                             NUMBER 13-12-00268-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

KIRK BALLARD,                                                           Appellant,

                                         v.

THE STATE OF TEXAS,                                                       Appellee.


                  On appeal from the 319th District Court
                        of Nueces County, Texas.


                        MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Garza and Perkes
               Memorandum Opinion by Justice Garza

      Appellant, Kirk Ballard, was convicted of failure to comply with sex-offender

registration requirements, a third-degree felony, and was sentenced to two years’

imprisonment. See TEX. CODE CRIM. PROC. ANN. art. 62.102(b)(2) (West 2006). He

argues on appeal that there was an error in the jury charge which caused him to suffer

egregious harm. We affirm.
                                             I. BACKGROUND

        Ballard was charged by indictment on January 21, 2011. The indictment alleged

that Ballard was convicted of sexual assault of a child in 1992 and that, on or about

November 1, 2010, he “intentionally, knowingly, or recklessly failed to report in person

to the Corpus Christi Police Department and provide his anticipated move date and new

address not later than the seventh day before the intended change.”                             See id. art.

62.055(a) (West Supp. 2011) (“If a person required to register under this chapter

intends to change address, . . . the person 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 to the . . . parole officer

supervising the person and provide the authority and the officer with the person’s

anticipated move date and new address.”).1

        At trial, the issue of whether Ballard had in fact changed his residence was hotly

contested. Trinidad Garcia, a non-resident landlord at an apartment building on 17th

Street in Corpus Christi, testified that Ballard rented an apartment in the building for

about eight months. She stated that Ballard lived at the apartment continuously until the

time he was arrested in April of 2011.                    However, Garcia previously executed an

affidavit, dated November 1, 2010, in which she stated that Ballard had not, to her


        1
            The Texas Court of Criminal Appeals described the policy underlying this statute:

        The primary purpose of creating and maintaining a sex-offender registry is to give local
        law enforcement officers a means of monitoring sex offenders who are living within their
        jurisdiction in order better to thwart repeat offenses. Knowing where a sex offender lives
        is arguably the simplest and best way to monitor him. By failing to report where he is
        residing, the sex offender is subverting the objective of the registry. The community and
        law enforcement want to know where the sex offender lives so they may take proper
        precautions.

Young v. State, 341 S.W.3d 417, 426 (Tex. Crim. App. 2011) (internal quotations and citations omitted).

                                                      2
knowledge, lived at the 17th Street apartment “for a period of at least 10 days.” 2 The

affidavit stated that Garcia had tried contacting Ballard by phone “for at least a week”

but that Ballard had not returned her calls. Garcia admitted signing the affidavit but

denied having written the words appearing therein. She reiterated that Ballard was at

the 17th Street apartment “all the time” during the end of 2010 and beginning of 2011.

       Tracy Ballard, appellant’s wife, testified that the couple started dating in August

2010 and got married on May 3, 2011. At the time of trial, they were in the process of

divorcing.   According to Tracy, she and her husband lived together in a hotel on

Leopard Street in Corpus Christi from November 2010 to February 2011, and in an

apartment on Texan Trail in Corpus Christi from February to April 2011. When the

prosecutor asked if she ever “visit[ed] Kirk Ballard at his place on 17th Street,” she said

yes, “[m]aybe ten times, 11 times.” The prosecutor then asked, “Why didn’t you just

move in with Mr. Ballard on 17th Street?” Tracy replied that her husband did not want

her to live at the 17th Street apartment because the apartment building was populated

by men only, and he “didn’t feel comfortable” with her being there by herself during the

day. She stated that her husband “was living with her continuously” during the time in

question. With respect to the Texan Trail apartment, she specified that he “had his

clothes there, he slept there, he ate there, he even had a piece of mail come to that

address at one time.”

       Diane Berry testified that it is her job to register sex offenders for the Corpus

Christi Police Department. Berry stated that Ballard was required to register every year

around his birthday unless he changes his address, in which case he must update his


       2
        The affidavit, which was introduced into evidence, was prepared on a form promulgated by law
enforcement to report residency changes of convicted sex offenders.

