Opinion filed October 23, 2008




                                                           In The


    Eleventh Court of Appeals
                                                       ____________

                                                No. 11-07-00098-CR
                                                    __________

                        CHARLES WILLIAM ROBERTSON, Appellant

                                                               V.

                                        STATE OF TEXAS, Appellee


                                    On Appeal from the 70th District Court

                                                  Ector County, Texas

                                          Trial Court Cause No. A-33,465


                                     MEMORANDUM OPINION

          The jury convicted Charles William Robertson of the third degree1 felony offense of failure
to comply with the sex offender registration requirements, found the enhancement allegations to be
true, and assessed punishment at confinement for life. We modify and affirm.



          1
           We note that the judgment reflects that the offense is a “1ST DEGREE FELONY.” However, the verdict form signed by
the presiding juror shows that appellant was convicted of “Failure to Comply With Sex Offender Registration Requirements, a Third
Degree Felony, a lesser included offense.” Therefore, we modify the judgment to correct the mistake and to reflect that the “Degree
of Offense” is a “3RD DEGREE FELONY.”
                                               I. Issues
       Appellant presents five issues for review. In the first and second issues, he challenges the
legal and factual sufficiency of the evidence. In the third issue, he contends that the jury charge on
the lesser included offense was fundamentally defective in that it did not contain all of the elements
of the offense. In the fourth issue, appellant argues that the trial court erred in admitting State’s
Exhibit No. 1, a copy of a fax regarding appellant’s prior registration as a sex offender. Appellant
contends in his final issue that the evidence is insufficient to prove the enhancement allegations.
                                   II. Sufficiency of the Evidence
       A. Standards of Review.
       In addressing appellant’s first and second issues, we will apply the following well-recognized
standards of review. To determine if the evidence is legally sufficient, we must review all of the
evidence in the light most favorable to the verdict and determine whether any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crim. App. 2000). To
determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light
and determine whether the evidence supporting the verdict is so weak that the verdict is clearly
wrong and manifestly unjust or whether the verdict is against the great weight and preponderance
of the conflicting evidence. Watson v. State, 204 S.W.3d 404, 414-15 (Tex. Crim. App. 2006);
Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). We must consider the sufficiency
of the evidence measured by the elements of the offense as defined by the hypothetically correct jury
charge for this case. Malik v. State, 953 S.W.2d 234, 239-40 (Tex. Crim. App. 1997); see also
Gollihar v. State, 46 S.W.3d 243 (Tex. Crim. App. 2001). The hypothetically correct jury charge
for a case is “one that accurately sets out the law, is authorized by the indictment, does not
unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of
liability, and adequately describes the particular offense for which the defendant was tried.” Malik,
953 S.W.2d at 240. We must give due deference to the jury’s determinations of fact, particularly
those determinations concerning the weight and credibility of the evidence. Johnson v. State, 23
S.W.3d 1, 8-9 (Tex. Crim. App. 2000).


                                                   2
          B. Legal Sufficiency.
          In the first issue, appellant asserts that the evidence is legally insufficient to prove that he
failed to report in person as charged and that he failed to register with the local law enforcement
authority as required by statute.
                    1. Report v. Register.
          Appellant summarizes this portion of his sufficiency argument as follows: “Appellant was
charged with a failure to comply with a reporting requirement and the State’s proof went solely
toward proving Appellant failed to comply with a registration requirement, a totally separate
violation.” We do not discern such a distinction.
          A sex offender is required to register pursuant to the provisions of TEX . CODE CRIM . PROC.
ANN . ch. 62 (Vernon 2006 & Supp. 2008). A person with a reportable conviction shall timely
register or verify his registration with the local law enforcement authority where the person resides
or intends to reside for more than seven days. Article 62.051. Article 62.055(a) provides:
          If a person required to register changes address, the person shall, not later than the
          later of the seventh day after changing the address . . . report in person to the local
          law enforcement authority in the municipality or county in which the person’s new
          residence is located and provide the authority with proof of identity and proof of
          residence.
A person subject to Chapter 62 “shall report to the local law enforcement authority” to verify his
registration information. Article 62.058(a). A person with two or more prior convictions for a
sexually violent offense must report once every ninety days; others must report annually. Id.
          If a person is required to register but fails to comply with any one of the registration
requirements of Chapter 62, the person commits an offense pursuant to Article 62.102. With a few
exceptions not applicable to this case,2 the offense of failing to comply with a registration
requirement is a third degree felony if the person is required to verify his registration annually and
a second degree felony if the person is required to verify his registration every ninety days.
Article 62.102(b)(2), (3). There is no separate violation or offense involving the failure to “report”;




