                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana

        ______________________________

              No. 06-07-00094-CR
        ______________________________


       CURTIS MANTOOTH, JR., Appellant

                          V.

         THE STATE OF TEXAS, Appellee



    On Appeal from the 6th Judicial District Court
               Lamar County, Texas
               Trial Court No. 21797




     Before Morriss, C.J., Carter and Moseley, JJ.
             Opinion by Justice Carter
                                          OPINION

       Curtis Mantooth, Jr., appeals his conviction for failure to comply with sex-offender

registration requirements. In 1991, Mantooth was convicted of attempted sexual assault of a child.

As discussed below, Mantooth was subject to the lifetime duty to register under Article 62.101(a).

See TEX . CODE CRIM . PROC. ANN . art. 62.101(a) (Vernon 2006). On or about September 18, 2006,

Mantooth failed to report a change in employment within seven days and failed to report his change

of residence within seven days.

       The State originally indicted Mantooth under former Article 62.12(a),1 the predecessor to

Article 62.101(a). The original indictment, though, incorrectly alleged Mantooth had been convicted

of indecency with a child in 1991. Immediately before voir dire, the State moved to amend the

indictment to reflect Mantooth had been convicted of attempted sexual assault of a child. The

defense did not object to the amendment, and the trial court granted the State's motion. The State

amended the indictment by interlineation to reflect Mantooth had been convicted of attempted sexual

assault of a child but, also, amended the indictment to allege a duty to register under Article

62.101(b) of the Texas Code of Criminal Procedure. See TEX . CODE CRIM . PROC. ANN . art.

62.101(b) (Vernon 2006).




       1
       See Act of May 28, 2003, 78th Leg., R.S., ch. 374, § 14, 2003 Tex. Gen. Laws 1505,
1513–14, amended and renumbered by Act of May 24, 2005, 79th Leg., R.S., ch. 1008, § 1.01, 2005
Tex. Gen. Laws 3385, 3410.

                                                2
        At trial, the State presented evidence that Mantooth had been convicted of attempted sexual

assault of a child and had failed to comply with the sex-offender registration requirements. Although

it alleged in the indictment that Mantooth had a duty to register under Article 62.101(b) (ten-year

registration requirement), the State proved that Mantooth had a duty to register under Article

62.101(a) (lifetime registration requirement). See TEX . CODE CRIM . PROC. ANN . art. 62.101(a), (b).

The lifetime registration requirement is predicated on a conviction for a sexual offense, whereas the

ten-year requirement in Article 62.101(b) is based on a juvenile crime that was certified for adult

prosecution. The trial court instructed the jury based on Article 62.101(b) without objection ("and

[his] duty to register expires under article 62.101(b)"). The jury found Mantooth guilty, and the trial

court sentenced him to eight years' imprisonment.

        Mantooth raises six issues on appeal. In his first two points of error, Mantooth argues the

indictment was fundamentally defective. Mantooth's third and fourth points of error argue the

evidence is legally and factually insufficient. In his fifth issue, Mantooth claims the trial court erred

in convicting him of a third degree felony. In his last issue, Mantooth argues the sentence exceeds

the applicable punishment range.

I.      The Indictment Does Not Contain Fundamental Error

        In Mantooth's first and second points of error, Mantooth claims the error in the indictment

constitutes fundamental error because it failed to allege when Mantooth's duty to register expired

under Article 62.101(b). Mantooth also alleges the indictment failed to allege he was under a duty



                                                   3
to register at the time of the offense. Historically, defects of substance were "fundamental" errors

and could be challenged at any point in the proceedings. See, e.g., Morris v. State, 13 Tex. Ct. App.

65, 71 (1882); see also Cook v. State, 902 S.W.2d 471, 476 (Tex. Crim. App. 1995). In 1985, Texas

voters approved an amendment to Section 12 of Article V of the Texas Constitution that the

presentation of an indictment or information vests the trial court with jurisdiction over the case. See

TEX . CONST . art. V, § 12; see also Studer v. State, 799 S.W.2d 263, 272 (Tex. Crim. App. 1990).

