Josue Villareal Perez v. The State of Texas--Appeal from 184th District Court of Harris County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00067-CR

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JOSUE VILLAREAL PEREZ, Appellant

V.

THE STATE OF TEXAS, Appellee

On Appeal from the 184th Judicial District Court

Harris County, Texas

Trial Court No. 912362

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Convicted of rape by force and imprisoned since 1980, Josue Villareal Perez was released under mandatory supervision on August 31, 2001, and assigned to live at the Reid Community Correctional Facility, a Houston halfway house. Although Perez initially complied with the conditions of his release, including registering as a sex offender and submitting to wear an ankle monitor, he left the Reid facility on October 4, 2001, removed the monitor, and failed to notify the authorities of his whereabouts. Only after Perez was arrested on October 15, 2001, did he meet again with his parole officer this time in jail.

Perez was indicted for failure to comply with sex offender registration requirements, and a Harris County jury subsequently found him guilty as charged, assessing punishment at thirty-seven years' confinement. Perez now appeals, contending (1) the evidence is legally and factually insufficient, (2) the trial court erred by admitting evidence in violation of its own discovery order and in conflict with a prior ruling, (3) the court erred by denying a request to include an instruction on necessity in the jury charge, and (4) the sex offender registration laws violate the ex post facto clauses of the United States and Texas Constitutions.

Sufficiency of the Evidence

Perez contends in his first and second points of error that the evidence presented at trial was both legally and factually insufficient to support his conviction. In evaluating legal sufficiency, we view 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, 318 19 (1979); King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000). When reviewing the factual sufficiency of the elements of an offense, however, we view all the evidence in a neutral light and "set[] aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust." Johnson v. State, 23 S.W.3d 1, 6 7 (Tex. Crim. App. 2000) (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)).

Conceding he was required to register as a sex offender, Perez nevertheless argues that he fulfilled his obligations under Chapter 62 of the Texas Code of Criminal Procedure and that there is no evidence he committed the offense charged. That is, even though Perez admits he may have been in violation of other reporting requirements, he maintains there is no evidence he intended or anticipated leaving the Reid facility before he actually left. // He reasons, therefore, that the evidence cannot support his conviction under Article 62.04(a), which states in part:

If a person required to register intends to change address, . . . the person 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 . . . parole officer supervising the person and provide the authority and the officer with the person's anticipated move date and new address.

Tex. Code Crim. Proc. Ann. art. 62.04(a) (Vernon Supp. 2004) (emphasis added).

Reviewing the evidence in the light most favorable to the verdict, it is clear that a rational trier of fact could have found beyond a reasonable doubt Perez intended to leave the Reid facility. The evidence demonstrates that, without first notifying the Houston Police Department or his parole officer, Perez left the Reid facility October 4, 2001, removed the ankle monitor he was required to wear under the terms of his release, and remained at large until his arrest October 15. The record also indicates Perez never attempted to contact the authorities at any time before his arrest, either to explain his absence or to inform them of his whereabouts. In light of this evidence, the jury reasonably concluded Perez intentionally left the Reid facility and failed to report, in violation of Article 62.04(a).

Even when viewing the evidence in a neutral light, the jury's conclusion is reasonable. When conducting a factual sufficiency review, we consider all of the evidence in the record, comparing the weight of the evidence that tends to prove guilt with the evidence that tends to disprove it, considering any reasonable hypothesis raised. See Fuentes v. State, 991 S.W.2d 267, 271 (Tex. Crim. App. 1999); Richardson v. State, 973 S.W.2d 384, 387 (Tex. App. Dallas 1998, no pet.). Perez does not dispute the facts discussed in the preceding paragraph, but argues he cannot have violated Article 62.04(a) because he never anticipated moving. Instead, he claims to have departed on the spur of the moment because he feared for his life after being robbed by other Reid facility residents.

In support of this claim, Perez cites two letters written to his parole officer in the days following his arrest. Although they do not support the claim that he fled because he feared for his life, they do indicate Perez panicked when confronted with the possibility of returning to prison, at least suggesting his flight was unanticipated. After Perez's altercation with the other Reid facility residents, Perez remembered the shift captain saying he was going to call the police. Perez wrote of his own response to this incident: "I panicked! I got so very afraid of being sent back to prison, because I'm 45 years of age, and have already served all my life in there. So I ran, because I was afraid of being sent back." While this post-arrest explanation provided at least some evidence that Perez may not have anticipated leaving the Reid facility, it was well within the jury's discretion to assess its credibility in light of the evidence presented by the State. Deferring to the jury's role as the sole judge of the weight and credibility of the evidence presented at trial, we cannot conclude the verdict was so contrary to the overwhelming weight of the evidence as to be wrong or unjust. Johnson, 23 S.W.3d at 6 7.

