










NUMBER 13-02-732-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS
 
CORPUS CHRISTI - EDINBURG



 
ENRIQUE RIOS,                                                                          Appellant,

v.

THE STATE OF TEXAS,                                                             Appellee.




On appeal from the 148th District Court
of Nueces County, Texas.



 
DISSENTING OPINION
 
Before Justices Hinojosa, Yañez, and Castillo

Dissenting Opinion by Justice Castillo

         I respectfully dissent.  I would find the evidence legally and factually sufficient
to support Rios's conviction.  
I.  The Evidence of Rios's Noncompliance
         Rios is a convicted sex offender.  He was required to verify his registration as
a sex offender on an annual basis with local law enforcement authorities in the
municipality where he resided.
  Records introduced by the State through John
Thomas Hornsby, custodian of sex-offender registration records for the Corpus Christi
Police Department, showed that Rios verified his registration on April 25, 2001.  He
reported 2212 Mary Street, Corpus Christi, Texas, as his place of residence.  
         In February of 2002, Victor Ray Casares, Sr., an officer with the Corpus Christi
Police Department, was contacting convicted sex offenders to ensure compliance with
the sex-offender registration laws.  Casares visited the address Rios had registered in
April  2001 as his place of residence.  Casares spoke with Rios's mother, Natalia Petri. 
Casares testified, without objection, that Petri told him Rios did not live there.  She
said she had not seen Rios since Christmas 2001.  Casares testified, also without
objection, that Petri specifically told him Rios was in Dallas.  The State introduced a
written statement, again without objection, signed by Petri and acknowledging that
Rios had not lived at 2212 Mary Street since December 2001.  The statement also
included Petri's phone number.  
         At trial, however, Petri testified that Rios had lived with her since his release
from prison and was living with her at 2212 Mary Street on February 15, 2002.  She
said the officers came to her home and told her they were patrolling the area for
burglars.  The officers did not ask her about Rios's whereabouts.  She believed that
the statement she signed simply acknowledged that the officers were patrolling the
area.  
         Andrew Ybanez, an officer with the Corpus Christi Police Department, testified
he was on duty with Casares on February 15, 2002.  Ybanez testified Petri appeared
to understand Casares's questions.  Ybanez stated neither he nor Casares spoke to
Petri about burglars.  Ybanez added that Casares explained the contents of the written
statement to Petri before she signed it.
         Rios introduced medical records from Christus Spohn Memorial Hospital, located
in Corpus Christi, Texas.  The records showed that the hospital provided medical
services to Rios on February 19, 2002.  As noted by the majority, Rios provided his
address at admission, giving 2212 Mary Street as his current address.  He also
provided the same telephone number as Petri had provided in her written statement. 
The medical records included a copy of Rios's Nueces County Hospital District health
care card and showed a policy number and Corpus Christi address listed under
"insurance" on Rios's patient registration form.  The dates of coverage shown on the
card are "From 10-31-01 to 4-31-02."  Further, the arrest warrant contained in the
clerk's record of this case reflects an officer's return showing that Rios was arrested
by a Nueces County deputy in Nueces County, Texas on May 31, 2002.  
         Rios raises two issues challenging the legal and factual sufficiency of the
evidence to support his conviction.  I turn to the scope and standards of review.  
II.  SUFFICIENCY SCOPE AND STANDARDS OF REVIEW
         I agree that the analytical construct defined by the Texas Court of Criminal
Appeals in reviewing legal- and factual-sufficiency challenges in jury trials applies
equally to nonjury trials.  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997).  I disagree that Malik mandates grafting the language "hypothetically
correct jury charge" into nonjury sufficiency analyses.  Mechanical repetition of the
term has no place in the context of a bench trial such as that under review in this
case.  
         The court of criminal appeals coined the term "hypothetically correct jury
charge" as shorthand for Malik's cure for a specific ill:  a defendant's acquittal on
sufficiency grounds for charge error.  See id. ("Moreover, the standard we formulate
today ensures that a judgment of acquittal is reserved for those situations in which
there is an actual failure in the State's proof of the crime rather than a mere error in
the jury charge submitted.").  The mischief began, not with the standard announced
in Malik, but with one sentence:  
Hence, sufficiency of the evidence should be measured by the elements
of the offense as defined by the hypothetically correct jury charge for the
case.  Such a charge would be 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.  This standard can uniformly be applied to all trials, whether
to the bench or to the jury, whether or not the indictment is facially
complete, and regardless of the specific wording of the jury charge
actually given. 

