                                 NOS. 12-17-00298-CR
                                      12-17-00299-CR

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 DONALD RAY RUNNELS,                              §       APPEALS FROM THE 123RD
 APPELLANT

 V.                                               §       JUDICIAL DISTRICT COURT

 THE STATE OF TEXAS,
 APPELLEE                                         §       SHELBY COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Donald Ray Runnels appeals his two convictions for failure to register as a sex offender.
In two issues, he argues that the evidence is insufficient to support his convictions and that there
is a fatal variance between his indictments and the evidence adduced at trial. We affirm.


                                          BACKGROUND
       Appellant was charged, by separate indictments, with two counts of failure to register as a
sex offender, which were alleged to have occurred on or about June 6, 2016, and July 8, 2016.
Appellant waived a jury trial in both cases and had a trial before the court. The State called two
witnesses, Leah Chase, the sex offender registrar for the Shelby County Sheriff’s Office, and
Deputy D.J. Dickerson, a Shelby County Sheriff’s Deputy, to establish that Appellant failed to
disclose his Facebook account and failed to produce a Texas issued driver’s license or
identification card, as required by Chapter 62 of the code of criminal procedure. After the State
rested, Appellant asked the trial court to dismiss the charges because the indictments lacked
specificity. The trial court denied Appellant’s request. Appellant called one witness, his father,
and rested. The trial court found Appellant “guilty” on both counts and ordered a pre-sentence
investigation. After a punishment hearing, the trial court sentenced Appellant to five years of
imprisonment to run concurrently. This appeal followed.


                                  SUFFICIENCY OF THE EVIDENCE
       In Appellant’s first issue, he argues that the evidence is insufficient to sustain his
convictions for failure to register as a sex offender. Specifically, he argues that the State failed to
prove that he acted with the requisite culpable mental state.
Standard of Review and Applicable Law
       When determining if evidence is sufficient to sustain a conviction, we apply the Jackson
v. Virginia standard. See Brooks v. State, 323 S.W.3d 893, 902, 912 (Tex. Crim. App. 2010).
This standard requires the appellate court to determine whether, considering all the evidence in the
light most favorable to the verdict, the fact-finder was rationally justified in finding guilt beyond
a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d
560 (1979); Brooks, 323 S.W.3d at 899. In doing so, we defer to the fact-finder’s credibility and
weight determinations, because the fact-finder is the sole judge of the witnesses’ credibility and
the weight to be given to their testimony. Brooks, 323 S.W.3d at 899; see Jackson, 443 U.S. at
319, 99 S. Ct. at 2789. This standard recognizes “the responsibility of the trier of fact fairly to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from
basic facts to ultimate facts.” Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; see also Adames v.
State, 353 S.W.3d 854, 860 (Tex. Crim. App. 2011).
       Accordingly, the fact finder is entitled to judge the credibility of the witnesses, and can
choose to believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461
(Tex. Crim. App. 1991); see also Wise v. State, 364 S.W.3d 900, 903 (Tex. Crim. App.
2012). When conflicting evidence is presented, we must resolve those conflicts in favor of the
verdict and defer to the fact finder’s resolution of those conflicts. Jackson, 443 U.S. at 326, 99 S.
Ct. at 2793. We may not substitute our own judgment for that of the fact finder. See id., 443 U.S.
at 319, 99 S. Ct. at 2789; Thornton v. State, 425 S.W.3d 289, 303 (Tex. Crim. App. 2014); King
v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). Circumstantial evidence is as probative as
direct evidence in establishing the guilt of an actor and can be alone sufficient to establish guilt.
Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).




