                          NUMBER 13-12-00254-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

HOMERO ERASMO GARZA JR.,                                                 Appellant,


                                          v.


THE STATE OF TEXAS,                                                      Appellee.


                   On appeal from the 206th District Court
                         of Hidalgo County, Texas.


                        MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Benavides and Longoria
             Memorandum Opinion by Justice Longoria
      By one issue, appellant, Homero Erasmo Garza, Jr., appeals his conviction for

failure to register as a sex offender, a third-degree felony. See TEX. CODE CRIM. PROC.

ANN. art. 62.102(b)(2) (West 2006). We affirm.
                                      I. BACKGROUND

       On March 2, 2008, appellant was placed on deferred adjudication community

supervision for the offense of sexual assault of a child. See TEX. PENAL CODE ANN. §

22.011(a)(2) (West 2011). Thereafter, appellant was indicted for failing to register as a

sex offender. The indictment alleged that, on or about October 11, 2011, appellant was

required to but failed to register as a sex offender with officials of the City of Edinburg,

Texas. Appellant pled not guilty. At the conclusion of a jury trial, appellant was found

guilty as charged. This appeal ensued.

                                        II. ANALYSIS

       In one issue, appellant argues that the evidence was not sufficient to support the

jury’s verdict.

A. Standard of Review

       In a sufficiency review, courts examine the evidence in the light most favorable to

the verdict to determine whether “any rational fact finder could have found guilt beyond

a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); Brooks v. State,

323 S.W.3d 893, 895 (Tex. Crim. App. 2010) (“[T]he Jackson legal-sufficiency standard

is the only standard that a reviewing court should apply in determining whether the

evidence is sufficient to support each element of a criminal offense that the State is

required to prove beyond a reasonable doubt.”).         This standard requires reviewing

courts to resolve any evidentiary inconsistencies in favor of the judgment, keeping in

mind that the jury is the exclusive judge of the facts, the credibility of the witnesses, and

the weight to give their testimony. Brooks, 323 S.W.3d at 899; see also TEX. CODE

CRIM. PROC. ANN. art. 38.04 (West 1979) (“The jury, in all cases, is the exclusive judge



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of the facts proved, and of the weight to be given to the testimony. . . .”). Appellate

courts do not re-evaluate the weight and credibility of the evidence; they only ensure

that the fact finder reached a rational decision. Laster v. State, 275 S.W.3d 512, 517

(Tex. Crim. App. 2009).

       Sufficiency of the evidence is measured by the elements of the offense as

defined by a hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327

(Tex. Crim. App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997).

“Such a charge is one that 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 was tried.” Villarreal, 286 S.W.3d at 327; Malik, 953 S.W.2d at 240.

B. Applicable Law

       A person commits the offense of failure to comply with registration requirements

if the person “is required to register and fails to comply with any requirement” of chapter

62. TEX. CODE CRIM. PROC. ANN. art. 62.102. In relevant part, chapter 62 provides as

follows:

       A person who has a reportable conviction or adjudication or who is
       required to register as a condition of parole, release to mandatory
       supervision, or community supervision shall register or, if the person is a
       person for whom registration is completed under this chapter, verify
       registration as provided by Subsection (f), with the local law enforcement
       authority in any municipality where the person resides or intends to reside
       for more than seven days. If the person does not reside or intend to
       reside in a municipality, the person shall register or verify registration in
       any county where the person resides or intends to reside for more than
       seven days. The person shall satisfy the requirements of this subsection
       not later than the later of:

              (1) the seventh day after the person's arrival in the municipality or
              county; or

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              (2) the first date the local law enforcement authority of the
              municipality or county by policy allows the person to register or
              verify registration, as applicable.

Id. art. 62.051(a) (West Supp. 2011).

       Therefore, under a hypothetically correct jury charge, the State had to prove

beyond a reasonable doubt that (1) appellant was required to comply with the

registration requirements of chapter 62 of the code of criminal procedure (i.e., he was a

sex offender) and that (2) appellant intentionally, knowingly, or recklessly failed to report

to local law enforcement within the allotted time. See id.; TEX. PENAL CODE ANN. §

6.02(b)–(c) (West 2011) (stating that if 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” and that “intent, knowledge, or recklessness

suffices to establish criminal responsibility”).

