                                      In The

                                Court of Appeals
                    Ninth District of Texas at Beaumont
                              ___________________

                               NO. 09-15-00277-CR
                               NO. 09-15-00278-CR
                              ___________________

                  CLIFTON LEON MUNDAY JR., Appellant

                                         V.

                       THE STATE OF TEXAS, Appellee

__________________________________________________________________

                On Appeal from the 258th District Court
                          Polk County, Texas
                   Trial Cause Nos. 23943 and 23414
__________________________________________________________________

                          MEMORANDUM OPINION

      In two cases, which the trial court consolidated for trial, a jury convicted

Clifton Leon Munday Jr. of failing to comply with his duty to update his registration

as a convicted sex offender as required by the sex offender registration program. See

Chapter 62, Tex. Code Crim. Proc. Ann. art. 62.001-.408 (West 2006 & Supp.

2016). In two issues, Munday challenges the sufficiency of the evidence supporting



                                         1
the jury’s findings that he failed to comply with his duty to update his registration.

We affirm.

                                        Background

      Based on Munday’s pleas of no contest in 1989, a Florida Circuit Court

convicted Munday on three separate counts of sexual battery, all of which were

based on crimes that occurred in August 1988. See FLA. STAT. ANN. § 794.011(1)(h)

(LexisNexis 2017) (defining the offense of sexual battery). Munday was sentenced

to five and one-half years in prison for each of the three offenses of sexual battery,

and he was ordered to serve his sentences concurrently. In 1991, the Florida

Department of Corrections released Munday from prison.

      After he was released from prison in Florida, Munday moved to Polk County,

Texas. In 2007, based on conduct that occurred in Polk County, Munday was

charged and subsequently convicted of assaulting a public servant. In 2009, Munday

was paroled from the Texas Department of Corrections, who advised him that he

needed to register as a convicted sex offender as a condition of his parole. After he

was on parole, Munday registered as a convicted sex offender on a regular basis with

the Polk County Sheriff’s Office until December 2013. According to Gary Wright,

who testified in Munday’s trial, he is the deputy charged with the responsibility of

registering sex offenders living in Polk County. Deputy Wright testified that

                                          2
according to records maintained by the Sheriff’s Office, Munday was required to

update his registration with the Sheriff’s Office every ninety days and to continue to

register as a convicted sex offender throughout his life.

      In March 2014, Munday failed to appear in Deputy Wright’s office to update

his registration. Subsequently, Deputy Wright located Munday at an address that

was different from the address that Munday used the last time that he registered.

Deputy Wright indicated that when he located Munday, Munday told him that an

attorney had advised him that he was not required to update his registration.

According to Deputy Wright, Munday told him to leave, but before he left, he told

Munday that if Munday failed to come in and update his registration within seven

days, he would be arrested. When Munday failed to update his registration, Deputy

Wright executed an information and charged Munday with failing to comply with

his duty to register as a convicted sex offender.

      In May 2014, a grand jury indicted Munday in Cause Number 23414, for

failing to update his registration in Polk County’s sex-offender records, alleging that

Munday failed to update his registration in April 2014. The indictment alleges that

Munday’s three convictions in Cause Number 8802885CFAWS in Florida for sexual

battery are sexually violent offenses that required Munday to update his registration

with the Polk County Sheriff’s Office quarterly for the remainder of his life.

                                          3
      In 2015, a second Polk County grand jury indicted Munday for failing to

update his registration, alleging that Munday failed to appear to update his

registration in December 2014. The second case was assigned Cause Number 23943,

and the indictment also alleged that Munday’s Florida convictions were convictions

of sexually violent offenses that required Munday to register quarterly as a sex

offender in Texas for the remainder of his life.

      Subsequently, the trial court consolidated Cause Numbers 23943 and 23414

for trial. The cases were tried in June 2015. In the guilt-innocence phase of the trial,

the jury found Munday guilty of both offenses. In the punishment phase of Munday’s

trial, which was conducted without a jury, the trial court ordered Munday to serve

seven-year sentences, with the sentences running concurrently.