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        Chapter 62 of the Texas Code of Criminal Procedure defines the scope of Texas’s sex
offender registration program and delineates the legal duties of those who administer it and those
subject to its requirements. See generally TEX. CODE CRIM. PROC. ANN. art. 62.001-62.408 (West
2018). A person commits the offense of failure to comply with registration requirements if the
person (1) is required to register and (2) fails to comply with any requirement of Chapter 62. Id.
art. 62.102(a); Crabtree v. State, 389 S.W.3d 820, 825 (Tex. Crim. App. 2012). A person is
required to register “with the local law enforcement authority in any municipality where he resides
or intends to reside for more than seven days” if he has a “reportable conviction or adjudication.”
TEX. CODE CRIM. PROC. ANN. art. 62.051(a). A person required to register under Chapter 62 must
report any changes to online identifiers or any new online identifiers not already on the person’s
registration form not later than the seventh day after the change or establishment or the first day
the applicable authority by policy allows the person to report. Id. art. 62.0551. Online identifiers,
as defined by Chapter 62, include names used on social networking accounts, such as Facebook.
See id. art. 62.001(12). A person subject to registration under Chapter 62 is required to apply for
a Texas issued driver’s license, identification card, or commercial driver’s license not later than
the 30th day after the person is released from a penal institution, is released by a court on
community supervision, or the department sends written notice to the person of the requirements
of this Article. See id. art. 62.060(a)(1)-(2).
Analysis
        Appellant argues that the State failed to prove that he acted intentionally or knowingly in
not disclosing his Facebook account or showing proof of a Texas driver’s license or identification
card. He argues that evidence he was “incarcerated and unable to comply with the ‘online
registration’ requirement or the driver’s license requirement and in fact had a Louisiana driver’s
license” shows that he attempted to comply with the law and thus creates reasonable doubt as to
whether he acted intentionally or knowingly.
        At trial, the State called Leah Chase, the sex offender registrar for the Shelby County
Sheriff’s Office. Chase testified that Appellant had a conviction from Louisiana that the Texas
Department of Public Safety determined was substantially similar, elementally, to the offense of
indecency with a child by contact, and was thus, a reportable conviction. The State offered, and
the trial court admitted, a certified copy of a document from East Baton Rouge Parish, Louisiana
indicating that Appellant pleaded “guilty” to contributing to the delinquency of juveniles and was



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given a probated sentence which was revoked on September 21, 2000. Chase testified that
Appellant initially registered as a sex offender with Shelby County in 2002 and was aware of his
duty to register as a sex offender. She indicated that sex offenders are required to comply with the
registration requirements found in Chapter 62 of the Texas Code of Criminal Procedure, which
includes disclosing any online identifiers and holding a Texas issued driver’s license or
identification card.
       Chase testified that she was alerted to Appellant’s Facebook profile by D.J. Dickerson, a
deputy with the Shelby County Sheriff’s Office. The State offered photocopies of the profile,
which had Appellant’s name and photograph, and listed posts made to the Facebook account dating
back to 2013. Chase verified that Appellant had not disclosed a Facebook account to the Shelby
County Sheriff’s Office, in violation of Chapter 62, and relayed the information to Deputy
Dickerson, who obtained a warrant for Appellant’s arrest. On June 6, 2016, while Appellant was
in custody, he requested to speak with Chase. Chase testified that Appellant admitted having a
Facebook page and she added the information to his registration. That same day, Appellant made
his bond and was released from jail.
       On June 14, Appellant met with Chase and she reminded Appellant that he was required to
provide the sheriff’s office with a current Texas driver’s license, to which Appellant replied he
would do so by July 1, 2016. Chase testified that she told Appellant on previous occasions that he
was required to obtain a Texas driver’s license or identification card, but that he failed to comply.
She testified that Appellant did not provide his license on July 1. On July 6, Deputy Dickerson
contacted Appellant and told him he needed to provide his license and Appellant indicated he
would do so the next day. Appellant still failed to provide the license, but called Chase and stated
that the driver’s license office would not release the license because it was after 2:00 p.m. and he
would bring it to her by 8:00 a.m. the following morning. Chase contacted the driver’s license
office and verified that Appellant had not applied for a license. On July 8, Chase filed a non-
compliance report and Appellant was subsequently arrested for the second charge of failure to
register as a sex offender. On July 12, more than thirty days after Appellant was released from
jail, Appellant finally presented proof that he had obtained a Texas driver’s license.
       Article 62.102(a) states that a person commits the offense of failure to comply with sex-
offender registration “if the person is required to register and fails to comply with any requirement
of this chapter.” TEX. CODE CRIM. PROC. ANN. art. 62.102(a). Article 62.102(a) does not contain



