                                                                                  PD-0975-15
                                                                 COURT OF CRIMINAL APPEALS
                                                                                 AUSTIN, TEXAS
                                                               Transmitted 8/31/2015 10:32:20 AM
                                                                  Accepted 9/1/2015 11:48:49 AM
                                 PD-0975-15                                       ABEL ACOSTA
                                                                                          CLERK
            IN THE COURT OF CRIMINAL APPEALS OF
                    THE STATE OF TEXAS

__________________________________________________________________

                      CRAIG ANTHONY GILDER

                                  Appellant,

                                     vs.

                          THE STATE OF TEXAS

                              Appellee
 ________________________________________________________________

    Petition for Discretionary Review from the Fourteenth Court of Appeals
     No. 14-14-00523-CR, affirming the conviction of Cause No. 1388541
                  177th District Court of Harris County, Texas
                    Honorable Ryan Patrick, Judge Presiding

__________________________________________________________________

                                                ALEXANDER BUNIN
                                                Chief Public Defender,
                                                Harris County, Texas
                                                ________________________
                                                MELISSA MARTIN
                                                Assistant Public Defender
                                                Harris County, Texas
                                                TBN. 24002532
                                                1310 Prairie, Suite 980
                                                Houston, TX 77002
                                                Phone: (713)274-6709
      September 1, 2015
                                                Fax: (713)437-4319
                                                melissa.martin@pdo.hctx.net

                                                Attorney for Appellant
             IDENTITY OF PARTIES AND COUNSEL


APPELLANT:                         Craig Anthony Gilder
                                   SPN# 00291119
                                   1200 Baker
                                   Houston, TX 77002


TRIAL PROSECUTOR:                  Nathan P. Hennigan
                                   Assistant District Attorney
                                   Harris County Texas
                                   1201 Franklin St, 6th Floor
                                   Houston, TX 77002


DEFENSE COUNSEL AT TRIAL:          Anthony Balderas, Jr.
                                   Attorney at Law
                                   10701 Corporate Dr Ste 185
                                   Houston, TX 77002


COUNSEL ON APPEAL FOR APPELLANT:   Melissa Martin
                                   Assistant Public Defender
                                   Harris County TX
                                   1201 Franklin St, 13th Floor
                                   Houston, TX 77002
                                   melissa.martin@pdo.hctx.net


PRESIDING JUDGE:                   Hon. Ryan Patrick
                                   177th District Court
                                   Harris County, TX
                                   1201 Franklin St, 19th Floor
                                   Houston, TX 77002




                            ii
                                                   TABLE OF CONTENTS

IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii

TABLE OF CONTENTS .............................................................................................................iii

INDEX OF AUTHORITIES ....................................................................................................... iv

STATEMENT OF THE CASE ..................................................................................................... 1

STATEMENT OF PROCEDURAL HISTORY .............................................................................. 1

STATEMENT REGARDING ORAL ARGUMENT ...................................................................... 1

GROUND FOR REVIEW ........................................................................................................... 1
    The Fourteenth Court of Appeals erred in affirming appellant’s
    conviction. Gilder v. State, __S.W.3d __ , 2015 WL 3917924, 14-14-00523-
    CR. Mr. Gilder contends that this Court did not intend, its holding in
    Thomas v. State, 444 S.W.3d 4 (2014) to abrogate the intermediate court’s
    holding in Green v. State, 350 S.W.3d 617 (Tex. App.—Houston [14th
    Dist.], 2012, pet ref’d.) Rather, appellant argues that Thomas is explicitly
    limited to its facts and the court of appeals incorrectly extended the reach
    of this Court’s holding to include both Green and Gilder. This Court should
    review Gilder in order to clarify its position regarding the requirements set
    out in Art. 62.055(a) of the Texas Code of Criminal Procedure.