          2
           See Articles 62.102(b)(1) (state jail felony), 62.101(b) (juvenile at time of commission), 62.101(c) (commission of other
offenses, such as delinquent conduct), and 62.407 (early termination granted by trial court).

                                                                 3
all violations of Chapter 62 are covered by Article 62.102, which is entitled “Failure to Comply With
Registration Requirements.”
       The record shows that appellant moved to Odessa in October 2005 but that, as of the date of
his arrest, he had not reported to the Odessa Police Department to register, to show proof relating
to his change of address, or to verify any prior registration as a sex offender. Detective Kelly Cecil
informed appellant on June 8, 2006, that he was required to come in and register based upon a
Louisiana conviction, which was a 1990 conviction for the offense of “forcible rape.” Appellant said
he would come in the next day, but he did not show. Appellant was arrested on June 12, 2006, for
failing to comply with the registration requirements. The evidence shows that appellant had
registered in 2001 in Burleson County, Texas, as a sex offender based upon his prior Louisiana
conviction.
       The jury was instructed to find appellant guilty of the third degree felony offense of “Failure
to Comply With Sex Offender Registration Requirements” if it found beyond a reasonable doubt that
he:
       [D]id then and there intentionally or knowingly fail to report in person to the local
       law enforcement authority with whom he must register, to-wit: the Odessa Police
       Department and with whom said Defendant is registered under the Sex Offender
       Registration Program, and the said Defendant is required to register annually to verify
       the information in the registration form maintained by said law enforcement
       authority, and the said Defendant had received a reportable conviction or
       adjudication, to-wit: Forcible Rape on February 13, 1990, in . . . Louisiana.
Appellant correctly points out that both the indictment and the jury charge included language
indicating that appellant “is registered” with the Odessa Police Department – though the evidence
showed that appellant had never registered in Odessa. While we agree that both the indictment and
jury charge (which had other inaccuracies as well) were inartfully written, we cannot hold that the
evidence, when measured by the elements of the offense as defined by the hypothetically correct jury
charge for this case, is legally insufficient to support appellant’s conviction for failing to comply
with the registration requirements for sex offenders. As charged and proved, appellant had a
reportable conviction; appellant was required to register as a sex offender and to verify his
registration annually; appellant was required to report in person in Odessa (after he moved to
Odessa); and appellant failed to report as required.


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                2. Local Law Enforcement Authority.
        Appellant next argues that the evidence is legally insufficient because there was no evidence
that he failed to register with or report to the appropriate “local law enforcement authority, to wit:
the Chief of Police of the City of Odessa.”            Pursuant to the definition provided for in
Article 62.001(2), local law enforcement authority “means the chief of police of a municipality or
the sheriff of a county in this state.”
        In this case, both the indictment and the application paragraph of the jury charge referred to
the local law enforcement authority as the “Odessa Police Department.” The evidence at trial
showed that Mary Burditt was the records clerk and the sex offender registrar for the Odessa Police
Department. Burditt testified at trial that appellant was supposed to be registered as a sex offender
in Odessa but that he had never registered in Odessa. Burditt’s testimony constitutes some evidence
that appellant failed to report to or register with the local law enforcement authority regardless of
whether that authority be the Odessa Police Department or its chief.
        We hold that the jury could have found the essential elements of the crime beyond a
reasonable doubt and that, therefore, the evidence is legally sufficient to support appellant’s
conviction. Appellant’s first issue is, therefore, overruled.
        C. Factual Sufficiency.
        In his second issue, appellant contends that the evidence is factually insufficient to link him
to the Louisiana conviction, to prove that there was a final conviction in Louisiana, to show that the
Louisiana conviction is a “reportable conviction,” and to show that appellant failed to report to the
appropriate local law enforcement authority.
                1. Prior Conviction.
        Under this issue, appellant argues that the prior conviction was not sufficiently linked to him.
The trial court admitted into evidence over objection State’s Exhibit No. 2, containing authenticated
documents from the Louisiana Department of Public Safety and Corrections. These documents
reflect that Charles William Robertson was convicted of forcible rape in Louisiana on February 13,
1990. A fingerprint expert compared the fingerprints contained in Exhibit No. 2 with the fingerprints
of appellant taken when he was arrested in this case and the fingerprints from a fingerprint database
in Austin. The fingerprints matched. Consequently, the prior Louisiana conviction for forcible rape