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a culpable mental state, but “if the definition of an offense does not prescribe a culpable mental
state, a culpable mental state is nevertheless required unless the definition plainly dispenses with
any mental element.” TEX. PENAL CODE ANN. § 6.02(b) (West 2011). As a result, Section 6.02(c)
requires that Article 62.102(a) be read to require intent, knowledge, or recklessness to establish
criminal responsibility. Id. § 6.02(c); Robinson v. State, 466 S.W.3d 166, 170 (Tex. Crim. App.
2015). The Court of Criminal Appeals has held that Article 62.102(a) is a “circumstances of
conduct” offense because it prohibits otherwise innocent behavior that becomes a crime only under
specific circumstances. Robinson, 466 S.W.3d at 170. While there is necessarily an additional
conduct element, the gravamen of the offense is the duty to register. See id. at 170–71. Thus,
proof of a culpable mental state applies only to the duty to register element, rather than the failure
to comply element. Febus v. State, 542 S.W.3d 568, 573 (Tex. Crim. App. 2018) (citing
Robinson, 466 S.W. 3d at 172). Therefore, in a prosecution for failure to register as a sex offender,
it is sufficient if the State proves the defendant’s awareness of the registration requirement, and
they need not prove an additional culpable mental state regarding his failure to comply. See Febus,
542 S.W.3d at 573.
       As detailed above, the evidence at trial proved that Appellant was aware of his duty to
register as a sex offender. He had been registering as a sex offender in Shelby County since 2002,
and was in regular contact with Chase, the registrar, yet he still failed to comply with the sex
offender registration requirements. Thus, the evidence was sufficient to prove that Appellant acted
with the requisite culpable mental state for the offense of failure to register. See id.; Robinson,
466 S.W.3d at 172; see also Brooks, 323 S.W.3d at 899; see Jackson, 443 U.S. at 319, 99 S. Ct.
at 2789. Accordingly, viewing the evidence in the light most favorable to the verdict, we conclude
that the trial court was rationally justified in finding, beyond a reasonable doubt, that Appellant
committed the offense of failure to register as a sex offender. See Jackson, 443 U.S. at 319, 99 S.
Ct. at 2789; see also Brooks, 323 S.W.3d at 899. Appellant’s first issue is overruled.


                                             VARIANCE
       In his second issue, Appellant argues that “there is a fatal variance between his indictments
and the evidence adduced at trial which violated his due process rights.”




                                                  5
Discussion
       A “variance” occurs when there is a discrepancy between the allegations in the charging
instrument and the proof at trial. Gollihar v. State, 46 S.W.3d 243, 246 (Tex. Crim. App. 2001).
In a variance situation, the State has proven the defendant guilty of a crime, but has proven its
commission in a manner that varies from the allegations in the charging instrument. Id.
       In this case, Appellant was charged by two indictments with failing to register as a sex
offender. The indictment for the June 6, 2016 failure to register charge reads, in pertinent part, as
follows:


       on or about June 06, 2016 and before the presentment of this Indictment, in the County and State
       aforesaid, 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: Shelby County, because of a reportable conviction for Contributing to the
       Delinquency of A Juvenile, intentionally or knowingly fail[ed] to register with the local law
       enforcement authority in Shelby County.


The second indictment reads exactly the same, except that it states the offense occurred on or about
July 8, 2016.
       Appellant complains that “the two indictments created a ‘material variance’ so that
Appellant was misled and surprised which prejudiced him of his substantial rights and is thus
fatal.” Appellant’s reliance on the variance doctrine is misplaced. At trial, the State offered
evidence that Appellant failed to comply with the registration requirements of Chapter 62 by
failing to disclose an online identifier, i.e. his Facebook account, and by failing to obtain a Texas
issued driver’s license. Thus, there was no variance between the proof offered at trial, and what
was alleged in the indictments. See id.
       In essence, Appellant complains that the indictments lacked the specificity required to
afford him fair notice of the charges. However, Appellant was obligated to lodge this objection
prior to trial to preserve this issue for appellate review. TEX. CODE CRIM. PROC. ANN. art. 1.14 (b)
(West 2005) (“[I]f the defendant does not object to a defect, error, or irregularity of form or
substance in an indictment or information before the date on which the trial on the merits
commences, he waives and forfeits the right to object to the defect, error, or irregularity on appeal
or in any other post-conviction proceeding.”). A review of the record shows that Appellant did
not object before trial to the alleged failure of the indictments to afford sufficient notice of the
charges against him. Rather, Appellant objected only after the State rested its case. Thus,


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Appellant failed to preserve this issue for appellate review. See id.; see also Mills v. State, 941
S.W.2d 204, 208 (Tex. App.—Corpus Christi 1996, pet ref’d). We overrule Appellant’s second
issue.


                                              CONCLUSION
         Having overruled Appellant’s two issues, we affirm the trial court’s judgments.

                                                                BRIAN HOYLE
                                                                   Justice


Opinion delivered October 3, 2018.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                             (DO NOT PUBLISH)



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                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 3, 2018


                                         NO. 12-17-00298-CR


                                     DONALD RAY RUNNELS,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 123rd District Court
                         of Shelby County, Texas (Tr.Ct.No. 17CR20,074)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                          OCTOBER 3, 2018


                                         NO. 12-17-00299-CR


                                     DONALD RAY RUNNELS,
                                            Appellant
                                               V.
                                      THE STATE OF TEXAS,
                                            Appellee


                                Appeal from the 123rd District Court
                         of Shelby County, Texas (Tr.Ct.No. 17CR20,083)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    Brian Hoyle, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
