Opinion issued August 9, 2016




                                     In The

                              Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                              NO. 01-15-00666-CR
                           ———————————
                    ROBERT LEE BURNETT, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 506th District Court
                          Grimes County, Texas
                        Trial Court Case No. 17685


                                 OPINION

      A jury convicted appellant, Robert Lee Burnett, of failure to comply with

sex-offender registration requirements.1 The trial court found two enhancement

paragraphs true and assessed appellant’s punishment at sixty years’ confinement.


1
      See TEX. CODE CRIM. PROC. ANN. art. 62.102 (West 2015).
In his sole issue on appeal, appellant argues that the State’s evidence was legally

insufficient to establish that he moved or intended to move residences, thus

triggering his duty to report his new address at least seven days before the

anticipated move date.

      We affirm.

                                   Background

      Appellant is required to register as a sex offender for his lifetime under Code

of Criminal Procedure chapter 62 due to a 1981 conviction for burglary of a

habitation with intent to commit rape. In 2014, appellant had filed a notice with the

Grimes County Sheriff’s Department registering his address as 4789 FM 1696,

Iola, Texas (“Iola address” or “Iola property”). Following an investigation of

whether he still resided at the Iola address, appellant was arrested and indicted for

failure to comply with registration requirements. The indictment, in relevant part,

provided that

      on or about JULY 2, 2014 [appellant] did then and there, while being
      a person required to register with the local law enforcement authority
      in the county where the defendant resided or intended to reside for
      more than seven days, to-wit: Grimes, because of a reportable
      conviction [for] BURGLARY OF A HABITATION [TO] COMMIT
      RAPE, intentionally or knowingly fail to change address by failing to
      report in person to the local law enforcement authority designated as
      defendant’s primary registration authority to wit: Grimes County
      Sheriff’s Department, with the person’s anticipated move date and
      new address within seven (7) days before the intended change.



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      At trial, Investigator M. Fiaschetti testified that he was responsible for the

Sex Offender Program in Grimes County, having taken over those duties from

Lieutenant J. Wren. Appellant’s brother owned the Iola property that appellant

listed as his address. Investigator Fiaschetti testified that appellant’s brother

contacted him and informed him that appellant did not live at the Iola address.

Appellant’s brother gave Investigator Fiaschetti and another investigator access to

the Iola property on July 2, 2014. Investigator Fiaschetti described the Iola

property as a single-wide mobile home that seemed abandoned: the yard was full

of overgrown grass, there were dead rodents inside the mobile home, the skirting

around the mobile home had been removed, there was no running water, the

kitchen cabinets were all open, there was no furniture in the living room or dining

area, and the bedrooms were sparely furnished. Investigator Fiaschetti took

photographs showing the exterior and interior of the home on that day and the

State offered them into evidence. Based on his observations, Investigator Fiaschetti

decided that the home was abandoned and left the Iola property to secure a

warrant.

      Investigator Fiaschetti further testified that he returned to the Iola address,

accompanied by Deputy K. Pittman, on July 14 and taped a business card between

the door and the doorframe. He also took additional photographs, including one of

the kitchen. This photograph showed that various cabinets were open and that there


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were no dishes near the sink. The State offered this picture into evidence. Deputy

Pittman testified that, on July 14, there were no fresh tracks along the cattle trail

that led to the property and that he thought the property looked abandoned.

Investigator Fiaschetti further testified that the business card he had left on July 14

was undisturbed when he returned to check on the home on July 21. Appellant was

arrested in August 2014 and charged with failure to comply with sex-offender

registration requirements.

      Lieutenant J. Wren testified at trial that, after his arrest, appellant handwrote

a “Request for Service” to Lieutenant Wren in order to “try to resolve this

misunderstanding,” because Wren had previously been the officer in charge of sex-

offender registration for the Grimes County Sheriff’s Department. Lieutenant

Wren went to the jail and met with appellant. Appellant waived his Miranda rights

and spoke with Wren during a recorded interview. At trial, this recording was

played for the jury. On the recording, appellant explained the circumstances

surrounding his absence from the Iola property but never admitted that he no

longer lived at the Iola address. He described his relationship with his brother,

which Lieutenant Wren characterized as “love/hate,” and explained that he had

lived in a tent for some amount of time before his arrest. He admitted that he

probably should have “called in” to the sheriff’s office. Appellant also




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acknowledged that he and Lieutenant Wren had previously discussed what he

should do if he were kicked out of the Iola residence and became transient.

