Opinion issued September 27, 2018




                                      In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-18-00274-CR
                           ———————————
                 JOSEPH WALTON WALLACE, Appellant
                                         V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 396th District Court
                           Tarrant County, Texas
                       Trial Court Case No. 1504417D


                         MEMORANDUM OPINION1



1
     The Texas Supreme Court transferred this appeal from the Court of Appeals for
     the Second District of Texas. Misc. Docket No. 18-9049 (Tex. Mar. 27, 2018); see
     TEX. GOV’T CODE § 73.001 (authorizing transfer of cases). We are unaware of any
     conflict between precedent of that court and this court on any relevant issue. See
     TEX. R. APP. P. 41.3.
      Joseph Walton Wallace pleaded guilty to the third-degree felony offense of

failure to comply with sex offender registration requirements (“failure to register”),

and the trial court sentenced him to ten years’ community supervision.2 The State

moved to revoke community supervision on allegations that Wallace had not

complied with its terms and conditions. Wallace pleaded true to the allegations,

and the trial court sentenced him to five years’ confinement. In two issues, Wallace

argues that (1) the trial court erroneously sentenced him for a third-degree felony

because the charged offense was punishable as a state-jail felony and (2) the

indictment was fundamentally defective because it failed to allege when Wallace’s

duty to register expires and, as a result, did not allege sufficient facts to determine

the level of the offense charged. We affirm.

                                    Background

      In 1999, Wallace was convicted of sexual assault. As a result, Wallace was

required to register as a sex offender. See TEX. CODE CRIM. PROC. arts.

62.001(5)(A) (listing sexual assault as “reportable conviction or adjudication” for

purposes of Sex Offender Registration Program), 62.051(a) (mandating registration

of persons who have “reportable conviction or adjudication”). Because his

conviction was for a “sexually violent offense,” he was required to verify his

registration information annually for life. See id. arts. 62.001(6)(A) (defining

2
      See TEX. CODE CRIM. PROC. art. 62.102(a), (b)(2); id. art. 62.055(a); TEX. PENAL
      CODE § 12.34(a).
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“sexually violent offense” as including “sexual assault”), 62.101(a)(1) (requiring

lifetime registration for persons convicted of “sexually violent offense”).

      Included among Wallace’s registration requirements was the duty to report

any change of address. See id. art. 62.055(a). Wallace was required to provide local

law enforcement with his anticipated move date and new address no later than

seven days before his intended change of address. See id. In 2017, Wallace failed

to comply with this registration requirement and was charged with failure to

register. See id. art. 62.102(a). Wallace pleaded guilty to the third-degree felony

offense of failure to register. In its judgment of conviction, the trial court probated

Wallace’s sentence, placing him on community supervision for ten years.

      Five months later, the State filed a petition to revoke Wallace’s probated

sentence, alleging that Wallace had violated two conditions of his community

supervision. Wallace pleaded true to the allegations. The trial court entered a

judgment revoking Wallace’s community supervision and sentencing him to five

years’ confinement for third-degree-felony failure to register. Wallace appeals.

                                  Level of Offense

      In his first issue, Wallace argues that the trial court erroneously sentenced

him for a third-degree felony because the charged offense was punishable as a

state-jail felony. Wallace contends that the trial court enhanced the offense to a

third-degree felony and that the enhancement was erroneous because he had no


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prior convictions for failure to register. See id. art. 62.102(c) (if person convicted

of failure to register has prior conviction, offense is enhanced to next highest

degree of felony).

      Wallace misunderstands the basis of his conviction for third-degree-felony

failure to register. The trial court’s judgment of conviction is not for a state-jail

felony enhanced to a third-degree felony. Rather, the trial court convicted Wallace

of an offense that independently constituted a third-degree felony.

      Under the Code of Criminal Procedure, if the defendant has one prior

conviction for a sexually violent offense and the defendant is required to verify

registration once each year, then the offense of failure to register is a third-degree

felony. See id. art. 62.102(b)(2) (“An offense under this article is . . . a felony of

the third degree if the actor is a person whose duty to register expires under Article

62.101(a) and who is required to verify registration once each year under Article

62.058.”); id. art. 62.101(a)(1) (establishing when duty to register ends for person

convicted of “sexually violent offense”); id. art. 62.001(6)(A) (defining “sexually

violent offense” to include “sexual assault”); id. art. 62.058(a) (providing that

person with one conviction for sexually violent offense must verify registration

“once each year”); see also Ware v. State, No. 01-03-01138-CR, 2004 WL

2966377, at *2 (Tex. App.—Houston [1st Dist.] Dec. 23, 2004, no pet.) (mem. op.,

not designated for publication) (“Failure to comply with the registration


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requirements is . . . a third degree felony if the sex offender has one conviction for

a sexually violent offense and is required to verify registration once each year.”).

