                            NUMBER 13-14-00292-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

MELVIN MONROE BRIGHAM,                                                    Appellant,

                                          v.

THE STATE OF TEXAS,                                                        Appellee.


                   On appeal from the 329th District Court
                        of Wharton County, Texas.


                        MEMORANDUM OPINION
               Before Justices Garza, Benavides and Perkes
                 Memorandum Opinion by Justice Garza
      Appellant, Melvin Monroe Brigham, was convicted of failing to comply with sex

offender registration requirements, a second-degree felony. See TEX. CODE CRIM. PROC.

ANN. art. 62.102(a), (b)(3) (West, Westlaw through 2013 3d C.S.). After enhancement

paragraphs were found to be true, the trial court punished the offense as a first-degree
felony and sentenced Brigham to twenty-five years’ imprisonment. See id. art. 62.102(c);

TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw through 2013 3d C.S.). On appeal,

Brigham contends that the trial court erred by admitting evidence of a prior conviction.

We affirm.

                                      I. BACKGROUND

       In 2000, Brigham was convicted of indecency with a child by contact, a second-

degree felony, and was sentenced to two years’ incarceration. See TEX. PENAL CODE

ANN. § 21.11(a)(1) (West, Westlaw through 2013 3d C.S.). Because of this conviction,

Brigham is required to register as a sex offender for the remainder of his life. See TEX.

CODE CRIM. PROC. ANN. art. 62.001(5)(A) (West, Westlaw through 2013 3d C.S.) (stating

that a conviction under penal code section 22.11 is a “reportable conviction or

adjudication” for purposes of sex offender registration); id. art. 62.101(a)(1) (West,

Westlaw through 2013 3d C.S.) (stating generally that a person’s duty to register as a sex

offender ends when the person dies if the person has a reportable conviction or

adjudication for a “sexually violent offense”); id. art. 62.001(6)(A) (defining indecency with

a child by contact, when committed by a person 17 years of age or older, as a “sexually

violent offense”).

       On November 15, 2013, Brigham was indicted for failing to comply with the

requirements of the sex offender registration statute. The indictment stated, in its entirety,

as follows:

       THE GRAND JURY, for the County of Wharton, State of Texas, duly
       selected, empanelled, sworn, charged, and organized as such at the July–
       December Term A.D. 2013 of the District Court for said County, upon their
       oaths present in and to said Court at said term that MELVIN MONROE
       BRIGHAM hereinafter styled Defendant, on or about August 27, 2013 and
       before the presentment of this indictment, in the County and State

                                              2
       aforesaid, did then and there, while being a person required to register with
       the local law enforcement authority in the municipality where the defendant
       resided or intended to reside for more than seven days, to-wit: El Campo,
       because of a reportable conviction for Indecency with a Child, intentionally
       and knowingly fail to register with the local law enforcement authority in said
       municipality.

The State later filed notice that it intended to seek enhanced punishment pursuant to the

following enhancement paragraphs:

       And it is further presented in and to said Court that, prior to the commission
       of the aforesaid offense (hereafter styled the primary offense), on the 21ST
       Day of JULY, 2000, in cause number 13337 in the 329th District Court of
       Wharton County, Texas, the defendant was finally convicted of the felony
       offense of Indecency With A Child By Contact.

       And it is further presented in and to said Court that, prior to the commission
       of the primary offense, and after the conviction in cause number 13337 was
       final, the defendant committed the felony offense of Failure To Register As
       A Sex Offender and was finally convicted on the 19[t]h Day of OCTOBER,
       2010, in cause number 16359 in the 329TH District Court of Wharton
       County, Texas.

See id. art. 62.102(c) (“If it is shown at the trial of a person for an offense or an attempt

to commit an offense under this article that the person has previously been convicted of

an offense or an attempt to commit an offense under this article, the punishment for the

offense or the attempt to commit the offense is increased to the punishment for the next

highest degree of felony.”); TEX. PENAL CODE ANN. § 12.42(d) (West, Westlaw through

2013 3d C.S.) (providing generally that, if it is shown on the trial of a felony offense other

than a state jail felony that the defendant has previously been finally convicted of two

felony offenses, and the second previous felony conviction is for an offense that occurred

subsequent to the first previous conviction having become final, on conviction the

defendant shall be punished by imprisonment for any term of not more than 99 years or

less than 25 years).