A defendant now waives any defect of form or substance in an information if no objection is made

before the date trial commences. See TEX . CODE CRIM . PROC. ANN . art. 1.14(b) (Vernon 2005).

       We note an instrument which is not an indictment or information under Article V, Section

12 of the Texas Constitution fails to vest the trial court with jurisdiction and the issue can be raised

for the first time on appeal. See Duron v. State, 956 S.W.2d 547, 555 (Tex. Crim. App. 1997)

(Womack, J., concurring); Cook, 902 S.W.2d at 479–80; see also Teal v. State, 230 S.W.3d 172, 180

(Tex. Crim. App. 2007). The omission of an element of the offense, though, does not prevent the

instrument from being an information. The Texas Court of Criminal Appeals held, in Studer, that

"the language in Art. V, § 12, 'charging a person with the commission of an offense,' does not mean,

. . . that each element of the offense must be alleged in order to have an indictment or information

as contemplated by Art. V, § 12." Studer, 799 S.W.2d at 272. "[T]o comprise an [information]

within the definition provided by the constitution, an instrument must charge: (1) a person; (2) with

the commission of an offense." Cook, 902 S.W.2d at 477. "[A] written instrument is an indictment



                                                   4
or information under the Constitution if it accuses someone of a crime with enough clarity and

specificity to identify the penal statute under which the State intends to prosecute, even if the

instrument is otherwise defective." Duron, 956 S.W.2d at 550–51. Because the information is

sufficient to identify the penal statute under which the State intends to prosecute, the error is not a

"fundamental" error. Mantooth's first and second points of error are overruled.

II.    The Evidence Is Legally and Factually Sufficient

       Mantooth contends, in his third and fourth points of error, that the evidence is legally and

factually insufficient. Before we begin our analysis, a brief overview of the relevant statutes is in

order. A person commits the offense of failure to comply with registration requirements if the

person "is required to register and fails to comply with any requirement" of Chapter 62. TEX . CODE

CRIM . PROC. ANN . art. 62.102 (Vernon 2006).

       There is no dispute concerning whether Mantooth failed to comply with the registration

requirements of Chapter 62. Whether one is required to report for his or her lifetime or only for ten

years, the reporting requirements during the relevant period are the same. A person fails to comply

with registration requirements if he or she fails to give seven days' notice of intent to change

addresses, fails to report a change of address within seven days, or fails to report a change in

employment status within seven days. See TEX . CODE CRIM . PROC. ANN . arts. 62.055, 62.057(b),

62.102 (Vernon 2006). The State introduced evidence that Mantooth had failed to report a change

in employment status within seven days, failed to give seven days' notice of his intent to change his



                                                  5
residence, and failed to report his change of residence within seven days. Mantooth does not

challenge the proof of these facts. The dispute in this case is whether the State proved Mantooth had

a duty to register under Article 62.101(b) as alleged.

       A violation of Article 62.102 is a state jail felony if the person's duty to register expires under

Article 62.101(b) or (c), but is a third degree felony if the person's duty to register expires under

Article 62.101(a). Article 62.101(a) provides:

       Except as provided by Subsection (b) and Subchapter I, the duty to register for a
       person ends when the person dies if the person has a reportable conviction or
       adjudication, other than an adjudication of delinquent conduct, for:

               (1) a sexually violent offense . . . .

TEX . CODE CRIM . PROC. ANN . art. 62.101(a). A "sexually violent offense" includes sexual assault.

TEX . CODE CRIM . PROC. ANN . art. 62.001(6)(A) (Vernon Supp. 2008). The sex-offender registration

statute specifically includes attempted sexual offenses as "reportable convictions or adjudications."

TEX . CODE CRIM . PROC. ANN . art. 62.001(5)(G) (Vernon Supp. 2008). Subchapter I concerns early

termination of a person's obligation to register and is not relevant in this case. Article 62.101(b)

provides as follows in its entirety:

       Except as provided by Subchapter I, the duty to register for a person otherwise
       subject to Subsection (a) ends on the 10th anniversary of the date on which the
       person is released from a penal institution or discharges community supervision or
       the court dismisses the criminal proceedings against the person and discharges the
       person, whichever date is later, if the person's duty to register is based on a
       conviction or an order of deferred adjudication in a cause that was transferred to a
       district court or criminal district court under Section 54.02, Family Code.