ARGUMENT

     A. BACKGROUND ............................................................................................................. 2

     B. ANALYSIS ...................................................................................................................... 4

     C. CONCLUSION ............................................................................................................... 7

PRAYER .................................................................................................................................... 7

CERTIFICATE OF SERVICE ...................................................................................................... 8

CERTIFICATE OF COMPLIANCE ............................................................................................. 9

APPENDIX
                                                                     iii
                                         INDEX OF AUTHORITIES

Cases


Gilder v. State, __S.W.3d __ , 2015 WL 3917924, 14-14-00523-CR ..................................... 1, 3, 7

Green v. State, 350 S.W.3d 617 (Tex. App.—Houston [14th Dist.], 2012, pet ref’d.) ......... 1, 3, 7

Thomas v. State, 411 S.W.3d 685 (Tex. App.—Texarkana, 2014, pet. granted) ............................ 1

Thomas v. State, 444 S.W.3d 4 (2014) .................................................................................... 1, 3, 4, 7

Thomas v. State, 454 S.W.3d 660 (Tex. App.—Texarkana, 2014, pet ref’d) .................................. 4


Statutes

Tex. Code Crim. Proc. Art. 62.055(a) ...........................................................................................2, 7




                                                                iv
                                 Statement of the Case

       On June 26, 2014 Craig Gilder was convicted by a jury of failure to comply with

a sex-offender registration requirement and sentenced to seven years’ incarceration in

the Institutional Division of the Texas Department of Criminal Justice (C.R. at 9, 88,

and 92). Notice of appeal was filed June 26, 2014.

                           Statement of Procedural History

       Appellant’s brief was filed on January 6, 2015, and his reply to the state’s brief

was filed on March 17, 2015. The First Court of Appeals affirmed the conviction on

June 25, 2015. No motion for rehearing was filed.

                        Statement Regarding Oral Argument

       Appellant requests oral argument in this matter because there appears to be some

ambiguity as to this Court’s intention in reversing Thomas v. State, 411 S.W.3d 685 (Tex.

App.—Texarkana, 2014, pet. granted)(hereafter, Thomas 1). Thomas v. State, 444 S.W.3d

4 (2014)(hereafter, Thomas 2). Argument could be helpful in resolving the confusion.

                                   Ground for Review

       The Fourteenth Court of Appeals erred in affirming appellant’s conviction. Gilder

v. State, __S.W.3d __ , 2015 WL 3917924, 14-14-00523-CR. Mr. Gilder contends that

this Court did not intend, its holding in Thomas v. State, 444 S.W.3d 4 (2014) to abrogate

the intermediate court’s holding in Green v. State, 350 S.W.3d 617 (Tex. App.—Houston

[14th Dist.], 2012, pet ref’d.) Rather, appellant argues that Thomas is explicitly limited to

                                             1
its facts and the court of appeals incorrectly extended the reach of this Court’s holding

to include both Green and Gilder. This Court should review Gilder in order to clarify its

position regarding the requirements set out in Art. 62.055(a) of the Texas Code of

Criminal Procedure.

                                       Argument

A.    Background

      The indictment in this case charged “[appellant] did then and there unlawfully,

while a person with a reportable conviction for the offense of sexual assault, and while

subjection to registration under the Texas sex offender registration program, and while

intending to change his residential address, intentionally and knowingly fail[ed] to timely

provide in person [his] anticipated move date and new address…at least seven days

before the defendant (sic) change of address” (C.R. at 9).

      Art. 62.055(a) provides two ways to comply with its requirements:

      (a) 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 … and provide the authority
      … 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 seven days after changing the address or the first date the
      applicable local law enforcement authority, by policy, allows the person to
      report, shall 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.

Tex. Code Crim. Proc. Art 62.055(a).

                                            2
          The state chose to indict Mr. Gilder only for failing to comply with the first way.

The state proved up a violation of the other way, which it did not plead. The Green

court, under the same scenario, found a fatal variance between the indictment and the

proof and acquitted Green on the basis of insufficient evidence that Green had ever

intended to move to an anticipated address. Green, 350 S.W.3d at 6241.