      Two individuals—Rachel Jean Morris, who had known appellant for many

years, and Robbie Lynn Brooks, appellant’s sister—testified on his behalf. They

explained that appellant’s brother owned the Iola property and confirmed the

“love/hate” relationship appellant had with his brother. They both testified that

appellant’s brother would frequently become angry at appellant and threaten to

evict him or to notify the sheriff’s office that appellant was no longer living at the

Iola property. They both testified that the mobile home was filthy, even while

appellant resided there, and described the house as sparsely furnished. Morris

noted that, when appellant lived there, the kitchen sink was usually filled with dirty

dishes, the dining room had a table and chairs, and there was a sofa in the living

room. Brooks testified that, at one point, appellant’s brother had turned off the

power to the Iola property, but appellant continued to live there even though it was

“almost uninhabitable.” Brooks also testified that appellant had a table and chairs,

a sofa, and a stuffed bobcat in the living room. Morris testified that she had last

seen appellant at the Iola address on June 25, 2014; Brooks testified that she had

taken gas to appellant at the Iola property on July 5 and 6, 2014. She stated that, at

that time, appellant was working on the property to help his brother with his cows




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and with some mowing and other tasks, but he was “trying to stay away” from his

brother, who was “really mad” at him.

      The jury convicted appellant of failure to comply with registration

requirements. The trial court found two enhancement paragraphs true and assessed

appellant’s punishment at sixty years’ confinement. Appellant appealed the

conviction.

                            Sufficiency of the Evidence

      The sole issue on appeal is whether the State’s evidence was legally

sufficient to establish that appellant intended to change his address.

A.    Standard of Review

      In conducting a legal sufficiency review, we view all of the evidence in the

light most favorable to the verdict to determine whether any rational factfinder

could have found the essential elements of the offense beyond a reasonable doubt.

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Lucio v.

State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011). We defer to the factfinder to

resolve conflicts, weigh the evidence, and draw reasonable inferences. Hooper v.

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Circumstantial evidence is as

probative as direct evidence in establishing the guilt of an actor, and circumstantial

evidence alone can be sufficient to establish guilt. Id. Evidence is insufficient when

(1) the record contains no evidence, or merely a “modicum” of evidence, probative


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of an element of the offense, (2) the evidence conclusively establishes a reasonable

doubt, or (3) the acts that the State alleges, if true, do not constitute the charged

crime. Kiffe v. State, 361 S.W.3d 104, 107–08 (Tex. App.—Houston [1st Dist.]

2011, pet. ref’d); see Jackson, 443 U.S. at 314–19, 99 S. Ct. at 2786–89; Williams

v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007).

         Code of Criminal Procedure article 62.102 provides that a person who is

required to register as a sex offender and fails to comply with the requirements of

chapter 62 commits an offense. See TEX. CODE CRIM. PROC. ANN. art. 62.102

(West 2015). Code of Criminal Procedure article 62.055(a) requires, in part, that if

any person who is required to register as a sex offender “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 . . . and provide the authority . . . with the person’s

anticipated move date and new address.” Id. art. 62.055(a) (West Supp. 2015). A

person acts intentionally, or with intent, with respect to the nature of his conduct or

to a result of his conduct when it is his conscious objective or desire to engage in

the conduct or cause the result. TEX. PENAL CODE ANN. § 6.03(a) (West 2015); see

Harris v. State, 364 S.W.3d 328, 336 (Tex. App.—Houston [1st Dist.] 2012, no

pet.).




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      Here, based on the indictment, the State had to prove that appellant was

required to register as a sex offender under Code of Criminal Procedure chapter 62

and that he failed to comply with article 62.055(a) by failing to notify the proper

authorities of the new address within seven days of the intended move date. See

Thomas v. State, 444 S.W.3d 4, 9–10 & n.1 (Tex. Crim. App. 2014) (addressing

legal sufficiency of evidence based on indictment essentially identical to that in

present case).

B.    Analysis

      Appellant does not dispute that he was required to register as a sex offender

under chapter 62. Rather, he argues that the State failed to prove his

noncompliance with article 62.005(a) because it provided no evidence that he

intended to move. Appellant argues that the State presented evidence

demonstrating only that he was not at the Iola address on three days in July.

      In 2014, the Court of Criminal Appeals held that evidence that a defendant

was living at a new address as of a particular day was sufficient for a jury to have

reasonably concluded that he intended to change addresses on that date. See id. at

10–11. In Gilder v. State, the Fourteenth Court of Appeals applied the reasoning in

Thomas and concluded that evidence that the apartment listed as the defendant’s

registered address had been vacated as of January 3, 2013, constituted evidence




                                         8
that he had intended to move on that date. 469 S.W.3d 636, 640–41 (Tex. App.—

Houston [14th Dist.] 2015, pet. ref’d).