                                                   6
TEX . CODE CRIM . PROC. ANN . art. 62.101(b). Article 62.101(c) provides a "catch-all" provision that

provides for reportable convictions or adjudications not described by subsection (a). TEX . CODE

CRIM . PROC. ANN . art. 62.101(c) (Vernon 2006).

       The amended indictment alleged that Mantooth had a duty to register under Article

62.101(b). In order to evaluate the sufficiency of the evidence, we must first determine whether the

State's allegation that Mantooth had a duty to register under Article 62.101(b) must be included in

the hypothetically correct jury charge.

       A.      The Hypothetically Correct Jury Charge Must Include the Statutory Elements
               of the Offense and the Statutorily Alternative Manner and Means

       The State incorrectly argues that we evaluate the sufficiency of the evidence by the charge

submitted to the jury.2 The Texas Court of Criminal Appeals has held that evidence sufficiency

should be measured against a "hypothetically correct" jury charge. See Gollihar v. State, 46 S.W.3d

243, 253 (Tex. Crim. App. 2001); Malik, 953 S.W.2d at 240; see also Wooley v. State,



       2
         The State cites Fisher v. State, 887 S.W.2d 49, 53 (Tex. Crim. App. 1994); Smith v. State,
135 S.W.3d 259, 261–62 (Tex. App.—Texarkana 2004, no pet.); Ramos v. State, No. 06-05-00103-
CR, 2006 Tex. App. LEXIS 3750 (Tex. App.—Texarkana May 4, 2006, no pet.) (not designated for
publication), for the proposition that the sufficiency of the evidence should be measured by the
charge submitted to the jury. Smith does not support the State's argument. See Smith, 135 S.W.3d
at 261. Ramos, 2006 Tex. App. LEXIS 3750, is an unpublished opinion and has no precedential
value. TEX . R. APP . P. 47.7. In Malik v. State, the Texas Court of Criminal Appeals reviewed a line
of cases requiring the sufficiency of the evidence to be measured by the jury charge, and specifically
overruled those cases. 953 S.W.2d 234, 239–40 (Tex. Crim. App. 1997) ("No longer shall
sufficiency of the evidence be measured by the jury charge actually given."). Instead, the Texas
Court of Criminal Appeals announced that the test was based on the elements of the offense as
defined by the hypothetically correct jury charge. Id. at 240.

                                                  7
No. PD-0861-07, 2008 Tex. Crim. App. LEXIS 762 (Tex. Crim. App. June 25, 2008) (clarifying

factual sufficiency measured by hypothetically correct jury charge). Malik controls "even in the

absence of alleged jury charge error." Gollihar, 46 S.W.3d at 255.

        A "hypothetically correct" jury charge 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. The "hypothetically correct" jury charge cannot

"wholly re-write the indictment," but is not required to "track exactly all of the allegations in the

indictment." Gollihar, 46 S.W.3d at 253. If the essential elements of the offense are modified by

the indictment, the modification must be included. Id. at 254. The hypothetically correct charge

"need not incorporate allegations that give rise to immaterial variances." Gollihar, 46 S.W.3d at 256.

        In Curry, the Texas Court of Criminal Appeals held that the "'law' as 'authorized by the

indictment' must be the statutory elements" of the offense charged "as modified by the charging

instrument." Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000). Because the phrase "by

using and threatening to use deadly force namely, a firearm, on [the victim]" alleged a statutory

alternative "manner or means," the court held the State was bound by the allegation in the

indictment. Id. at 403–04. Judge Keller has succinctly summarized Curry as holding, "[w]hen a

statute lists more than one method of committing an offense, and the indictment alleges some, but




                                                   8
not all, of the statutorily listed methods, the State is limited to the methods alleged." Fuller v. State,

73 S.W.3d 250, 255 (Tex. Crim. App. 2002) (Keller, P.J., concurring).

        Stated succinctly, the hypothetically correct jury charge must include both 1) allegations that

form an integral part of an essential element of the offense or allegations that are statutorily

alternative manner and means, and 2) material variances. See Gollihar, 46 S.W.3d at 256. We will

first examine whether the allegation that Mantooth had a duty to register under Article 62.101(b) was

an integral part of an essential element of the offense and then examine whether the allegation was

a material variance.