                      Sex-Offender Registration Requirements

      In his appeal, Munday contends that the sex offender registration program did

not require that he register as a convicted sex offender in Texas because the State

failed to prove that he had a “reportable conviction” from another state that contained

elements substantially similar to the elements of Texas offenses requiring sex

offenders to register with local law enforcement. Under Chapter 62 of the Code of

Criminal Procedure, persons convicted on or after September 1, 1970, of sexually

related offenses in states other than Texas who have “reportable convictions” have

                                           4
a duty to register with local law enforcement should they reside in Texas. See Tex.

Code Crim. Proc. Ann. arts. 62.002(a) (West 2006); 62.001(5)(H) (West Supp.

2016)1 (defining “reportable conviction” to include violations of the laws of another

state that are substantially similar to the elements of various specifically listed

crimes). Under the Code of Criminal Procedure, a person with a duty to register

under the sex offender registration program commits a crime by failing to comply

with his duty to update the information in his registration as required by Chapter 62.

See Tex. Code Crim. Proc. Ann. art. 62.102(a) (West Supp. 2016); Young v. State,

341 S.W.3d 417, 425 (Tex. Crim. App. 2011); Varnes v. State, 63 S.W.3d 824, 829

(Tex. App.—Houston [14th Dist.] 2001, no pet.).

      Individuals convicted of “sexually violent offenses” are required to renew

their registrations for life. Tex. Code Crim. Proc. Ann. art. 62.101(a)(1) (West Supp.

2016) (creating lifetime obligation to register for persons convicted of sexually

violent offenses). The list of offenses the sex offender registration program labels as

“sexually violent offenses” specifically includes the crime of sexual assault as that

crime is defined by the Texas Penal Code. Tex. Code Crim. Proc. Ann. art.


      1
        Although the Legislature amended section 62.001 of the Code of Criminal
Procedure in 2015, after the commission of the offenses involved in Munday’s cases,
the changes in the section are not pertinent to his appeal. For convenience, we cite
the current version of the statute.

                                          5
62.001(6)(A) (West Supp. 2016) (defining “sexually violent offense” to include

sexual assault). After initially registering with local law enforcement officials as a

sex offender, a person who has been convicted of two or more sexually violent

offenses must report to local law enforcement every ninety days “to verify the

information in the registration form maintained by the authority for that person.”

Tex. Code Crim. Proc. Ann. art. 62.058(a) (West Supp. 2016).2

      The Texas sex offender registration program was originally enacted in 1991.

See Act of May 26, 1991, 72nd Leg., R.S., ch. 572, § 1, art. 6252-13c.1, sec. 8, 1991

Tex. Gen. Laws 2029, 2030 (creating a sex offender registration program requiring

those with reportable convictions dating to September 1, 1991, register with local

law enforcement). Based on the language in the sex offender registration program as

enacted in 1991, Munday did not have a “reportable conviction” that related to his

1989 convictions in Florida when he moved to Texas in 1991. Id. However, in 2005,

the Legislature amended the statute to expand the definition of “reportable

convictions” to include individuals with convictions incurred on or before

September 1, 1970. See Act of May 26, 2005, 79th Leg., R.S., ch. 1008, § 1.01, art.


      2
        Unless otherwise noted, we cite the current version of the statutes relied on
in the opinion unless changes were made to the statute that are relevant to the issues
in Munday’s appeal.


                                          6
62.002, 2005 Tex. Gen. Laws 3385, 3388 (current version at Tex. Code Crim. Proc.

Ann. art. 62.002 (West 2006)) (providing that the chapter applies to reportable

convictions occurring on or after September 1, 1970); Act of May 26, 2005, 79th

Leg., R.S., ch. 1008, art. 4, sec. 4.01(a), 2005 Tex. Gen. Laws 3385, 3422 (providing

that the changes to article 62.002 apply to offenses committed before, on or after

September 1, 2005, the effective date of the Act) (emphasis added). While Munday

has not raised an ex post facto challenge to the sex offender registration program in

his appeal, we note that courts have held that the retroactive application of sex

offender registration statutes do not violate the Ex Post Facto Clause. See Smith v.

