Opinion issued July 12, 2012




                                     In The

                               Court of Appeals
                                    For The

                        First District of Texas
                          ————————————
                               NO. 01-11-00346-CR
                          ———————————
                         HAIM SILBER, Appellant
                                       V.
                     THE STATE OF TEXAS, Appellee



                  On Appeal from the 232nd District Court
                          Harris County, Texas
                      Trial Court Case No. 0977241



                                  OPINION

     A jury previously convicted appellant, Haim Silber, of the second degree

felony offense of indecency with a child.1 The jury assessed punishment at a


1
     See TEX. PENAL CODE ANN. § 21.11(a)(1) (Vernon 2011).
$10,000 fine and nine years’ confinement, and it recommended that the sentence

be probated. Upon the recommendation of the jury, the trial court placed appellant

on community supervision for five years. The State subsequently filed a motion to

revoke appellant’s community supervision. The trial court granted the motion,

revoked appellant’s community supervision, and assessed punishment at five

years’ confinement. In one issue, appellant contends that the State failed to present

sufficient evidence that he violated conditions of community supervision by

(1) committing an offense against the laws of Texas by changing his residence

without complying with the sex offender registration requirements and (2) failing

to attend a sex-offender treatment session.

      We reverse the revocation order and reinstate appellant’s community

supervision.

                                   Background

      In 2005, appellant was convicted of indecency with a child, and, on the

jury’s recommendation, the trial court placed him on community supervision for

five years. As a condition of his community supervision, appellant was required to

register as a sex offender and comply with all sex offender registration

requirements contained in Code of Criminal Procedure Chapter 62, including the

requirement that, if he changed addresses, he inform the applicable registration

authority of his new address and provide proof of residence. See TEX. CODE CRIM.

                                         2
PROC. ANN. art. 62.055(a) (Vernon Supp. 2011). The terms and conditions of

appellant’s community supervision also required him to refrain from committing

any new offenses against the laws of Texas and to participate in a sex offender

treatment program. Pursuant to these conditions, appellant registered as a sex

offender and provided his address to the registration authorities (“the registered

address”).

      On February 3, 2011, the State moved to revoke appellant’s community

supervision. The State alleged that appellant committed the following violations of

the terms and conditions of his community supervision:

      Committing an offense against the laws of Texas, to wit: on or about
      December 7, 2010, the Defendant did then and there unlawfully while
      a person with a reportable CONVICTION for the offense of
      INDECENCY WITH A CHILD, and while subject to registration
      under the Texas Sex Offender Registration Program, change his
      residential address and intentionally and knowingly fail to timely
      report in person to the local law enforcement agency in the
      municipality or county in which the Defendant’s new address was
      located in order to provide proof of identity and proof of residence, by
      failing to report and provide said information in person to said
      authority within seven days after the change of address or upon the
      first date the authority would, by policy, allow the Defendant to
      report.
      ....
      Failing to comply with sex offender registration, to wit; the Defendant
      was ordered to comply with sex offender registration procedures as
      required by the laws of this or any other State in which he resides
      beginning 10/3/06, and at anytime thereafter as directed by his
      Community Supervision Officer. The Defendant failed to comply
      with sex offender registration procedures by moving without notifying
      the registering agency as required by law.
                                         3
      ....
      Failing to attend sex offender treatment as scheduled on January 27,
      2011.

Appellant pleaded not true to the allegations in the State’s motion to revoke.

      At the revocation hearing, Houston Police Department (“HPD”) Sergeant T.

Wood, who is also a member of an HPD/FBI task force, testified that he was

approached by an FBI agent who requested Wood’s assistance in locating appellant

to conduct an interview concerning an unrelated investigation. The FBI agent

informed Sergeant Wood that he attempted to interview appellant at his registered

address on December 7, 2010, but no one was present. The agent learned that

appellant rented a mailbox at a local UPS Store, and UPS records indicated that

appellant listed his parents’ address, not his registered address, as his home

address.     The agent drove by appellant’s parents’ house and saw a vehicle

registered to appellant parked in front of the house.

