Domingo Gomez, Jr. v. The State of Texas--Appeal from 132nd District Court of Scurry County

Opinion filed August 16, 2007

In The

Eleventh Court of Appeals

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   No. 11-06-00043-CR

__________

   DOMINGO GOMEZ, JR., Appellant

V.

STATE OF TEXAS, Appellee

On Appeal from the 132nd District Court

Scurry County, Texas

Trial Court Cause No. 8924

O P I N I O N

The jury convicted Domingo Gomez, Jr. of the offense of failure to register as a sex offender[1] and assessed his punishment at confinement for twelve years and a fine of $5,000. We affirm.

Appellant presents three issues on appeal. In the first and second issues, he challenges the legal and factual sufficiency of the evidence regarding his culpable mental state. In order to determine if the evidence is legally sufficient, we must review all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Jackson v. State, 17 S.W.3d 664 (Tex. Crin. App. 2000). To determine if the evidence is factually sufficient, we must review all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10-11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407-08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, we must determine whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the conflicting evidence. Watson, 204 S.W.3d at 414-15; Johnson, 23 S.W.3d at 10-11. We must also give due deference to the jury=s determinations of fact, particularly those determinations concerning the weight and credibility of the evidence. Johnson, 23 S.W.3d at 8-9.

The record in this case shows that appellant was convicted in 1991 of indecency with a child. As a result, appellant has a lifetime duty to register annually as a sex offender. Tex. Code Crim. Proc. Ann. art. 62.101(a) (Vernon 2006), formerly Tex. Code Crim. Proc. art. 62.12 (1997) (requiring lifetime registration); see Rodriguez v. State, 93 S.W.3d 60 (Tex. Crim. App. 2002). Appellant=s registration must be performed within thirty days before or thirty days after his birthday, which is February 7. Tex. Code Crim. Proc. Ann. art. 62.058 (Vernon 2006), formerly Tex. Code Crim. Proc. art. 62.06 (1997). At trial, appellant acknowledged being notified of his obligation to register annually for life and having a prior conviction for failing to register (in 1999) as a sex offender. He also admitted that he did not register during the required time period in 2005. Appellant contended at trial and argues on appeal that his failure to register was not done knowingly, intentionally, or recklessly[2] because he attempted to register and because he was in jail during a portion of the applicable registration period.

Appellant was required to register between the dates of January 8 and March 9, 2005 (thirty days before and after February 7). He testified that he went to the police station intending to register a few days after his birthday but was unable to do so because his identification card had expired. Appellant stated that Lisa Tate, the sex offender registration coordinator, sent him to the DPS office to renew his identification card. When appellant arrived at the DPS office, it was closed. He returned to the DPS office a couple of weeks later on February 25. He renewed his identification card, but he was arrested on an unrelated warrant for failing to appear in a child support matter in another county. Appellant testified that, when he first arrived at the jail, he asked to talk to Tate because he needed to register as a sex offender. He said that he did not inquire into the matter again.

Appellant remained in jail from February 25 through March 25, 2005. After being released from jail, appellant did not attempt to register late even though he had been allowed to do so in 2001. Appellant acknowledged that in 2001 he did not register until October when he received a message from the district attorney that he had missed the registration deadline and needed to register. Appellant testified that, since it was too late to register when he was released from jail on March 25, 2005, he just waited to be arrested for failing to register. He was arrested for this offense on July 23, 2005.

Tate testified that she did not recall whether appellant attempted to register with an expired identification card, but she said that she would have sent him to renew it or to get some other document to verify his address because an expired identification card is not acceptable. Tate testified that she accepts a variety of documents to verify an address, including a driver=s license, identification card, utility bill, pay stub containing a current address, lease agreement, or postmarked mail with the name and address on it. When Tate learned that appellant was in jail, she asked the jailer to put a note in appellant=s file to contact her when he was released or before he was transferred to another county. Tate also testified that she registers sex offenders even after they have missed their deadline. According to Tate, appellant still had not registered as of the date of trial, January 30, 2006.