          The state in Thomas, like in Green and Gilder, had alleged only the violation of the

first means of complying with Art. 65.055(a). This Court followed the same steps the

court of appeals took in analyzing Green:

          In this case … the indictment was not as broad as authorized by law
          because the State alleged a specific manner and means. As a result of
          specifying a specific statutory manner and means in the indictment, the
          “law as authorized by the indictment” in this case allowed the jury to
          convict Appellant only if he failed to report a change in address “not later
          that the seventh day before the intended change.” Thus, the hypothetically
          correct jury charge in this case was one that authorized a jury to convict
          Appellant only if (1) he was required to register as a sex offender, and (2)
          he failed to report an anticipated change of address seven days before the
          intended change.

    Id at 10 (citations omitted, emphasis in the original); Green, S.W.3d 620.

          This Court decided the evidence in Thomas was legally sufficient and remanded

to the court of appeals to consider whether the application paragraph permitting the

jury to consider both manners and means of violating the requirements caused Thomas



1This opinion in Green, supra, was issued on remand to the court of appeals by this Court’s opinion on
review of the State’s petition asking for review in light of Brooks v. State, which abolished factual
sufficiency. The court of appeals, in the first appeal, had found the evidence factually insufficient to
support the conviction. Green, 350 S.W.3d at 620.

                                                   3
egregious harm. Thomas, 444 S.W.3d at 11. On remand, the court of appeals found

egregious harm; this Court refused the state’s petition for review. Thomas v. State, 454

S.W.3d 660 (Tex. App.—Texarkana, 2014, pet ref’d)(hereafter Thomas 3).

B.    Analysis

      In Thomas 2, this Court found the jurors, as the sole judges of credibility, were

entitled to believe all or some of the testimony from the arresting officer and the

defendant and to infer from their testimony that Thomas had intended to move to the

address he did, in fact, move to and then failed to report the move seven days prior to

moving. The jury found, however, that the date alleged in the indictment was not the

correct date. This Court found that the “on or about” language in the indictment was

sufficient to find the state’s evidence legally sufficient to convict. Thomas 2, 444 S.W.3d

at 10-11.

      Thomas reported he lived at 1900 South Green Street, apartment 210, when he

registered as a sex offender with the Longview authorities. An officer contacted the

manager of the apartment building to inform her that a registered sex offender was

living at the address; she asked that a criminal-trespass warrant be issued to Thomas.

On April 3, 2012, officers delivered the warrant to him at the South Green Street

address. At that time the apartment manager warned Thomas’s girlfriend’s daughter,

the leaseholder, that she would be evicted if Thomas continued living there. Thomas 2,

444 S.W.3d at 6.


                                            4
      Officers arrested Thomas at that time for outstanding warrants. When he was

booked into the jail, he listed his address at 1703 Houston Street. On June 13, an officer

contacted Officer Brownlee, to inform him that Thomas was apparently living at an

address different from the one he listed for the sex-offender registry. Brownlee testified

that on June 25, 2012 he checked with the apartment manager to find out if Thomas

was still at the South Green Street address; she told him he was not. Brownlee testified

he then went to the Houston Street address, where he found Thomas. Id.

      According to Brownlee, Thomas told him he was living at the Houston Street

home and that he had called the authorities to notify them of the address change. Since

the address change was required to be made in person and because the South Green

was still his registered address, Brownlee arrested him on failure to comply with sex-

offender registration requirements. Id.

      Thomas testified that he had lied about living at Houston Street and that he had

been living at South Green Street even after Brownlee encountered him at the Houston

address; he stated he had lied about being at South Green Street to protect his

girlfriend’s daughter from being evicted. Id at 7.

      This majority opinion (five to four) concluded that on this evidence, the jurors

could have believed Brownlee’s testimony that Thomas had told him he was living at

Houston Street. The jurors had also been entitled to disbelieve the part of Thomas’s

testimony where he claimed he had lied about Houston Street. From that evidence

jurors could have properly inferred his intent to live at Houston Street. Id. This makes
                                            5
sense, because Thomas reported living at Houston Street to the jail on April 3, 2012

and was actually found there on June 25, 2012—he had another place to go at least as

early as April 3, 2012.

       These facts are quite different from those in Mr. Green’s and Mr. Gilder’s cases.

In neither of those cases did the defendants testify and there was no evidence that they

told anyone they had another address at the time they moved.

