REVERSE and RENDER; and Opinion Filed August 6, 2013.




                                           S In The
                                       Court of Appeals
                                Fifth District of Texas at Dallas

                                        No. 05-10-00162-CR

                            DERWIN TRISHON BROWN, Appellant
                                          V.
                              THE STATE OF TEXAS, Appellee

                       On Appeal from the Criminal District Court No. 2
                                    Dallas County, Texas
                            Trial Court Cause No. F08-56341-HI

                                  OPINION ON REMAND
                          Before Justices Moseley, FitzGerald, and Lewis
                                     Opinion by Justice Lewis
        A jury convicted Derwin Trishon Brown of failure to register as a sex offender and

sentenced him to sixteen years’ imprisonment and a $10,000 fine. This Court affirmed the

conviction in an unpublished opinion on March 28, 2012. The Court of Criminal Appeals granted

Brown’s petition for discretionary review to determine whether this Court correctly determined

(1) the State does not have to establish that the Department of Public Safety (“DPS”) made a

finding that an out of state conviction is substantially similar to a Texas offense that requires sex

offender registration; and (2) it was not error for the trial court to charge the jury that, as a matter

of law, his previous conviction in Louisiana is for an offense that is substantially similar to a

Texas offense that requires sex offender registration. See Brown v. State, No. PD-0524-12, 2013

WL 458102 (Tex. Crim. App. Feb. 6, 2013) (“Brown II”). While the case was pending before the

Court of Criminal Appeals, the Court of Criminal Appeals issued Crabtree v. State, 389 S.W.3d
820 (Tex. Crim. App. 2012), in which it determined that a DPS substantial-similarity

determination is an essential element of the offense of failure to comply with sex offender

registration requirements. Crabtree, 389 S.W.3d at 832. Noting that we did not have the benefit

of Crabtree when we decided Brown’s appeal, the Court of Criminal Appeals vacated our

judgment and remanded the cause to us “for consideration in light of” Crabtree. Brown II, 2013

WL 458102, at *1. Following remand, we gave the parties the opportunity to file supplemental

briefs. See Robinson v. State, 790 S.W.2d 334, 335-36 (Tex. Crim. App. 1990). The State filed a

supplemental brief. Appellant filed neither a waiver nor a brief. Having considered appellant’s

issues from original submission, for the reasons that follow, we now reverse the trial court’s

judgment and render a judgment of acquittal.

Background

       Appellant was convicted for sexual battery in Madison Parish, Louisiana, on November

8, 2007, as well as other convictions in Louisiana between 1997 and 2004. In March 2008,

appellant applied for a Texas Identification Card, indicating that he was residing in Dallas. After

receiving a tip that appellant was a sex offender who had moved to Dallas, Texas, the Dallas

police searched and found appellant in Dallas and arrested him. The investigating officer

confirmed appellant had never registered with the Dallas police. Appellant was charged by

indictment with failure to register as a sex offender based on a conviction in Louisiana for sexual

battery. Appellant pled not guilty, and a jury trial was conducted. During the trial, the State

presented the judge with copies of the statutes defining sexual battery under Louisiana law and

the statute defining sexual assault under Texas law and requested he take “judicial notice” of the

substantial similarity between the two offenses. Appellant did not object to the judicial notice.

However, the State neglected to introduce a determination made by the DPS declaring the

Louisiana offense to be substantially similar to any Texas offense. The jury returned a guilty

                                               –2–
verdict and set appellant’s punishment at sixteen years’ confinement and a fine of $10,000.

Appellant now appeals the trial court’s judgment.

       In Brown’s original submission, he argues: (1) the evidence was legally insufficient to

support the verdict because the State failed to present evidence that Brown’s conviction in

Louisiana was substantially similar to a Texas reportable offense that would require him to

register as a sex offender in Texas; (2) the trial court erred by failing to quash the indictment; (3)

the trial court erred by instructing the jury of the substantial similarity between the Louisiana and

Texas offenses as a matter of law; (4) the trial court erred in the application paragraph to the

jury; and (5) the trial court erred by taking judicial notice of the substantial similarity between

the Louisiana and Texas offenses. Because we find the evidence insufficient to support Brown’s

conviction, we need not address the indictment’s sufficiency or the proper jury instructions.