      The statute does not require that the prior offense be a failure to register; it

only requires that the defendant had previously been convicted of a sexually

violent offense that requires annual verification. It is undisputed that Wallace has

one prior conviction for a sexually violent offense (sexual assault). It is undisputed

that Wallace is required by article 62.058 to verify his registration once each year.

And it is undisputed that Wallace committed the offense of failure to register by

failing to notify law enforcement of a change in his address. Therefore, his offense

was a third-degree felony.

      We overrule Wallace’s first issue.

                             Sufficiency of Indictment

      In his second issue, Wallace argues that the indictment was fundamentally

defective because it failed to allege when his duty to register expires and thus

failed to allege facts sufficient to determine the level of offense charged.

      The filing of an indictment is necessary to vest the trial court with

jurisdiction over a felony offense. TEX. CONST. art. V, § 12(b) (“The presentment

of an indictment or information to a court invests the court with jurisdiction of the

cause.”); Cook v. State, 902 S.W.2d 471, 475 (Tex. Crim. App. 1995) (“The filing

of an indictment is essential to vest the trial court with jurisdiction over a felony


                                           5
offense.”). “An indictment,” as defined by the Texas Constitution, “is a written

instrument presented to a court by a grand jury charging a person with the

commission of an offense.” TEX. CONST. art. V, § 12(b). “[T]o comprise an

indictment within the definition provided by the constitution, an instrument must

charge: (1) a person; (2) with the commission of an offense.” Cook, 902 S.W.2d at

477. As the Court of Criminal Appeals has explained, “a written instrument is an

indictment . . . under the Constitution if it accuses someone of a crime with enough

clarity and specificity to identify the penal statute under which the State intends to

prosecute, even if the instrument is otherwise defective.” Duron v. State, 956

S.W.2d 547, 550–51 (Tex. Crim. App. 1997).

      The indictment charged Wallace as follows:

      Wallace, hereinafter called Defendant, on or about the 6th day of July,
      2017, in the county of Tarrant, State of Texas, did intentionally or
      knowingly fail to report to the local law enforcement authority with
      whom said Defendant is required to register once each year, namely:
      the Sheriff’s Office of Tarrant County, Texas, and with whom said
      Defendant is registered under the Sex Offender Registration Program
      of Chapter 62, Texas Code of Criminal Procedure, and provide said
      law enforcement authority with Defendant’s anticipated move date
      and new address not later than seven days before his intended change
      of address and the said Defendant had a reportable conviction or
      adjudication namely, sexual assault in cause number 13308 on the
      30th day of June 1999, in the 43rd District Court of Parker County,
      Texas . . . .

It thus charged (1) a person (Wallace) (2) with the commission of an offense

(failure to register). Cook, 902 S.W.2d at 477. And it clearly and specifically


                                          6
identified the penal statute under which the State intended to prosecute Wallace

(Chapter 62 of the Code of Criminal Procedure). Duron, 956 S.W.2d at 550–51.

       Nevertheless, Wallace argues that the indictment was “fundamentally

defective” because it did not allege that Wallace was subject to lifetime registration

and thus failed to indicate whether the charged offense was a state-jail felony or

third-degree felony. Compare TEX. CODE CRIM. PROC. art. 62.102(b)(1) (offense is

state-jail felony if defendant is required to register for ten years), with id. art.

62.102(b)(2) (offense is third-degree felony if defendant must register for life).

       We disagree. The indictment states that Wallace had previously been

convicted of sexual assault and, as a result, was obligated to register annually.

Assuming without deciding that the indictment should have specifically alleged

that Wallace was subject to lifetime registration, we hold that the indictment was

not fatally defective. The allegation of an underlying sexual-assault conviction—an

offense that, by definition, requires lifetime registration—was sufficient to inform

Wallace of the level of offense charged. See id. arts. 62.001(6)(A), 62.101(a)(1).

The indictment identifies the person, the offense, and the statute violated. It

therefore satisfies the requirements of the Texas Constitution and properly vested

the trial court with jurisdiction.

       We overrule Wallace’s second issue.




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                                   Conclusion

      We affirm.




                                               Harvey Brown
                                               Justice

Panel consists of Chief Justice Radack and Justices Brown and Caughey.

Do not publish. TEX. R. APP. P. 47.2(b).




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