                                                                    PD-1534-14
                                                 COURT OF CRIMINAL APPEALS
                                                                  AUSTIN, TEXAS
                                             Transmitted 12/29/2014 11:16:54 AM
                                               Accepted 12/30/2014 10:03:50 AM
      IN THE COURT OF CRIMINAL          APPEALS                    ABEL ACOSTA
                                                                           CLERK

                   NO. PD-1534-14
       ________________________________________

                 ROGER ALAN SCOTT,
                                                         Appellant.

                            v.

                THE STATE OF TEXAS,
                                                          Appellee,
                      _______________

            APPELLANT’S RESPONSE
TO STATE’S PETITION FOR DISCRETIONARY REVIEW
                 _______________


                          DON DAVIDSON
                          Attorney-at-Law
                          Forest Ridge Business Park, Suite 203
                          803 Forest Ridge Drive
                          Bedford, Texas 76022-7258
                          (817) 571-4940
                          FAX: (817) 571-4940
                          Cellular: (817) 343-8042
                          Email: donatty@flash.net
                          Texas Bar No. 05430840
                          Attorney for Appellant
                          ROGER ALAN SCOTT

       ________________________________________




  December 30, 2014
                                     TABLE OF CONTENTS


Table of Contents
TABLE OF CONTENTS ........................................................................................ i
TABLE OF AUTHORITIES ................................................................................. ii
FACTS ....................................................................................................................1
DISCUSSION .........................................................................................................4
        A.       Background ..........................................................................................4
        B.       The Supreme Court’s decision in Burks precludes retrial
                 of Mr. Scott, and thus it also bars the State’s petition
                 for discretionary review. .....................................................................6
        C.       This is not an appropriate case for review because its
                 statewide impact would be minimal. ..................................................7
        D.       The Court of Appeals correctly concluded that the
                 evidence was legally insufficient. .......................................................7
        E.       This is not an appropriate case to provide clarification
                 of Crabtree as requested by the State’s P.D.R. ................................11
CERTIFICATE OF SERVICE FOR RESPONSE ...............................................13
CERTIFICATE OF COMPLIANCE ....................................................................14




                                                        i
                         TABLE OF AUTHORITIES

CASES
Bender v. State, 758 S.W.2d 278 (Tex.Crim.App. 1988)                   6
Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969)
                                                                     6
Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) 6
Byrd v. State, 336 S.W.3d 242 (Tex.Crim.App. 2011)                     8
Crabtree v. State, 389 S.W.3d 820 (Tex.Crim.App. 2012)           7, 8, 11
Evans v. Michigan, --- U.S. ---, 133 S.Ct. 1069, 185 L.Ed.2d 124 (2012) 7
Hooper v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007)                    10
Scott v. State, No. 13-12-00671-CR (Tex.App.—Corpus Christi, Oct. 16,
 2014, pet. filed)                                                    3
Texas Association of Business v. Texas Air Control Board, 852 S.W.2d
 440 (Tex. 1993)                                                     11


STATUTES
720 Illinois Compiled Statutes 5/11-1.20                               1
720 Illinois Compiled Statutes 5/12-13(a)(3)                           1
Texas Code of Criminal Procedure, Article 62.001(5)                    4
Texas Code of Criminal Procedure, Article 62.001(6)                    5
Texas Code of Criminal Procedure, Article 62.003                       4
Texas Code of Criminal Procedure, Article 62.051                       4
Texas Code of Criminal Procedure, Article 62.101                  5, 6, 9
Texas Code of Criminal Procedure, Article 62.401                       5




                                    ii
                                        FACTS

         On June 3, 1999, Mr. Scott was convicted in Illinois of the offense

of criminal sexual assault, in violation of 720 Illinois Compiled Statutes

(ILCS) 5/12-13(a)(3), 1 and was sentenced to confinement for four

years. (III:State’s Exhibit 1) Mr. Scott was admitted to the Illinois

Department of Corrections (IDOC) on June 16, 1999, and was

discharged out on November 18, 1999. (III:State’s Exhibit 1)

         Mr. Scott moved to Texas in 2009. (II:62-63) On March 1, 2011,

Mr. Scott was living in Arlington, Texas. (III:State’s Exhibit 3) On that

date, Detective William Landolt of the Arlington Police Department

advised Mr. Scott in writing, using Department of Public Safety form

CR-32, that he was required to register for life in Texas as a sex

offender. (II:16-27; III:State’s Exhibit 3) The form also informed

Mr. Scott that, inter alia, he was required to notify the Arlington Police

Department, Sex Offender Unit, at least seven days prior to moving to

a new residence in Texas or in another state. (III:State’s Exhibit 3)



1   This statute is now 720 ILCS 5/11-1.20(a).


APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 1
(ROGER ALAN SCOTT v. State of Texas)
     On March 10, 2011, Mr. Scott moved from Arlington, Texas to