       In Mr. Gilder’s case, the testifying officer explained the reporting requirements

as they were told to registrants—incorrectly--stating that all moves had to be reported

seven days before the move. The apartment manager testified she had not known Mr.

Gilder had been living in his mother’s apartment until August 2012, when neighbors

began to complain (4 R.R. at 50). She also testified had not seen Mr. Gilder after the

criminal-trespass warrant was issued on August 13, but she had never seen him leave (4

R.R. at 50-51). She could not say when Mr. Gilder’s mother actually vacated the

apartment complex, due to upcoming renovations to the complex (4 R.R. at 45 and 47).

       The state offered no evidence as to where the arresting officer found Mr. Gilder

after he had determined no one was living at the apartment on the day he checked on

Mr. Gilder. There is nothing from which the jurors could have inferred Mr. Gilder’s

intent to move prior to having done so or his having had an anticipated address to move

to. There is no evidence about the date he moved. There is no evidence he had even

had an address when he was arrested.


                                           6
                                      Conclusion

      In Thomas, this Court made clear that the second part of 65.055(a) is a separate

manner and means from the first one and that having pleaded only the first one, the

state has limited itself to convicting on evidence of that only that manner and means.

As further evidence the Court considers the statute provides two manners and means,

the Court stated the Thomas jury should not have been permitted to consider the second

manner and means included in the charge, leaving only the harm for the court of appeals

to consider on remand.

      The majority opinion by this Court in Thomas makes no mention of the Green

case, which it refused to review on the state’s petition. The Thomas Court carefully laid

out the factual bases from which the jurors could infer Thomas’s intent to move to an

anticipated address. There is nothing in the opinion to indicate the Court was making a

blanket statement that simply showing someone moved creates a permissible inference

that he violated the first manner and means of the statute. The dissent by Justice

Cochran, joined by Justices Price and Johnson, and with which Justice Womack

concurred, discusses Green, yet the majority does not state an intent to abrogate that

decision.

                                         Prayer

      Mr. Gilder asks this Court to review the court of appeals decision in Gilder v. State

(attached as an Appendix) by allowing him to fully brief the issue, with argument, and

ultimately remand to the court of appeals for appropriate action.
                                            7
                                        Respectfully Submitted,

                                        ALEXANDER BUNIN
                                        Harris County Public Defender

                                        /s/ Melissa Martin
                                        ______________________________
                                        MELISSA MARTIN
                                        Assistant Public Defender
                                        1201 Franklin, 13th Floor
                                        Houston, TX 77002
                                        Phone 713-274-6709
                                        Fax 713-437-4319
                                        Texas Bar No. 24002532
                                        melissa.martin@pdo.hctx.net




                          CERTIFICATE OF SERVICE

      I certify that a copy of the foregoing Petition for Discretionary Review was e-

served to Alan Curry, Assistant District Attorney, Harris County Texas and to the State

Prosecuting Attorney.

                                        /s/Melissa Martin
                                        _______________________________
                                        MELISSA MARTIN




                                          8
                       CERTIFICATE OF COMPLIANCE


      Pursuant to proposed Rule 9.4(i)(3), undersigned counsel certifies that this brief
complies with the type-volume limitations of Tex. R. App. Proc. 9.4(e)(i).
1.      Exclusive of the portions exempted by Tex. R. App. Proc. 9.4 (i)(1), this brief
contains 1,909 words printed in a proportionally spaced typeface.
2.    This brief is printed in a proportionally spaced, serif typeface using Garamond
14 point font in text and Garamond 12 point font in footnotes produced by Microsoft
Word software.
3.      Upon request, undersigned counsel will provide an electronic version of this
brief and/or a copy of the word printout to the Court.
4.   Undersigned counsel understands that a material misrepresentation in completing
this certificate, or circumvention of the type-volume limits in Tex. R. App. Proc. 9.4(j),
may result in the Court's striking this brief and imposing sanctions against the person
who signed it.


                                                /s/ Melissa Martin
                                                ____________________________
                                                MELISSA MARTIN




                                            9
Gilder v. State, --- S.W.3d ---- (2015)



                                                                       conducted compliance check. Tex. Crim. Proc.
                                                                       Code Ann. art. 62 .102(a).
                     2015 WL 3917924 

       Only the Westlaw citation is currently available. 