        B.      The Allegation that Mantooth Had a Duty Under Article 62.101(b) Is Not an
                Essential Element

        The next question before this Court is whether the applicable duty under Article 62.101 is

an "integral part of an essential element" of the offense.3 See id. at 254 (explaining Curry, 30

S.W.3d 394). Whether the various subsections of Article 62.101 form an integral part of an essential

element of an offense appears to be an unsettled area of law.4



        3
         There is no allegation that Article 62.101(b) is a statutorily alternative manner and means.
The Texas Court of Criminal Appeals cautioned that "[n]ot every list of alternatives in a statute will
constitute a 'manner or means' of committing the offense." Curry, 30 S.W.3d at 398. We do not
believe the list of categories specifying the circumstances when one must report for life or only for
ten years constitutes statutorily alternative manner and means.
        4
         We note the Austin Court of Appeals, while discussing a different issue, has held the duty
to register is an element of the offense. Ballard v. State, 149 S.W.3d 693, 699 (Tex. App.—Austin
2004, pet. ref'd). We are not aware of any other cases addressing whether Article 62.101(b) is an
essential element of the offense of failure to register.

                                                    9
       When determining whether Apprendi5 applied to a predecessor to Article 62.101, the Texas

Court of Criminal Appeals suggested in a footnote that the "much preferred procedure is to plead the

specific subsection in the indictment." Juarez v. State, 198 S.W.3d 790, 792–93 n.7 (Tex. Crim.

App. 2006) (concluding Apprendi did not apply). This statement implies that allegation of the

subsection is not required. If it is the "much preferred" practice, it is not the required practice.

Because essential elements of an offense must be alleged in the indictment, Juarez suggests the

specific subsection under Article 62.101 is not an essential element of the offense.

       Although merely persuasive authority, the form charge in the Texas Practice Series merely

requires the reportable conviction to be included in the indictment; it does not require the indictment

to specify which subsection applies to the offense. 7 MCCORMICK, BLACKWELL & BLACKWELL,

TEXAS PRACTICE : CRIMINAL FORMS AND TRIAL MANUAL § 42.12 (2005). A number of Texas cases

indicate that indictments often fail to allege which subsection of Article 62.101 is applicable. See

Ramos v. State, No. 13-05-00015-CR, 2006 Tex. App. LEXIS 4922 (Tex. App.—Corpus Christi

June 8, 2006, pet. ref'd) (mem. op., not designated for publication) (indictment merely alleged

reportable conviction for sexual assault and defendant committed offense "while being a person

required to register"); Basey v. State, No. 01-03-01014-CR, 2005 Tex. App. LEXIS 1329 (Tex.

App.—Houston [1st Dist.] Feb. 17, 2005, no pet.) (mem. op., not designated for publication)

(indictment merely alleged reportable conviction and defendant committed offense "while being a



       5
           Apprendi v. New Jersey, 530 U.S. 466 (2000).

                                                  10
person required to register"); Milligan v. State, No. 03-99-00191-CR, 2000 Tex. App. LEXIS 2560

(Tex. App.—Austin Apr. 20, 2000, pet. ref'd) (not designated for publication) (merely alleged

reportable conviction). But see Cantu v. State, No. 02-05-00192-CR, 2006 Tex. App. LEXIS 1884

(Tex. App.—Fort Worth Mar. 9, 2006, no pet.) (mem. op., not designated for publication) (alleging

both reportable conviction and subsection).