Doe, 538 U.S. 84, 105-06 (2003) (rejecting ex post facto challenge to Alaska’s Sex

Offender Registration Act); Rodriguez v. State, 93 S.W.3d 60, 79 (Tex. Crim. App.

2002) (rejecting ex post facto challenge to Chapter 62).

      Munday’s convictions are based on his alleged failure to satisfy the ninety-

day reporting requirements in article 62.058 of the Code of Criminal Procedure. See

Tex. Code Crim. Proc. Ann. art. 62.058(a). Under section 62.058, a convicted sex

offender with two or more convictions for sexually violent crimes is required to

update his sex offender registration with local law enforcement quarterly, based on

a date that is calculated so that it falls within a fourteen-day window from the date

the sex offender last updated the information maintained on him by local law

                                         7
enforcement officials in its registry of convicted sex offenders. Id. Under the sex

offender registration program, a convicted sex offender must provide information to

local law enforcement that includes his current address. See Tex. Code Crim. Proc.

Ann. art. 62.051(c) (West Supp. 2016). In Munday’s cases, the indictments alleged

that Munday failed to update the information that was on file about him with local

law enforcement officials in April 2014 and in December 2014.

                                    Standard of Review

      In Munday’s appeal, he argues the State failed to prove that he had “reportable

convictions” as that term is defined in article 62.001(5)(H) of the Code of Criminal

Procedure. Tex. Code Crim. Proc. Ann. art. 62.001(5)(H). Essentially, Munday

contends the State failed to prove that prior to his arrests, the Department of Public

Safety had compared the version of the sexual battery statute under which Munday

was convicted with the elements required to prove sexual assault in Texas.

      To resolve the questions Munday raises in his appeal, we must determine

whether, after viewing the evidence in the light most favorable to the verdict, any

rational trier of fact could have found that he violated the requirements of the sex

offender registration program based on a standard of beyond reasonable doubt. See

Jackson v. Virginia, 443 U.S. 307, 318 (1979). Under the sex offender registration

program, a person commits an offense by failing to comply with the program’s

                                          8
registration requirements if the person (1) has a reportable conviction or

adjudication, (2) is required to register, (3) fails to comply with that requirement,

and (4) his duty to register has not expired. See Crabtree v. State, 389 S.W.3d 820,

825 (Tex. Crim. App. 2012).

      Article 62.001(5) defines “reportable conviction” to include sexual assault.

See Tex. Code Crim. Proc. Ann. art. 62.001(5)(A) (West Supp. 2016); Tex. Penal

Code Ann. § 22.011 (West 2011). Under Chapter 62, a “reportable conviction”

includes violations of the laws of another state, if the offense as defined by the laws

of the other state contains “elements that are substantially similar to the elements of

an [enumerated list of offenses that include sexual assault].” Tex. Code Crim. Proc.

Ann. art. 62.001(5)(H). Under Chapter 62, the Department of Public Safety is

responsible for determining if offenses in other states contain elements that are

substantially similar to the elements of the offenses qualifying as reportable

convictions that are listed in Chapter 62. Tex. Code Crim. Proc. Ann. art. 62.001(1)

(West Supp. 2016) (defining “Department” as the Department of Public Safety), art.

62.003 (West 2006) (delegating the responsibility of making substantially similar

determinations regarding the laws of other states to the Department). When the State

is relying on convictions of crimes in other states to prove a violation of the sex

offender registration program, the State must prove that the Department of Public

                                          9
Safety has compared the elements of crimes defined by statutes in other states with

those found in the list that is in Chapter 62, which by definition are reportable

convictions, to prove that an individual has a “reportable conviction” under the sex

offender registration program. See Crabtree, 389 S.W.3d at 828, 832.

      On appeal, the question of whether sexual battery, as sexual battery is defined

by Florida’s law, satisfies the requirements of article 62.001(5)(H) is a matter that is

reviewed as a question of law. See id. at 832. However, the question of whether the

State presented evidence to show that the Department of Public Safety determined

that sexual battery and sexual assault are crimes that contain substantially similar

elements is reviewed as a question of fact under the Jackson standards. See id. at

832-33.