Grand Prairie, Texas, and gave proper notice of the move. (II:32-33, 63)

On about July 7, 2011, Mr. Scott’s landlord told him he would have to

leave because of his sex offender status, so Mr. Scott left Texas and

travelled to Michigan. (II:63-68) Detective Josh Lovelace of the Grand

Prairie Police Department testified that Mr. Scott did not provide

notice of his anticipated move or his new address. (II:38, 46)

     Mr. Scott was tried before the court (non-jury) on September 21,

2012. The State did not present any evidence to establish that the

Texas Department of Public Safety (DPS) had made a determination in

Mr. Scott’s case that his Illinois offense required him to register as a

sex offender in Texas, nor that DPS had made a determination that

Mr. Scott’s offense was “a sexually violent offense” requiring lifetime

registration. The only testimony in this regard was that of Detective

Lovelace, who was asked by the State’s attorney, “Do you know why he

had to register with your unit?” (II:33, 34) Mr. Scott’s attorney objected

to this question as calling for hearsay, and the trial court overruled the




APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 2
(ROGER ALAN SCOTT v. State of Texas)
objection. (II:33-34) Detective Lovelace then testified as follows in

response to the question from the State’s attorney:

     A. Yes. The records that I had in my file showed that he had
     a conviction out of Illinois for a sexual crime against a child,
     which would be equal to sexual assault of a child in the state
     of Texas, which requires him to register through Chapter 62,
     Code of Criminal Procedure.
     Q. And how do you know it would be substantially -- or
     would you say it was sub -- it's substantially similar to
     sexual assault of a child?
     A. Yes. Out-of-state convictions are reviewed by attorneys
     with DPS for the State. They make the comparisons for a
     conviction from out of state, and they match that up with a
     conviction that would be in the state of Texas.
(II:34-35)

     Upon completion of the evidence, the trial court found Mr. Scott

guilty as charged in the indictment and sentenced him to five years in

prison. (CR:23-24; II:75-76, 90)

     Upon appellate review, the Thirteenth Court of Appeals reversed

Mr. Scott’s conviction, holding that the evidence was legally insufficient

to sustain his conviction. Scott v. State, No. 13-12-00671-CR

(Tex.App.—Corpus Christi, Oct. 16, 2014, pet. filed).




APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 3
(ROGER ALAN SCOTT v. State of Texas)
                              DISCUSSION

A.   Background

     Article 62.051 of the Texas Code of Criminal Procedure requires a

person with a “reportable conviction or adjudication” to register “with

the local law enforcement authority in any municipality where the

person resides or intends to reside for more than seven days.” TEX.

CODE CRIM. PROC. Art. 62.051. A “reportable conviction or

adjudication” is defined as a conviction or adjudication for or based on

one of several enumerated offenses under the Texas Penal Code, or for

or based on

     a violation of the laws of another state, federal law, the laws
     of a foreign country, or the Uniform Code of Military Justice
     for or based on the violation of an offense containing
     elements that are substantially similar to the elements of
     [one of the enumerated offenses], but not if the violation
     results in a deferred adjudication.
TEX. CODE CRIM. PROC. Art. 62.001(5). The Texas Department of

Public Safety (DPS) is responsible for determining whether the

elements of an offense under the laws of another jurisdiction are

“substantially similar” to those of one of the enumerated Texas

offenses. TEX. CODE CRIM. PROC. Art. 62.003(a).

APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 4
(ROGER ALAN SCOTT v. State of Texas)
      If a person is required to register under Chapter 62, one of the

requirements with which the person must comply is to provide the local

law enforcement authority with the person’s anticipated move date and

new address at least seven days prior to any change of address. TEX.

CODE CRIM. PROC. Art. 62.055(a). This is the provision that Mr. Scott

was convicted of violating. (CR:5, 23-24; II:75-76, 90)

      The sex offender registration requirement lasts until the person

dies, if his conviction is for one of the Texas offenses listed in Article

62.101(a)(2) through (5), or for a “sexually violent offense.” 2 TEX.

CODE CRIM. PROC. Art. 62.101(a). Otherwise, the requirement lasts

for ten years, unless the person requests and is granted an “early

termination” of his duty to register. TEX. CODE CRIM. PROC. Arts.

62.101(b) and (c), 62.401 et. seq. In a case involving a ten-year

registration requirement, the duty to register ends “on the 10 th

anniversary of the date on which . . . the person is released from a


2A “sexually violent offense” is defined as one of several enumerated offenses under
the Texas Penal Code, or as “an offense under the laws of another state, federal law,
the laws of a foreign country, or the Uniform Code of Military Justice if the offense
contains elements that are substantially similar to the elements of ” one of the
enumerated Texas offenses. TEX. CODE CRIM. PROC. Art. 62.001(6).


APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 5
(ROGER ALAN SCOTT v. State of Texas)
penal institution, or the person discharges community supervision,

whichever date is later.” TEX. CODE CRIM. PROC. Art. 62.101(c)(2).

B.    The Supreme Court’s decision in Burks precludes retrial of

Mr. Scott, and thus it also bars the State’s petition for

discretionary review.

      The Supreme Court has held that the Double Jeopardy Clause of

the U.S. Constitution bars retrial of an accused after a Court of Appeals

has found the evidence to be legally insufficient and reversed his

conviction. Burks v. United States, 437 U.S. 1, 16-18, 98 S.Ct. 2141,

2149-2151, 57 L.Ed.2d 1 (1978). 3 The prohibition against double

jeopardy is applicable to the states. Bender v. State, 758 S.W.2d 278,

280 (Tex.Crim.App. 1988), citing Benton v. Maryland, 395 U.S. 784, 89

S.Ct. 2056, 23 L.Ed.2d 707 (1969). Since a second prosecution is barred,

the State’s attempt to appeal the decision of the Court of Appeals is



3 The Texas Court of Criminal Appeals has reversed a reviewing court’s legal
sufficiency determination when the court of appeals used the wrong legal standard
in determining that the evidence was legally insufficient. See, for example, Hooper
v. State, 214 S.W.3d 9 (Tex.Crim.App. 2007). Appellant does not concede that such
cases were correctly decided, however, since they appear to be contrary to the
holding in Burks.


APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 6
(ROGER ALAN SCOTT v. State of Texas)
similarly barred. See Evans v. Michigan, --- U.S. ---, 133 S.Ct. 1069,

1078, 185 L.Ed.2d 124, 137 (2012).

C.   This is not an appropriate case for review because its

statewide impact would be minimal.

     Mr. Scott was tried in September, 2012, shortly before this Court

issued its decision in Crabtree v. State, 389 S.W.3d 820, 824

(Tex.Crim.App. 2012) , in October, 2012. Thus, the prosecution in

Mr. Scott’s case did not have the benefit of the Crabtree decision. As

such, the unique facts of this case are unlikely to be repeated, and the

precedential value of this case is minimal or nonexistent.

D.   The Court of Appeals correctly concluded that the

evidence was legally insufficient.

     The standard of review for legal sufficiency of the evidence is as

follows:

     In addressing a challenge to the sufficiency of the evidence,
     a court must determine whether, after viewing the evidence
     in the light most favorable to the verdict, any rational trier
     of fact could have found the essential elements of the crime
     beyond a reasonable doubt. The essential elements of the
     crime are determined by state law. “Under Texas state law,
     we measure the sufficiency of the evidence ‘by the elements


APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 7
(ROGER ALAN SCOTT v. State of Texas)
      of the offense as defined by the hypothetically correct jury
      charge for the case.’ ” The hypothetically correct jury charge
      is “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.”
Crabtree v. State, supra, 389 S.W.3d at 824, quoting Byrd v. State, 336

S.W.3d 242, 246 (Tex.Crim.App. 2011).

      In Crabtree, this Court ruled that “a DPS substantial-similarity

determination is an essential element of the offense of failure to comply

with [sex offender] registration requirements.” Id., 389 S.W.3d at 832.

Since the record in Crabtree failed to indicate whether or not DPS had

made a substantial-similarity determination, the Court held that the

evidence was legally insufficient to sustain the conviction. Id., at 833.

      The record is similarly silent in Mr. Scott’s case. There is simply

no evidence that DPS made a determination that his Illinois offense

was “substantially similar” to a Texas offense which requires lifetime

sex offender registration. 4 Nowhere in Detective Lovelace’s testimony



4The State was required to prove a DPS substantial-similarity determination
requiring lifetime registration because a ten-year registration requirement under


APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 8
(ROGER ALAN SCOTT v. State of Texas)
does he state that DPS attorneys made such a determination, or what

that determination was.

      The State argues that Detective Lovelace’s testimony was legally

sufficient to satisfy this elemental requirement because the context of

the question and answer demonstrates that the detective “was referring

specifically to a finding by DPS that a substantial-similarity

determination had been made in this case – rather than, devoid of

context, a mere general statement about what DPS does.” (State’s PDR,

p. 7) However, a review of the actual wording of the question undercuts

this argument. The question by the prosecutor began as “how do you

know,” but changed mid-sentence to “would you say . . . it’s

substantially similar to sexual assault of a child?” (II:35) The question,

as finally asked, requested the detective’s personal opinion, not his

knowledge of a DPS determination.

      A fact finder’s conclusions may not be based upon mere

speculation or factually unsupported inferences or presumptions.



