Opinion filed October 22, 2015




                                       In The


        Eleventh Court of Appeals
                                     __________

                                 No. 11-13-00321-CR
                                     __________

                   GREGORY DELESANDRI, Appellant
                                          V.
                     THE STATE OF TEXAS, Appellee

                     On Appeal from the 161st District Court
                                  Ector County, Texas
                          Trial Court Cause No. B-41,624

                      MEMORANDUM OPINION
      The jury convicted Gregory Delesandri of the offense of failure to register as
a sex offender. The trial court assessed Appellant’s punishment at confinement for
forty years. We modify and affirm.
      As a consequence of a conviction for aggravated sexual assault, Appellant was
required to register as a convicted sex offender. He was required to update his
address and employment information every ninety days. He also was required to
notify local law enforcement authorities seven days before he intended to move and
to reregister within seven days after he had moved. TEX. CODE CRIM. PROC. ANN.
art. 62.055 (West Supp. 2014).
      Shortly after Appellant was released from custody, he moved to Odessa.
However, he did not have a place to stay. When Appellant registered, he registered
as “transient” or homeless and listed “Pecos St/Grant” as his physical address.
      On October 23, 2012, Odessa Police Detective Dayton Neff was assigned to
complete a compliance check on registered sex offenders in the area. Detective Neff
testified that he attempted to locate Appellant for approximately seventeen days, but
was unsuccessful.     On November 6, 2012, Appellant called the sex offender
registration clerk, JoAnna Rincon. Rincon testified that Appellant told her that he
had been staying behind a church on Snyder Street. The next day, Detective Neff
spoke to Appellant on the phone and in person. When he spoke to Appellant in
person, Detective Neff made an audio recording of the interview. As evidenced by
that recording, Appellant told Detective Neff that he told Rincon that he was only
going to sleep at the church that night. Detective Neff discussed Appellant’s
residential situation with him, and at the end of their conversation, Detective Neff
told Appellant to call him at night if he was somewhere other than his registered
address so that Detective Neff would know where to find him.
      After this interview, Detective Neff obtained a warrant to arrest Appellant for
failure to register his address. On November 14, 2012, Detective Neff arrested
Appellant in front of Rincon’s office.
      In Appellant’s first issue, he argues that we must reform the judgment because
it is incorrect. In Appellant’s second issue, he argues that the trial court erred when
it sustained the State’s objection to the mistake-of-fact instruction that he requested
in the jury charge conference. In Appellant’s third issue, he argues that the evidence
was legally and factually insufficient to support the jury’s verdict because there was
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no evidence that he intentionally failed to register a correct address. In his fourth
issue, Appellant argues that the trial court erred when it admitted his prior
convictions for enhancement purposes because (1) the State did not adequately prove
that Appellant was the same person as the person named in the judgments and (2) one
of his prior convictions was void and could not be used to enhance his current
conviction. Finally, in his fifth issue, Appellant argues that the Sex Offender
Registration Program is unconstitutional as applied to his case.
      First, we will address Appellant’s sufficiency argument. Appellant argues
that the State did not provide sufficient evidence that Appellant intentionally or
knowingly failed to register. We review the sufficiency of the evidence, whether
denominated as a legal or as a factual sufficiency claim, under the standard of review
set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v. State, 323 S.W.3d
893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286, 288–89 (Tex.
App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we examine all of
the evidence in the light most favorable to the verdict and determine whether, based
on that evidence and any reasonable inferences from it, any rational trier of fact could
have found the essential elements of the offense beyond a reasonable doubt.
Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App.
2010). In our review, we will give deference to the duty of the factfinder to resolve
credibility issues and to weigh the evidence. Hooper v. State, 214 S.W.3d 9, 13
(Tex. Crim. App. 2007).
      The State provided circumstantial evidence that concerned Appellant’s intent
when he registered his transient location. Rincon testified that she had informed
Appellant of all the registration compliance requirements. The trial court admitted
the document that contained these requirements; Appellant had initialed the
document to indicate that he understood each requirement. Further, Rincon testified
that she told Appellant that the geographical location that he had provided did not
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meet the geographical requirements. In the audio recording of Detective Neff’s
