                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-12-00089-CR

BOBBY JOE WALLER,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 52nd District Court
                              Coryell County, Texas
                              Trial Court No. 20,825


                          MEMORANDUM OPINION


      In one issue, appellant, Bobby Joe Waller, contends that the trial court’s

judgment erroneously indicates that he was convicted of a second-degree felony when,

in fact, the charged offense constituted a third-degree felony. We affirm as modified.

                                   I.     BACKGROUND

      On June 11, 1982, appellant was convicted of aggravated sexual abuse in trial

court cause number 9987 in the 52nd Judicial District Court of Coryell County, Texas.
The trial court sentenced appellant to “not less than five years, no more than ten years

in the Texas Department of Corrections.”

         As he states in his brief, appellant was not required to register as a sex offender

until September 1, 2005. However, on or about June 18, 2010, appellant violated the sex

offender registration statutes by failing to report a change of address. Appellant was

subsequently indicted for failing to register as a sex offender under article 62.102 of the

Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 62.102(a) (West

2006).

         Appellant challenged the applicability of the sex offender registration statutes by

filing a motion to quash and an exception to the substance of the indictment. After a

hearing, appellant’s motion and exception were denied. Thereafter, pursuant to a plea

bargain with the State, appellant pleaded guilty to the charged offense. The trial court

sentenced appellant in accordance with the plea bargain. Appellant received a five-year

prison sentence in the Institutional Division of the Texas Department of Criminal

Justice.     The trial court also certified appellant’s right to appeal, and this appeal

followed.1

                                 II.     THE TRIAL COURT’S JUDGMENT

         In his sole issue on appeal, appellant requests this Court to reform the trial

court’s judgment to reflect that he was convicted of a third-degree felony rather than a




         Specifically, the trial court certified that this is a plea-bargain case, but matters were raised by
         1

written motion filed and ruled on before trial.

Waller v. State                                                                                       Page 2
second-degree felony. Despite being prompted to do so, the State has not filed an

appellee’s brief in this matter.

A.      The State’s Failure to File an Appellee’s Brief

         This Court has noted that there is no rule specifically addressing the effect of

the appellee’s failure to file a brief in response to an appellant’s brief in a criminal

appeal; cf. TEX. R. APP. P. 38.8 (addressing the failure of appellant to file a brief in an

appeal). See State v. Javari Edward Police, 377 S.W.3d 33, 35 (Tex. App.—Waco 2012, no

pet.). In State v. Fiedler, this Court determined that the appellee’s failure to file a brief

constitutes a confession of error. 376 S.W.3d 784, 785 (Tex. App.—Waco 2011, no pet.)

(citing Hawkins v. State, 278 S.W.3d 396, 399 (Tex. App.—Eastland 2008, no pet.);

Siverand v. State, 89 S.W.3d 216, 220 (Tex. App.—Corpus Christi 2002, no pet.)). This

confession of error, however, is not conclusive. Saldano v. State, 70 S.W.3d 873, 884 (Tex.

Crim. App. 2002); see Siverand, 89 S.W.3d at 220.         We must make an independent

examination of the merits of the issues presented for review. Javari Edward Police, 377

S.W.3d at 35 (citing Fielder, 376 S.W.3d at 785; Siverand, 89 S.W.3d at 220). In that

review, we are limited to the arguments advanced by appellee in the trial court so that

we do not advance new arguments on behalf of appellee. Id. (citing Saldano, 70 S.W.3d

at 884; Hawkins, 278 S.W.3d at 399; Siverand, 89 S.W.3d at 220).

B.      The Sex Offender Registration Statutes

        Article 62.002(a) of the Texas Code of Criminal Procedure provides that the sex

offender registration statutes apply only to a reportable conviction or adjudication

occurring on or after September 1, 1970. TEX. CODE CRIM. PROC. ANN. art. 62.002(a)

Waller v. State                                                                        Page 3
(West 2006).      A “reportable conviction or adjudication” means a conviction or

adjudication that is a conviction or an adjudication for, among other things, aggravated

sexual assault of a child. Id. art. 62.001(5)(A) (West Supp. 2012). Appellant does not

dispute on appeal that his 1982 conviction for aggravated sexual abuse constitutes a

reportable conviction within the context of article 62.001(5)(A) and that he was required

to register as a sex offender for life. See id.

        Appellant was indicted for failing to report a change in address in accordance

with article 62.055(a). See id. art. 62.055(a) (West Supp. 2012). A person commits the

offense of failure to comply with the registration requirements of Chapter 62 if the

person is required to register and fails to comply with any requirement of the Chapter.

Id. art. 62.102(a). Appellant pleaded guilty to the charged offense, and the trial court

proceeded to sentencing. In its judgment, the trial court noted that appellant was

convicted of a second-degree felony.

        Article 62.102 provides that a failure to comply with the sex offender registration

requirements is a second-degree felony “if the actor is a person whose duty to register

expires under Article 62.101(a) and who is required to verify registration once each 90-

day period under Article 62.058.” Id. art. 62.102(b)(3). To be subject to the ninety-day

reporting requirement under article 62.058, a person must have been convicted two or

more times for a sexually violent offense, received an order of deferred adjudication

two or more times, or been convicted and received an order of deferred adjudication.

Id. art. 62.058(a) (West 2006). On the other hand, a person who does not meet the

aforementioned requirements of article 62.058 “shall report to the local law enforcement

Waller v. State                                                                      Page 4
authority designated as the person’s primary registration authority by the department

once each year . . . .” Id.

        Here, there is no evidence that appellant meets the requirements for the ninety-

day reporting requirement. See id. In fact, the State proffered only appellant’s 1982

conviction in support of the sex offender registration requirement.           As such, the

evidence established that appellant was only required to report once a year. See id.

And because he was only required to report once a year, appellant’s conviction for

failure to register as a sex offender could not have been a second-degree felony under

article 62.102(b)(3). See id. art. 62.102(b)(3). Instead, appellant’s offense constitutes a

third-degree felony under article 62.102(b)(2). See id. art. 62.102(b)(2) (stating that a

failure to comply with the sex offender registration requirements is a third-degree

felony “if the actor is a person whose duty to register expires under Article 62.101(a)

and who is required to verify registration once each year under Article 62.058”).

        In light of the foregoing and after reviewing the trial court’s judgment, we find

the judgment to erroneously state that appellant’s conviction was a second-degree

felony rather than a third-degree felony. See id. Appellant requests that we modify the

judgment to correct this error. An appellate court has authority to reform a judgment to

include an affirmative finding to make the record speak the truth when the matter has

been called to its attention by any source. See TEX. R. APP. P. 43.2(b); Bigley v. State, 865

S.W.2d 26, 27-28 (Tex. Crim. App. 1993); French v. State, 830 S.W.2d 607, 609 (Tex. Crim.

App. 1992). Accordingly, we reform the trial court’s judgment to reflect that appellant

was convicted of a third-degree felony—failing to register as a sex offender. See TEX. R.

Waller v. State                                                                        Page 5
APP. P. 43.2(b); Bigley, 865 S.W.2d at 27-28; French, 830 S.W.2d at 609. Accordingly, we

sustain appellant’s sole issue.

                                    III.    CONCLUSION

        We modify the trial court’s judgment to reflect that appellant was convicted of a

third-degree felony—failing to register as a sex offender—and affirm the judgment as

modified.




                                                AL SCOGGINS
                                                Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed as modified
Opinion delivered and filed July 18, 2013
Do not publish
[CR25]




Waller v. State                                                                    Page 6