       At trial, during the State’s case-in-chief, the State sought to admit four judgments

                                              3
of conviction as its Exhibits 2 through 5. Exhibit 2 was a judgment in Wharton County

District Court case number 10903, dated July 19, 2000, revoking Brigham’s community

supervision for a 1994 indecency with a child conviction and sentencing him to two years’

imprisonment. Exhibit 3 was a judgment in Wharton County District Court case number

13337, dated July 21, 2000, finding Brigham guilty of indecency with a child by contact

and sentencing him to two years’ imprisonment, with the sentence to run concurrently

with those rendered in trial court cause numbers 11905 and 13338. Exhibit 4 was a

judgment in Wharton County District Court case number 13338, dated July 21, 2000,

finding Brigham guilty of indecency with a child by contact and sentencing him to two

years’ imprisonment, with the sentence to run concurrently with those rendered in trial

court cause numbers 11905 and 13337. Exhibit 5 was a judgment in Wharton County

District Court case number 10904, dated July 19, 2000, revoking Brigham’s community

supervision for a 1994 indecency with a child conviction and sentencing him to two years’

imprisonment, with the sentence to run concurrently with those rendered in trial court

cause numbers 10903 and 11905.1

        Defense counsel objected to the admission of the exhibits and asked the trial court

to excuse the jury. After the jury was excused, the prosecutor explained that he sought

to introduce the judgments in order to prove that Brigham was responsible for registering

as a sex offender every ninety days. See TEX. CODE CRIM. PROC. ANN. art. 62.058(a)

(West, Westlaw through 2013 3d C.S.). Defense counsel objected on several grounds.

First, counsel complained that the indictment merely alleged that Brigham had been


        1 Exhibits 2, 3, and 5 listed the “Date Offense Committed” as September 27, 1990. Exhibit 4 listed
the “Date Offense Committed” as October 11, 1992. Although Exhibits 3, 4 and 5 refer to a judgment
rendered in trial court cause number 11905, no judgment of conviction with that cause number appears in
the record.

                                                    4
previously convicted of indecency with a child, not indecency with a child by contact; and

counsel noted that indecency with a child by means other than contact is not defined as

a “sexually violent” offense and therefore would not subject Brigham to a ninety-day

registration requirement. See id. art. 62.001(6)(A). Second, counsel noted that the

indictment alleged merely that Brigham had been convicted once of indecency with a

child, whereas the statute states that only those convicted twice of sexually violent

offenses are subject to the ninety-day reporting requirement.2 See id. art. 62.058(a).3

       In response, the State argued that the defense waived any issue regarding the

indictment by failing to complain prior to the empanelling of the jury. See id. art. 1.14(b)

(Westlaw through 2013 3d C.S.). The State also argued that “we can prove [Brigham]

was convicted of indecency with a child” because indecency with a child by contact is

“one form” of indecency with a child.

       Defense counsel then stated that “the indictment is not something that we’re


         2 Defense counsel additionally objected on grounds that two of the judgments sought to be

admitted—exhibits 2 and 3—had been set aside by the court that rendered them and were replaced by the
two other judgments. Eventually, the State agreed that those two judgments had been superseded and it
stated that it would not seek to admit those judgments as evidence.
       3   Subsection (a) of article 62.058 provides:
       A person subject to registration under this chapter who has for a sexually violent offense
       been convicted two or more times, received an order of deferred adjudication two or more
       times, or been convicted and received an order of deferred adjudication shall report to the
       local law enforcement authority designated as the person's primary registration authority
       by the department not less than once in each 90-day period following the date the person
       first registered under this chapter to verify the information in the registration form
       maintained by the authority for that person. A person subject to registration under this
       chapter who is not subject to the 90-day reporting requirement described by this subsection
       shall report to the local law enforcement authority designated as the person’s primary
       registration authority by the department once each year not earlier than the 30th day before
       and not later than the 30th day after the anniversary of the person’s date of birth to verify
       the information in the registration form maintained by the authority for that person. For
       purposes of this subsection, a person complies with a requirement that the person register
       within a 90-day period following a date if the person registers at any time on or after the
       83rd day following that date but before the 98th day after that date.
TEX. CODE CRIM. PROC. ANN. art. 62.058(a) (West, Westlaw through 2013 3d C.S.).