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registration seven days prior to the address change. See id. Berry stated that Ballard’s

most recent address update occurred in October 2010.

       Ballard’s parole officer at the time of trial, George Abella, testified that he started

supervising Ballard in April 2011. Abella stated that, according to his records, Ballard

failed to report to his parole officer from late October 2010 to April 2011.

       Section one of the jury charge contained the following instruction, which tracks

section (a) of article 62.055 of the code of criminal procedure:

       Our law provides that a person commits the offense of failure to comply
       with registration requirements if the person is required to register and
       intentionally, knowingly, or recklessly fails to comply with a requirement of
       the sex offender registration program under Chapter 62 of the Code of
       Criminal Procedure. Code of Criminal Procedure Article 62.055 provides:
       (a) If a person required to register under this chapter intends to change
       address, regardless of whether the person moves to another state, the
       person 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 by the department and to the
       juvenile probation officer, community supervision and corrections
       department officer, or parole officer supervising the person and provide
       the authority and the officer with the person’s anticipated move date and
       new address. If a person required to register changes address, the
       person shall, not later than the later of the seventh day after changing the
       address or the first date the applicable local law enforcement authority by
       policy allows the person to report, report in person to the local law
       enforcement authority in the municipality or county in which the person’s
       new residence is located and provide the authority with proof of identity
       and proof of residence.

See id. (emphasis added). The charge also included, in section five, the following

application paragraph which tracks the indictment:

       Now, if you find from the evidence beyond a reasonable doubt that on or
       about November 1, 2010, in Nueces County, Texas, the defendant, KIRK
       BALLARD, did then and there, while being a person required to register
       with the local law enforcement authority in the municipality or county
       where the defendant resided or intended to reside for more than seven
       days, to-wit: Corpus Christi, Texas, because of a reportable conviction or
       adjudication for Sexual Assault of a Child, on December 4, 1992, in Cause

                                              4
       No. 92-CR-0555-H, in the 347th District Court of Nueces County, Texas,
       intentionally, knowingly, or recklessly fail to report in person to the Corpus
       Christi Police Department and provide his anticipated move date and new
       address not later than the seventh day before the intended change, then
       you shall find the defendant guilty of Failure to Comply with Registration
       Requirements.

Defense counsel made no objection to either jury charge instruction.

       The jury found Ballard guilty and this appeal followed.

                                           II. DISCUSSION

       By a single issue on appeal, Ballard contends that the trial court committed

reversible error, causing him to suffer egregious harm, by “including an uncharged

theory of guilt in the jury charge.” In particular, he complains that section one of the jury

charge impermissibly set forth the entirety of code of criminal procedure article 62.055,

including the portions of that section requiring reporting after moving, even though the

indictment charged only that he failed to report before moving.

       The Texas Court of Criminal Appeals recently considered a very similar issue in

Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012). There, the appellant,

who was convicted of driving while intoxicated, claimed that the trial court erred in

submitting a jury charge that included both the subjective and per se definitions of

“intoxication,” see TEX. PENAL CODE ANN. § 49.01 (West 2011),3 even though the


       3
         The charge instruction at issue in Crenshaw, which precisely tracked subsection 49.01(2) of the
penal code, stated:

       (1)     “Intoxicated” means:

       A.      Not having the normal use of mental or physical faculties by reason of the
               introduction of alcohol, a controlled substance, a drug, a dangerous drug, or a
               combination of two or more of these substances into the body; or

       B.      Having an alcohol concentration of 0.08 or more.

Crenshaw v. State, 378 S.W.3d 460, 463 (Tex. Crim. App. 2012); see TEX. PENAL CODE ANN. § 49.01(2)
(West 2011).