                                          Analysis

      Munday presents three arguments to support the two issues that he raises in

his appeal. First, Munday argues that the State failed to meet its burden to prove that

the Department of Public Safety had determined, prior to his arrest, that the crime of

sexual battery contains elements that are substantially similar to those required to

prove sexual assault. Compare FLA. STAT. ANN. § 794.011(1)(h) (Sexual Battery),

with Tex. Penal Code Ann. § 22.011 (Sexual Assault). Second, Munday argues that

the evidence is legally insufficient to prove that he was notified by the Department

                                          10
of Public Safety prior to his arrest that the sex offender registration program applied

to him. Third, Munday argues that the evidence admitted in his trial was insufficient

to prove that sexual battery is a “sexually violent offense” as defined by Chapter 62.

See Tex. Code Crim. Proc. Ann. art. 62.001(6) (West Supp. 2016) (defining

“sexually violent offense”).

      First, we address Munday’s insufficiency arguments claiming the State failed

to prove that the Department of Public Safety had evaluated the similarities between

the sexual battery statute under which Munday was convicted and sexual assault. In

Munday’s trial, Randy Ortega was the only witness who addressed when the

Department of Public Safety first compared Florida’s sexual battery statute with the

offense of sexual assault. Compare FLA. STAT. ANN. § 794.011(1)(h) (Sexual

Battery), with Tex. Penal Code Ann. § 22.011 (Sexual Assault). Ortega indicated

that he is the managing attorney for the crime records service at the Texas

Department of Public Safety, and he explained that his current duties include

evaluating whether the laws of other states are substantially similar to the

enumerated list of sex-offender offenses described in Chapter 62. See Tex. Code

Crim. Proc. Ann. art. 62.003. According to Ortega, “as far back as 2006[,]” the

Department had determined that Florida’s sexual battery statute contained elements




                                          11
substantially similar to the elements required to prove sexual assault. Ortega

indicated that he was not employed with the Department in 2006.

      Ortega also testified that in November 2014,3 he was asked to determine

whether the elements of Florida’s sexual battery statute as it existed in 1988

contained elements substantially similar to those required to prove any of the

offenses that qualify as reportable convictions based on the sex offender registration

program. Ortega explained that he determined that the version of the sexual battery

statute applicable to Munday’s 1988 offenses include elements substantially similar

to those required to prove the offense of sexual assault. Ortega indicated that after

he made his determination regarding the similarity between sexual battery and

sexual assault, the Department of Public Safety updated its list of Florida offenses

in due course in March 2015 and sent the updated list to Texas law enforcement

authorities so they would be aware that the Department considered sexual battery to

be similar to sexual assault based on versions of Florida’s sexual battery statute

dating to October 1, 1982.4 The Department’s March 2015 memo was admitted


      3
         During his testimony, Ortega clarified that on November 17, 2014, he
personally determined that the elements required to prove sexual battery under
Florida’s law were substantially similar to the elements required to prove sexual
assault under Texas law.
      4
        During Ortega’s testimony, the trial court admitted nine Department of
Public Safety memos. The memos indicate that the Department had determined that
                                         12
during the trial, and it memorialized Ortega’s determination that sexual battery based

on the defendant’s use of force not likely to cause a serious personal injury contains

elements substantially similar to the elements required to prove sexual assault as

described by section 22.011(a)(1) of the Texas Penal Code. Compare FLA. STAT.

ANN. § 794.011(5) (describing sexual battery using force not likely to cause serious

injury), with Tex. Penal Code Ann. § 22.011(a)(1) (describing sexual assault to

require proof that the defendant contacted or penetrated the victim’s sexual organ or

mouth without the victim’s consent).