      Around 7:30 a.m. on December 13, 2010, Sergeant Wood and his partner

drove to appellant’s parents’ house and saw his vehicle parked in front of the

house. The officers then drove directly to appellant’s registered address, knocked

on the door, and received no answer. Sergeant Wood testified that there was a

vehicle parked in the driveway of the registered address that appeared to be broken

down. Appellant’s next-door neighbor informed Sergeant Wood that appellant had

previously given him permission to park the vehicle in appellant’s driveway.
                                          4
Sergeant Wood testified that he spoke with several of appellant’s neighbors who

lived across the street. These neighbors opined that “[n]o one currently lives at

that address” and told Sergeant Wood that they had seen appellant stop by the

house, pick up the mail, and then leave.        The neighbors correctly identified

appellant’s vehicle.

      Sergeant Wood testified that, during the course of his investigation, he went

by the registered address three or four times from 6:30 to 8:30 in the morning,

three or four times from noon to 2:00 p.m., and three or four times during the

evening, as late as 6:00 p.m. Sergeant Wood never saw appellant or his vehicle at

the registered address, and no one ever answered when he knocked. Sergeant

Wood also checked appellant’s parents’ house three or four times in the morning,

and each time, appellant’s vehicle was present at the house. He never attempted to

speak with appellant at his parents’ house, and he never spoke with appellant’s

parents.

      HPD officers arrested appellant on January 27, 2011. Sergeant Wood spoke

with appellant after his arrest, and he testified that appellant told him that he did

not have electricity at his registered address because he could not afford it, but he

did have water service because his landlord required it.

      Miguel Acosta, who lives across the street from appellant’s registered

address, testified that, although he did not often see appellant at his house, when he

                                          5
did, he would usually see appellant between 8:00 p.m. and 10:00 p.m., and

appellant would arrive and “would look in the mail box for the mail just for a while

and then he would leave.” Acosta never saw any lights on at the house. He also

testified that he usually left for work around 3:00 or 4:00 a.m., and on a few

occasions, he would see appellant’s vehicle parked outside his house. On cross-

examination, Acosta acknowledged that he told his wife that he “used to see

[appellant] coming home at night and leaving early in the morning.”

      Sandra Acosta, Miguel’s wife, testified that she never noticed appellant at

home during daylight hours, but she would see appellant arrive at the registered

address around 8:00 or 9:00 p.m. She did not know how long appellant would stay

at the house, but she would sometimes see appellant’s vehicle parked outside his

house when she awoke to fix Miguel’s lunch around 3:45 a.m. She estimated that

appellant spent the night at the registered address around three nights per week.

She stated that appellant did not spend every night there. On cross-examination,

Sandra acknowledged that she had seen appellant leaving the registered address

around 4:00 a.m.

      Luis Bonilla, who lives directly across the street from appellant, testified that

he had infrequently seen appellant around the neighborhood. He stated that he had

seen appellant a “[l]ittle more often in the past couple of weeks” before the

revocation hearing, at least three times per week. He testified that his wife spoke

                                          6
to a police officer in December 2010, and, before that time, he saw appellant at the

registered address “[m]aybe once every two weeks, no more than three times a

month maybe.” Bonilla testified that, when he saw appellant, it was either from

5:00 p.m. to 7:00 p.m. in the evening or from 8:00 p.m. to midnight. Bonilla

would also occasionally see appellant either “leaving the house or coming to the

house” when he left for work at 6:00 a.m. He testified that appellant would usually

stop at the house, get his mail, and leave, but he stated that appellant would

sometimes stay overnight or for “just a couple [of] hours.” In the weeks leading up

to the revocation hearing, appellant would arrive after 9:00 p.m. and would leave

in the morning.