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charging instrument alleged only the subjective definition.4 Crenshaw, 378 S.W.3d at

462. The court of criminal appeals held that the inclusion of the uncharged, per se

definition of “intoxicated” in the jury charge instruction was not error because the

application paragraph of the jury charge mentioned only the charged, subjective

definition of that term. Id. at 466. The Court reasoned:

        It is the application paragraph of the charge, not the abstract portion, that
        authorizes a conviction. The abstract paragraphs serve as a glossary to
        help the jury understand the meaning of concepts and terms used in the
        application paragraphs of the charge. An abstract charge on a theory of
        law that is not applied to the facts does not authorize the jury to convict
        upon that theory. Generally, reversible error occurs in the giving of an
        abstract instruction only when the instruction is an incorrect or misleading
        statement of a law that the jury must understand in order to implement the
        commands of the application paragraph.

Id. (citations omitted). The Court noted further that “[t]he two definitions of intoxication

set forth alternative means by which the State may prove intoxication, rather than

alternate means of committing the offense,” and that “the definitions of intoxicated are

purely evidentiary matters, and they need not be alleged in the information or indictment

to provide a defendant with sufficient notice—the State may simply allege that a person

was ‘intoxicated’ to satisfy the notice requirement.” Id. (internal quotations and citations

omitted).

        Here, the two forms of conduct proscribed by section (a) of article 62.055—i.e.,

failing to report a change of address “not later than the seventh day before the intended

change” and failing to so report “not later than the . . . seventh day after changing the



        4
           The charging instrument alleged only that Crenshaw was intoxicated under part (A) of penal
code subsection 49.01(2); i.e., “by not having the normal use of his mental or physical faculties by reason
of the introduction of (1) alcohol or (2) alcohol, a controlled substance, a drug, a dangerous drug, or a
combination of two or more of these substances into his body.” Crenshaw, 378 S.W.3d at 462; see TEX.
PENAL CODE ANN. § 49.01(2)(A).

                                                    6
address,” see TEX. CODE CRIM. PROC. ANN. art. 62.055(a)—are merely “alternative

manners and means of committing a single offense.” Young v. State, 341 S.W.3d 417,

427 (Tex. Crim. App. 2011) (noting that “[t]he focus of [article 62.055] is on giving

notification to law enforcement and not the means by which a sex offender failed to do

so”). And the application paragraph in the jury charge in the instant case, like the

application paragraph in Crenshaw, properly instructed the jury to convict only if it found

the facts alleged in the indictment to be true beyond a reasonable doubt.              See

Crenshaw, 378 S.W.3d at 466. Moreover, it is undisputed that section one of the jury

charge stated the law correctly; it is not “an incorrect or misleading statement of a law

that the jury must understand in order to implement the commands of the application

paragraph.” See id. We conclude that the trial court did not err by including the entirety

of section (a) of article 62.055 in section one of the jury charge.

       Even if we were to find error, such error would not be reversible because Ballard

cannot show that he was sufficiently harmed. When no objection is made to the jury

charge, as here, we may reverse on the basis of jury charge error only if the appellant

suffered “egregious harm” as a result of the error. Allen v. State, 253 S.W.3d 260, 264

(Tex. Crim. App. 2008) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op. on reh’g)). An error is egregiously harmful only “if it affects the very basis of

the case, deprives the defendant of a valuable right, or vitally affects a defensive

theory.” Id. Here, ABallard complains that the abstract paragraph allowed the jury to

convict him of an offense—i.e., failing to report within seven days after he moved—that

was not charged in the indictment.       However, Ballard’s defense at trial, which was

rejected by the jury, was based entirely on his contention that he never actually moved



                                              7
or changed his residence.     He did not dispute that he never reported a change of

address, either before or after the alleged move. The jury rejected Ballard’s defensive

theory, implicitly finding that he did, in fact, change his residence. Therefore, even if

section one of the jury charge instructed the jury only on the offense of failing to report

prior to the move, the jury would have in all likelihood still found him guilty. We cannot

say that Ballard was egregiously harmed by any error. See id.

                                     III. CONCLUSION

       Having overruled Ballard’s issue, we affirm the judgment of the trial court.



                                                 ________________________
                                                 DORI CONTRERAS GARZA,
                                                 Justice

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

Delivered and filed the
15th day of August, 2013.




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