                                                                       Cases that ci tc this headnote
      NOTICE: THIS OPINION HAS NOT BEEN 

       RELEASED FOR PUBLICATION IN THE 
                       [2]     Mental Health
 PERMANENT LAW REPORTS. UNTIL RELEASED, 
                                 Offenses and prosecutions
 IT IS SUBJECT TO REVISION OR WITHDRAWAL. 
                            When the indictment alleges that a defendant
                                                                       "intentionally and knowingly" failed to comply
                   Court of Appeals of Texas, 

                                                                       with a requirement of the sex-offender
                     Houston (14th Dist.). 

                                                                       registration program, the appellate court reviews
               Craig Anthony Gilder, Appellant 
                       the record for evidence that the defendant's
                                 v. 
                                  failure was intentional or knowing.

                  The State of Texas, Appellee 
                       Cases that cite this headnote

                   NO. 14-14-00523-CR
                   Opinion filed June 25, 2015                 [3] 	   Criminal Law
                                                                           Circumstantial Evidence
Synopsis
                                                                       Criminal Law
Background: Defendant was convicted in the 177th District
                                                                            Relative strength of circumstantial and
Court, Harris County, of failure to comply with sex offender
                                                                       direct evidence
registration requirements, based on his failure to report
                                                                       Circumstantial evidence is as probative as direct
intended move to new residence within seven days of move.
                                                                       evidence in establishing the guilt of an actor, and
Defendant appealed.
                                                                       circumstantial evidence alone can be sufficient
                                                                       to establish guilt.

IHolding:] The Court of Appeals, Martha Hill Jamison, 1.,              Cases that cite this headnote
held that evidence was sufficient to support conviction.
                                                               14]     Criminal Law
                                                                           Elements of offenses in general
Affirmed.
                                                                       Proof of a culpable mental state generally relies
                                                                       on circumstantial evidence.

 West Headnotes (5)                                                    Cases that cite this headnote


 11]       Mental Health                                       [5] 	   Criminal Law
              Offenses and proseclltions                                 "" Intent
           Evidence was sufficient to support finding that             Criminal Law
           defendant's failure to report intended move                     Elements of offenses
           to new address within seven days of move                    Intent may be determined from a defendant's
           was intentional and knowing, as required to                 words, acts, and conduct, and is a matter of fact
           support conviction for failure to comply with               to be determined from all of the circumstances.
           sex offender registration requirements; officer
           conducted compliance check at apartment at                  Cases that cite this headnote
           address that defendant had registered, apartment
           was vacant due to renovation, and it had been
           vacant for five months when police officer
                                                                              APPENDIX 

'Nestla'.'vNext   (c)   2015 Thomson Reuters No claim to onglnal U.S. Government Works.
Gilder v. State, .*. S.W.3d •••• (2015)



                                                                    required vouchers issued by the Department of Housing and
On Appeal from the 177th District Court, Harris County,             Urban Development to be issued as a condition of residence.
Texas, Trial Court Cause No. 1388541                                In order to comply with federal regulations, the apartment
                                                                    complex underwent renovation beginning in November 2012.
Attorneys and Law Firms
                                                                    The renovation was completed in January 2014. Jenkins
Melissa Martin, for Craig Anthony Gilder.                           testified that appellant was never a legal resident at the
                                                                    apartment complex, but his mother lived in apartment number
Devon Anderson, Clinton Morgan, for the State of Texas.             2 until she had to relocate due to the renovation. Jenkins
                                                                    testified that appellant was living in the apartment illegally.
Panel consists of Chief Justice Frost and Justices Jamison and
                                                                    She explained that because the housing was subsidized,
Busby.
                                                                    appellant's mother could only have an overnight guest for a
                                                                    period of 30 days. After the 30- day period, appellant was
                                                                    required to move. On August 13, 2012, a trespass warning
                             OPINION                                was issued to appellant because he was living at the apartment
                                                                    illegally.
Martha Hill Jamison, Justice

