Opinion filed June 20, 2019




                                      In The


        Eleventh Court of Appeals
                                   __________

                              No. 11-17-00166-CR
                                  __________

                    JONATHAN CARBAJAL, Appellant
                                         V.
                     THE STATE OF TEXAS, Appellee


                     On Appeal from the 42nd District Court
                             Taylor County, Texas
                         Trial Court Cause No. 27015A


                      MEMORANDUM OPINION
      The jury convicted Jonathan Carbajal of the state-jail felony offense of failure
to comply with sex offender registration requirements. See TEX. CODE CRIM. PROC.
ANN. art. 62.102(b), (1) (West 2018). During the punishment phase of trial,
Appellant pleaded “true” to two prior felony convictions alleged for enhancement
purposes: aggravated assault with a deadly weapon and injury to a child. Based on
these sentencing enhancements, the jury assessed Appellant’s punishment at
confinement for a term of eight years in the Institutional Division of the Texas
Department of Criminal Justice. In a single issue, Appellant alleges that the trial
court committed fundamental error by incorrectly instructing the jury on the proper
elements required to convict Appellant of the indicted charge. We affirm.
                                 Background Facts
      We note at the outset that the testimony offered during the guilt/innocence
phase was quite brief, comprising less than forty pages of the reporter’s record.
Appellant was required to register as a sex offender with the Abilene Police
Department due to his prior conviction for indecency with a child by exposure.
Detective Stacey Cisneros was the coordinator of the sex offender program for the
Abilene Police Department. He was in charge of processing all registrations for new
sex offenders and maintaining records for current registered sex offenders to ensure
that they complied with registration requirements. Detective Cisneros testified that,
in early December 2015, Appellant met with him to report that his address had
changed. However, Appellant became verbally abusive and was asked to leave.
      Appellant returned to Detective Cisneros’s office on December 14, 2015.
Appellant reported that he was homeless at that time, and Detective Cisneros
explained that Appellant would be required to come back and register every thirty
days to confirm his location until a physical address could be provided. Appellant
signed a DPS sex offender registry document confirming his transient status.
Detective Cisneros testified that he told Appellant to return for a thirty-day follow-
up on January 14, 2016.
      Two other officers from the Abilene Police Department testified at trial.
Officer Loren Adlesperger testified that he issued a traffic citation to Appellant on
December 19, 2015. Appellant provided Officer Adlesperger with an address on




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North 20th Street in Abilene on this date. Officer Anthony Joeris testified that he
issued a traffic citation to Appellant on January 2, 2016. Appellant provided
Officer Joeris with the same address on North 20th Street that he had provided to
Officer Adlesperger.
      Appellant did not report to Detective Cisneros on January 14, 2016.
Consequently, Detective Cisneros generated a case report on January 20, 2016,
which led to the charges filed against Appellant in this case. At trial, the State
alleged that the two traffic citations demonstrated that Appellant had moved to a new
address but that he failed to provide the Abilene Police Department with notice at
least seven days before Appellant moved to the new address.
                                       Analysis
      The indictment alleged that Appellant failed “to report in person to and
provide the local law enforcement authority . . . with his anticipated move date and
new address prior to the seventh day before the intended change” of Appellant’s
address. In his sole issue on appeal, Appellant contends that the jury charge
impermissibly contained statutory language from Article 62.055(a) and (i), which
would allow a jury to convict Appellant for conduct not authorized by the
indictment. The “Application of Law to Facts” portion of the jury charge provided
as follows:
           You must determine whether the state has proved, beyond a
      reasonable doubt, three elements. The elements are that—
              1. The defendant was convicted of Indecency with a Child; and
              2. As a result of the conviction the defendant, in Taylor County,
              Texas, on or about the 20th day of January, 2016, was required to
              register as a sex offender for a period of 10 years; and