      John Gallo, another neighbor, agreed with Bonilla that he saw appellant’s

vehicle at the registered address “a lot more often” since the State moved to revoke

appellant’s community supervision.       He testified that he had seen appellant

walking to his vehicle a “couple [of] times” and only after 9:00 p.m. Before an

officer spoke with him about this case, Gallo had only seen appellant “[m]aybe a

couple [of] times in like six months.” Gallo testified that he usually left his house

around 6:00 or 7:00 a.m., and he never saw appellant’s vehicle in front of the

registered address.

      Allen Sumair, appellant’s landlord, testified that appellant had been leasing

the registered address for over two years. Before appellant moved in, no utilities

                                         7
were hooked up, but appellant had hooked up both water and gas service. Sumair

testified that this house had never had electricity service during the time that

appellant has lived there. He also testified that he drives by the property once a

month, and, because the yard and house look well-maintained, he does not stop and

go inside. He has never seen appellant present when he drives by.

      Appellant called Rabbi Betzalel Marinovsky, who testified that appellant is a

student of his. He testified that he is familiar with appellant’s usual daily schedule,

which includes attending a ritual bath and morning prayers at the synagogue

around 6:00 a.m. Appellant goes to Rabbi Marinovsky’s house in the evenings,

after work, for dinner or classes approximately three times per month. On those

occasions, he usually leaves around 10:00 p.m.

      On cross-examination, Rabbi Marinovsky confirmed that he has been to the

registered address “a few times.”       He testified that appellant does not have

electricity at his house. On re-direct, Rabbi Marinovsky testified that he is familiar

with appellant’s financial situation. He stated that appellant earns “very little” and

that he is trying to live a “very economical” life and “as frugal[ly] as possible.”

      David Morekhay testified that he hired appellant on Rabbi Marinovksy’s

recommendation to help with appellant’s financial situation. Morekhay stated that

appellant primarily helps with Morekhay’s family business in Israel. He testified

that he will often work on documents during the day and will then give those

                                           8
documents to appellant to fax, and, because of the eight-hour time difference

between Houston and Israel, appellant has to wait until after 11:00 p.m. Houston

time in order to fax the documents and receive confirmation that the fax was

successfully transmitted. Morekhay testified that his business does not have a fax

machine but appellant’s parents do, and appellant would send faxes from his

parents’ house a “couple [of] times a week at least.”

      On cross-examination, Morekhay testified that he has been to appellant’s

house and that it does not have electricity because appellant “can’t afford it.” He

stated that appellant did have some furniture and belongings there and that he

sleeps there.   He also testified that appellant goes to the ritual bath at the

synagogue every morning around 6:00 a.m.

      Nora Sosa, appellant’s next door neighbor, testified that, when she needs to

speak with appellant, she goes to his house around 11:30 p.m. or 6:00 a.m., when

she knows that he is there. She stated that her husband and appellant have an

arrangement whereby her husband cuts appellant’s grass and appellant allows the

Sosas to park their car in his driveway instead of on the street.       On cross-

examination, she testified that she believes appellant is at the registered address

every night and that she often sees his vehicle parked at the house.

      Dr. Nicholas Edd, a psychologist and licensed sex offender treatment

provider, testified that appellant was referred to him for treatment in March 2007.

                                          9
Dr. Edd stated that he meets with appellant once weekly and that appellant has

missed appointments in the past, but he has always notified Edd in advance to

schedule a make-up session. He testified that, in his opinion, appellant is making

“minimal progress” in his treatment because he is “not taking full responsibility for

the nature of the offense.” On cross-examination, Dr. Edd acknowledged that

appellant was also seeing a psychiatrist and was participating in “ongoing

treatment.”

          At the close of the hearing, the trial court stated, on the record, that it found

that appellant “violated conditions of [his] probation.”           The written judgment

states:

          The Court FINDS Defendant has violated the conditions of
          community supervision as set out in the State’s ORIGINAL Motion to
          Revoke Community Supervision as follows: ON OR ABOUT 12-07-
          2010 HE COMMITTED THE OFFENSE OF FAILURE TO
          COMPLY WITH SEXUAL REGISTRATION REQUIREMENTS.
          HE ALSO FAILED TO ATTEND SEX OFFENDER TREATMENT.