Standard of Review

       When reviewing the legal sufficiency of the evidence, we view all of the evidence in the

light most favorable to the verdict to determine whether any rational finder of fact could have

found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443

U.S. 307, 318—19 (1979); Crabtree, 389 S.W.3d at 824. We measure the sufficiency of the

evidence by the elements of the offense as defined by the hypothetically correct jury charge for

the case. Crabtree, 389 S.W.3d at 824 (citing Byrd v. State, 336 S.W.3d 242, 246 (Tex. Crim.

App. 2011)). “The essential elements of the crime are determined by state law.” Id. A

hypothetically correct jury charge “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 is

tried.” Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

Analysis

                                                 –3–
       To support appellant’s conviction for failure to comply with the sex offender registration

program, the State’s evidence had to show that Brown was required to register and that he failed

to comply with that requirement. See TEX. CODE CRIM. PROC. ANN. art. 62.102(a) (West 2006);

Crabtree, 389 S.W.3d at 832. Without providing evidence that Brown’s conviction satisfied the

definition of being a reportable conviction, he could not have committed the charged offense and

would not have been under an obligation to register. See TEX. CODE CRIM. PROC. ANN. art.

62.001(5) (West Supp. 2012); Crabtree, 389 S.W.3d at 832. In Crabtree, the Court of Criminal

Appeals held, “a DPS substantial similarity determination is an essential element of the offense

of failure to comply with registration requirements.” 389 S.W.3d at 832.

       The record is silent as to evidence admitted at trial regarding whether DPS previously

determined that the Louisiana offense of sexual battery is substantially similar to a Texas offense

statutorily defined as a “reportable conviction or adjudication.” On appeal, the State’s brief

includes a 2006 DPS determination addressing the substantial similarity between the Louisiana

sexual battery statute and the Texas sexual assault statute. However, the State concedes “it was

doubtful the trial judge was aware of the DPS determination.” Before the jury was seated, the

court took judicial notice of the substantial similarity between the two offenses without evidence

of a determination of substantial similarity made by DPS. Also, the jury instructions stated, “You

are instructed that as a matter of law the elements of sexual battery in the state of Louisiana are

the same or similar to the elements of Section 22.011, sexual assault, in the Texas Penal Code.”

In light of the Court of Criminal Appeals’ interpretation of the relevant Chapter 62 articles, the

lack of a DPS determination of substantial similarity leads us to conclude the evidence was not

sufficient. See Crabtree, 389 S.W.3d at 832. The jury returned a guilty verdict finding Brown

was previously convicted of sexual battery in Louisiana. However, the required finding by the

jury that a conviction for sexual battery in Louisiana is a “reportable conviction or adjudication”

                                               –4–
is not supported by the record, and its absence leads us to conclude that no rational juror could

find that Brown had an obligation to register as a sex offender beyond a reasonable doubt. See

Crabtree, 389 S.W.3d at 833.

       In their supplemental briefing, the State argues this case is distinguishable from Crabtree

because in Crabtree, the jury decided the substantial similarity as a matter of fact and during

Brown’s proceedings, the trial judge determined the substantial similarity as a matter of law. We

disagree because when discussing whether the judge should make the substantially similar

determination, the Crabtree Court stated:

       It is not our job to legislate from the bench. We have a branch of government
       charged with this responsibility, and the Legislature has spoken—DPS is the
       proper authority for regulating whether an extra-jurisdictional conviction or
       adjudication triggers a person’s duty to register.


389 S.W.3d at 834—35 (Hervey J., concurring).

Conclusion

       Holding the evidence was legally insufficient to support Brown’s conviction for the

offense of failure to comply with registration requirements, we reverse the judgment of the trial

court and render a judgment of acquittal.




                                                    /David Lewis/
                                                    DAVID LEWIS
                                                    JUSTICE


Do Not Publish
TEX. R. APP. P. 47

100162F.U05




                                              –5–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DERWIN TRISHON BROWN, Appellant                        On Appeal from the Criminal District Court
                                                       No. 2, Dallas County, Texas
No. 05-10-00162-CR         V.                          Trial Court Cause No. F08-56341-HI.
                                                       Opinion delivered by Justice Lewis.
THE STATE OF TEXAS, Appellee                           Justices Moseley and FitzGerald
                                                       participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the appellant is hereby ACQUITTED.


Judgment entered this 6th day of August, 2013.




                                                       /David Lewis/
                                                       DAVID LEWIS
                                                       JUSTICE




                                                 –6–
