcement authority designated as his primary
registration authority not later than the seventh day before the intended change.
CRIM. PROC. art. 62.055(a). If the person moves to a new residence, he must report
to the local law enforcement authority where the new residence is located, not later
than the seventh day after the move. Id. If the person fails to comply with any
requirement of Chapter 62, he may be charged with a felony. Id. art. 62.102(a).
      The Code of Criminal Procedure does not explain what constitutes a
“residence.”   In Whitney v. State, the Court of Criminal Appeals held that
“residence” is an “elastic term” and “[t]he meaning that must be given to it
depends upon the circumstances surrounding the person involved and largely
depends upon the present intention of the individual.” 472 S.W.2d 524, 525 (Tex.
                                         4
Crim. App. 1971). The court further noted that “[n]either bodily presence alone
nor intention alone will suffice to create the residence, but when the two coincide,
at that moment the residence is fixed and determined.” Id.
      In this case, the State argues that Appellant’s conviction should be affirmed
because the evidence was sufficient to establish that he moved to another residence
in violation of Article 62.055(a) or that he lived in a truck and failed to confirm his
location every thirty days in violation of Article 62.055(i). See CRIM. PROC.
art. 62.055(a), (i). The State contends that it was required to prove only that
Appellant no longer lived at his registered residence and that it met this burden.
      The indictment alleged that Appellant committed the offense of failure to
comply with the sex offender registration requirements of Chapter 62 in one
specific way: by failing to update or correct his current place of residence, in
violation of Article 62.055(a). Having specified the narrow manner in which
Appellant allegedly violated Chapter 62, the State was limited to the manner
specified in the indictment. See Thomas v. State, 411 S.W.3d 685, 691 (Tex.
App.—Texarkana 2013, pet. filed) (quoting Geick v. State, 349 S.W.3d 542, 545
(Tex. Crim. App. 2011), for the proposition that “[w]hen a statute lays out several
alternative methods of committing the offense, and the indictment alleges only one
of those methods, ‘the law as authorized by the indictment’ is limited to the
method specified in the indictment.”). Thus, at trial, the State was required to
prove beyond a reasonable doubt that Appellant failed to correct or update his
current place of residence in violation of Article 62.055(a).
      At trial, the State did not advance a theory as to where Appellant moved his
residence other than to suggest that he was living out of the leased trucks he used
for work. The State presented no evidence that Appellant maintained a particular
truck for an extended period of time or that he moved his personal belongings to
any particular truck. However, the State argues that evidence presented at trial
                                          5
sufficiently established that Appellant moved from his registered residence and
failed to update the local authorities with his current place of residence. To
support its argument, the State points to Appellant’s minimal use of his registered
residence and the poor condition of that residence.
      Appellant worked as a truck driver, and he informed the Haskell County
Sheriff’s Office of his occupation when he completed his registration form.
Although Appellant was frequently away from his registered residence due to
work, the State presented no evidence showing that he had abandoned ownership
or control of the residence. The evidence showed that Appellant maintained some
furniture and belongings at the residence.
      Appellant’s frequent and prolonged absences from the registered residence
did not establish that he had stopped using the house as his primary residence. See
Shelton v. State, No. 05-01-00458-CR, 2003 WL 1870529, at *2–4 (Tex. App.—
Dallas Apr. 14, 2003, no pet.) (not designated for publication) (finding that the
appellant had not moved from his registered residence even though he would
frequently spend several consecutive nights at local motels). Nor did the lack of
utility services at the registered address establish that Appellant no longer used the
house as his residence. See Silber v. State, 371 S.W.3d 605, 609–13 (Tex. App.—
Houston [1st Dist.] 2012, no pet.) (holding that the appellant had not changed his
residence from his registered address despite the fact that the house had never had
electricity service during the time that he had lived there).
      As the offense was alleged in the indictment, Appellant could not have
violated Chapter 62 if he did not change his residence from his registered address
to another residence. There was no evidence that Appellant changed his residence.
Based on the evidence, we conclude that a rational trier of fact could not have
found that Appellant changed his residence or that he intended to change his
residence. The evidence was insufficient to establish that Appellant failed to
                                           6
correct or update his current place of residence as specifically charged in the
indictment; therefore, the evidence was legally insufficient to support his convic-
tion. Appellant’s sole issue on appeal is sustained.
                                        This Court’s Ruling
        We reverse the judgment of the trial court, and we render a judgment of
acquittal.




                                                                MIKE WILLSON
                                                                JUSTICE


February 27, 2014
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Chew 1

Bailey, J., not participating.




        1
        David Chew, Retired Chief Justice, Court of Appeals, 8th District of Texas at El Paso, sitting by
assignment.

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