interview with Appellant, Appellant gave various locations where he “laid [his]
head”; the length of time he spent at these locations was unclear and contradicted.
Rincon also testified that Appellant called to tell her that he had been staying behind
a church on Snyder Street. Rincon told Appellant that he had to come to her office,
in person, to change his registered address. She testified that Appellant did not make
an appointment to come to her office to change his address. We hold that, under the
evidence we have outlined, a rational trier of fact could have found beyond a
reasonable doubt that Appellant intentionally failed to register as a sex offender. The
jury was free to determine that Rincon was more credible and that Appellant had
intentionally failed to provide a proper address. See Hooper, 214 S.W.3d at 13. We
overrule Appellant’s third issue.
      In Appellant’s first issue, he argues that the judgment is incorrect. Appellant
was convicted under Article 62.102(b)(3) of the Code of Criminal Procedure for the
offense of failure to register as a sex offender. Under Article 62.102(b)(3), the
offense of which Appellant was convicted is a second-degree felony. CRIM. Proc.
art. 62.102(b)(3) (providing that a person commits “a felony of the second 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 90-day period”). Appellant and the State
agree that the judgment incorrectly provides that Appellant was convicted of a first-
degree felony. We agree and modify the judgment to reflect that Appellant was
convicted of a second-degree felony. We sustain Appellant’s first issue.
      In Appellant’s second issue, he argues that the trial court erred when it denied
his request for a mistake-of-fact instruction in the jury charge. We review a trial
court’s refusal to submit a requested jury instruction under an abuse of discretion
standard. Wesbrook v. State, 29 S.W.3d 103, 121–22 (Tex. Crim. App. 2000). “It
is a defense to prosecution that the actor through mistake formed a reasonable belief
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about a matter of fact if his mistaken belief negated the kind of culpability required
for commission of the offense.” Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim.
App. 1991). A defendant is entitled to a jury instruction on the defensive theory of
mistake of fact if it is raised by the evidence at trial, regardless of whether that
evidence is strong, weak, unimpeached, or contradicted. Id.; Green v. State, 566
S.W.2d 578, 584 (Tex. Crim. App. 1978). The denial of a defendant’s requested
instruction is not error if the requested instruction is merely an affirmative
submission of a defensive issue that merely denies the existence of an essential
element of the offense. Green, 566 S.W.2d at 584. The record indicates that
Appellant’s only mistake was what the law required him to do in order to provide a
proper address. This is a mistake of law, not a mistake of fact. See Davis v. State,
No. 11-09-00297-CR, 2011 WL 3557228, at *2 (Tex. App.––Eastland Aug. 11,
2011, no pet.) (mem. op., not designated for publication). Consequently, the trial
court did not abuse its discretion because Appellant was not entitled to a mistake-of-
fact instruction in the jury charge. We overrule Appellant’s second issue.
      In Appellant’s fourth issue, he argues that the trial court erred when it admitted
Appellant’s prior convictions for enhancement purposes. First, Appellant argues
that, because the State did not properly prove up the prior convictions, the trial court
improperly admitted the convictions. We review a trial court’s decision to admit
evidence at the punishment phase of the trial under an abuse of discretion standard.
Mitchell v. State, 931 S.W.2d 950, 954 (Tex. Crim. App. 1996).
      The State is required to prove that a prior conviction exists and must link the
defendant to the conviction. Flowers v. State, 220 S.W.3d 919, 921–22 (Tex. Crim.
App. 2007). The State offered, and the trial court admitted, certified conviction
records with Appellant’s identification information included. Under Flowers, it is
enough that the State provided “documentary proof (such as a judgment) that
contains sufficient information to establish both the existence of a prior conviction
                                           5
and the defendant’s identity as the person convicted.” Flowers, 220 S.W.3d at 922.
Here, two of the certified conviction records included photos of Appellant,
Appellant’s fingerprints, and Appellant’s name. The other certified conviction
record, his conviction for failure to register as a sex offender, included Appellant’s
name and his thumbprint. Although the record included less identifying information,
Appellant admitted, in his argument against the use of this record to enhance his
sentence, that he was the individual represented by the record. The State met its
burden to prove beyond a reasonable doubt that prior convictions existed and that
Appellant was linked to the prior convictions. See Flowers, 220 S.W.3d at 921–22.
Consequently, the trial court did not abuse its discretion when it admitted
Appellant’s prior convictions. See Mitchell, 931 S.W.2d at 954.
      Second, Appellant argues that his prior failure-to-register conviction was void
and could not be used to enhance his punishment. Appellant acknowledges that case