      In the present case, the State presented evidence of more than just

appellant’s absence from the Iola address on three days in July. Investigator

Fiaschetti testified that, when he visited the Iola address on July 2, 2014, it

appeared uninhabited—the yard was full of overgrown grass, there were dead

rodents inside, there was no running water, the kitchen cabinets were all open, and

there was no furniture in the living room or dining area. The photographs he took

of the unfurnished and unkempt house also supported an inference that appellant

no longer lived at the Iola address. Deputy Pittman testified that, on July 14, there

were no fresh tracks leading to the Iola residence. Investigator Fiaschetti testified

that, when following up at the Iola residence on July 21, he found the business card

he had placed in appellant’s doorway on July 14 still undisturbed. Thus, the State’s

evidence was sufficient to establish that appellant was no longer residing at the Iola

address as of July 2, and it permitted an inference that appellant intended to change

his address as of that date. See Thomas, 444 S.W.3d at 10–11; Gilder, 469 S.W.3d

at 640–41.

      Appellant does not dispute that he never notified the sheriff’s office of any

change in his residence. He told Lieutenant Wren that he had been living in a tent

for some amount of time before his arrest in August, and he acknowledged in this


                                          9
conversation that he was aware of his registration obligations in the event he

became homeless or transient. Therefore, the evidence is sufficient for a rational

jury to reasonably conclude that appellant was not living at his registered address

as of July 2, 2014, and that he was not registered at any other address.

      Appellant argues that Morris’s and Brooks’s testimony indicated that he had

resided at the Iola address “throughout the summer.” Morris testified that she had

last seen appellant at the Iola address on June 25, 2014, and Brooks testified that

she had taken gas to appellant at the Iola property on July 5 and 6. Contrary to

appellant’s assertion in his brief, this testimony does not establish that he was

actually residing at the Iola address throughout the summer. Moreover, while

Morris and Brooks testified that the house was usually filthy and sparsely

furnished when appellant lived there, they also testified that appellant had dishes, a

table and chairs, a sofa, and a stuffed bobcat in the home. These items were not

present when Investigator Fiaschetti visited and took photographs on July 2.

Finally, the jury, as the finder of fact, was the sole judge of the credibility of

witnesses and the weight to be given to testimony and evidence. See Thomas, 444

S.W.3d at 10. It was within the jury’s discretion to believe Investigator Fiaschetti’s

testimony and photographs demonstrating that appellant had moved out of the Iola

property as of July 2.




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      The fact that the evidence demonstrating that appellant had moved from the

Iola address was largely circumstantial is irrelevant. The circumstantial evidence

discussed above is sufficient to support a conclusion that appellant was no longer

residing at the Iola address as of July 2, which was all that the State needed to

prove. See Hooper, 214 S.W.3d at 13 (holding that circumstantial evidence is as

probative as direct evidence, and circumstantial evidence alone can establish guilt).

      Finally, appellant misconstrues the State’s burden in arguing that the

evidence was insufficient because the State provided no evidence of the address

that he should have registered pursuant to chapter 62. Under the language of the

indictment, the State was not required to prove where appellant was actually

residing in July; it was sufficient for the State to establish that appellant had moved

from his registered address without informing the proper authorities in a timely

manner. See Thomas, 444 S.W.3d at 10–11.

      Appellant’s reliance on Rios v. State, 141 S.W.3d 750 (Tex. App.—Corpus

Christi 2004, pet. ref’d), is misplaced. In Rios, the State was limited by its

indictment to proving that the appellant had “failed to report within seven days of

his ‘arrival in’ . . . Corpus Christi.” Id. at 753. In other words, the indictment in

Rios required the State to prove the date that Rios “arrived” in Corpus Christi at a

new, unregistered address in order for the jury to conclude that Rios failed to report

within seven days of that date. See id. Here, by contrast, the indictment alleged that


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appellant failed to report an intended change in address at least seven days before

his move date. See Thomas, 444 S.W.3d at 10 (concluding, under nearly identical

indictment, that evidence that Thomas was living at unregistered address on

alleged move date was sufficient to support conclusion that he had intended to

move by that date); Gilder, 469 S.W.3d at 640–41 (holding that evidence Gilder

had vacated registered address by January 3 was sufficient to establish that he

intended to move as of that date); see also Dotie v. State, 477 S.W.3d 482, 488

(Tex. App.—Texarkana 2015, no pet.) (describing “typical” failure to register case

as requiring State to prove that defendant has moved from his last reported address

and contrasting that “typical” case with indictment in Rios).

      We conclude that the evidence was sufficient to support the jury’s

conclusion that appellant failed to comply with the sex-offender registration

requirements.

      We overrule appellant’s sole issue on appeal.

                                       Conclusion

      We affirm the judgment of the trial court.



                                              Evelyn V. Keyes
                                              Justice

Panel consists of Justices Keyes, Brown, and Huddle.

Publish. TEX. R. APP. P. 47.2(b).
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