       This Court, albeit in a different context, has stated the State is merely required to prove the

defendant's "status as a person with a reportable conviction." Moore v. State, 38 S.W.3d 232, 235

(Tex. App.—Texarkana 2001, pet. ref'd). Moore involved whether the current version or the prior

version of the sex-offender registration statute applied. Id. Extending the reasoning of Moore, the

State was not required to allege which subsection applied because only the defendant's status as a

sex offender is an element of the crime. The allegation of a reportable conviction would be sufficient

to allege the defendant's status as a sex offender.

       We conclude that the various subsections of Article 62.101 are not elements of the offense

of failure to register. The notice of the reportable conviction provides sufficient notice to the

accused. Any given reportable conviction gives rise to a duty under only one of the subsections of

Article 62.101. Once the State alleges a reportable conviction, the determination of which

subsection of Article 62.101 applies is purely a question of law. It is undisputed that Mantooth's

previous conviction was for a sexual offense which occurred after he turned eighteen years old.

Once the underlying reportable conviction is alleged, the duty to register can be determined as a



                                                  11
matter of law. The essential element of the offense is the defendant's "status as a sex offender" by

virtue of a reportable conviction. As such, only the reportable conviction must be alleged in the

indictment. The applicable subsection of Article 62.101 is not an integral part of an essential

element of the offense.

        C.      The Variance Is Immaterial

        Since we have concluded the allegation is not an integral part of an essential element, the

next step is to determine whether the variance is material. A variance occurs when there is a

discrepancy between the allegations in the charging instrument and the proof at trial. In re S.C., 229

S.W.3d 837, 841 (Tex. App.—Texarkana 2007, pet. denied). "The widely-accepted rule, regardless

of whether viewing variance as a sufficiency of the evidence problem or as a notice-related problem,

is that a variance that is not prejudicial to a defendant's 'substantial rights' is immaterial." Hart v.

State, 173 S.W.3d 131, 144 (Tex. App.—Texarkana 2005, no pet.) (quoting Gollihar, 46 S.W.3d at

247–48; and referencing Rojas v. State, 986 S.W.2d 241, 246 (Tex. Crim. App. 1998)). When

determining whether a defendant's "substantial rights" have been prejudiced, we must consider two

questions: 1) whether the indictment, as written, informed the defendant of the charge against him

or her sufficiently to allow such defendant 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

prosecuted later for the same crime. See S.C., 229 S.W.3d at 841; Brown v. State, 159 S.W.3d 703,

709 (Tex. App.—Texarkana 2004, pet. ref'd).



                                                  12
       Although the State alleged a duty to register under Article 62.101(b) (ten-year reporting

requirement), the evidence established Mantooth had a duty to register as a sex offender under

Article 62.101(a) (lifetime reporting requirement). Thus, there is a variance between the indictment

and the evidence at trial. However, there is no evidence that the variance failed to permit Mantooth

to prepare an adequate defense at trial. It is uncontested that no one noticed the State alleged the

wrong subsection until the punishment portion of the trial. Mantooth prepared for trial with the

understanding he was being charged with violating a lifetime duty to register. Further, the

enhancement paragraph in the indictment alleged that Mantooth had previously been convicted for

violating his lifetime duty to register. Nor is there any risk that Mantooth would be subjected to the

risk of being prosecuted a second time for the same crime. The variance is immaterial and, therefore,

does not need to be included in the hypothetically correct jury charge.

       D.      The Evidence Is Legally and Factually Sufficient

       Because the hypothetically correct jury charge does not have to contain the State's allegation

that Mantooth had a duty to register under Article 62.101(b), the evidence is legally and factually

sufficient. The hypothetically correct jury charge would only require the jury to find that Mantooth

had the reportable conviction alleged by the State.

       In reviewing the legal sufficiency of the evidence, we view 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. Johnson v. State, 23 S.W.3d 1, 7 (Tex.



                                                 13
Crim. App. 2000). In a factual sufficiency review, we review all the evidence, but do so in a neutral

light and determine whether the evidence supporting the verdict is so weak or is so outweighed by

the great weight and preponderance of the evidence that the jury's verdict is clearly wrong or

manifestly unjust. Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008).