law exists that is contrary to his argument. Generally, an illegal sentence is void.
E.g., Rhodes v. State, 240 S.W.3d 882, 887–88 (Tex. Crim. App. 2007); Mizell v.
State, 119 S.W.3d 804, 805–807 (Tex. Crim. App. 2003). Appellant argues that his
sentence in the prior failure-to-register conviction was void because it was less than
the minimum applicable legal punishment range. Appellant received a sentence
below the applicable legal punishment range. TEX. PENAL CODE ANN. § 12.33(a)
(West 2011); CRIM. PROC. art. 62.102(b)(3). In Rhodes, the defendant received an
illegally lenient sentence in a prior conviction and argued that the State could not
use the conviction to enhance his punishment range because it was void. Rhodes,
240 S.W.3d at 892. The Court of Criminal Appeals held that, because the defendant
“enjoyed the benefits of the illegally lenient judgment” and procured the benefit
through a plea agreement, the State could properly use the judgment to enhance his
punishment range. Id. In the case before us, Appellant, under a plea bargain,
received 412 days of confinement for his prior failure-to-register conviction. The
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minimum punishment range for the offense was two years. PENAL § 12.33(a); CRIM.
PROC. art. 62.102(b)(3). Consequently, under Rhodes, Appellant may not, after
receiving the benefits of the illegal sentence, argue that the sentence is void. Rhodes,
240 S.W.3d at 892. The conviction was properly used to enhance Appellant’s
punishment range.
      Appellant also complains that the State violated his due process rights under
both the Sixth and Fourteenth Amendments to the United States Constitution and
Article I, section 10 of the Texas constitution because the State did not provide
timely notice of intent to enhance. The State filed its original notice of intent to
enhance on August 5, 2013. The jury found Appellant guilty on September 13, 2013.
The State filed a second notice of enhancement on September 16, 2013, the effect of
which was to give notice of intent to increase the punishment range to twenty-five
years to ninety-nine years or life. The State filed the second notice after the jury
found Appellant guilty, but before the punishment phase was conducted. The trial
court sentenced Appellant on September 23, 2013. Pelache v. State concerned a
similar set of facts. 324 S.W.3d 568, 570 (Tex. Crim. App. 2010). In Pelache, the
State provided a notice of enhancement between the time the defendant was found
guilty and the date of the punishment hearing. Id. After an analysis of several cases,
the court in Pelache held that notice of enhancement between the guilt and
punishment phase of trial does not violate a defendant’s due process rights. Id. at
576–77 (citing Oyler v. Boles, 368 U.S. 448, 449 (1962); Villescas v. State, 189
S.W.3d 290, 291–95 (Tex. Crim. App. 2006)).
      Appellant further argues that the enhancement constitutes cruel and unusual
punishment under the Eighth and Fourteenth Amendments of the United States
Constitution; Article I, section 13 of the Texas constitution; and Section 1.09 of the
Texas Code of Criminal Procedure. However, Appellant does not provide any case
authority or argument specific to this complaint.        Consequently, we find that
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Appellant waived this issue under Rule 38.1 of the Texas Rules of Appellate
Procedure. TEX. R. APP. P. 38.1(i) (“The brief must contain a clear and concise
argument for the contentions made, with appropriate citations to authorities and to
the record.”). We overrule Appellant’s fourth issue.
      In Appellant’s fifth issue, he argues that the Sex Offender Registration
Program (SORP) is unconstitutional as applied to him. We first note that, in
Appellant’s argument to the trial court as well as in his brief, he uses “due process”
and “equal protection” interchangeably. It is clear from his arguments that he is
truly only addressing an equal protection challenge. As a result, we will address this
issue solely as an equal protection challenge.
      When reviewing the constitutionality of a statute, we presume that
the statute is valid and that the legislature has not acted unreasonably or arbitrarily
in enacting it. Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978);
Polley v. State, No. 11-03-00340-CR, 2004 WL 2964785, at *2 (Tex. App.––
Eastland Dec. 16, 2004, pet. ref’d) (not designated for publication). The burden is
on the party challenging the statute to establish that it is unconstitutional. Granviel,
561 S.W.2d at 511; Polley, 2004 WL 2964785, at *2.
      Appellant asserts an “as applied” challenge. Appellant specifically argues
that, because he is homeless and the SORP has different registration requirements
for him than for other sex offenders, his equal protection rights are violated.
Appellant did not explain in his brief what requirements are different for homeless
individuals than for other individuals. However, the only differences between the
registration of a homeless or transient person and an individual with a physical
address are that a homeless person may give a geographical location rather than a
physical address and must confirm his location or locations not less than once every
thirty days. CRIM. Proc. arts. 62.051(c)(1-a), (j)(2); 62.055(i). Thus, a homeless