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                 a) if he intends to change address, he 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 by the
             department and provide the authority and the officer with
             the person’s anticipated move date and new address. If he
             changes address, he shall, not later than the later of the
             seventh day after changing the address or the first date the
             applicable local law enforcement authority by policy
             allows the person to report, 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
             or;
                 b) if he resides for more than seven days at a location
             to which a physical address has not been assigned by a
             governmental entity, he, not less than once in each 30-day
             period, shall confirm his location or locations by reporting
             to the local law enforcement authority in the municipality
             where he resides; and
           3. the defendant failed to report in person or failed to prove the
           local law enforcement authority namely, the Abilene Police
           Department of an intended change of his address with his
           anticipated move date and new address prior to the seventh day
           before the intended change as required by Art. 62.055 of the Texas
           Code of Criminal Procedure.
      Appellant contends that paragraphs 2(a) and (b) allowed the jury to convict
Appellant by a manner and means not alleged in the indictment. Specifically,
Appellant alleges that the jury charge instructed the jury that it could convict
Appellant if it found that Appellant had violated (1) the part of Article 62.055(a) that
requires a person to report a change of address not later than the seventh day before
the intended change of address, (2) the part of Article 62.055(a) that requires a
person to report not later than seven days after changing his address, or



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(3) Article 62.055(i), which requires a person to confirm his location with the
appropriate authority every thirty days if he resides for more than seven days at a
location without a physical address. Appellant contends that, since the indictment
only alleged a failure to report a change of address not later than the seventh day
before the intended change of address, any references to other reporting
requirements “made the application paragraph unintelligible” and constituted
reversible error. We disagree.
      We note at the outset that Appellant did not make any objections to the jury
charge. “[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012). In our review of a jury charge, we first determine whether
error occurred; if no error occurred, our analysis ends. Id. If error occurred, whether
it was preserved then determines the degree of harm required for reversal. Id.; see
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (citing Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). Where, as here, Appellant did
not raise a timely objection to the jury instructions, Appellant will obtain a reversal
only if the error is so egregious and created such harm that he “has not had a fair and
impartial trial.” Barrios, 283 S.W.3d at 350 (quoting Almanza, 686 S.W.2d at 171).
      A person commits the offense of failure to comply with registration
requirements if the person “is required to register and fails to comply with any
requirement” of Chapter 62 of the Texas Code of Criminal Procedure. See CRIM.
PROC. art. 62.102(a); Young v. State, 341 S.W.3d 417, 425 (Tex. Crim. App. 2011)
(“Article 62.102 is a generalized ‘umbrella’ statute that criminalizes the failure to
comply with any of the registration requirements set out in Chapter 62.”). Under
Article 62.055, a person with a reportable conviction must inform the proper




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authority of any change of address. See CRIM. PROC. art. 62.055. There are two
manners and means by which a person can violate Article 62.055(a): (1) failure to
report a change of address “not later than the seventh day before the intended
change” or (2) failure to report “not later than the . . . seventh day after changing the
address.” Id. art. 62.055(a) (emphasis added); see Young, 341 S.W.3d at 427
(“Reporting a change of address ‘not later than the seventh day before the intended
change’ and ‘not later than the . . . seventh day after changing the address’ are . . .
alternative manners and means of committing a single offense.”).
      Appellant asserts that the language in the jury charge was inappropriate due
to “references to statutory language that was not authorized by the indictment.” In
support of his argument, Appellant cites Thomas v. State, 444 S.W.3d 4 (Tex. Crim.
App. 2014). In Thomas, the Court of Criminal Appeals held that a variance between
the indictment and the jury charge concerning the manner and means of committing
the offense constituted error. 444 S.W.3d at 11. The indictment charged the
defendant with failing to report a change of address at least seven days before the
intended change. Id. at 10. However, the jury charge allowed the jury to convict the
defendant only if he changed his address for at least seven days and failed to register
the new address with the Longview Police Department after the move. Id. at 11.
The Court of Criminal Appeals explained that, because the indictment stated a
specific statutory manner and means, the “law as authorized by the indictment” in
that case allowed the jury to convict only if the defendant failed to report a change
in his address not later than the seventh day before the intended change. Id. at 10.
As such, the Court of Criminal Appeals held that it was error to instruct the jury to
consider a manner and means not authorized in the indictment and remanded the
case to the Texarkana Court of Appeals to conduct a harm analysis. Id. at 11. On