       The State proved the reportable conviction alleged and proved Mantooth's failure to notify

the State of his changed residence and changed employment status. The State introduced a copy of

the judgment finding Mantooth guilty of attempted sexual assault of a child as alleged in the

indictment. Mantooth testified he was the person "that was convicted of attempted sexual assault

of a child back in 1991." When last released from prison, Mantooth listed his address as 154 South

First Street, Deport, Texas. Mantooth informed the police that he was working as a self-employed

mechanic out of his house. Deputy Travis Rhodes, a deputy with the Lamar County Sheriff's Office,

testified he informed Mantooth of his duty to report a change of residence and employment. A copy

of Mantooth's pre-release notification form explaining his duty to register was introduced into

evidence.

       After receiving information that Mantooth may have changed his residence, Rhodes visited

154 South First Street and discovered there was no electricity and the telephone service had been

disconnected. The refrigerator door was standing open, and the house was "[p]retty much an empty

house." Several partially filled boxes were in the house like someone was moving out. The grass

was high, and there were no vehicles around the house that would be consistent with Mantooth



                                                 14
running a mechanic business from the home. Rhodes discovered during his investigation that

Mantooth had been working at the Blackland Prairie Gin for several weeks and had moved his shop

to a building on Main Street several months earlier. Nancy Grissom, vice president and secretary

of Blackland Prairie Gin, testified Mantooth had been employed by the company. Because the

majority of Mantooth's possessions were located in a recreational vehicle parked at the shop

building, Rhodes concluded Mantooth was living in the recreational vehicle. Photographs of both

the 154 South First Street residence and the recreational vehicle were introduced into evidence. A

rational juror could have concluded Mantooth was guilty beyond a reasonable doubt. The evidence

is legally sufficient.

        At trial, Mantooth testified his son was moving out of the house when Rhodes visited.

According to Mantooth, he still lived at the house located at 154 South First Street and the personal

items in the recreational vehicle were merely stored there. Mantooth admitted working at the gin

and moving the shop. The jury was entitled to believe the State's version of events over Mantooth's

testimony. The contrary evidence is not so strong that the jury's verdict is so against the great weight

and preponderance of the evidence that it is clearly wrong or manifestly unjust. The evidence is

factually sufficient.

        The evidence is legally and factually sufficient to prove Mantooth committed the offense of

failure to comply with sex-offender registration requirements. The reportable conviction created a




                                                  15
duty under Article 62.101(a) which made the offense a third degree felony. Because Mantooth was

actually convicted under Article 62.101(a), Mantooth's remaining points of error are moot.6

III.   Conclusion

       Any error in the indictment is not fundamental error. Although the State alleged a duty to

register under Article 62.101(b), the evidence established Mantooth had a duty to register as a sex

offender under Article 62.101(a). The hypothetically correct jury charge was not required to contain

the allegation that Mantooth had a duty under Article 62.101(b) since the allegation was not an

integral part of an essential element or a material variance. The hypothetically correct jury charge

was only required to contain the alleged reportable conviction. The State proved the reportable

conviction it alleged and proved Mantooth's failure to report a change of residence and change of

employment. As such, the State proved Mantooth committed a third degree felony when he failed

to report his change of residence and change of employment. Because Mantooth was convicted of

a third degree felony, Mantooth's fifth and sixth points of error are moot.




       6
         Mantooth argues in his fifth point of error that the conviction under Article 62.101(b) was
improperly enhanced to a third degree felony. In his last point of error, Mantooth argues the trial
court erred in sentencing him to eight years for a state jail felony. Because Mantooth was convicted
of violating a lifetime duty—a third degree felony—Mantooth's remaining arguments are moot.
Mantooth was convicted of a third degree felony, and an eight-year sentence is within the statutory
range for a third degree felony.

                                                 16
      For the reasons stated, we affirm the judgment of the trial court.




                                            Jack Carter
                                            Justice

Date Submitted:      August 13, 2008
Date Decided:        September 30, 2008

Publish




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