Id. (emphasis added) (footnote omitted).  This single statement should not be read in
a vacuum.  After Malik, the court of criminal appeals refined what it meant by the term
"authorized by the indictment."  Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim.
App. 2000).  Curry held that "authorized by the indictment" means "that a sufficiency
review must encompass 'the statutory elements of the offense . . . as modified by the
charging instrument.'"  Fuller v. State, 73 S.W.3d 250, 255 (Tex. Crim. App. 2002)
(Keller, P.J., concurring) (quoting Curry, 30 S.W.3d at 404).  
         I conclude that in jury and nonjury cases alike, we measure the sufficiency of
the evidence against the statutory elements of the offense as modified by the charging
instrument.  See Curry, 30 S.W.3d at 404.  When reviewing the evidence presented
to a jury, we refer to this analytical construct as a "hypothetically correct jury charge."
In reviewing the sufficiency of the evidence presented in a nonjury trial, however, I
would not use the term "hypothetically correct jury charge."  The reference is
unnecessary, given the fact that there is no jury charge in the case, hypothetical or
otherwise.  It would make as much sense to refer to the fact finder in a nonjury trial
as the jury.  The role is the same, but the name is different.  I do not believe Malik
mandates reference to a jury in the sufficiency analysis, either.  

A.  Legal Sufficiency
         A legal-sufficiency challenge calls for appellate review of the
relevant evidence in the light most favorable to the prosecution.  Jackson v.
Virginia, 443 U.S. 307, 319 (1979); Swearingen v. State, 101 S.W.3d 89, 95 (Tex.
Crim. App. 2003); Johnson v. State, 23 S.W.3d 1, 7 (Tex. Crim. App. 2000).  We
consider all the evidence that sustains the conviction, whether properly or improperly
admitted or whether introduced by the prosecution or the defense, in determining the
legal sufficiency of the evidence.  Conner v. State, 67 S.W.3d 192, 197 (Tex.
Crim. App. 2001).  Similarly, in reviewing the legal sufficiency of the evidence, we
look to all of the evidence introduced during either stage of the trial.  De Garmo v.
State, 691 S.W.2d 657, 661 (Tex. Crim. App. 1985).
         I would measure the legal sufficiency in this case against the statutory elements
of the offense as modified by the indictment.  See Fuller, 73 S.W.3d at 254 (Keller,
P.J., concurring).  When a statute lists more than one method of committing an
offense, and the indictment alleges some, but not all, of the statutorily listed methods,
the State is limited to the methods alleged.  Fuller, 73 S.W.3d at 255; Curry,
30 S.W.3d at 404.  We then determine if any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.  Jackson,
443 U.S. at 319; Johnson, 23 S.W.3d at 7.  
         In performing a legal-sufficiency review, we are mindful that the fact finder is
the exclusive judge of the credibility of witnesses and the weight to be given
testimony.  Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Adelman v. State,
828 S.W.2d 418, 423 (Tex. Crim. App. 1992); Butts v. State, 835 S.W.2d 147, 151
(Tex. App.–Corpus Christi 1992, pet. ref'd).  The fact finder may believe some
witnesses and refuse to believe others.  Esquivel v. State, 506 S.W.2d 613, 615 (Tex.
Crim. App. 1974).  It also may accept portions of a witness's testimony and reject
others.  Id.; Butts, 835 S.W.2d at 151.  
         If we reverse a criminal case for legal insufficiency, we vacate the judgment of
conviction for legal insufficiency.  Swearingen, 101 S.W.3d at 95.  We then order a
judgment of acquittal.  Id. 
B.  Factual Sufficiency
         I also would measure the factual sufficiency of the evidence in this case against
the elements of the offense as modified by the indictment.  We are constitutionally
empowered to review the judgment of the trial court to determine the factual
sufficiency of the evidence used to establish the elements of the charged offense. 
Johnson, 23 S.W.3d at 6.  In determining the factual sufficiency of evidence of the
elements of the offense, we view all the evidence neutrally, not through the prism of
"the light most favorable to the prosecution."  Id. at 6-7 (citing Clewis v. State,
922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).  We set aside a finding of guilt only
if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong
and unjust.  Johnson, 23 S.W.3d at 7.  A clearly wrong and unjust finding of guilt is
"manifestly unjust," "shocks the conscience," or "clearly demonstrates bias."  Rojas
v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).  
         In conducting a factual-sufficiency review, we review the fact finder's weighing
of the evidence.  Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133).  We
review the evidence that tends to prove a material disputed fact and compare it with
evidence that tends to disprove it.  Johnson, 23 S.W.3d at 7.  We are authorized to
disagree with the fact finder's determination.  Id.  However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for
that of the fact finder.  Id.  Our evaluation should not intrude substantially on the fact
finder's role as the sole judge of the weight and credibility given to witness
testimony.  Id.  
         We always remain aware of the fact finder's role and unique position, a position
we are unable to occupy.  Id. at 9.  Exercise of our authority to disagree with the fact
finder's determination is appropriate only when the record clearly indicates our
intervention is necessary to stop manifest injustice.  Id.  Otherwise, we accord due
deference to the fact finder's determinations, particularly those concerning the weight
and credibility of the evidence.  Id.  
         Every fact need not point directly and independently to the accused's guilt. 
Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981).  A finding of guilt
can rest on the combined and cumulative force of all the incriminating circumstances.
Id.  When an appellant challenges the factual sufficiency of the elements of the
offense, we ask whether "a neutral review of all the evidence . . . demonstrates that
the proof of guilt is so obviously weak as to undermine confidence in the [fact finder's]
determination, or the proof of guilt, although adequate if taken alone, is greatly
outweighed by contrary proof."  Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim.
App. 2003) (quoting Johnson, 23 S.W.3d at 11); see Swearingen, 101 S.W.3d at 97. 
         In conducting a factual-sufficiency review in an opinion, we "show
our work" when we consider and address the appellant's main argument for
urging insufficiency of the evidence.  Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim.
App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex.
App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1.  This practice
benefits the parties, maintains the integrity of the justice system, and improves
appellate practice.  Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747.  If we
reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. 
Clewis, 922 S.W.2d at 133-34.  We remand for a new trial a criminal case reversed
for factual insufficiency, so a second fact finder has the chance to evaluate the
evidence.  Swearingen, 101 S.W.3d at 97.  
III.  APPLICABLE LAW
A.  The Sex-Offender Registration Statute
         Article 62.10(a) of the Texas Code of Criminal Procedure provides that it is an
offense if a person required to register as a sex offender fails to comply with any
requirements in chapter 62.  Tex. Code Crim. Proc. Ann. art. 62.10(a) (Vernon
Supp. 2004).  Chapter 62 sets out a number of situations under which a convicted sex
offender must register.  Specifically, article 62.04(a) provides:
If a person required to register 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 with whom the person last
registered and to the juvenile probation officer, community supervision
and corrections department officer, or parole officer supervising the
person and provide the authority and the officer with the person's
anticipated move date and new address.  If a person required to register
changes address, the person shall, not later than the seventh day after
changing the address, report in person to the local law enforcement
authority in the municipality or county in which the person's new
residence is located and provide the authority with proof of identity and
proof of residence. 