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remand, the Texarkana Court of Appeals concluded that the jury charge error rose
to the level of egregious harm. Thomas v. State, 454 S.W.3d 660, 666 (Tex. App.—
Texarkana 2014, pet. ref’d).
      The State asserts that paragraphs 2(a) and (b) “were merely reiterations of the
conditions that [Appellant] was under as a registered sex offender and not allegations
that he violated those conditions.” The State notes that each part of those paragraphs
begins with “if” and continues to note a requirement for a person required to register
under Chapter 62 of the Code of Criminal Procedure. The State additionally asserts
that paragraph 3 contained the “actual allegation of the requirement that [Appellant]
violated,” which is that Appellant “failed to report . . . an intended change of his
address prior to the seventh day before the intended change.” The State also notes
that the “Accusation” paragraph of the jury charge correctly instructed the jury as
follows:
             The state accuses the defendant of having committed the offense
      of failure to register as a sex offender. Specifically, the accusation is
      that the defendant, while knowing that he was a person required to
      register under the sex offender registration program, Chapter 62, of the
      Texas Code of Criminal Procedure, failed to comply with said program
      after having a reportable conviction, deferred adjudication or
      adjudication for the offense of indecency with a child, failed to report
      in person to and provide the local law enforcement authority of an
      intended change of his address with his anticipated move date and new
      address prior to the seventh day before the intended change.
In this regard, the jury found Appellant guilty of failure to register as a sex offender
“as charged in the Indictment.”
      To the extent that the jury charge erroneously instructed the jury by including
uncharged grounds for convicting Appellant, we conclude that Appellant was not
egregiously harmed. “Jury-charge error is egregiously harmful if it affects the very




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basis of the case, deprives the defendant of a valuable right, or vitally affects a
defensive theory.” Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).
Under the relevant standard, courts have traditionally considered (1) the entirety of
the jury charge, (2) the state of the evidence, (3) counsel’s arguments, and (4) any
other relevant information revealed by the entire trial record. Id. “[C]ourts are
required to review the relevant portions of the entire record to determine whether [a
defendant] suffered actual harm, as opposed to theoretical harm, as a result of the
error.” Id.
      The facts in this case are distinguishable from those in Thomas because the
jury charge in Thomas did not contain the only manner and means alleged in the
indictment. 454 S.W.3d at 664. In this case, the jury charge included the manner
and means charged in the indictment. Accordingly, the jury charge authorized
Appellant’s conviction for the conduct with which he was charged. On remand, the
Texarkana Court of Appeals found egregious harm in Thomas because the evidence
at trial and arguments of counsel focused exclusively on the uncharged manner and
means. The evidence and arguments in this case addressed the charged manner and
means of Appellant failing to report a change of address before the intended change.
      The matters in the jury charge that Appellant challenges on appeal did not
affect his defensive theory at trial. See Marshall, 479 S.W.3d at 845. To the
contrary, paragraphs 2(a) and (b) supported his defensive theory that he could not
have knowingly violated Article 62.055 because the reporting requirements are
“confusing as all get out.” Appellant’s trial counsel also argued that Appellant could
not have informed the police seven days before his move because he did not know
that he would be moving that far in advance. Paragraphs 2(a) and (b) had no effect
on this defensive contention. As previously noted, other portions of the jury charge




                                          8
correctly instructed the jury on the charged manner and means. Finally, paragraphs
2(a) and (b) were set out in the element requiring the jury to find that Appellant had
a conviction requiring him to register as a sex offender. This element was not in
dispute at trial. Thus, we conclude that Appellant did not suffer actual harm based
on the challenged portions of the court’s charge. See id. at 843. Accordingly,
Appellant was not egregiously harmed. We overrule Appellant’s sole issue on
appeal.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE


June 20, 2019

Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.




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