*1   Appellant Craig Anthony Gilder appeals his conviction          The jury found appellant guilty of failure to comply with
for failure to comply with a sex-offender registration              sex-offender registration and assessed punishment at seven
requirement. See Tex. Code Crim. Proc. Ann. art. 62.102             years' confinement in the Institutional Division of the Texas
(West Supp.20 14). In a single issue, he contends the evidence      Department of Criminal Justice.
is legally insufficient to support his conviction because
no rational juror could have found beyond a reasonable
doubt that appellant committed the offense with the requisite                    SUFFICIENCY OF THE EVIDENCE
culpable mental state. We affirm.
                                                                     II]   In his sole issue on appeal, appellant asserts the evidence
                                                                    is insufficient to support his conviction. Appellant argues
                                                                    the State did not prove he intentionally or knowingly
                          BACKGROUND
                                                                    failed to comply with the requirement that he report in
In 1988, appellant was convicted of sexual assault, which           person to the appropriate authority and provide the authority
subjected him to registration as a sex offender under               with appellant's anticipated move date and new address at
article 62.102 of the Texas Code of Criminal Procedure.             least seven days prior to an anticipated change of address.
Officer C.R. Black of the Houston Police Department Sexual          Appellant challenges the State's proof that appellant intended
Compliance Unit testified that by being subject to sex­             to change his address.
offender registration, appellant was required to register
once a year. On May 14, 20l3, at 10:30 in the morning,               *2 In a sufficiency review, we view all evidence in the
Black conducted a compliance check at appellant's registered        light most favorable to the verdict and determine whether any
address, 7601 Curry Rd. , No . 2. Appellant had registered this     rational trier of fact could have found the essential elements
address on July 24, 2012 . The apartment appellant had listed       of the offense beyond a reasonable doubt . Salinas v. State,
as his residence was vacant; the apartment manager informed         163 S.W.3d 734, 737 (Tcx.Crim.App .2005) . The jury, as
Black that the apartment complex was being renovated, which         the sole judge of the credibility of the witnesses, is free to
is why the apartment was vacant. A Sex Offender Compliance          believe or disbelieve all or part of a witness's testimony. Jones
Report that was admitted into evidence at trial recites that this   v. State, 984 S.W.2d 254, 257 (Tex.Crim.App.1998). The
apartment was vacated on January 3, 2013. After finding the         jury reasonably may infer facts from the evidence presented,
apartment vacant, Black determined that appellant was not           credit the witnesses it chooses to credit, disbelieve any or
registered at any other address in the State of Texas or the        all of the evidence or testimony proffered, and weigh the
United States, and he was not in custody.                           evidence as it sees fit. Sharp v. Slate, 707 S. W.2d 611,
                                                                    614 (Tex .Crim .App. 1986). Reconciliation of conflicts in the
Andrea Jenkins, the apartment manager at 7601 Curry Rd.,            evidence is within the jury's discretion . Losada v. State,
testified that the property was federally subsidized and            721 S.W.2d 305, 309 (Tex.Crim.App .1986). An appellate



'i\!estla"~ ~~ ext   © 2015 Thornson Reuters. No claim to original U.S. Government Works.                                         2
Gilder v. State, --- S.W.3d ---- (2015)