Tex. Code Crim. Proc. Ann. art. 62.04(a) (Vernon Supp. 2004).  
B.  "On or About" Allegation of Date of Offense
         Unless the date is a material element of an offense, it is not necessary for an
indictment to specify the precise date on which the charged offense occurred.  See
Garcia v. State, 981 S.W.2d 683, 685-86 (Tex. Crim. App. 1998).  The primary
purpose of specifying a date in the indictment is not to notify the accused of the date
of the offense.  Id.  Rather, the purpose of providing a date is to show that the
prosecution is not barred by the statute of limitation.  Id.  When an indictment alleges
that a crime occurred "on or about" a certain date, the State may prove an offense
"with a date other than the one specifically alleged so long as the date is anterior to
the presentment of the indictment and within the statutory limitation period and the
offense relied upon otherwise meets the description of the offense contained in the
indictment."  Yzaguirre v. State, 957 S.W.2d 38, 39 (Tex. Crim. App. 1997) (quoting
Sledge v. State, 953 S.W.2d 253, 256-57 (Tex. Crim. App. 1997)). 
C.  Contents of Court's File
         A trial court is presumed to know the contents of its own file.  Cobb v. State,
851 S.W.2d 871, 873 (Tex. Crim. App. 1993).  An appellate court may take judicial
notice of an official document as part of the record and presume that the "trial court
did as well."  Id. (citing Fleming v. State, 502 S.W.2d 822, 823 (Tex. Crim.
App. 1973). 
IV.  THE INDICTMENT
         The indictment alleged that Rios: 
on or about February 15, 2002, in Nueces County, Texas, was required
to register because of a reportable conviction for Indecency with a Child,
and did then and there intentionally, knowingly and recklessly fail to
verify the information in the completed registration form by failing to
report no later than the seventh day after his arrival in the municipality
where he resided and intended to reside for more than seven days, to
wit:  Corpus Christi, to the local law enforcement authority, namely the
Corpus Christi Police Department, who had received said registration
form. 
         In its legal-sufficiency analysis, the majority confuses what the State alleged in
the indictment with the arguments the prosecutor made at trial.  I would confine my
legal-sufficiency review to weighing the actual evidence presented against the
elements of the offense as modified by the indictment, not against the offense the
prosecutor argued the State had proved.    