                                                   5
was sufficiently linked to appellant by fingerprint analysis and showed that appellant had been
convicted of forcible rape in Louisiana. Furthermore, even though Exhibit No. 2 may not have
contained a document purporting to be the actual “judgment” of conviction, the exhibit contained
sufficient evidence to prove that appellant had a prior conviction for forcible rape. See Flowers v.
State, 220 S.W.3d 919 (Tex. Crim. App. 2007).
         The next question, then, is whether that conviction constitutes a reportable conviction for
purposes of sex offender registration. Article 62.001(5) defines the term “reportable conviction” and
lists several Texas offenses that are reportable offenses. Although a conviction for “forcible rape”
in Louisiana is not specifically listed as a reportable conviction under Article 62.001(5),
Article 62.001(5)(H) provides that a conviction under the laws of another state is a reportable
conviction if the elements of the offense “are substantially similar” to the elements of certain Texas
offenses, including sexual assault and aggravated sexual assault. The sex offender registration agent
at the Texas Department of Public Safety verified that a conviction for forcible rape in Louisiana is
a reportable conviction under Texas law,3 and the offense was referred to in appellant’s previous
Texas registration records as an aggravated sexual assault. Furthermore, the trial court took judicial
notice of the Louisiana statute under which appellant was convicted. The evidence regarding the
Louisiana conviction being a reportable conviction is not so weak that the verdict is clearly wrong
and manifestly unjust, nor is such a finding against the great weight and preponderance of the
conflicting evidence.
                   2. Local Law Enforcement Authority.
         Appellant next contends that the evidence is factually insufficient to show that appellant
failed to report to or register with the appropriate local law enforcement authority: that being the
chief of police. This contention is the same as the challenge to the legal sufficiency of the evidence.
Likewise, we hold that the testimony from Burditt, the records clerk and sex offender registrar for
the Odessa Police Department, that appellant was supposed to be registered as a sex offender in
Odessa but that he had never registered in Odessa constitutes factually sufficient evidence that
appellant failed to report to or register with the appropriate local law enforcement authority. The


         3
           Article 62.003(a) provides that the Department of Public Safety is responsible for determining whether an out-of-state
conviction contains elements that are substantially similar to the elements of an offense under the laws of Texas.