Article 62.101(b) would have expired on November 18, 2009, almost two years
before the date of offense in this case.


APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 9
(ROGER ALAN SCOTT v. State of Texas)
Hooper v. State, 214 S.W.3d 9, 15 (Tex.Crim.App. 2007). To accept the

State’s argument that Detective Lovelace’s testimony is sufficient, this

Court would have to rely upon mere speculation, rather than evidence

or reasonable inferences from the evidence. 5 Specifically, the Court

would have to speculate about how the detective interpreted a

potentially ambiguous question (as discussed above), whether the

detective actually knew whether or not DPS had made such a

determination, 6 whether or not he correctly understood that

determination, and whether or not he accurately conveyed the

substance of that determination in his testimony.

      For these reasons, the decision of the Court of Appeals was correct

and there is no need for this Court to intervene.




5 In Hooper, supra, this Court noted that “an inference is a conclusion reached by
considering other facts and deducing a logical consequence from them. Speculation
is mere theorizing or guessing about the possible meaning of facts and evidence
presented. A conclusion reached by speculation may not be completely
unreasonable, but it is not sufficiently based on facts or evidence to support a
finding beyond a reasonable doubt.” Hooper v. State, supra, 214 S.W.3d at 16.
6 As noted in the Statement of Facts, Mr. Scott objected to Detective Lovelace’s
testimony in this regard as hearsay, and the trial court overruled his objection. This
was Mr. Scott’s fourth issue in the Court of Appeals, which the Court did not reach.


APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 10
(ROGER ALAN SCOTT v. State of Texas)
E.   This is not an appropriate case to provide clarification of

Crabtree as requested by the State’s P.D.R.

     Finally, the State asserts that Crabtree leaves questions

unanswered which this Honorable Court should clarify, such as what

evidence would suffice to prove the DPS determination, and whether or

not an accused can attack the DPS determination at a subsequent trial

for violating sex offender registration requirements. (State’s P.D.R., pp.

9-11) However, under the facts of this case, such clarification would

amount to an advisory opinion rather than determination of an issue in

the case. See Texas Association of Business v. Texas Air Control Board,

852 S.W.2d 440, 444 (Tex. 1993) (issuance of advisory opinions is not a

proper judicial function).




APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 11
(ROGER ALAN SCOTT v. State of Texas)
                             CONCLUSION

     For the reasons set out herein, this Honorable Court should deny

the State’s petition for discretionary review.

                                   Respectfully submitted,


                                   /s/ Don Davidson
                                   DON DAVIDSON
                                   Attorney-at-Law
                                   Forest Ridge Business Park, Suite 203
                                   803 Forest Ridge Drive
                                   Bedford, Texas 76022-7258
                                   (817) 571-4940
                                   Cell: (817) 343-8042
                                   FAX: (817) 571-4940
                                   Email: donatty@flash.net
                                   Texas Bar No. 05430840

                                   Attorney for Appellant
                                   ROGER ALAN SCOTT




APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 12
(ROGER ALAN SCOTT v. State of Texas)
            CERTIFICATE OF SERVICE FOR RESPONSE

     As Attorney for the Appellant, ROGER ALAN SCOTT, I certify

that a true and correct copy of the foregoing response was mailed via

first-class U.S. mail to the counsel listed below, at the address

indicated, on December 29, 2014.

                       Counsel for the State of Texas
                       Mr. James Gibson
                       Assistant Criminal District Attorney
                       Tarrant County District Attorney's Office
                       Tarrant County Justice Center
                       401 West Belknap
                       Fort Worth, TX 76196-0201

                       Hon. Lisa McMinn
                       State’s Attorney
                       P.O. Box 13046
                       Capitol Station
                       Austin, TX 78711



                                   /s/ Don Davidson
                                   DON DAVIDSON
                                   Attorney for Appellant,
                                   ROGER ALAN SCOTT




APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 13
(ROGER ALAN SCOTT v. State of Texas)
                   CERTIFICATE OF COMPLIANCE

        Per Rule 9.4 of the Texas Rules of Appellate Procedure, I certify

that the foregoing response contains 2,201 words (exclusive of those

portions which are excludable, per Rule 9.4(i)(1) of the Texas Rules of

Appellate Procedure), based on the word count of Microsoft Word word-

processing software, which was used to prepare this document. I

further certify that the document uses the Century Schoolbook 14-point

font, except for footnotes which use the Century Schoolbook 12-point

font.



                                   /s/ Don Davidson
                                   DON DAVIDSON
                                   Attorney for Appellant,
                                   ROGER ALAN SCOTT




APPELLANT’S RESPONSE TO STATE’S P.D.R. - PAGE 14
(ROGER ALAN SCOTT v. State of Texas)