V.  SUFFICIENCY ANALYSES
A.  Legal Sufficiency
         Viewing the evidence in the light most favorable to the prosecution, the record
shows that Rios properly verified his registration on April 25, 2001 but does not show
that he verified his registration at any time thereafter.  The absence of a record
indicating verification of Rios's registration after April 25, 2001 is sufficient proof that
Rios failed to do so.  See Tex. R. Evid. 803(10); see also Hampton v.
State, 109 S.W.3d 437, 441 n.3 (Tex. Crim. App. 2003) (absence of public record
may be evidence where one would expect to find document within repository if it
existed).  Further, I find evidence in the record in the form of Petri's written statement
and the officers' testimony regarding the information she provided that Rios moved
away from Nueces County in December 2001 and was in Dallas on February 15,
2002.  The record also reflects that Rios claimed his mother's phone number as his
and her home as his address on the hospital's patient registration form on February 19,
2002.  Other information in the hospital's records in the form of Rios's health care
coverage also showed a connection to Nueces County during the relevant time period.
 
Finally, I take judicial notice in my sufficiency analysis that the arrest warrant in the
court's record shows that a Nueces County deputy arrested Rios in Nueces County on
May 31, 2002.  See Cobb, 851 S.W.2d at 873.  I presume the trial court knew the
contents of its own file.  See id.  
         Thus, when viewed in the light most favorable to the State, the State introduced
direct evidence that Rios lived outside Nueces County from December 2001 through
at least February 15, 2002.  The evidence also supports four inferences:  (1) Rios
returned to and lived in Nueces County beginning no later than February 19, 2002;
(2) at the time he returned, he intended to live in Nueces County more than seven
days; (3) he continued to live in Nueces County more than seven days, through the
date of his arrest there on May 31, 2002; and (4) he did not register his address again
after his initial registration on April 25, 2001.  The offense alleged and proved by the
State – that Rios did not report within seven days of his return between February 15
and February 19, 2002 to Nueces County, where he resided and intended to reside for
more than seven days– conformed with the allegations in the indictment, remained
within the statute of limitations, and occurred before the presentment of the
indictment.  See Yzaguirre, 957 S.W.2d at 39.  I disagree that the State was required
to prove the exact date on which Rios returned to Corpus Christi.  
         Every fact need not point directly and independently to Rios's guilt.  See
Vanderbilt, 629 S.W.2d at 716.  Given the combined and cumulative force of all the
incriminating circumstances, however, I would hold the evidence legally sufficient to
establish that Rios was required to but failed to register with local law enforcement
authority within seven days of his return to Corpus Christi in February 2002.  See id. 
Thus, I also would address Rios's factual-sufficiency arguments.  
B.  Factual Sufficiency
         In addition to the evidence recited above in my legal-sufficiency analysis, the
record shows that Petri testified at trial that Rios had lived with her continuously since
his release from prison and was living with her at 2212 Mary Street on February 15,
2002.  Petri further testified that the police officers never inquired about Rios's
whereabouts and misled her into signing a document stating her son no longer lived
with her.  
         Faced with a record of historical facts that supports conflicting inferences, I
presume that the trier of fact resolved any conflicts in favor of the prosecution.  See
Jackson, 443 U.S. at 326.  I would defer to the fact finder's resolution of conflicting
evidence.  See id.; see also Johnson, 23 S.W.3d at 9.  I cannot conclude that the
State's proof of Rios's guilt is so obviously weak as to undermine confidence in the
fact finder's determination.  See Zuliani, 97 S.W.3d at 593.  Viewing the evidence
neutrally, I would hold the evidence factually sufficient to support the conviction.  See
Johnson, 23 S.W.3d at 6. 
VI.  CONCLUSION
         Having overruled Rios's sufficiency challenges on appeal, I would affirm the
judgment of the trial court.  

Publish.                                                             ERRLINDA CASTILLO
                                                                        Justice
Dissenting Opinion delivered and filed 
this 15th day of July, 2004. 