The trial court revoked appellant’s community supervision and assessed

punishment at five years’ confinement.

                         Revocation of Community Supervision

          In his sole issue, appellant contends that the State failed to present sufficient

evidence that he violated the terms of his community supervision by changing his




                                             10
address without notifying the sex offender registration office and by failing to

attend a sex-offender treatment session.2

      A.     Standard of Review

      At a hearing to revoke a defendant’s community supervision, the State must

prove by a preponderance of the evidence that the defendant has violated a

condition of his community supervision. Rickels v. State, 202 S.W.3d 759, 763–64

(Tex. Crim. App. 2006) (quoting Scamardo v. State, 517 S.W.2d 293, 298 (Tex.

Crim. App. 1974)); Canseco v. State, 199 S.W.3d 437, 438 (Tex. App.—Houston

[1st Dist.] 2006, pet. ref’d). “[A]n order revoking probation must be supported by

a preponderance of the evidence; in other words, that greater weight of the credible

evidence which would create a reasonable belief that the defendant has violated a

condition of his probation.” Rickels, 202 S.W.3d at 763–64 (quoting Scamardo,

517 S.W.2d at 298). Our review of an order revoking community supervision is

limited to determining whether the trial court abused its discretion in ruling that the

defendant violated the terms of his community supervision. Rickels, 202 S.W.3d at

763 (quoting Cardona v. State, 665 S.W.2d 492, 493 (Tex. Crim. App. 1984));

2
      Although the State, in its motion to revoke, alleged three distinct violations of the
      terms of appellant’s community supervision, it alleged that appellant committed a
      new offense against the laws of the State of Texas by failing to comply with the
      applicable sex-offender registration requirements—namely, by failing to notify
      authorities of his change in address—and, as a separate violation, that appellant
      violated the sex-offender registration requirements by failing to report his address
      change. We treat these allegations as one ground supporting revocation of
      appellant’s community supervision.
                                            11
Duncan v. State, 321 S.W.3d 53, 56–57 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d). We examine the evidence in the light most favorable to the trial court’s

order. Duncan, 321 S.W.3d at 57; Canseco, 199 S.W.3d at 439.

      A finding of a single violation of the terms of community supervision is

sufficient to support revocation. Joseph v. State, 3 S.W.3d 627, 640 (Tex. App.—

Houston [14th Dist.] 1999, no pet.); see also Moore v. State, 605 S.W.2d 924, 926

(Tex. Crim. App. 1980) (“We need not address appellant’s other contentions since

one sufficient ground for revocation will support the court’s order to revoke

probation.”). Thus, in order to prevail on appeal, the defendant must successfully

challenge all of the findings that support the revocation order. Joseph, 3 S.W.3d at

640 (citing Jones v. State, 571 S.W.2d 191, 193–94 (Tex. Crim. App. 1978)); see

also Baxter v. State, 936 S.W.2d 469, 472 (Tex. App.—Fort Worth 1996, pet.

dism’d) (holding that because appellant did not challenge second ground for

revocation, sufficient evidence supported revocation).

      B.     Failure to Update Sex Offender Registration Information

      A person commits the offense of failure to comply with sex offender

registration requirements if he “is required to register and fails to comply with any

requirement of” Chapter 62 of the Code of Criminal Procedure. TEX. CODE CRIM.

PROC. ANN. art. 62.102(a) (Vernon 2006); Young v. State, 341 S.W.3d 417, 425

(Tex. Crim. App. 2011) (“Article 62.102 is a generalized ‘umbrella’ statute that

                                         12
criminalizes the failure to comply with any of the registration requirements set out

in Chapter 62.”).     Article 62.051(a) requires a person with a “reportable

conviction” to register with “the local law enforcement authority in any

municipality where the person resides or intends to reside for more than seven

days.” TEX. CODE CRIM. PROC. ANN. art. 62.051(a) (Vernon Supp. 2011).