court may not reevaluate the weight and credibility of            of the seventh day after changing the address or the first date
the evidence produced at trial or substitute its judgment         the applicable authority by policy allows the person to report,
for that of the jury. King v. State, 29 S.W.3d 556, 562           and fails to provide the authority with proof of identity and
(Tex.Crim.App.2000). Inconsistencies in the evidence are          proof of residence ("Failing to Report an Actual Move"). See
resolved in favor of the verdict. Curry v. State, 30 S. W.3d      Tex. Code Crim. Proc. Ann. art. 62.055(a); Thomas v. State,
394,406 (Tex.Crim.App.2000). We do not engage in a second         444 S.W.3d 4, 9 (Tex.Crim.App.2014). Although there was
evaluation of the weight and credibility of the evidence, but     evidence that would support a conviction of appellant based
only ensure the jury reached a rational decision. Muniz v.    on Failing to Report an Actual Move, appellant was charged
State, 851 S.W.2d 238, 246 (Tex.Crim.App.1993).               only with intentionally and knowingly Failing to Report an
                                                              Intended Move.
 [21     [31  141    [51  When   the indictment alleges that a
defendant "intentionally and knowingly" failed to comply       *3 An individual acts intentionally, or with intent, with
with a requirement of the sex-offender registration program,      respect to the nature of his conduct or to a result of his
as in the present case, we review the record for evidence         conduct when it is his conscious objective or desire to engage
the defendant's failure was intentional or knowing. See           in the conduct or cause the result. Tex. Penal Code Ann. §
Tatum v. State, 431 S.\V.3d 839, 841 (Tex.App.-·Houston           6.03(a) (West 2013). An individual acts knowingly, or with
[14th Dist.] 2014, pet. refd). "Circumstantial evidence is as     knowledge, with respect to the nature of his conduct or to
probative as direct evidence in establishing the guilt of an      circumstances surrounding his conduct when he is aware of
actor, and circumstantial evidence alone can be sufficient        the nature of his conduct or that the circumstances exist. ld.
to establish guilt." Sorrells v. State, 343 S.W.3d 152,           § 6.03(b). An individual acts knowingly, or with knowledge,
155 (Tex.Crim.App.20 II). Proof of a culpable mental state        with respect to a result of his conduct when he is aware that
generally relies on circumstantial evidence. Lane v. State, 763   his conduct is reasonably certain to cause the result. ld.
S.W.2d 785, 787 (Tex.Crim .App.1989) ("Establishment of
culpable mental states is almost invariably grounded upon         Appellant argues the State did not prove that he intended to
inferences to be drawn by the factfinder from the attendant       move to a known new address; therefore, appellant claims
circumstances ."); see also Varnes v. State, 63 S.W.3d 824,       the evidence is insufficient to support appellant's conviction
833 (Tex.App.-Houston [14th Dist.] 2001, no peL). Intent          based on Failing to Report an Intended Move. Appellant
may be determined from a defendant's words, acts, and             cites this court's opinion in Green v. State, 350 S.W.3d 617,
conduct, and "is a matter of fact to be determined from all       630-34 (Tex.App.-Houston [14th Dist.] 2011, pet. refd), in
of the circumstances." Smith v. State, 965 S.W.2d 509, 518        support of his argument. In Green, the defendant, similar to
(Tex.Crim.App.1998); see also Kelley v. State, 429 S.W.3d         appellant in this case, was charged only with intentionally and
865,872 (Tex.App.--Houston [14th Dist.12014, pet. refd).          knowingly Failing to Report an Intended Move. ld. at 631.
                                                                  Green lived in Texas, but worked in Arizona for extended
Texas Code of Criminal Procedure mtic\e 62 . 102(a) states        periods of time. ld. at 633. Green's wife testified that while
that a person commits an offense if the person is required to     Green was working in Arizona, she moved to another address
register and fails to comply with any requirement of Chapter      in Texas without telling Green, and took his possessions
62 of the Texas Code of Criminal Procedure, entitled "Sex         with her. ld. Under the legal-sufficiency standard of review,
Offender Registration Program." Tex. Code Crim. Proc. Ann.        this court presumed that the jury did not believe the wife's
art. 62.1 02(a). There are two alternative manners and means      testimony, which indicated that appellant had no intent to
of violating the requirement contained in Texas Code of           change his address that would require him to report his
Criminal Procedure section 62.055(a): (1) a person required       anticipated move date and new address. ld. Nonetheless, this
to register intends to change address and fails to report in      court concluded that the evidence was legally insufficient to
person, not later than the seventh day before the intended        support a finding that appellant ever had an intent to change
change, to the applicable authorities and to provide then with    his address that triggered a duty to report under 62.055(a).
the person's anticipated move date and new address ("Failing      Jd. This court found the evidence legally insufficient despite
to Report an Intended Move"); and (2) a person required to        evidence that, more than two weeks after the move, appellant
register changes address and fails to report in person to the     reported to the applicable authority that he had moved from
applicable authority in the municipality or county in which       the prior address and was currently living at a different
the person's new residence is located, not later than the later   address. See id. at 619 (plurality op.); id. at 632-33 (majority