C. Discussion

       The record reflects that, after appellant received deferred adjudication, he

registered with the proper authorities in Edinburg, Texas, indicating that he was residing

at 1015 Manana Street. The record also reflects that appellant’s wife and children

reside at 1015 Manana Street.          Approximately six months after appellant’s initial

registration, appellant was required to relocate because the residence located at 1015

Manana Street was within the child-safety-zone distance from a day-care center in

violation of condition 12 of appellant’s terms of community supervision. Subsequently,

on June 14, 2010, appellant registered with the Pharr Police Department, indicating that

he was living at a residence with his father in Pharr, Texas.




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       Appellant contends that the evidence was not sufficient to support the jury’s

verdict because the State failed to prove that, in or about October 2011, appellant “had,

in fact, moved to his wife’s house at 1015 Manana Street in Edinburg, and resided or

intended to reside at that residence for more than seven days.” Thus, according to

appellant, he was not required to register with the authorities in Edinburg.

       At trial, the State offered the testimony of six witnesses to establish that, at the

time of the offense in October 2011, appellant had resided or intended to reside at his

wife’s residence in Edinburg for more than seven days. Two neighbors testified that

they had seen appellant at the Edinburg residence on a “consistent” basis. One of the

neighbors testified that he believed appellant had been living at the residence for twenty

or more consecutive days. This witness observed appellant engaging in day-to-day

activities consistent with those of a resident, such as checking the mail and taking out

the trash. The second neighbor also believed appellant was living at the residence, but

he did not know how long appellant had been living there. This witness observed

appellant’s wife throwing clothes out on the street, arguing with appellant, and

demanding that appellant leave the premises.

       Another witness for the State was Marcus Ramirez, an officer with the Pharr

Police Department who was involved in overseeing the sex offender registration

program. Ramirez testified that he went to appellant’s address of record in Pharr on a

number of occasions and discovered that appellant was not there. Ramirez testified

that he obtained information from appellant’s father indicating that appellant would go to

Edinburg to stay with his wife for several days at a time.         According to Ramirez,

appellant’s last update on October 27, 2011 indicated that appellant continued to reside



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at the Pharr residence with his father; however, based on his experience and

observations, Ramirez believed that appellant was no longer residing in Pharr.

      The State also relied on the testimony of Leticia Trevino Garcia, appellant’s

probation officer from March 2008 through June 2011. Garcia testified that she found

appellant at the Edinburg address between five and ten times. Garcia also testified that

she went to the Pharr residence several times and confirmed that appellant’s

belongings remained at that location.     Based on her experience and observations,

Garcia believed appellant was residing in Edinburg, not Pharr.

      Another witness called by the State was Anna Maria Wittenberg. Wittenberg

began working as appellant’s probation officer in June 2011. Wittenberg testified that

she made several visits to the Pharr residence, but she was not able to contact

appellant at that location because he was never there. She suspected that appellant

was residing in Edinburg.

      Finally, the State relied on the testimony of Officer Arturo Montemayor of the

Edinburg Police Department. Montemayor testified that he was assigned the case after

appellant’s probation officer and the Pharr Police Department expressed concerns that

appellant was no longer residing in Pharr with his father, where he was registered with

local authorities, but was in fact residing with his wife in Edinburg.      Montemayor

conducted an investigation, which included interviews with appellant, appellant’s father,

and neighbors who lived in the Edinburg neighborhood where appellant’s wife lived, all

of whom stated that they had seen appellant at the residence over the course of several

weeks. In addition, Montemayor testified that he discovered appellant at the Edinburg




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residence. Based on the information gathered during the course of his investigation,

Montemayor concluded that appellant was in violation of the reporting statute.

       We conclude that the foregoing evidence is sufficient to prove that appellant

resided or intended to reside in Edinburg for more than seven days and failed to register

as required by article 62.102. Accordingly, appellant’s issue is overruled.

                                     III. CONCLUSION

       The judgment of the trial court is affirmed.




                                                 _______________________
                                                 NORA L. LONGORIA
                                                 Justice
Do not publish.
TEX. R. APP. P. 47.2(b).

Delivered and filed the
14th day of March, 2013.




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