      If a person who is required to register as a sex offender intends to change the

address of his residence, he “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 . . . community supervision and corrections department officer . . . supervising

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

move date and new address.” Id. art. 62.055(a); Green v. State, 350 S.W.3d 617,

621 (Tex. App.—Houston [14th Dist.] 2011, pet. ref’d); Villanueva v. State, 257

S.W.3d 527, 529 (Tex. App.—Austin 2008, no pet.).             The Code of Criminal

Procedure also provides,

      If a person required to register changes address, the person shall, not
      later than . . . the seventh day after changing the address . . . 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.

TEX. CODE CRIM. PROC. ANN. art. 62.055(a); Young, 341 S.W.3d at 420 (“[A]ll

registered sex offenders are required to give notice in person to local law

                                          13
enforcement when they intend to change their address and again after they have

done so.”).   In this situation, the “forbidden act” is “failing to inform law

enforcement about an impending or completed change of residence.” Young, 341

S.W.3d at 426.

      Code of Criminal Procedure Chapter 62 does not provide a definition for

what constitutes a “residence.”3 In the context of a defendant’s alleged failure to

inform his probation officer of a change in residence, as required by the terms and

conditions of his probation, the Court of Criminal Appeals has held that

      [r]esidence is an elastic term. The meaning that must be given to it
      depends upon the circumstances surrounding the person involved and
      largely depends upon the present intention of the individual. Neither
      bodily presence alone nor intention alone will suffice to create the
      residence, but when the two coincide, at that moment the residence is
      fixed and determined.

Whitney v. State, 472 S.W.2d 524, 525 (Tex. Crim. App. 1971); see also

Whitehead v. State, 556 S.W.2d 802, 805–06 (Tex. Crim. App. 1977) (citing

Whitney with approval and holding that State failed to present sufficient evidence

that probationer changed his residence when probationer stayed at another location



3
      Instead, Chapter 62 solely defines “residence” as follows: “‘Residence’ includes a
      residence established in this state by a person described by Article 62.152(e).”
      TEX. CODE CRIM. PROC. ANN. art. 62.001(7) (Vernon Supp. 2011). Article
      62.152(e) describes certain workers or students who reside in another state, are
      “employed, carr[y] on a vocation, or [are] student[s] in this state,” and who
      establish a second residence in this state to work or attend school. Id. art.
      62.152(e) (Vernon 2006). This statute is not applicable here.
                                          14
for less than two weeks, but left property at registered address and testified that he

considered his registered address to be his permanent address).

      Here, in its motion to revoke appellant’s community supervision, the State

alleged that appellant committed a new offense against the laws of Texas by failing

to comply with the sex offender registration requirement mandating that, if he

changes his address, he report his new address and provide proof of residence to

the proper authorities within seven days after the address change. The State

contended that appellant changed his residence from his registered address to his

parents’ house. As supporting evidence, the State pointed out that officers had

checked appellant’s registered address at different times of the day on several

different days and never found him at that address; that appellant’s neighbors

testified that they rarely saw him and, when they did, he would check his mail, stay

for a short period of time, and then leave; that his neighbors never saw any lights

on at his registered address; that appellant only spent a few nights per week at the

registered address; that, after the State moved to revoke, appellant began spending

more time at the registered address; that officers saw appellant’s vehicle parked at

his parents’ address on several occasions; and that appellant had rented a box at a

UPS Store and listed his parents’ address as his home address.

      Sergeant Wood testified that he visited appellant’s parents’ house “three or

four times in the morning” and found appellant’s vehicle parked outside, but the

                                         15
State presented no evidence that appellant does anything more than frequently visit

his parents’ house. Sandra Acosta estimated that appellant only spent three nights

per week at the registered address, but the State presented no evidence that

appellant ever spent the night at his parents’ house or that he moved any of his

belongings to his parents’ house. Although he listed his parents’ address as his

home address for the purposes of obtaining a mailbox at a UPS Store, the State

presented no evidence concerning when appellant obtained that box or whether he

currently utilized that box at the time of the relevant events.