                                                        5
objecting to”; rather, he explained that he was objecting to the admission of the

convictions as evidence “because they haven’t given notice to [Brigham] in the

indictment.” The prosecutor replied by noting that the State had previously filed notice

that it would seek to admit evidence of extraneous offenses and bad acts, including the

convictions at issue.4 See TEX. R. EVID. 404(b). Defense counsel reiterated that he was

“not objecting to the actual indictment itself.” Instead, he stated he was “objecting to the

fact that they can’t introduce the offenses—these two offenses of sexual assault by



        4   The notice stated as follows:
        COMES NOW THE State of Texas, by and through her Criminal District Attorney and the
        undersigned Assistant District Attorney and files this State’s Notice of Intent to Offer
        Evidence of Extraneous Offenses and Bad Acts pursuant to Articles 37.07 and 38.37 of
        the Texas Code of Criminal Procedure and Rule 404(b), and 609 of the Texas Rules of
        Evidence.
                                                      I.
        The Defendant was convicted of INDECENCY WITH A CHILD BY CONTACT and was
        sentenced to 2 years in TDC in Cause #10903 in the 329th District Court of Wharton County
        on 7-19-2000 after being revoked from probation from said offense;
                                                      II.
        The Defendant was convicted of INDECENCY WITH A CHILD BY CONTACT and was
        sentenced to 2 years in TDC in Cause #10904 in the 329th District Court of Wharton County
        on 7-19-2000 after being revoked from probation from said offense—reduced from
        Aggravated Sexual Assault of a Child;
                                                      Ill.
        The Defendant was convicted of INDECENCY WITH A CHILD BY CONTACT and was
        sentenced to 2 years in TDC in Cause #13338 in the 329th District Court of Wharton County
        on 7-21-2000;
                                                      IV.
        The Defendant was convicted of PCS and was sentenced to 2 years in STATE JAIL in
        Cause #11905 in the 329th District Court of Wharton County on 7-19-2000 after being
        revoked from probation from said offense.
We note that the code of criminal procedure articles cited by the State in its notice were not applicable to
the admission of evidence at the guilt-innocence phase of Brigham’s trial. See id. art. 37.07 (West, Westlaw
through 2013 3d C.S.) (stating that, at the punishment phase of trial, evidence may be offered “as to any
matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the
defendant . . .“); id. art. 38.37 (West, Westlaw through 2013 3d C.S.) (stating that “evidence of other crimes,
wrongs, or acts committed by the defendant against the child who is the victim of the alleged offense shall
be admitted for its bearing on relevant matters” in prosecutions for certain sexual and assaultive offenses
not including prosecutions for failure to comply with sex offender reporting requirements).

                                                      6
contact to try to get to the fact that he is a 90-day required registrant because there’s no

notice of that in the indictment at all.” In other words, defense counsel asserted that the

State “can’t prove their indictment by using other things other than what they’ve alleged

in the indictment.” The prosecutor argued that “notice of those convictions is adequate”

because “[t]hose are just different mechanisms for proving indecency with a child, either

you touch a child or you expose a child but the conviction is the same.” Defense counsel

urged instead that “there’s a big difference” between indecency with a child by contact

and indecency with a child by exposure, in that the former is considered a “sexually

violent” offense under chapter 62 and the latter is not. See TEX. CODE CRIM. PROC. ANN.

art. 62.001(6)(A). Counsel further noted that the difference between a one-year reporting

requirement and a ninety-day reporting requirement is important because the degree of

offense for failing to comply with reporting requirement changes based on the required

reporting period.     See id. art. 62.102(b) (stating that failure to comply with the

requirements of chapter 62 is a second-degree felony if the defendant is required to verify

registration every ninety days, but is a third-degree felony if the defendant is required to

verify registration once each year).

        After a recess, the trial court asked the attorneys to “make the best argument they

can.”   Defense counsel argued that it would be “prejudicial” to admit evidence of

convictions for indecency with a child by contact because “[t]he notice that the Defendant

received was one reportable conviction with it being indecency with a child and, thus, a

one year report[ing requirement under chapter 62].” See id. art. 62.058(a). The State

replied as follows:

        The Defense is saying that—that we’re trying to prove that he’s a 90-day
        registrant. There’s nothing about being a 90-day registrant in the

                                             7
        indictment. Under Chapter 62, if you change your address and you do not
        report your change of address, whether you’re a 90-day registrant or
        whether you’re an annual registrant, that failure to report your change of
        address is a felony under Chapter 62.102.

        That is all the State is seeking to prove in this case . . . . we will offer State’s
        Exhibit 3 to prove that is—that he has a reportable conviction for indecency
        with a child.

        Under the State’s theory of the case in the indictment, it doesn't matter if it's
        indecency by contact or indecency by exposure, because the State doesn’t
        have to prove in this case that he’s a 90-day registrant. All the State has to
        prove is that (a) he has a reportable conviction and is required to report any
        change of address and (b) that he failed to do so.

        And that is what we’re prepared to do. . . . [T]hat is what the State intends
        to prove.