                                           8
individual is not required to register in a different manner than an individual with a
physical address but is required to report more often.
      Assuming the Equal Protection Clause of the Fourteenth Amendment was
implicated, Appellant’s constitutional rights were not violated. When we evaluate
an equal protection challenge, we must determine whether to apply strict scrutiny,
intermediate scrutiny, or the rational basis test. See, e.g., Barker v. State, 335 S.W.3d
731, 735–36 (Tex. App.––Houston [14th Dist.] 2011, pet. ref’d) (determining that
the strict scrutiny test did not apply because the defendant was not a member of a
suspect class). Appellant does not argue that he is a member of a suspect or quasi-
suspect class. Instead, he cites several cases that indicate he is not a member of a
suspect class. For example, several federal courts have held that homelessness is not
a suspect class. E.g., Joel v. City of Orlando, 232 F.3d 1353, 1357 (11th Cir. 2000);
Kreimer v. Bureau of Police for Town of Morristown, 958 F.2d 1242, 1269 n.36 (3rd
Cir. 1992). Additionally, some federal courts have held that a sex offender is not a
member of a suspect class. E.g., Hines v. Jenks, 89 F. App’x 189, 191 (10th Cir.
2004); United States v. LeMay, 260 F.3d 1018, 1030 (9th Cir. 2001). We agree that
Appellant is not a member of a suspect or quasi-suspect class. Accordingly, we must
apply the rational basis test to determine whether the SORP violates Appellant’s
equal protection guarantee. See, e.g., Barker, 335 S.W.3d at 735–37 (applying the
rational basis test to the SORP when it determined that the defendant was not a
member of a suspect or quasi-suspect class).
      Under the rational basis test, a statute must be rationally related to a legitimate
government purpose. Cannady v. State, 11 S.W.3d 205, 215 (Tex. Crim. App.
2000). Here, the State argues that the legitimate government purpose is to protect
the public from sex-offense recidivism, as discussed in Barker. See Barker, 335
S.W.3d at 736–37. The Barker court held that the SORP was rationally related to
the desire to protect the public from sex-offense recidivism. Id. Although Barker
                                           9
did not concern the same specific facts before this court, we agree that the SORP is
rationally related to a legitimate government purpose. We overrule Appellant’s fifth
issue.
         We modify the judgment of the trial court to reflect that Appellant was
convicted of a second-degree felony. As modified, the judgment of the trial court is
affirmed.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE


October 22, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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