      At the request of Munday’s attorney, the trial court admitted eight memos

from the Department dating from June 2006 reflecting that the Department had made

a determination regarding various Florida crimes that the Department considered to

contain elements that were substantially equivalent to those listed in Chapter 62 that

make convictions in Florida of those crimes reportable convictions under Texas’ sex

offender registration program. These memos reflect that as of June 2006, the

Department of Public Safety had determined that sexual battery, by use of force not

likely to cause serious personal injury, contains elements that are substantially

similar to those required to prove sexual assault. For instance, the Department’s June


sexual battery contained elements substantially similar to sexual assault. Eight of the
nine exhibits predate the Department’s March 2015 memo, and the earliest of the
memos in evidence addressing Florida statutes is dated June 26, 2006.
                                          13
2006 memo states that the elements of sexual battery under Florida Statute section

794.011(5) “are substantially similar” to the elements of sexual assault in section

22.011 of the Texas Penal Code. While the Department’s memo does not reflect the

exact version of section 794.011(5) that it reviewed when it made its determination

in 2006, the evidence before the jury does not show any of the elements that are

material to the offense of sexual battery changed between 1988 and the dates the

State alleged that Munday failed to comply with his duty to update his registration.

      In his appeal, Munday has not argued that the Florida legislature made

material changes to its sexual battery statute between 2008 and 2014 that are relevant

to the State’s claim that Munday failed to update his registration. In our review, we

have compared Florida’s current sexual battery statute with respect to sexual battery

committed by force not likely to cause a serious personal injury with the elements

required to prove that same offense under the language used in the sexual battery

statute in 1988. Based on our review of the elements of the offenses, we conclude

that the record does not show that the State of Florida made any changes in the statute

material to Munday’s convictions for failing to update his registration as a convicted

sex offender. See FLA. STAT. ANN. § 794.011 (LexisNexis 2017).

      When viewed in the light most favorable to the verdict, we hold that the

evidence presented in Munday’s trial allowed the jury to find, beyond reasonable

                                          14
doubt, that the Department of Public Safety had determined before April 2014 that

the crime of sexual battery by use of force not likely to cause serious personal injury

contains elements substantially similar to those required to prove sexual assault. See

Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011) (noting that in

determining whether the evidence is sufficient to support a conviction, a reviewing

court must consider all of the evidence in the light most favorable to the verdict)

(citing Jackson, 443 U.S. at 318-19). We conclude that Munday’s claim asserting

the State failed to present legally sufficient evidence to prove that the Department of

Public Safety had issued a determination finding the crime of sexual battery under

Florida law contains elements substantially similar to those required to prove sexual

assault is without merit.

      Next, we address Munday’s argument that the evidence fails to show that he

was notified before he was arrested that he was required to register in Polk County

as a convicted sex offender. At the outset, we note that Chapter 62 does not prescribe

a culpable mental state for the offense of violating the duties imposed by the sex

offender registration program. See Tex. Code Crim. Proc. Ann. art. 62.102 (West

Supp. 2016). Nonetheless, Chapter 62 does not plainly indicate that the Legislature

intended to dispense with all mens rea requirements. Id. Given that the sex offender

registration program does not plainly dispense with all mens rea requirements, we

                                          15
conclude that the State was required to prove that Munday intentionally, knowingly,

or recklessly failed to comply with his duty to update his registration. See Tex. Penal

Code Ann. § 6.02(c) (West 2011); Harris v. State, 364 S.W.3d 328, 335 (Tex.

App.—Houston [1st Dist.] 2012, no pet.).

      In Munday’s case, the jury was asked to determine whether Munday

“intentionally or knowingly” failed to comply with the requirements of the sex

offender registration program. Because the case was submitted to the jury on this

basis, we will review the record to determine if the State presented sufficient

evidence to prove that Munday intentionally or knowingly failed to renew his

registration without deciding whether the evidence would also support a finding that

his failure to update his registration was reckless. See Harris, 364 S.W.3d at 335;

Ballard v. State, 149 S.W.3d 693, 695 & n.1 (Tex. App.—Austin 2004, pet. ref’d);

Varnes, 63 S.W.3d at 832.

      Munday suggests that evidence proving that he intentionally or knowingly

failed to register is insufficient because the State failed to prove that the Department

of Public Safety notified him before he was charged that he was required to register

under the program. Chapter 62 does not expressly require the State to prove that the

defendant was notified by the Department that he was under an obligation to register.