'NestlCl',/Next (,\ :201 b Thomson   Reut\"r~)   No cllim to ongincll U.S. Government Works.                                   3
·

 ~


     Gilder v. State, --- S.W.3d ---- (2015)



     op.). In concluding that the evidence was legally insufficient,
     this court noted as follows:                                           *4 The Court of Criminal Appeals reversed the court of
                                                                           appeals, concluding that the evidence was legally sufficient
                   There are various ways that a person's                  to support Thomas's conviction based on Failing to Report an
                   belongings can be moved out of a                        Intended Move. See Thomas, 444 S.W.3d at 6. The high court
                   residence in the absence of that person                 concluded that, because there was evidence that appellant
                   intending to move. The testimony of                     was living at a new address as of June 25, 2012, the jury
                   Guthrie and Graham that appellant                       reasonably could have concluded that Thomas intended to
                   had moved out of the 602 Highland                       change address on June 25, 2012, and that he violated article
                   Avenue residence on or about April                      62.055(a) by failing to report this intended address change on
                   15,2007, is not evidence that appeUant                  or before June 18, 2012. See id. at 10-· 11. In so holding, the
                   had an intent to move out during this                   Thomas court effectively abrogated the part of Green in which
                   time that he failed to report at least                  this court concluded that evidence the defendant was living
                   seven days before the date of the                       at a different address at some point in time did not, by itself,
                   intended move .                                         justify a reasonable inference that the defendant ever had an
                                                                           intent to change his address that he failed to report not later
     /d. at 633.                                                           than the seventh day before the date of the intended address
                                                                           change. Compare Thomas, 444 S.W.3d at 10·- 11, with Green
     In Thomas v. Slate. the defendant registered the address              350 S.W.3d at 633.
     of an apartment leased by the daughter of his girlfriend.
     Thomas, 444 S.W.3d at 6. After a police officer contacted             In the case under review, Officer Black testified that appellant
     the property manager to ask if she was aware that Thomas              registered 7601 Curry Rd., No.2 as his address on July 24,
     lived on the premises, the manager requested that local police        2012. On May 14, 2013, that apartment was vacant. The
     officers issue a criminal trespass warning. /d. Ultimately,           evidence is sufficient to support a finding that appellant was
     Thomas was given a trespass warning and arrested on other             living at a new address as of January 3, 2013. Under Thomas,
     outstanding warrants. ld. When he was booked into the county          because there was evidence that appellant was living at a new
     jail, Thomas gave an address different than his registered            address as of January 3, 2013, the jury reasonably could have
     address. /d. On June 25, 2012, after Thomas was released, a           concluded that appellant intended to change address on this
     police officer went to this address and found Thomas there.           date and that he violated article 62.055(a) by failing to report
     ld. Thomas told the officer that he was living there and that         this intended address change on or before December 27,2012.
     he had updated his sex-offender registration address by a             See Thomas, 444 S.W.3d at 10 - 11. Under this precedent,
     telephone call. ld. As in Green and the case under review, the        the evidence was legally sufficient to support appellant's
     defendant (Thomas) was charged only with Failing to Report            conviction based on Failing to Report an Intended Move. See
     an Intended Move. /d. at 10. Thomas appealed his conviction,          id. Accordingly, we overrule appellant's sole issue on appea\.
     and the court of appeals reversed, holding that the State did
     not prove that Thomas intended to change his address and that         We affirm the trial court's judgment.
     the evidence was insufficient to support a finding that Thomas
     intentionally or knowingly failed to register an intended
     change of address seven days before the intended change.              All Citations
     Thomas v. Slate, 411 S.W.3d 685,693 (Tex.App.--Texarkana
                                                                           --- S.W.3d ----, 2015 WL 3917924
     2013), rev'd 444 S.W.3d 4, 6 (Tcx.Crim.App.20 14).


      End of Document                                                  © 201 5 Thomso n Reu ters . No claim to origin al U S. Government Works .




     Westlc 'NNext ,\: 201 f> Thor-nson   r~euters   No clalnl to Original U.S. Government Works.