      The State’s evidence that appellant was not present at the registered address

during the day, that he was not often seen by his neighbors at the registered

address, that he did not have electricity at the registered address, and that he did

not spend every night at the registered address does not constitute evidence that

appellant was not still living and residing at the registered address. The testimony,

for example, also reflected that appellant spent at least a few nights per week at the

registered address and that he still received mail at the registered address.

Appellant presented evidence that, due to his financial situation, he could not

afford electricity, but he could afford water and gas service at the registered

address, as required by his landlord. Appellant successfully made his monthly

rental payments, and his landlord testified that he drove by the property once a

month, and, because the house and the yard looked well-maintained, he did not

                                          16
stop to inquire about appellant’s use of the property. Appellant’s witnesses also

testified concerning his unusual hours: appellant attended the ritual baths and

morning prayers at his synagogue every morning around 6:00 a.m., and, due to the

need to occasionally send faxes to Israel for work, he had to use the fax machine at

his parents’ house late at night.4    Appellant also presented evidence that he

maintains furniture and belongings at the registered address.

      A registered sex offender is not required to spend every spare moment and

every night at their registered address. See Whitehead, 556 S.W.2d at 805–06;

Whitney, 472 S.W.2d at 525. We conclude that, based on the particular facts and

circumstances of this case, the State failed to prove that appellant changed his

residence from his registered address to his parents’ house. See Whitehead, 556

S.W.2d at 805–06. We hold that the trial court erroneously found that appellant

committed a new offense against the laws of Texas by failing to comply with Code

of Criminal Procedure article 62.055(a)’s requirement that he inform the

appropriate authorities of his change in residence in accordance with the particular

conditions of that statute.

      C.     Failure to Attend Sex Offender Treatment

      The terms and conditions of appellant’s community supervision required

him to attend a sex-offender treatment program. Since March 2007, appellant had

4
      There is no evidence that, on these occasions, appellant would then spend the
      night at his parents’ house instead of returning to the registered address.
                                         17
met with Dr. Edd once a week for such treatment. In its motion to revoke, the

State alleged that appellant “fail[ed] to attend sex offender treatment as scheduled

on January 27, 2011.” Appellant contends that the State presented no evidence that

he failed to attend treatment on this date and that, even if he did so fail, his failure

was due to HPD officers arresting him for failure to comply with the sex-offender

registration requirements. We agree with appellant.

      Dr. Edd testified that he is a licensed sex-offender treatment provider and

that he had been treating appellant since March 2007. He testified that he meets

with appellant once a week, and, although appellant occasionally misses

appointments, he has always notified Dr. Edd ahead of time and scheduled a make-

up session. The prosecutor and Dr. Edd then discussed whether, in Dr. Edd’s

opinion, appellant was making progress in his treatment. The State did not ask Dr.

Edd whether appellant had an appointment scheduled for January 27, 2011, the

time of this appointment, or whether appellant failed to attend that appointment.

Moreover, in response to a question from the trial court, Sergeant Wood testified

that he arrested appellant on January 27, 2011. There was no testimony concerning

what time of day the arrest occurred.

      We conclude that the State failed to prove that appellant did not attend his

required sex offender treatment appointment on January 27, 2011. We therefore

hold that, because the State failed to present sufficient evidence that appellant

                                          18
violated the specific terms and conditions of his community supervision as

enumerated in the motion to revoke, the trial court abused its discretion in revoking

appellant’s community supervision.

      We sustain appellant’s sole issue.

                                     Conclusion

      We reverse the revocation order of the trial court and reinstate appellant’s

community supervision.




                                                Evelyn V. Keyes
                                                Justice

Panel consists of Chief Justice Radack and Justices Jennings and Keyes.

Publish. TEX. R. APP. P. 47.2(b).




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