Admission of Evidence

Perez argues in his third point of error that the trial court erroneously admitted evidence in violation of an earlier discovery order and trial ruling. When the State attempted to introduce evidence of an admission made to Perez's parole officer, which had been reduced to writing and kept in Perez's parole file, Perez objected on the ground the State had violated the court's discovery order by failing to earlier disclose the document in question. The trial court agreed and sustained the objection. Moments later, however, the trial court overruled Perez's hearsay objection to the State's attempt to elicit the same information from the parole officer by asking what Perez had admitted to her before she reduced it to the excluded writing. Although the trial court did exclude the document in question as a violation of its discovery order, the trial court still permitted Perez's parole officer to use the document to refresh her memory before answering the State's question concerning Perez's admission that he had relocated without permission.

Even if the trial court erroneously permitted Perez's parole officer to refresh her memory from a document excluded under the court's own discovery order, we need not address the merits of this complaint because Perez failed to request a continuance or postponement of trial. It is well established that "[f]ailure to seek a continuance or postponement of the trial when the State allegedly fails to fully effectuate discovery causing surprise waives any error." McQueen v. State, 984 S.W.2d 712, 718 (Tex. App. Texarkana 1998, no pet.) (citing Lindley v. State, 635 S.W.2d 541, 544 (Tex. Crim. App. 1982); Garner v. State, 939 S.W.2d 802, 804 (Tex. App. Fort Worth 1997, pet. ref'd); Mock v. State, 848 S.W.2d 215, 222 (Tex. App. El Paso 1992, pet. ref'd)).

Denial of Necessity Instruction

Perez contends in his fourth point of error that the trial court erred in denying his requested jury instruction on the issue of necessity. In order for a criminal defendant to properly raise the defense of necessity, however, he or she must not only admit to the action underlying the offense charged, but also produce evidence at trial supporting the defensive theory that the charged conduct was justified under the circumstances. Arnwine v. State, 20 S.W.3d 155, 158 (Tex. App. Texarkana 2000, no pet.). Although Perez did not directly admit his failure to report, it is arguable he satisfied this first requirement by admitting in his letters to his parole officer that, when faced with the possibility of being sent back to prison, he fled the Reid facility without first turning to her for help.

Even if we determined Perez's admission satisfied the requirement that he admit to the action underlying the offense charged, he is still not entitled to an instruction on the defense of necessity without presenting evidence his actions were justified. On the contrary, we note that the very evidence he holds up as justification for his noncompliance with the requirements of the sex offender registration program belies the claim he acted out of fear for his life, necessitating his departure to avoid imminent harm. As previously mentioned, the letters Perez wrote to his parole officer after his arrest indicate Perez panicked after an incident at the Reid facility; however, nothing in the letters supports the assertion he fled because he feared for his life. Instead, Perez explained in his first letter that he ran off because he feared being arrested and sent back to prison. Reiterating this explanation in the second letter to his parole officer, Perez added: "I truly apologize to you for running off, instead of turning to you for help. But to be honest, I was more afraid of you, and what you would do to me, that I couldn't think of nothing but run and hide."

The content of these letters the only evidence on which Perez relies to establish necessity is wholly inadequate to support his claim that the evidence met all of the conditions required by Section 9.22 of the Texas Penal Code. // As a result, there was no error in the trial court's decision to omit such an instruction from the charge.

Sex Offender Registration

Perez contends in his fifth point of error that his conviction and punishment under the sex offender registration laws violates the ex post facto clauses of the United States and Texas Constitutions. He essentially argues that, because the requirements of the sex offender registration program were not enacted until after his 1980 conviction, the conviction underlying this appeal amounts to a second punishment for the earlier offense, thus constituting an impermissible application of the law.

Federal and state constitutional law absolutely prohibits the enactment of ex post facto laws, U.S. Const. art. I, 10; Tex. Const. art. I, 16; Ieppert v. State, 908 S.W.2d 217 (Tex. Crim. App. 1995); however, the registration requirement for sex offenders is not an ex post facto law, Cooper v. State, 2 S.W.3d 500, 503 (Tex. App. Texarkana 1999, pet. ref'd). // We have previously held that the duty to register pursuant to a criminal registration statute is a collateral consequence of an adjudication of guilt because it is remedial rather than punitive in nature. Id. Because the registration requirement is not a form of punishment, it follows that ex post facto analysis does not apply to its application. White v. State, 988 S.W.2d 277, 279 (Tex. App. Texarkana 1999, no pet.). //

Conclusion

We conclude, therefore, that (1) the evidence supporting Perez's conviction is legally and factually sufficient, (2) no error was preserved concerning the State's alleged violation of the trial court's discovery order, (3) there was no error in omitting from the jury charge an instruction on necessity, and (4) the sex offender registration laws are not ex post facto laws.

Accordingly, we affirm the judgment of the trial court.

Josh R. Morriss, III

Chief Justice

Date Submitted: January 26, 2004

Date Decided: February 25, 2004

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