In other words, the State, contended that Brigham was being charged for failure to report

an address change rather than simply failing to register. See id. art. 62.055(a) (West,

Westlaw through 2013 3d C.S.).5 The State contended that the exhibits should therefore

be admitted “because in order to prove that he was required to register, we have to prove

that he’s been convicted of a reportable offense. It’s a required element.” Defense

counsel asserted that “it's news to the Defense that now the State is alleging that he failed

to notify the proper authorities of a change of address. I can’t figure that out from the



        5   Subsection (a) of article 62.055 states:
        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 as the person’s primary registration authority by the [Department of
        Public Safety] 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 later of the seventh day
        after changing the address or the first date the applicable local law enforcement authority
        by policy allows the person to report, 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.
Id. art. 62.055(a) (West, Westlaw through 2013 3d C.S.).

                                                       8
indictment.”

        The trial court sustained defense counsel’s objection to exhibits 2, 3 and 5 but

denied the objections as to exhibit 4 and admitted that exhibit into evidence. Following

trial, Brigham was convicted and this appeal followed.6

                                             II. DISCUSSION

        By a single issue on appeal, Brigham argues that the trial court erred by admitting

State’s Exhibit 4 into evidence, over his counsel’s objection, “when the state did not allege

this conviction in the indictment.”

        Although the title of Brigham’s appellate issue appears to complain about the

admission of evidence, the authority he cites in his brief pertains chiefly to deficiencies in

indictments. See TEX. CODE CRIM. PROC. ANN. art. 21.01 (West, Westlaw through 2013

3d C.S.) (“An ‘indictment’ is the written statement of a grand jury accusing a person

therein named of some act or omission which, by law, is declared to be an offense.”); id.

art. 21.03 (West, Westlaw through 2013 3d C.S.) (“Everything should be stated in an

indictment which is necessary to be proved.”); Gollihar v. State, 46 S.W.3d 243, 246 (Tex.

Crim. App. 2001); see also United States v. Sprick, 233 F.3d 845, 853 (5th Cir. 2000). To

the extent Brigham complains on appeal that the indictment was insufficient or erroneous

in any way, the State argues that he waived any such issue by failing to object before

trial. We agree. Subsection (b) of article 1.14 of the code of criminal procedure provides:

        If the defendant does not object to a defect, error, or irregularity of form or
        substance in an indictment or information before the date on which the trial
        on the merits commences, he waives and forfeits the right to object to the



        6The State submitted its appellate brief to this Court one day after it was due to be filed, see TEX.
R. APP. P. 38.6, and contemporaneously moved for leave to file the brief. We hereby grant the motion and
accept the brief.

                                                     9
       defect, error, or irregularity and he may not raise the objection on appeal or
       in any other postconviction proceeding.

TEX. CODE CRIM. PROC. ANN. art. 1.14(b).           Because Brigham did not object to the

indictment “before the date on which the trial on the merits commence[d],” he waived and

forfeited his right to complain about the indictment on appeal. See id.

       Within his sole issue, Brigham additionally contends that there was a “material and

fatal” variance between the allegations in the indictment and the proof adduced at trial.

In particular, Brigham alleges that “[i]ndecency by contact and indecency by exposure are

two different elements” and that he “was entitled to have notice as to what predicate

offense the state was claiming in his indictment which triggered the registration

requirement.” He cites Gollihar, in which the Texas Court of Criminal Appeals noted:

       It is axiomatic that a conviction upon a charge not made or upon a charge
       not tried constitutes a denial of due process. These standards no more than
       reflect a broader premise that has never been doubted in our constitutional
       system: that a person cannot incur the loss of liberty for an offense without
       notice and a meaningful opportunity to defend.

46 S.W.3d at 246 (quoting Jackson v. Virginia, 444 U.S. 307, 315 (1979)).

       “A ‘variance’ occurs when there is a discrepancy between the allegations in the

charging instrument and the proof at trial.” Gollihar, 46 S.W.3d at 246. “[A] material

variance renders a conviction infirm, and the only remedy is to render an acquittal.”

Thomas v. State, 444 S.W.3d 4, 9 (Tex. Crim. App. 2014). But a variance is immaterial

if it “is not prejudicial to a defendant’s ‘substantial rights’.” Gollihar, 46 S.W.3d at 246. In

determining whether substantial rights have been prejudiced, we ask (1) “whether the

indictment, as written, informed the defendant of the charge against him sufficiently to

allow him to prepare an adequate defense at trial,” and (2) “whether prosecution under

the deficiently drafted indictment would subject the defendant to the risk of being


                                              10
prosecuted later for the same crime.” Id. (citation omitted). The Texas Court of Criminal

Appeals recently held, in a case for failure to comply with sex offender registration

requirements, that

        although the State may be permitted to plead multiple statutory manner and
        means in the charging instrument, it could choose to plead only one.
        However, in so doing, the State is required to prove that the defendant
        committed the alleged crime using that specific statutory manner and
        means, and it may not rely on any other statutory manner and means of
        committing the crime it did not plead in the charging instrument.