After reviewing all of the evidence in this case, we hold that the evidence is both legally and factually sufficient to support the jury=s verdict. Appellant was aware of his duty to register as a sex offender, and he admittedly failed to comply. See Reyes v. State, 96 S.W.3d 603, 604-05 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d). Appellant=s first and second issues are overruled.

In his third issue, appellant contends that the trial court erred in overruling an objection to the State=s jury argument. The record reflects the following:

[PROSECUTOR]: What about Domingo Gomez=s responsibility? He tells you when he got back from San Patricio County that he didn=t register. He says, AI just stayed there and waited for them to come pick me up.@ Ladies and gentlemen, that is intentional. That is knowing. He made that decision. He knew if he just got in there and registered that he could do that. He had done it before. He had been eight months late. . . . All this stuff that [defense counsel] says about him being unable to register within the 61-day time frame doesn=t matter.

[DEFENSE COUNSEL]: Judge, I object. That=s exactly what he=s indicted for. It matters completely.

The trial court overruled the objection, and the prosecutor continued explaining that appellant=s own actions kept him from registering and that he had ample time both during and after the 61-day period to register.

There are four categories of proper jury argument: (1) summation of the evidence, (2) reasonable deductions from the evidence, (3) answers to the arguments of opposing counsel, and (4) pleas for law enforcement. Cantu v. State, 842 S.W.2d 667, 690 (Tex. Crim. App. 1992). Appellate courts should not hesitate to reverse when it appears the State has departed from one of these areas in argument and has engaged in conduct calculated to deny the accused a fair and impartial trial. Johnson v. State, 604 S.W.2d 128, 135 (Tex. Crim. App. 1980). The test to determine whether an improper argument constitutes reversible error is whether the argument violates a statute; injects a new and harmful fact into the case; or is manifestly improper, harmful, and prejudicial to the rights of the accused. Wilson v. State, 938 S.W.2d 57, 59 (Tex. Crim. App. 1996).

Appellant acknowledges that the prosecutor=s argument was apparently made in response to appellant=s closing argument, but he argues that the prosecutor=s argument was nonetheless improper because it was legally incorrect. We agree that the prosecutor=s argument was a response to the argument of defense counsel, but we cannot hold that it was legally incorrect. In her argument, the prosecutor did not ask the jury to disregard the elements of the offense as charged in the indictment. Rather, the prosecutor was merely responding to defense counsel=s request to acquit appellant because he was not able to register within the required 61-day period B either because his identification card had expired or because he was in jail. The prosecutor=s response merely implied that appellant=s supposed inability should not determine the jury=s verdict because appellant had ample time during the 61-day period to register and because any failure to do so was appellant=s fault. We hold that the prosecutor=s argument was not improper. Consequently, we overrule appellant=s third issue.

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

August 16, 2007

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Tex. Code Crim. Proc. Ann. art. 62.102 (Vernon 2006), formerly Tex. Code Crim. Proc. art. 62.10 (1997).

[2]We note that the State asserts that the inclusion of these culpable mental states in the indictment was merely surplusage and, therefore, not an essential element that had to be proved by the State. See Rodriguez v. State, 93 S.W.3d 60, 73 (Tex. Crim. App. 2002) (holding that the 1997 amendments to the sex-offender registration statute did not constitute ex post facto violations and concluding that Athe statute does not require a culpable mental state with respect to the registration and notification provisions@). But see Reyes v. State, 96 S.W.3d 603, 605 n.1 (Tex. App.CHouston [1st Dist.] 2002, pet. ref=d) (declining to follow Rodriguez, instead citing Aguirre v. State, 22 S.W.3d 463, 472 (Tex. Crim. App. 1999), and Tex. Penal Code Ann. ' 6.02 (Vernon Supp. 2006) for the proposition that a culpable mental state is required even though one is not specified in the statute). Because we find the evidence to be sufficient to prove the culpable mental state as charged in this case, we need not determine whether the culpable mental state was merely surplusage or whether the sex-offender registration statute requires a culpable mental state.