See Tex. Code Crim. Proc. Ann. art. 62.102. Nevertheless, the State was required to

                                          16
prove that Munday knowingly or intentionally failed to comply with his duty to

register, and there is evidence from which the jury could reasonably determine that

Munday knew he was required to register and chose not to. For example, the

evidence showed that Munday began registering as a convicted sex offender in Polk

County after he was released from the Texas Department of Corrections and that he

continued to register on a regular basis through December 2013. The evidence before

the jury included several Texas Department of Public Safety Sex Offender Update

Forms that Munday signed between October 2010 and December 2013. These forms

contain language stating: “In accordance to Chapter 62, Texas Code of Criminal

Procedure, you are required to verify your registration as a sex offender with local

law enforcement. Failure to verify your registration with law enforcement will result

in criminal penalties being filed against you and may result in the revocation of any

community supervision, parole or juvenile probation.” The jury was entitled to infer

that Munday read these forms, and the language in them provides ample evidence to

support the jury’s conclusion that Munday knew he was required to register as a

convicted sex offender. Additionally, the jury heard Deputy Wright explain that he

told Munday when he found him before he was charged that he needed to update the

information that he had on file with the Sheriff’s Office. In our opinion, the fact that

Munday registered as a sex offender in 2010, that he continued to register on a

                                          17
quarterly basis until December 2013, that the forms he signed in updating his

registration have language in them indicating that Munday was obligated to register,

and Deputy Wright’s testimony that he told Munday he was required to update his

registration are all circumstances that allowed the jury to conclude that Munday

intentionally and knowingly failed to comply with his duties under the sex offender

registration program. See Gollihar v. State, 46 S.W.3d 243, 252 (Tex. Crim. App.

2001) (indicating that appellate courts are to measure the sufficiency of the evidence

in a case against a hypothetically correct charge); Varnes, 63 S.W.3d at 833. To the

extent that Munday argues in his appeal that there is insufficient evidence to prove

that he intentionally or knowingly failed to update his registration, his issues are

overruled.

      Last, we address Munday’s argument that the evidence failed to show that

sexual battery as defined by Florida’s law is a “sexually violent offense” under

Chapter 62. See Tex. Code Crim. Proc. Ann. art. 62.101(a)(1) (imposing a duty to

register for life if the person has a reportable conviction for a “sexually violent

offense”). The term “sexually violent offense” is defined in section 62.001(6) to

include offenses under the laws of other states if the offense in the other state, as

defined by the laws of that state, contains elements substantially similar to the

elements of certain enumerated sexual offenses in Chapter 62. Id. art. 62.001(6). The

                                         18
enumerated offenses in Chapter 62 specifically include sexual assault. Id. art.

62.001(6)(E).

      We have previously explained that the evidence in Munday’s trial established

that in 2006, the Department determined that the offense of sexual battery by use of

force not likely to cause serious personal injury contains elements that are

substantially equivalent to those required to prove sexual assault. Compare FLA.

STAT. ANN. § 794.011(5), with Tex. Penal Code Ann. § 22.011(a)(1). Because the

evidence showed that the Department compared sexual battery by use of force not

likely to cause serious personal injury and sexual assault in 2006 and determined the

offenses have substantially similar elements, the evidence shows that he had

previously been convicted of committing sexually violent offenses for the purposes

of the sex offender registration program.5




      5
        We note that article 62.001 also required the State to prove that Munday was
seventeen or older when he committed the sexual batteries in Florida for those
offenses to be considered sexually violent offenses under the sex offender
registration program. See Tex. Code Crim. Proc. Ann. art. 62.001(6) (West 2016).
While Munday has not argued that the evidence failed to show that he was seventeen
or older when he committed the sexual batteries in Florida in 1988, the evidence
admitted in Munday’s trial demonstrates that Munday was twenty-four years old in
1988 when he committed those crimes.
                                         19
      We conclude that Munday has not presented any arguments that persuade us

that his convictions should be reversed. We overrule all of Munday’s issues, and we

affirm Munday’s convictions in Trial Court Cause Numbers 23943 and 23414.

      AFFIRMED.




                                             ___________________________
                                                    HOLLIS HORTON
                                                         Justice


Submitted on April 24, 2017
Opinion Delivered July 19, 2017
Do Not Publish

Before McKeithen, C.J., Horton and Johnson, JJ.




                                        20