Thomas, 444 S.W.3d at 8. Brigham notes that the State did not plead in the indictment

that he had been previously convicted of indecency with a child by contact, and he argues

that, by introducing Exhibit 4, the State impermissibly relied on an alternative “manner

and means of committing the crime” than that which was alleged in the indictment.

        We disagree. Brigham does not cite any authority, and we find none, establishing

either (1) that the State must allege in the indictment the particular conviction which

obligated the defendant to register as a sex offender, or (2) that “indecency with a child”

does not include “indecency with a child by contact.” The relevant section of the penal

code is entitled “Indecency With a Child” and encompasses both indecency by contact

and indecency by exposure. See TEX. PENAL CODE ANN. § 21.11(a)(1), (a)(2). Here, the

indictment alleged that Brigham had been convicted of “Indecency With a Child” but did

not specify whether that conviction was for indecency by exposure or indecency by

contact.7 The evidence at trial—in particular, State’s Exhibit 4—then established that



        7  Under the penal code, indecency with a child by contact and indecency with a child by exposure
are felonies of different degrees. See TEX. PENAL CODE ANN. § 21.11(d) (West, Westlaw through 2013 3d
C.S.) (defining the former as a second-degree felony and the latter as a third-degree felony). But a
defendant convicted of either offense is required to register under chapter 62. See TEX. CODE CRIM. PROC.
ANN. art. 62.001(5)(A) (West, Westlaw through 2013 3d C.S.). In any event, as noted, to the extent Brigham
complains that the indictment was insufficiently specific or otherwise erroneous, he has waived that
complaint by failing to raise it prior to trial. Id. art. 1.14(b) (West, Westlaw through 2013 3d C.S.).

                                                   11
Brigham had been convicted of indecency with a child, which is exactly what the

indictment alleged. The fact that Brigham committed the offense “by contact” as opposed

to “by exposure” does not mean that the evidence contradicted or varied from the

allegations made in the indictment. We do not believe that there was any discrepancy

between the allegations made in the indictment and the proof adduced at trial.

       We finally address Brigham’s general contention that the trial court erred by

admitting State’s Exhibit 4 into evidence. We review the admission of evidence for abuse

of discretion. Amador v. State, 275 S.W.3d 872, 878 (Tex. Crim. App. 2009). Brigham

contends: “The indictment alleges only indecency with a child, not by contact. Defendant

did not have notice.”

       Texas Rule of Evidence 404(b) provides:

       Evidence of other crimes, wrongs or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It
       may, however, be admissible for other purposes, such as proof of motive,
       opportunity, intent, preparation, plan, knowledge, identity, or absence of
       mistake or accident, provided that upon timely request by the accused in a
       criminal case, reasonable notice is given in advance of trial of intent to
       introduce in the State’s case-in-chief such evidence other than that arising
       in the same transaction.

TEX. R. EVID. 404(b). Here, the State provided written notice well before trial that it would

seek to introduce evidence of Brigham’s prior convictions. Moreover, State’s Exhibit 4

was not offered to prove that Brigham “act[ed] in conformity therewith”, see id.—it

evidenced a conviction for indecency with a child, whereas Brigham was charged in the

instant case with a separate crime, i.e., failing to comply with reporting requirements.

Instead, the exhibit was offered in order to prove an element of the charged offense; i.e.,

that Brigham was required to register as a sex offender. See TEX. CODE CRIM. PROC. ANN.

art. 62.101(a). The evidence was admissible as relevant to that issue. See TEX. R. EVID.


                                             12
402 (stating that relevant evidence is generally admissible); Devoe v. State, 354 S.W.3d

457, 469 (Tex. Crim. App. 2011) (“A trial court’s 404(b) ruling admitting evidence is

generally [not an abuse of discretion] if there is evidence supporting that an extraneous

transaction is relevant to a material, non-propensity issue.”). We conclude the trial court

did not err by admitting State’s Exhibit 4.8

                                           III. CONCLUSION

        The trial court’s judgment is affirmed.

                                                         DORI CONTRERAS GARZA,
                                                         Justice


Delivered and filed the
5th day of March, 2015.




         8 Brigham also cursorily alleges within his sole issue that “the evidence presented at trial was

insufficient to prove the elements of the offense that the state itself had chosen to allege” and that
“defendant’s due process rights were violated.” However, he does not support these arguments with
citations to authority or record references; therefore, the issues are waived. See TEX. R. APP. P. 38.1(i).

                                                   13