                                                               6
evidence is not so weak that the verdict is clearly wrong and manifestly unjust, nor is such a finding
against the great weight and preponderance of the conflicting evidence. Appellant’s second issue
is overruled.
                                            III. Jury Charge
        In his third issue, appellant argues that the jury charge is fundamentally defective because
it authorized a conviction on the lesser included offense without proof of all of the essential elements
of the offense. Appellant contends that the charge authorized a conviction for merely failing to
report in person, which, he argues, “is not an offense at all.” Because appellant did not object to the
jury charge on this basis, we must review the entire jury charge, the evidence, the arguments of
counsel, and any other relevant information and determine whether the error was so egregious that
appellant was denied a fair and impartial trial. TEX . CODE CRIM . PROC. ANN . art. 36.19 (Vernon
2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).
        While the jury charge is not free from error, it is not fundamentally defective and does not
authorize a conviction without proof of all of the essential elements of the offense. Again, if a
person who is required to register fails to comply with any one of the registration requirements of
Chapter 62, the person commits an offense. Article 62.055(a) requires a sex offender who changes
addresses to “report in person” and provide proof of his identity and new address. Under
Article 62.058(a), a sex offender “shall report” in order to verify information. In order to convict
appellant as charged, the jury had to find that appellant had a reportable conviction, that he was
required to register as a sex offender and to verify his registration annually, that he was required to
report in person in Odessa, and that he failed to report as required. The jury was also instructed that
a person who is required to register must register or verify registration in any municipality or county
where the person resides or intends to reside for more than seven days.
         In light of the entire jury charge, the evidence, and the arguments of counsel, we hold that
any error in the jury charge was not so egregious as to deny appellant a fair and impartial trial.
Appellant’s third issue is overruled.
                                        IV. Admission of Exhibit
        In his fourth issue, appellant contends that the trial court erred in admitting State’s Exhibit
No. 1 into evidence. That exhibit consisted of appellant’s previous registration form and verification


                                                   7
updates from Burleson County. We must review a trial court’s decision to admit evidence over
objection under an abuse-of-discretion standard, and we will not reverse the trial court’s decision
absent a clear abuse of discretion. Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003).
A trial court abuses its discretion when its decision lies outside the zone of reasonable disagreement.
Id.
        In this case, the exhibit was introduced through Burditt upon her testimony that she received
the documents via fax from the Burleson County Sheriff’s Office. Appellant objected that the
documents were hearsay because Burditt was the records custodian in Odessa, not Burleson County.
The documents were not authenticated by anyone from Burleson County. The State, citing
inapplicable cases regarding the collective knowledge of officers on the issue of probable cause,
argues that the documents became part of Odessa’s file when Burditt received them from Burleson
County. At trial, the State argued that the documents became the business records of Odessa when
received. Although the documents may have become part of Odessa’s file, the documents were not
shown to fall into the business records exception to the hearsay rule because the State failed to lay
the proper predicate under TEX . R. EVID . 803(6). Nothing in the record shows that the documents
were made at or near the time by a person with knowledge or that the documents set forth the
activities of the office. See Rule 803(6).
        Though State’s Exhibit No. 1 may not have been properly admitted into evidence, its
admission does not constitute reversible error. Pursuant to TEX . R. APP . P. 44.2(b), a nonconsti-
tutional error must be disregarded unless it affects a defendant’s substantial rights. “A substantial
right is affected when the error had a substantial and injurious effect or influence in determining the
jury’s verdict.” King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). In this case, there was
other evidence indicating that appellant had been registered as a sex offender in Burleson County
and that appellant had a prior reportable offense. In light of this other evidence, we cannot find that
State’s Exhibit No. 1 had a substantial or injurious influence on the jury’s decision. See id. The
fourth issue is overruled.
                               V. Sufficiency of Enhancement Proof
        In his final issue, appellant contends that, “assuming this Court agrees that the evidence is
factually insufficient regarding State’s Exhibit 2,” the evidence is also factually insufficient to link


                                                   8
him to the two prior convictions used for enhancement purposes. Appellant’s contention in this issue
is dependent upon our determination regarding State’s Exhibit No. 2. As we held above, State’s
Exhibit No. 2 was sufficiently linked to appellant by fingerprint analysis. The record shows that the
enhancement convictions were linked to appellant by a handwriting expert who compared appellant’s
signature on State’s Exhibit No. 2 to his signatures on the two convictions used for enhancement.
According to the expert, all three were signed by the same person. Consequently, the evidence is
sufficient to link appellant to those convictions and to support the jury’s finding of true to the
enhancement allegations. Appellant’s fifth issue is overruled.
                                           VI. Holding
       The judgment of the trial court is modified to show that appellant was convicted of a third
degree felony offense and, as modified, affirmed.




                                                              RICK STRANGE
                                                              JUSTICE


October 23, 2008
Do not publish. See TEX . R. APP . P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Strange, J.




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